PART II (of II): Mayor Promotes Closed, Secretive Government through Ad Hoc Advisory Committees

With regard to ad hoc advisory committees, Mayor Sue McCloud has a record of initiating the creation of ad hoc advisory committees without direction for open meetings which is within her power to do at the time of the formation of the ad hoc advisory committees.

Basically, with respect to California’s Ralph M. Brown Act, there are two types of city council subcommittees: standing committees and ad hoc advisory committees. Under the Brown Act, ad hoc advisory committees are not required to comply with open meeting requirements, although the mayor can direct ad hoc advisory committees to conduct open meetings when the committees are formed.

Furthermore, ad hoc advisory committees have certain characteristics, including:

1. Created by the mayor; members are appointed by the mayor.

2. Ad Hoc Committees are composed of less than a quorum of the City Council.

3. Ad Hoc Committees have a “fixed, limited assignment;” they are created for a limited time for a particular purpose.

4. In general, the purpose of Ad Hoc Committees is for detailed review and analysis of complex issues.

5. The findings and recommendations of the Ad Hoc Advisory Committees must be presented to the City Council at a noticed meeting.

6. Ad Hoc Committees are disbanded after completion of their “assignments.”

Important information about Ad Hoc Advisory Committees from The Ralph M. Brown Act, as follows:

Ad Hoc Advisory Committees

CHAPTER I.
PURPOSE AND SCOPE
The Ralph M. Brown Act (Gov. Code, § 549501 et seq., hereinafter “the Brown Act,” or “the Act”) governs meetings conducted by local legislative bodies, such as boards of supervisors, city councils and school boards. The Act represents the Legislature’s determination of how the balance should be struck between public access to meetings of multi-member public bodies on the one hand and the need for confidential candor, debate, and information gathering on the other. As the rest of this pamphlet will indicate, the Legislature has established a presumption in favor of public access. As the courts have stated, the purpose of the Brown Act is to facilitate public participation in local government decisions and to curb misuse of the democratic process by secret legislation by public bodies. (Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 555.) To these ends, the Brown Act imposes an “open meeting” requirement on local legislative bodies. (§ 54953 (a); Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1116.)

However, the Act also contains specific exceptions from the open meeting requirements where government has a demonstrated need for confidentiality. These exceptions have been construed narrowly; thus if a specific statutory exception authorizing a closed session cannot be found, the matter must be conducted in public regardless of its sensitivity. (§ 54962; Rowen v. Santa Clara Unified School District (1981) 121 Cal.App.3d 231, 234; 68 Ops.Cal.Atty.Gen. 34, 41-42 (1985).)

Any board, commission, committee or other body of a local agency created by charter, ordinance, resolution or formal action of a legislative body is itself a legislative body. (§ 54952(b).) Generally, this is the case regardless of whether the body is permanent or temporary, advisory or decision-making. However, there is a specific exemption for an advisory committee which is comprised solely of less than a quorum of the members of the legislative body that created the advisory body. (§ 54952(b).) This exception does not apply if the advisory committee is a standing committee. (§ 54952(b).) A standing committee is a committee which has continuing jurisdiction over a particular subject matter (e.g., budget, finance, legislation) or if the committee’s meeting schedule is fixed by charter, ordinance, resolution or other formal action of the legislative body that created it. (See examples, infra, p. 6.)

When a legislative body designates less than a quorum of its members that does not constitute a standing committee to meet with representatives of another legislative body to exchange information and report back to their respective bodies, a meeting between the representatives woule be exempt for the Act. (Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 805.) However, if a legislative body designates less than a quorum of its members to meet with representatives of another legislative body to perform a task, such as the making of a recommendation, an advisory committee consisting of the representatives from both bodies would be created. Such a committee would be subject to the open meeting and notice provisions of the Act. (Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 805.) The fact that the advisory committee was contingent upon the second body’s compliance does not detract from the conclusion that the creation of the committee must be attributed to the first body’s action. (Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 805.)

The following illustrates how section 54952(b) operates. A city council creates four bodies to address various city problems.

• Commission comprised of councilmembers, the city manager and interested citizens: This committee is covered by the Act because there is no exemption for it regardless of whether it is decision-making or advisory in nature.

• Advisory committee comprised of two councilmembers for the purpose of reviewing all issues related to parks and recreation in the city on an ongoing basis: This committee is a standing committee which is subject to the Act’s requirements because it has continuing jurisdiction over issues related to parks and recreation in the city.

• Advisory committee comprised of two city councilmembers for the purpose of producing a report in six months on downtown traffic congestion: This committee is an exempt advisory committee because it is comprised solely of less than a quorum of the members of the city council. It is not a standing committee because it is charged with accomplishing a specific task in a short period of time, i.e., it is a limited term ad hoc committee.

• Advisory committee comprised of two councilmembers to meet on the second Monday of each month pursuant to city council resolution: This committee is subject to the Act as a standing committee because its meeting schedule is fixed by the city council.

54952. Definition of legislative body
As used in this chapter, “legislative body” means:

(a) The governing body of a local agency or any other local body created by state or federal statute.

(b) A commission, committee, board, or other body of a local agency, whether permanent or temporary, decision-making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body. However, advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter.

(Source: http://caag.state.ca.us/publications/2003_Main_BrownAct.pdf)
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COMMENT:
While the Sunset Theater Ad Hoc Management Committee, the Sunset Theater Ad Hoc Finance Committee, the Economic Revitalization (ER) Ad Hoc “Team” and the Ad Hoc Library Committee are considered ad hoc committees under the Brown Act, the Traffic Safety Commission, which was defined as a body which would meet on an “as needed basis depending on the number of traffic and safety issues that are submitted for review,” appears to be a standing committee; that is, it is “a committee which has continuing jurisdiction over a particular subject matter” (e.g., traffic and safety). Ergo, the Traffic Safety Commission would be required to hold meetings open to the public.

In any event, as stated in the Brown Act, not only is the Brown Act’s intent to “facilitate public participation in local government decisions and to curb misuse of the democratic process by secret legislation by public bodies,” but exceptions to open meeting requirements are supposed to be “construed narrowly” and the burden is on the government to demonstrate a “need for confidentiality.” Moreover, it is within the power of mayors to dictate that ad hoc committees conduct open meetings at the formation of the ad hoc committees.