Open Meetings and Transparency
It was a beautiful October day when former Nonesuch County Fire Chief Alton Jennings was put to rest in the Nonesuch County Cemetery. Bagpipes played, scores of firemen wearing full dress uniform paid tribute and falling leaves complemented the autumn flower arrangements flanking the casket. Many local government officials including all five members of the Nonesuch County Board of Supervisors attended to honor the beloved chief.
After the service County Supervisor Andrew Allen congratulated Harry "Hub" Hubbel, the director of the Nonesuch County Public Cemetery, on the lovely appearance of the grounds. After acknowledging the praise, Hub mentioned the fact that they were beginning to run out of room in the cemetery. He happened to know that the acreage next door to the cemetery was for sale at a very good price. The owner was in financial straits and very eager to sell. He suggested that the County look into its purchase to expand the public cemetery grounds. Hub told Supervisor Allen that he had mentioned the possible purchase to Supervisor Barbara Bates at the church pancake breakfast the previous Sunday and Supervisor Bates said she would vote for the expansion. Supervisor Allen, always in lockstep with Supervisor Bates, nodded and said purchasing the property sounded like a wonderful idea. "Let's do it," he said. Hub caught Barbara Bates' eye across the grounds, tipped his head toward Allen, and nodded.
Later at the wake, Hub brought a beer over to Supervisor Carl Carnegie. He mentioned that both Allen and Bates were onboard to expand the cemetery by purchasing the property next door. Hub knew that Carnegie was facing a tough re-election . He opined that expansion of the cemetery would be very popular with the electorate, as so many had family buried in the cemetery and hoped to be buried there themselves one day. Supervisor Carnegie nodded, delighted with the prospect of more votes. He guffawed, raised his glass, and said "Here's to being buried with family!" Hub waved to Bates and Allen, pointed at Carnegie and gave a big thumbs up.
- Does this scenario raise ethical issues for the County supervisors?
- Does this scenario raise ethical issues for the director of the public County Cemetery?
- What are the potential ramifications if the County purchases the land?
- Would it change your analysis if Hub only spoke to Allen and Bates?
- Would it change your analysis if Hub did not let the supervisors know of the others' opinions on the matter?
- Would it change your analysis if the funeral and reception were widely publicized and open to the public?
Comment
In California, local governmental bodies, including counties, are governed by the California open meetings law known as the Brown Act. The Act is found in sections 54950-54963 of the California Government Code. The statute explains the ethical necessity for open meetings as follows:
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. Cal. Gov. Code §54950
Accordingly, meetings of legislative bodies must be duly noticed as to location, time, and subject matter so as to give the public the opportunity to participate in the governmental process. Cal. Gov. Code §54953. A meeting for Brown Act purposes is one where a majority of a government body meets and discusses items of business within that body's jurisdiction. Cal. Gov. Code § 54952.2 (a). The Brown Act further prohibits government actors from using a series of communications of any kind, either directly or through intermediaries, to discuss, deliberate or take action on the body's business outside of a duly noted public meeting. Cal. Gov. Code §54952.2(b)(1). When a majority have communicated their opinions on a subject to each other in a series of communications and developed a collective agreement on an action, an improper serial meeting has taken place. A hub and spoke serial meeting occurs when an outsider—the hub—communicates the opinions of a majority of the members—the spokes— to each other. (For a good description of the what is required for a hub and spoke serial meeting through an intermediary see the California League of Cities publication Open &Public IV; A Guide to the Ralph M. Brown Act.)
In the Nonesuch situation, the fact that all of the County supervisors attend the fire chief's funeral is not a meeting for Brown Act purposes because there is an exemption for a gathering of a majority of a public body on ceremonial occasions. Cal. Gov. Code §54952.2 (c)(5). However, when Harry Hubbel (the hub) discussed the cemetery expansion project he not only spoke to a majority of the members of the pertinent government body (the spokes) he also communicated to each the opinions of the others. This allowed the supervisors to form a collective concurrence agreeing to the expansion. Accordingly, Allen, Bates, and Carnegie, as a majority of the County Board of Supervisors have deliberated on a County issue outside of the public arena. The secret serial meeting has deprived the public of participation in the deliberative process and a Brown Act violation has occurred. If the County goes ahead and purchases the land, and the purchase is challenged, the transaction could be overturned on the basis that the public did not have the opportunity to be heard on the purchasing decision.
If Hubbel had spoken to only two of the supervisors, there would be no violation because he would not have spoken to a majority of the Board of Supervisors. If he had merely advocated his cause without communicating the conclusions of the supervisors, they could not have developed consensus on the matter, and again there would not have been a violation. Finally the fact that the funeral and reception were open to the public does not provide a safe harbor because duly noticed meetings require that the public be notified as to the subject matter of the meeting. Here all that was publicized was the funeral and wake for Chief Alton Jennings, with no mention of a discussion of the cemetery expansion.
Hana Callaghan is the director of government ethics at the Markkula Center for Applied Ethics.
August 2014
