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The trouble with settlement deals, like the one in Los Angeles firefighter Tennie Pierce's case, is that they permit city council members to discuss hot topics while being shielded from public scrutiny.
Pierce, who is African American, reached a $2.7 million settlement with the city after other firefighters slipped dog food into his firehouse meal. The council, deliberating behind closed doors, and Mayor Antonio Villaraigosa rejected the settlement and the case may go to trial next March. If it does, the public may actually learn something about race relations in the firehouses. Up to now we know little.
The city council gets away with this closed door business because of exemptions in the state open meeting law, the Brown Act, which requires local legislative bodies to conduct their business in public. One exemption permits closed meetings when council members discuss personnel matters, such as firing someone. The other exempts city councils from the open meeting requirement when discussing pending litigation. That was the excuse for dealing with the Pierce matter in private. I have seen it used, and misused, many times in the past.
I knew Brown. His name was Ralph M. Brown and he was speaker of the State Assembly when I was first assigned to cover it for the Associated Press in 1961. He was an attorney from Modesto, a smart, unpretentious, straightforward sort of man, a perfect example of a canny, progessive small town lawyer. He did not like the way the city council in his town and other places did their deals and arranged their votes over dinner, in private clubs or the backroom of a friendly bar. His solution was a law that required that meetings of local legislative bodies would be open to the public--and that the public had the right to participate in them.
The law can be difficult to enforce. As then Atty. Gen. Bill Lockyer wrote in a 2003 pamphlet explaining the Brown Act, "although the principle of open meetings initially seems simple, application of the law to real life situations can prove to be quite complex." But Lockyer's lawyers also wrote that exceptions to the law "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."
In dealing with the Brown Act, City Atty. Rocky Delgadillo and his staff have construed it broadly, looking for ways to avoid the open meeting law. The council naturally agrees. Why should council members subject themselves to the possible embarrassment of a public debate?
In addition, the city attorney's office avoids trials. Given a choice, Delgadillo and his staff choose a settlement. Settlements, classified as pending litigation, are discussed in private.
The city attorney could be wrong. The 95-page attorney general's pamphlet lists many Brown Act cases, offering many intepretations of the law. New cases come up all the time. This is an uncertain and changing part of the law. The only certainty is the city attorney's narrow interpretation which, with Tennie Pierce, deprived the city of facts and a debate.
I got a copy of the pamphlet a couple of years ago when I was arguing with the city attorney's office about the way the Brown Act was applied to the City Ethics Commission. They probably have more copies available. Contact the Attorney General's Office Public Inquiry Unit at 1 800 952 5225.
