By [post_author] –
Posted on Freedom Advocates on January 7th 2008
LAFCO, a regional land-use agency made up of appointed members, holds secret meetings in violation of the law.
James Madison once warned that “[a] popular government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors must arm themselves with the power that knowledge gives.” Similarly, our courts have recognized that “secrecy is antithetical to a democratic system of ‘government of the people, by the people [and] for the people.’” (San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 771-772.)
The Brown Act, codified at Government Code section 54950 et seq., provides one of our most effective safeguards against governmental secrecy. The Brown Act requires that local public agencies conduct their meetings openly and that any member of the public must be allowed to attend. Thus, local government agencies must provide full public notice of the time and place that a meeting will be held and the topics to be discussed.
Unfortunately, some local government bodies have devised clever means of evading their open meeting obligations. For example, in every county in this state is a Local Agency Formation Commission (LAFCO). LAFCOs are invested with broad powers and exercise decisionmaking authority over proposals for the creation of new agencies or boundary changes in existing agencies, including annexations and incorporation proceedings. LAFCOs are also charged with the responsibility of discouraging “urban sprawl,” a power often exercised to the disadvantage of private property rights.
As a means of coordinating their efforts and activities on a statewide basis, the LAFCOs banded together and founded the California Association of LAFCOs (CALAFCO). CALAFCO is a nonprofit corporation whose membership is comprised of all but one of the 58 LAFCOs in this state. Its Board of Directors is made up exclusively of public officials chosen from among the individual LAFCOs. CALAFCO is funded by dues paid by every county whose LAFCO is a member of CALAFCO.
Several months ago, my firm received a telephone call about a meeting to be conducted by the CALAFCO Board of Directors in Sacramento. However, the caller could not identify either the time or place for the meeting. We attempted to verify the meeting on the CALAFCO website, but the website made no mention of the meeting. Nor was there any indication that the CALAFCO Board had complied with any public notice or other open meeting requirements.
The caller informed us that CALAFCO was meeting to discuss a request from the San Mateo LAFCO for amicus support in an action currently pending before the First Appellate District. Actually, San Mateo’s “request” was really an offer to draft an amicus brief to be signed by CALAFCO’s legal counsel. Of course, San Mateo had already filed briefs on the merits of the case, but it nevertheless wished to raise further arguments under the guise of a CALAFCO amicus brief.
Naturally, we were interested to hear what public officials from around the state thought about the case. So, one of my associates e-mailed every member of the CALAFCO Board of Directors requesting information about the meeting. The next day, about fifteen minutes before the CALAFCO meeting was scheduled to begin, we received an e-mail from one of the CALAFCO Board members identifying the time and place of the meeting. Interestingly, the e-mail was sent from a different e-mail address than the CALAFCO address provided on the website. What my associate encountered upon his arrival at the meeting presents a troubling view as to how these government officials do business.
My associate entered the meeting room while the CALAFCO Board was in the middle of discussing a particular item. The Board took notice of his presence and thereupon required him to identify himself on the record. Of course, the Brown Act expressly prohibits such forced identifications. (Gov. Code, § 54953.3.) My associate identified himself, his association with The Zumbrun Law Firm and his involvement in the pending litigation against San Mateo LAFCO. He further expressed his interest in hearing whether CALAFCO would offer San Mateo the amicus “support” requested.
The CALAFCO Board hastily declared that they were not required to hold public meetings and that discussions with San Mateo LAFCO regarding the pending litigation were protected by some generic privilege as communications regarding legal strategy. My associate expressed his concern that CALAFCO was not a party to any litigation, and that it was rather a disinterested group of public officials discussing matters of public interest and he wished to be present during the discussions. Indeed, the court of appeal has explicitly held that the Brown Act does not authorize closed session meetings when a nonprofit corporation discusses litigation in which it is not a party. (Shapiro v. Board of Directors of the Centre City Development Corporation (2005) 134 Cal.App.4th 170.) Nevertheless, the CALAFCO Board refused to allow him to attend the meeting.
CALAFCO’s self-declared purpose is to coordinate LAFCO activities through information and resource sharing and to represent LAFCO interests before the Legislature and other government bodies. Furthermore, CALAFCO frequently drafts and comments on legislation relevant to LAFCO interests. Unfortunately, many people are unaware of CALAFCO’s wide-ranging functions and operations. That is because CALAFCO refuses to comply with state law open meeting requirements and instead operates only behind closed doors.
Each LAFCO in this state is subject to the open meeting requirements of the Brown Act. (Gov. Code, § 54952(a).) So why are these agencies not bound by the same laws when they band together to act in a collective, rather than individual, capacity? After all, the public officials who serve on the CALAFCO Board of Directors are the very same public officials who serve on the individual LAFCOs.
