Acknowledge when a Brown Act violation occursBy: Carol Feineman, Editor
Ralph M. Brown Act
54950. In enacting this chapter, the Legislature finds and declares
that the public commissions, boards and councils and the other
public agencies in this State exist to aid in the conduct of the
people's business. It is the intent of the law that their actions be
taken openly and that their deliberations be conducted openly.
The people of this State do not yield their sovereignty to the
agencies which serve them. The people, in delegating authority, do
not give their public servants the right to decide what is good for
the people to know and what is not good for them to know. The people
insist on remaining informed so that they may retain control over the
instruments they have created.
54954.2. (a) (1) At least 72 hours before a regular meeting, the
legislative body of the local agency, or its designee, shall post an
agenda containing a brief general description of each item of
business to be transacted or discussed at the meeting, including
items to be discussed in closed session. A brief general description
of an item generally need not exceed 20 words. The agenda shall
specify the time and location of the regular meeting and shall be
posted in a location that is freely accessible to members of the
public and on the local agency's Internet Web site, if the local
agency has one. If requested, the agenda shall be made available in
appropriate alternative formats to persons with a disability, as
required by Section 202 of the Americans with Disabilities Act of
1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations
adopted in implementation thereof. The agenda shall include
information regarding how, to whom, and when a request for
disability-related modification or accommodation, including auxiliary
aids or services, may be made by a person with a disability who
requires a modification or accommodation in order to participate in
the public meeting.
Lincoln City Council and Lincoln city attorney Jon Hobbs owe resident Byron Chapman an apology.
Chapman was treated appallingly at the Feb. 11 City Council meeting by the city representatives when he pointed out an alleged Brown Act violation.
During the first part of the meeting, Chapman asked the councilmen if the meeting’s change of location that night from the McBean Park Pavilion to City Hall was properly disclosed, according to Brown Act code section 54954.2A1.
That code section states that “the agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public and on the local agency’s Internet Web site” at least 72 hours before a regular meeting.
Lincoln City Manager Jim Estep answered Chapman by saying that the notification was placed 24 hours prior to the Feb. 11 meeting. Estep admitted that the notice was posted one day earlier than the meeting, which is not the code-mandated three-day notice.
I admit that I’m not a fan of Chapman. While I’m very sorry that he is in a wheelchair, I don’t like Chapman threatening a lawsuit this past year to make city staff address accessibility issues. I know other residents in wheelchairs who don't antagonize staff when they report public buildings and streets that need repairing.
And Chapman offended many in the Feb. 11 audience, including me, when he later mimicked a stereotypical caricature of a slave. He used that drama to highlight what he saw as civil-rights concerns about Americans with Disabilities Act violations at the McBean Park Pavilion.
But Chapman has every right to publicly comment at City Council meetings if he believes there is a Brown Act violation.
The city attorney patronized Chapman for doing so at the Feb. 11 meeting.
Council members should have thanked Chapman for pointing out the violation so that it’s not repeated again.
And yet the council members (which include businessmen, an attorney and a retired banker) appeared tense and remained silent.
In response to Chapman’s initial questions, Mayor Gabriel Hydrick said he would “defer to the city manager actually real quick because of the way that I feel we are being put, put on the spot to seek his council.”
Hydrick and the other councilmen let the Lincoln city attorney talk down to Chapman, and in essence, the public when Hobbs said to council, “Let me see if I can help you out. The city has complied with the Brown Act. You’re under no obligation to respond to questions or be interrogated by members of the public. We did comply with the Brown Act, and um, I don’t have any concerns about that. The notices posted 24 hours yesterday as a result of a, a storm where we couldn’t hold the meeting there. The agenda, the regular agenda was posted 72 hours in advance of that.”
And yet City Manager Estep told Chapman that the notice was placed within 24 hours of the Feb. 11 meeting.
According to California Newspaper Publishers Association’s general counsel Jim Ewert, it is a Brown Act violation.
Ewert told The News Messenger last week that if the (council) meeting was a regularly scheduled meeting, the city cannot make any changes to the agenda without a 72-hour notice.
“That includes a change of location for the meeting,” Ewert said.
City attorney Hobbs, though, was adamant at the Feb. 11 City Council meeting that it wasn’t a Brown Act violation.
How can Hobbs deny that placing the pavilion notice within 24 hours, according to the city manager, instead of the mandated 72 hours, is a Brown Act violation?
It might be a “minor” violation compared to other potential Brown Act violations, such as a council member leaking closed session information as occurred in December 2012, but there’s a principle involved.
That principle is: What other advice that council depends on from the city attorney is not correct?
“You guys are duping the public but you’re not duping me.” Chapman said, almost in a whisper, before leaving the podium at the City Council meeting.
This time, he wasn’t being showy. Chapman seemed truly puzzled by City Council’s and the city attorney’s reactions.
We’ve been a little too trusting of our city attorney and, just as importantly, City Council’s pattern of not sometimes questioning its legal representation.
Thanks to Chapman, we've learned our lesson to be more aware.
And I see two lessons for city staff. First, the city attorney should not be so condescending to the public. Second, councilmen should acknowledge when there is a Brown Act violation.