The following is the statement made by Teresa Barth at last night's council meeting:

Mayor, council members, members of the public and media.

I requested this discussion because I believe that the city’s policy of noticing Closed Session meetings as Special Meetings with only 24-hour prior notice runs counter to the spirit and intent of the Ralph M. Brown Act and Proposition 59.

The Brown Act was adopted in 1953. The key aspect of the law is that “All meetings will be open and public except when the Brown Act authorizes otherwise.” Those exceptions are limited to Personnel Issues, Litigation, Real Estate Negotiations, Labor Negotiations and Public Security. These are the only issues that maybe discussed in a Closed Session.

Closed Sessions are not meetings onto themselves but can be a part of a Regular or Special meeting.

Under the Brown Act Regular Meetings are defined as meetings occurring at the dates, times, and location set by resolution, ordinance or other formal action by the legislative body and are subject to 72-hour posting requirements.

Follow up:

The Act defines Special Meetings as meetings called by the presiding officer or majority of the legislative body to discuss only discrete items on the agenda. Written notice, including the items to be discussed, must be sent to each member of the legislative body in a manner that ensures receipt, at least 24 hours before the meeting time.

I do not dispute that a Closed Session can be part of a Special Meeting. However, the majority of Closed Sessions held by the Encinitas city council are in fact regularly scheduled and therefore can not be called Special Meetings and are subject to 72-hour notification.

I came to this conclusion because the Closed Session meetings are regularly scheduled at 4:30pm prior to the regular council meeting. Weekly Council/Board Meeting Schedules, generally received on the Thursday prior, list Closed Session….not as “tentative” or as a “Special Meeting” thus clearly establishing this as a regularly scheduled meeting.

The Brown Act states closed sessions must begin in open session and reconvene in open session with an oral or written report on final actions and votes taken.

The city’s current practice is to begin in open session only if there are speakers, if there are no speakers the meeting begins in a non-public conference room. The Closed Session is reconvened at the beginning of the Regular Council Meeting. The Report from Closed Session is clearly listed on the Regular Agenda, further linking the Closed Session to the Regular Council Meeting.

In the Nov. 2004 election, Proposition 59, an amendment to the California Constitution, was approved by 83% of the voters.

Proposition 59 made transparency in government a constitutional duty owed to the people, to whom we public officials are accountable.

In reviewing Prop. 59 the Legislative Analyst’s Office concluded and I quote

“This measure adds to the State Constitution the requirement that meetings of public bodies and writings of public officials and agencies be open to public scrutiny. The measure also requires that statutes or other types of governmental decisions, including those already in effect, be broadly interpreted to further the people’s right to access government information.” End quote. What this simply means is that we must err on the side of the public’s right to know. This law is telling us to do our BEST not the LEAST.

The city’s current notification policy for Closed Sessions appears to have been established solely for convenience rather than necessity. Under Prop. 59 this Tradition and Habit no longer meets the test justifying the minimum 24-hour notification.

I had the opportunity to speak with Ted Prim, assistant attorney general for the State of California, who specializes in laws concerning conflicts of interest, public records, open meetings and other ethical issues. He confirmed that it was acceptable to hold a Closed Session as part of a Special Meeting but that it should be the exception NOT the rule especially since city councils meet frequently and can usually address issues in a timely fashion.

I also spoke with Tom Newton, legal counsel for the California Newspaper Publishers Association. He expressed that the practice ran counter to the spirit and intent of the Brown Act and could be viewed as an attempt to limit public notice.

Finally, the League of Cities’ “Guide to the Ralph M. Brown Act” notes that “Compliance ultimately results from regular training and a good measure of self-regulation on the part of public officials.” It goes on to state “An agency should consider going beyond the law and look at its unique circumstances and determine if there is a better way to prevent potential problems and promote public trust.”

Therefore, I am proposing that the council establish a written policy or resolution concerning closed session notification that complies with both the spirit and intent of the Brown Act and Proposition 59.

To achieve this I am making a motion to establish a sub-committee, consisting of myself, Mayor Bond and appropriate staff, to draft a document that clearly states that closed session items will be noticed on the regular agenda unless there is a justifiably urgent need to do otherwise and to return to council with said document within 30 days.

Thank you for your attention to this matter.

see Sad Day in Encinitas
see The Brown Act