A Remote Possibility for Brown Act Reform

Open and public meetings are a cornerstone of California’s democracy. The public has a right to know what local government is doing.  The Ralph M. Brown Act (Brown Act) guarantees to that local meetings are properly noticed and transparent.

To date, the emphasis of in-person meeting been an important means to assure transparency.  Some remote participation is allowed, but only if the remote space is also noticed and open to the public.

Then the Pandemic happened. Public participation actually increased for many regional agencies. And the experience of suddenly accommodating fully remote meetings during the pandemic taught regional agencies the value of a meeting’s accessibility.

Accessibility Improves Transparency

Prior to the pandemic, the conventional wisdom was that a healthy democracy requires an elected official to be personally available to the residents that elected them. That is a fair point. But it is also most applicable for a local agency meeting that is just across town or a local transit trip away.

But the calculus is different for regional meetings where board members are appointed. There, board members (and the public) must travel greater distances, frequently navigating congested traffic or transfers on public transit. Just getting there doubles the time commitment.

For example, the City of Ridgecrest’s representative to the Kern Council of Governments must travel nearly two hours (one way) to attend meetings in Bakersfield. How is our value of transparency served if the representative legitimately decides that due to job, family, or health issues, they cannot a commit a full day to attend a meeting?

A Step Back

Now that the pandemic-related emergency orders have been lifted, local agencies are returning to their pre-pandemic in-person meeting requirements. Unfortunately, our public meetings are becoming less accessible. Here’s why. Meeting transparency relies in part on meeting accessibility—both for the public and the local officials serving as board members.

During the pandemic, remote access actually increased participation at regional meetings (perhaps because residents did not have to forego an entire evening or take off work for a couple of minutes of testimony). Moreover, the technology helped preserve the meetings transparency—and improved accessibility. They were open and the public attended. So much so that many regions report (anecdotally) that meeting quality improved.

The time would seem ripe to make public meetings more accessible, But last year, the Legislature hesitated. Two Brown Act bills were introduced that addressed remote participation. But only the most restrictive of these—AB 2449—passed. It limits remote participation for limited “emergencies.” A number attorneys we spoke to suggest that these changes are, at best, a tepid improvement. Others predict that it might make matters more difficult for regional governments.

These issues deserve further attention from the Legislature. Fortunately, Senator Portantino has introduced SB 411 that allow remote participation for appointed boards and commissions. (All regional agencies are appointed boards).  Here he is drawing a distinction between the need to have all board members physically present at meetings where they were directly elected to serve, and those in which they are appointed.

This makes sense on a number of levels.

Regional Officials Are Doing Double Duty

Regional boards and commissions serve an important role. They address several cross-boundary issues that include maintaining transportation systems, governing the responsible use of water, developing sustainable communities strategies, and promoting wildfire abatement along the entire forest’s edge.

To address this need, the state has created a pragmatic governance structure for most regional agencies. State statute requires that regional boards and commissions be made up of elected council members and supervisors from the communities they serve to assure that they are democratically accountable,.

But as a consequence, many local officials serve on multiple legislative bodies at once. Indeed, it’s not uncommon for local officials to serve on two, three, or even a half dozen boards simultaneously. The Brown Act’s in-person meeting requirement applies to all those meetings equally—even when officials have commute great distances.

The Not-So-Uncommon Case of Cheryl Viegas Walker

Ms. Viegas-Walker has been an exceptional public servant (she just retired). She was a council member for the City of El Centro. She was then appointed to serve on the Imperial County Transportation Commission and was selected to serve on the Regional Council of the Southern California Association of Governments (SCAG)–where she became president. Each of these bodies meet on different days and they all have subcommittees (which are also subject to the Brown Act) for which Ms. Viegas Walker served.

The SCAG Regional Council meets monthly, which required a three-hour drive one way (if traffic was good) from El Centro to downtown Los Angeles. She often drove the night before so she could also serve on the committees to which she was appointed that meet in the morning prior to the Regional Council.

This participation required a 30-hour time commitment over two days. Knowing Ms. Viegas-Walker as we do (she also served as CALCOG’s president), we can say with confidence that she preferred to meet in person. But often, the multiple demands of her city, county, and regional roles (in addition to holding a full-time job and having a family) overlapped.

Why Alternates are Not a Good Alternative

Some say that this problem is addressed by appointing alternates who can serve when the main representative cannot. But that assertion discounts the value of consistent representation. Regional policies are complex. Discussions of key items carry over multiple meetings.  Thus, it’s difficult for alternate representatives to jump in on a moment’s notice and provide the same level of informed decision-making.

The quality of regional governance relies on continued (and accessible) participation from its governing board.

“Remotional” Intelligence

Ms. Viegas-Walker’s experience is common among local officials. We can think of examples in the Bay Area, San Joaquin Valley, Sacramento area, and throughout the state where city council members and supervisors have to juggle their professional, personal, official, and travel schedules just to attend a bevy of public meetings for regional agencies for which they were appointed.

The truth is that we take the service of locally elected officials for granted. It’s hard and often tedious work (how many times have you read a city or county agenda from front to back?) And it’s time consuming. For the typical official, elected service requires the sacrifice of personal time with the family and opportunities to advance a professional career.

The public also has a significant interest in the quality of their regional governments. One of the constraints of our otherwise efficient system of regional governance is the time it takes to travel to and from these meetings. Remote video technology has improved to the point that it can be leveraged to better balance the sometimes-competing ideals of transparency, accessibility, and the quality of regional governance.

It’s time to leverage these technologies in a way that preserves the open and public goal of the Brown Act.

The Remote Possibility

Here is our idea(which is consistent with Senator Portantino’s idea): allow public officials appointed to regional boards to participate remotely more frequently (using virtual conferencing) without having to declare an emergency. The public’s interest here is different from a city or county meeting, where each member was directly elected to serve and the meetings are generally closer in proximity to the average resident.

To be sure, details to work out—like the in-person quorums, setting a minimum expectation for in-person attendance, guaranteeing equal public access, and other protections that provide double assurance that the purposes of the Brown Act are maintained.

Absolutely. That is a conversation worth having.

A Climate Issues Bonus

We have heard others who note that increased remote participation would also reduce Vehicle Miles Traveled (VMT). We concur. But not because the elimination of such travel will make a dent toward achieving the state goals. It won’t. But the point is important because all government agencies should be taking the lead in finding ways to reduce VMT. If the actions of public agencies can provide an example for other companies and organizations to follow, then such a policy could have a broader benefit. (And we have noted that the state could be more helpful in achieving such targets)

Conclusion

The Brown Act guarantees that government meetings are transparent and that the public’s voice can be heard. Achieving that outcome is different for regional agencies, who must factor how regional geography affects the accessibility of their meetings.

Providing greater flexibility for remote teleconferencing would enhance the representation of local communities at regional meeting and raise the quality of regional governance. Additionally, improved remote virtual access should also allow more people to attend and participate in regional meetings.

Thank you. Our three minutes are up.

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