Analysis
What Is the Brown Act?
In understanding how the Brown Act upholds our rights, we can better identify when those rights are violated and what we can do about it.
You’d think that the fifteen LA City Council Members who’ve dedicated their lives to serving the public would be more interested in actually hearing from us. But, as anyone who’s given public comment knows, our elected leaders are often openly hostile towards their constituents — especially with the recent uptick in participation from those of us concerned about the pandemic, the election, and the general crumbling state of humanity. Lucky for us (and much to Nury Martinez’s chagrin), we the people have very clear rights when it comes to our role in local government, and those rights are laid out by the Brown Act. If you’re not familiar with the Brown Act, that’s okay. These things are prohibitively opaque, and that’s no coincidence. But it’s time to know your rights (and how the city council will try to violate them anyway).
In 1953 California passed the Brown Act, which was designed to ensure that the public has access to how local legislative bodies make decisions (such bodies include city councils, county boards, neighborhood councils, etc), and that the public is given an opportunity to voice our opinions on such decisions. It’s what’s known as a “Sunshine Law,” which refers to any piece of legislation that upholds the people’s right to be informed and involved in governmental proceedings (the term “Sunshine Law” dates back to a piece of Florida legislation in the 60s that called for “Government in the Sunshine,” because it sheds light on legislative wheeling and dealing — cute, get it?). Basically, the Brown Act says that the public’s business should be conducted in public view and with public input. It’s crucial that we understand our rights so we know when they are being upheld and when they are being ignored.
There are three main components of how the Brown Act works. First, meetings must be held in a manner that’s accessible to the public. Second, there must be adequate advance notice as to the date, time, and agenda for a meeting so that the public has a chance to prepare should we decide to attend or participate. Which brings us to the third main component: public hearing. This means that the public must always be given an opportunity to voice our opinions on the proceedings of a legislative body (tl;dr: we have a right to give public comment).
So what do these three components look like in practice? Let’s start with the first facet: public accessibility. At its most basic, this means that public decisions are discussed publicly. The people have the right to witness the discussion of our business out in the open, and legislators should not be meeting behind closed doors to settle matters that impact our lives. Public accessibility is also an issue of where meetings are held. Any meeting of a legislative body must occur in a building that is accessible to all disabled persons. Historically, this has meant that “reasonable accommodations” be made to ensure that the building is, for example, wheelchair-accessible, or that a sign language interpreter or braille materials are provided. However, it wasn’t until the pandemic shuttered in-person meetings that council made them accessible via phone or Zoom. In the past, only people who could physically come to a meeting were able to participate (you could call in to listen, but not to comment). A murkier question of accessibility is when meetings are held. LA City Council has come under fire for holding their regular meetings in the middle of the weekday, when many people are not able to take off work to attend. Though this may seem like an unavoidable casualty of the nine-to-five work schedule, many governing bodies in California have built their schedule around the needs of most working people, such as the South San Francisco City Council who host their meetings at 7pm.
The second facet of the Brown Act is advance notice. All regular meetings must have an agenda posted in a location that is “freely accessible to the public” at least 72 hours in advance of each meeting so the people have adequate time to prepare. But the stipulations as to where and how notice must be posted are mutable. Currently our city council sends out emails with a link to each week’s agenda, but meeting notices in the past have been printed and tacked up in a public space or published in the newspaper. It’s critical that the method of public notice is appropriate for how the public is actually accessible at the time.
“Special meetings” only require a 24-hour heads up, and the circumstances that permit a special meeting are not clearly-defined. This loophole is something our council often takes advantage of when they want to sneak something in and give us less lead time to organize. For example, when cruel revisions to LA’s cynically-named “Anti-Camping Ordinance” (41.18) were first brought up for a vote in late October (conveniently during the chaotic week leading up to the election), housing activists were surprised that the item was not on the agenda for council’s regular Tuesday meeting. Then, with just 24-hours notice and after bypassing the traditional committee process (more on that later), an agenda for a special Wednesday meeting went out — leaving the public scrambling to organize a last-minute pushback on this hideous item. For LA City Council, this isn’t unusual. A lawsuit brought against the city by Eric Preven last year counts over 100 special meetings called by LA City Council between 2015 and 2019. That means the council forced over 100 meetings through this Brown Act loophole that only requires they give 24-hour advance notice. The council would also often schedule a regular meeting and a special meeting simultaneously, making it impossible for people to attend both at once.