CALAFCO believes that it is immune from open meeting requirements simply because it is organized as a 501(c)(3) nonprofit corporation. However, California courts have found such nonprofit corporations to be subject to open meeting requirements under certain circumstances. (See Shapiro, supra, 134 Cal.App.4th 170; Epstein v. Hollywood Entertainment District II Business Improvement District (2001) 87 Cal.App.4th 862.) The Attorney General has also issued an opinion extending the Brown Act’s open meeting requirements to a nonprofit corporation created by a local agency. (Op.Atty.Gen. No. 01-401 (2002).)
Under the Brown Act, the Board of Directors of a private, nonprofit corporation is subject to open meeting requirements when the corporation (1) is created by a local government agency to exercise authority that the agency may lawfully delegate, or (2) receives funds from a local government agency and its Board of Directors includes a member of the local government agency. CALAFCO is a publicly funded entity whose Board of Directors is comprised exclusively of local government officials selected from among the individual LAFCOs. Therefore, CALAFCO should be required to comply with the Brown Act’s open meeting requirements.
If each individual member of CALAFCO is subject to open meeting laws, then why is CALAFCO not also subject to the same requirements to which each of its members is bound? The Brown Act is designed “to facilitate public participation in all phases of local government decisionmaking and to curb misuse of the democratic process by secret legislation of public bodies.” (Epstein, supra, 87 Cal.App.4th at p. 868, emphasis added.) CALAFCO is an entity that frequently drafts and comments on legislation and serves as a statewide coordinating body for the individual LAFCOs. If the CALAFCO Board of Directors (i.e., a group of government officials) is drafting legislation to submit to the Legislature, shouldn’t the public be allowed to participate in that process? Shouldn’t the public at least be made aware of that process? Who knows what other actions the CALAFCO Board undertakes in the absence of public scrutiny? What are they trying to hide?
One glimpse into the type of “information sharing” conducted by CALAFCO appears in a survey summarized in a report prepared by CALAFCO’s Legislative Subcommittee. The CALAFCO survey solicited responses from LAFCOs across the state as to a variety of questions, including one asking how LAFCOs fund certain activities. One LAFCO candidly responded: “Through tactful negotiation, luck, deceit and strong arm tactics.” (http://www.calafco.org/docs/COMBINED_SOI-MSR_REPORT.pdf, at pp. 25-26.) What LAFCO issued that response? Surely, the citizens of the county where that LAFCO operates would be interested in learning about the types of deceitful and strong arm tactics utilized by their elected officials.
Unfortunately, those types of candid statements are usually only made when there is no threat of being held accountable or responsible. That is why the Brown Act expressly declares that the people “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.” By requiring that government officials conduct the people’s business openly and in full view, we ensure that the public remains informed, and we further guarantee that our public officials remain accountable to those whom they are entrusted to serve. The use of CALAFCO as an umbrella organization under which the county LAFCOs can pursue their agendas free from the restraint of open meeting laws flouts these democratic ideals.
The LAFCOs across this state rely heavily on the aid provided by CALAFCO. A quick browse among the various LAFCO websites demonstrates the importance of CALAFCO at the local level. Indeed, Imperial County describes CALAFCO “as an umbrella organization dedicated to assisting the member LAFCO’s [sic] with technical support and statewide communication.” Santa Barbara County describes CALAFCO as a body that “coordinat[es] LAFCO activities throughout the State and represent[s] LAFCO interests before the Legislature.” Riverside County notes that CALAFCO provides assistance to “member LAFCOs with technical resources that otherwise would not be available.”
However, even though it is evident that CALAFCO plays a significant role in the operations of LAFCOs at the local level, it is impossible to really calculate how significant that role is. That is because none of the individual LAFCOs, or CALAFCO itself, endeavors to identify exactly what “resources” or “information” or “technical support” it provides. Don’t we have a right to know? After all, our tax dollars are paying for those resources “that otherwise would not be available.” Secrecy in government is absolutely inconsistent with democratic principles of accountability and popularly elected government. When government officials undertake to conduct their operations in secret and behind closed doors, the people of this state are deprived of their ability to hold those officials accountable. We have a right to know where our tax dollars are going and how they are being used. The government officials who serve on the various LAFCOs across the state become no less accountable to the public when they purport to act on behalf of CALAFCO. Hopefully these officials will accept the responsibilities of their posts and will open their operations to the public. Perhaps then this idea that ours is a government “of the agencies, by the agencies, and for the agencies” will indeed perish from this state.
Ronald A. Zumbrun is Managing Attorney of The Zumbrun Law Firm, a Sacramento-based public issues firm. Todd M. Ratshin, Associate Attorney with The Zumbrun Law Firm, assisted in preparing this article. You can learn more about The Zumbrun Law Firm at www.zumbrunlaw.com.
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