Encinitas Has No Plans to Follow State Move Allowing Less Transparent Government

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Encinitas officials say they won’t change longstanding policies of public transparency in the wake of softened Brown Act rules.

In June, California cities and counties were given the option of becoming more secretive.

The state Legislature suspended Brown Act mandates that local jurisdictions—cities, counties, school districts, water districts and special districts—post meeting agendas for the public. The suspension also allows local boards and councils to forgo reporting to the public about actions taken during closed-session meetings.

The number of California municipalities choosing to abandon the transparency mandates is unknown.

But Encinitas plans to continue its practice of posting agendas ahead of meetings and announcing the results of closed sessions.

"We will continue posting agendas as always and reporting out of closed session as we have always done," said Encinitas City Manager Gus Vina in an email to Patch.

A copy of city council and commission agendas is made available three days before the scheduled meetings. The agendas also are posted on the city’s website; school board agendas are posted on the Encinitas Union School District's website.

School districts, according to Dannis Woliver Kelley, a law firm with offices in San Diego that specializes in education law, are not exempt from Brown Act provisions, despite the legislature's vote last month. 

According to a memo prepared by the firm, “obligations under the Brown Act remain fully in effect for school districts and colleges. School districts and colleges may also continue to file reimbursement claims for mandated costs of compliance.”

Encinitas City Councilwoman Teresa Barth wasn't happy with the suspension of Brown Act provisions, which she expressed in a on Patch. 

"In California, the cornerstone of openness and transparency in government is the Brown Act," she stated. "Without public notice of where and when meetings are scheduled and what business is to be addressed the public is shut out of the decision making process. Futhermore, actions taken in closed sessions may never be reveled to the public."

Barth is requesting that this issue be placed on the agenda for the Aug. 15 city council meeting, which is the first meeting after the summer recess.

"It is critical that the city of Encinitas send a clear message to the citizens that we value open government and public participation," she said.

Former San Diego Councilwoman Donna Frye echoed those thoughts, recently telling the San Diego Reader that efforts to water down the Brown Act would be “bad news for the public.”

“It would be impossible for the public to participate if no agenda was posted,” the Reader quoted Frye as saying. “However, I believe the City of San Diego will still comply with the agenda posting requirements. If not, I am certain that the public and media outrage would be immediate and severe.”

Jim Ewert, general counsel for the California Newspaper Publishers Association, told the Riverside Press-Enterprise he is “significantly concerned” about the suspension.

Citizens have no legal recourse, if some officials “see it in their best interest to cut a corner here or there,” Ewert was quoted as saying last week.

The League of California Cities is expected to release an official statement on the issue soon, but the group’s communications director Eva Spiegel said for now the suggestion to cities is “stick with the status quo.”

“The League has been very involved with the Brown Act,” she said. “We have always encouraged transparency.”

How the state came to the decision of suspending the Brown Act mandates boiled down to one thing: money.

In California, mandates placed on local jurisdictions by Sacramento must be funded by the state. In the case of the Brown Act mandates, the state was subsidizing nearly $100 million a year by some estimates.

So in an effort to cut expenditures, the state decided to suspend the mandates.

Vina, however, said Encinitas doesn't see full reimbursements from the state, yet city officials continue to observe the mandate, along with many others.

"As long as I can remember the state has been unable to reimburse local government at one hundred percent," he said. " I think it is important to note that there are many state mandates that we carry out that do not get fully reimbursed and we still do them."

Vina also pointed out that according to the Governor's adopted solutions for the state budget, numerous mandates are going to be suspended—and the Open Meetings Act/Brown Act Reform is only one of many.

State Sen. Leland Yee, D-San Francisco, has introduced Senate Constitutional Amendment (SCA 7) that would ask California voters if they want the transparency. If approved by the voters, the amendment would become law, which means it could not be suspended again without a vote of the public.

The amendment is currently stalled in the Appropriations Committee. Barth is encouraging voters to contact Assemblymember Fuentes, Chair of the Assembly Appropriations Committee, and Speaker of the Assembly John Perez, urging them to let the bill go to the full assembly for a vote.

“To anyone who's been watching this issue for a while, the real news is not that the Brown Act can be so dependent on the state budget,” said Terry Francke, the California media law expert and general counsel for CalAware. “The real news is that 17 people in Sacramento are denying the public the chance to say ‘Enough.’ ”

In the meantime, the suspension could last through 2015, so it appears the public will need to demand transparency from its representatives if it wants to stay informed, Francke said.

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