Friday, September 19, 2014

The Brown Act: Final Thoughts

Over recent posts, I’ve become ensnared by a daisy chain of subjects.  I argued in favor of the tax measures on November ballots in many communities.  My argument was “We built this stuff, we really should take care of it.”

That stance led me to a proactive argument against those who might argue that government doesn’t deserve more revenue because it’s inefficient.  My grounds for this second argument were that most human activities are inefficient and it’s unrealistic to ask government to exceed our own skills.  Besides, we ask government to do a number of tasks that are particularly prone to inefficiency.

From there, I nominated the Brown Act, California’s open meeting law, as a particular cause of government inefficiency, including an analogy and a handful of anecdotes to support my argument.

Today, I’ll conclude my thoughts on the Brown Act with a case history of open versus closed meetings, a silly result from the literal application of a Brown Act equivalent, and a timid suggestion about an alternative approach to the open meeting law.

Throughout these arguments, I’ve been explaining that, as an urbanist, I care about these issues because it’ll be harder to turn ourselves toward urbanism if we continue to hamstring government with ill-fitting laws and paltry revenue.  When we lack resources, we tend to stay in our rut, even when the rut is what is causing us to lack resources

To begin, I’ll offer a comparison of closed and open meetings.  I’m not suggesting that closed meetings are always the preferred solution.  I don’t believe that.  But closed meetings can sometimes work well.

Many years ago, while living in Oregon, I had a chance to observe two parallel organizations, one working under a closed meeting standard and the other under an open meeting process.

The first organization was the design review committee of a large residential/recreational community for which I was the lead consulting engineer.  In addition to my engineering duties, I also served on the design review committee.  In addition to me, the committee included a pair of architects and two homeowners who had experience in land-use planning and development.

The homeowner association rules called for the committee meetings to be closed.  We took full advantage, closing the doors to the conference room and engaging in two hours of vigorous discussion and debate.  Sometimes we got raucous, at other times we slid into political incorrectness, but I remain convinced that we did a fine job, often finding unexpected consensuses that made the project an architecturally distinguished place.

But, predictably, the homeowners affected by our process often disagreed with my assessment of our performance.  Homeowners proposing new homes believed that they could convince us to reduce the standards if only they could talk with us.  Neighbor adjoining proposed new homes believed that they could convince us to impose stricter standards if only they could talk with us.  Although their beliefs were diametrically opposed, they made common cause and approached the development president, asking for our meetings to become public.

There was an older, well-established destination resort a few miles from town.  It was a successful place, although the architecture was less distinguished than at my project.  Also, their design review meetings were open to the public.  So the president of my project asked a couple of committee members, including me, to attend one of their meetings.

It was an eye-opening experience.

The meeting room was well-filled.  As each home was announced, the homeowner, and perhaps also the architect, would speak in defense of the home design.  And then several neighbors would also speak, usually asking for design changes.

When the speakers were done and without any committee discussion, one of the committee members, the assignment seemed to rotate, would pull out a piece of paper, read off a grammatically concise but bureaucratically bland list of perhaps twenty proposed conditions.  The committee would then vote unanimously to approve the project.

I never learned the source of the list of conditions, whether the committee had met secretly beforehand to reach conclusions or whether staff has prepared the list.  But the effect was more poorly staged than an Eastern European show trial before the parting of the Iron Curtain.  The closed meetings at my project were resulting in more comprehensive design review and the results were evident on the ground.

Some will argue that committee debate could have followed public testimony and they’d be right.  But the closed meetings in which I participated needed two full hours.  The open meeting that I observed took about two-and-a-half hours.  Combining the two and adding an allowance for a more stilted debate in front of observers, a meeting time of more than five hours seemed likely, which is well beyond the endurance of most committee members and the observing public.  Nor do I think it would result in better decisions.  Indeed, I expect the reverse would have been true.

My companion and I reported our observations back to the president of my project and our meetings remained closed, at least for awhile longer.

I know this is only one comparative example, but even one data point is enough to establish that open meetings aren’t always better.

Brown Act-type rules can also lead to farce.

Later during my time in Oregon, I found myself as a participant in an impromptu theatre of the absurd because of the Oregon equivalent of the Brown Act.  (I don’t recall the name of the Oregon law, but it functioned much like California’s Brown Act.)

A good friend was an Oregon legislator.  He and his wife hosted an annual New Year’s Eve party which all the local politicos attended.

Late on New Year’s Eve 1999, I was deep in a conversation with the Oregon Secretary of State about alternative voting rules when my friend tapped me on the shoulder, asking me to babysit a County Commissioner.  Under Oregon law, a majority of any public body can’t simultaneously attend the same social event.  The local County Commission included only three members, so the limit was one Commissioner at a time.

A Commissioner, a particularly talkative and congenial sort, had been at the party since it began.  But a second Commissioner had now arrived.  The first Commissioner was heading toward the door, but might take several minutes to tell final stories and to offer final New Year’s wishes.  My friend wanted me to keep company with the second Commissioner on the front steps until the first Commissioner departed.

The newly-arrived Commissioner was a good friend and I was happy for the opportunity to chat with her.  But this was the high desert of Oregon at the end of December.  After a week of freezing temperatures and hoarfrost, the weather had finally begun to change in the hours before the party and a light snow was falling through the frost-laden trees.

And so I found myself chatting with a County Commissioner on the uncovered steps as the snow swirled around us.  Occasionally, we’d take a break to shake the flakes out of our hair and to brush the snow from each other’s shoulders.

Eventually, the first Commissioner exited the party, exchanging greetings but no political talk on the front steps, and we were allowed to enter the house.  I’ve often wondered if it truly would have been a violation if the second Commissioner and I had instead waited in the heated entry hall, but as is the case with open meeting laws, paranoia is often the governing standard.

Besides, neither of caught a cold and I collected a great anecdote about the absurdities to which open meeting rules can sometimes reduce us.

Before closing, it seems that I have should have an alternative approach to propose to the Brown Act.  But I don’t.  The Brown Act addresses a legitimate concern.  It does so in a heavy-handed fashion by which public officials seem to be presumed guilty immediately upon assuming office, but the concern about misbehavior remains legitimate.  Dismantling the Brown Act shouldn’t be an option.

But I’ll offer one timid and partial suggestion.  Perhaps the restriction on serial meetings can be lifted, with all officials allowed to communicate with all other officials.  However, those communications could be only via email, going through a server on which all communication can be viewed and searched by the public.  To learn the position of Councilmember Smith on a new parking standard, one could search for his emails on the subject.

Perhaps any public communication to the council could go through the same server, so the positions of one’s neighbors on the parking standard could also be checked.

I’m not arguing that this public email server would be a panacea.  Any communication through it would be awkward and stilted.  But it might be a marginal improvement over the current rules, and marginal improvements toward the cause of more efficient and effective government are worth pursuing.

With that, I’ll leave the Brown Act for now.

For my next post, I’ll also leave the upcoming election behind and return to my version of catnip, the subject that I just can’t seem to let alone.  Block parties.  I’ve been invited to one final end-of-the-summer block party in Petaluma and have been promised an interesting story about the organizers’ effort to get their party approved by the local authorities, which I plan to share.

As always, your questions or comments will be appreciated.  Please comment below or email me.  And thanks for reading. - Dave Alden (

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