Advance notice isn’t just about when an agenda is posted but also about what’s posted. All agendas must include a brief, clear description of each item so the public knows what’s being voted on. This may seem obvious, but before this rule was put in place some legislative bodies took advantage of the opacity (simply listing an item number with no description) to get away with things like voting for their own salary raises without anyone knowing. In addition, the council is not permitted to discuss or vote on anything not agendized.
The last component of the Brown Act is the right to public hearing, or public comment — the idea being that we have the right to make our opinions heard about a piece of legislation before that legislation is voted on. For regular meetings, the public has a right to two different kinds of public comment periods: comments on specific agendized items and general public comment. The council has the right to keep public comments “on topic,” though you may have noticed this power is selectively deployed. Oftentimes, our council president will allow offensive, off-topic, and expletive-ridden commenters to drone on for a full four minutes, eating into everyone’s allotted comment time, while cutting off diligent activists who happen to briefly reference an item that was skipped over by the council. It’s crystal clear which constituents they want to hear from, and which they don’t.
The order and exact amount of time for these comment periods is up to each legislative body, but specified time for an itemized public comment must occur before it’s voted on. For example, the council can’t vote on item 47 and then allow public comment on item 47 after it’s already been voted on, that would defeat the purpose of public comment. Where this gets tricky, particularly in Los Angeles, is when items are brought up first in a smaller committee meeting and then in a general council meeting. Our city council is notorious for hiding controversial motions in less-frequented committee meetings, allowing for public comment time there, and then avoiding the need for public comment in the general meeting by claiming to have fulfilled their Brown Act requirements in committee.
Before Mr. Preven’s lawsuit, the city would bury items in committee meetings and then obscure them again by taking them off the regular agenda and voting on them in a last-minute special meeting where they’d refuse public comment time. However, Preven won his case in the court of appeals and now the public must be given time to comment on all items agendized in a special meeting, regardless of whether or not they’ve been previously discussed in committee. Also, a little tip: you are not required to give your name or address in order to give public comment, so you do you.
In understanding how the Brown Act upholds our rights, we can better identify when those rights are violated and what we can do about it. However Brown Act violations can be tricky to prosecute — namely because it’s hard to prove the public was left out of something we weren’t able to witness in the first place. For example, for decades LA City Council was known for suspiciously unanimous votes. Now, of course it’s possible that all 15 councilmembers genuinely agreed on every single item brought to a vote, but what’s more likely is that councilmembers were meeting behind closed doors to discuss support for each other’s motions ahead of meetings and showing up with their decisions already made. But this is hard to prove. How can the public demonstrate that a conversation we weren’t able to witness took place? So even though back-door meetings might be relatively common, they’re one of the least-prosecuted Brown Act violations.
Generally, when a legislative body is sued for Brown Act infractions, it’s on the grounds of inadequate public notice. This isn’t because inadequate notice is the most rampant issue, but because it’s the easiest to demonstrate. If a notice is not timestamped at least 72 (or 24) hours ahead of a meeting, there’s a clear papertrail to support your case. The consequences for a Brown Act violation are most often the nullification of a vote or action, though occasionally there are penalties to the legislative body. But of course, sometimes such justice comes too little too late. For example, if the council votes to demolish a building without adequate notice of its demolition, but the building is demolished by the time they’re charged with a Brown Act Violation, that building can’t be un-demolished. Usually Brown Act legal battles are used to slow projects and buy time.
The Brown Act is vital to the future of grassroots organizing and public participation in politics. As we go forward, this legislation will have to address the shifting landscape of how public business is conducted — whether that’s in-person, over Zoom, or from geodesic domes scattered throughout the dusty ruins of a fire-ravaged California. For decades, local government has relied on our unfamiliarity with the Brown Act in order to legislate without scrutiny. But when we know our rights, we cannot be kept in the dark.
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