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Wednesday, March 13, 2013

Publisher’s Notebook

• Malibu Government Transparency: Here Comes the Sun •


Is it too close to be mere coincidence that a Malibu citizens group is challenging the City of Malibu proposal for a major public lands transfer for violating open government laws during national Sunshine Week? Sunshine Week is a nationwide initiative to focus on government transparency and open government that has been sponsored every March since 2005 by the American Society of News Editors and others to raise consciousness about the public’s right to access to government information.
The name Sunshine Week is an acknowledgment of Supreme Court Justice Louis Brandeis’ 1913 quote that “sunlight is said to be the best of disinfectants” for exposing the workings of government—especially those workings that interests would prefer to keep shrouded in secrecy.  The term sunshine laws applies to legislation aimed at facilitating all forms of public access to information.
In California, the cornerstones of sunshine legislation are the Ralph M. Brown Act, Gov. Code, §54950 et seq., better known as the Brown Act, and the companion California Public Records Act. Their goal is to provide everyone from journalists to citizen watchdogs with the tools to try to keep government on the straight and narrow.
This week the Malibu Township Council took legal aim at the City of Malibu’s ostensible proceedings to negotiate a Charmlee Wilderness Park/Malibu Bluffs Park land swap. Armed with a letter from a key player stating that a deal was worked out before any public notice or meetings, quotes from council members appearing to have been part of a deliberative loop, and an individual member’s track record of shutting out the public when there is criticism (and experiencing convenient memory lapses), the litigation is an effort to send the proposal back to square one.
The Brown Act creeps into the picture every so often on the Malibu political scene. In 2000-plus, some deep-pocket local activists contended that two council members held a number of private meetings with various individuals, constituents, and city staff over the state Coastal Commission’s draft LUP and unsuccessfully alleged public exclusion from these meetings violated the Brown Act. As some now may contend regarding the parkland brouhaha, making two members stick as a “legislative body” is not easy.
In 2005, a Court of Appeal ruling held a council development agreement violated the Brown Act because it tried to settle litigation by exempting a project from some current and future zoning regulations in Trancas Property Owners Association v. City of Malibu. The ruling held, “This would mean that a settlement approved in closed session could not include agreement to take governmental action that independently requires a public hearing, at least without holding one before that action is actually authorized or taken.” The court added, “We hold that the agreement, however well-intended, was invalid, because it impermissibly attempted to abrogate the city’s zoning authority and provisions.”
That the Brown Act is as counsel does was evident during a 2008 challenge to how the city council and city attorney handled filing a lawsuit against the executive director of the Coastal Commission. Officials were accused of violating the Brown Act because the city attorney took legal action before receiving a council green light. The city attorney asserted the authority to act as was deemed necessary and seek council authorization afterward—a contention that sheds interesting light on the true political power balance in Malibu. Even though the city attorney serves at the pleasure of the council members, there are virtually no constraints on legal implementation of policies and objectives.
The first few years after Malibu incorporated, the city conducted special Brown Act training sessions for new commissioners and others, but it no longer does this. Malibuites who are interested in learning more about these laws can request a free 50-page guide “Citizen Watchdog” from CalAware, a nonprofit advocate for “open government, an inquiring press, and a citizenry free to exchange facts and opinions,” from now through April 15.
The guide was written by CalAware’s highly reputed general counsel who has spent three decades in the trenches of open government warfare. The guide covers basic and advanced usage of the Brown and the Public Records acts. To receive a copy, send an email noting Malibu residence and one’s name to, with the words “Citizen Watchdog” in the subject line. Then let the sunshine in.

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