Public Comment

Discretionary Despotics -- the Failure of the Brown Act

Steve Martinot
Wednesday June 19, 2019 - 11:56:00 AM

The purpose of the Brown Act (the "Act") is to make government transparent, to ensure that no policy is decided out of public view, and that public "input" is always to be facilitated. It is a democratizing purpose. Its focus is not only that the public be informed of government process, have access to its practices, but also have the right to speak. Under the “Act’s” purview, people in official positions, such as councilmembers or commissioners, are warned that they must pay attention to their unofficial discussions with each other. Should such discussions inadvertently involve a quorum, it would constitute an unannounced, and thus “un-public” policy-making discussion, in violation of the "Act."

Though the “Act’s” goal is an informed public, it does not provide for participation. It does nothing to break the monologic state to which “public comment” is relegated. It also leaves much official procedure discretionary, inviting exotic forms of silencing people. For instance, should the City Council seek to pass an unpopular measure (such as support for Urban Shield – a contemporary “civil defense” boondoggle), it could diminish public input by scheduling the item for late in the session, after many opponents would have left out of fatigue or in the interests of going to work in the morning. Those subjected to such deferral were essentially (and unethically) silenced. Indeed, this happens often enough to convince many people that it is an intentional strategy for constructing agendas. For that reason, many propose that controversial issues be scheduled early, out of respect for those expected to attend. 

An egregious example of abuse of discretionary power occurred at the last Berkeley City Council meeting (June 11, 2019). The Mayor arbitrarily and shamelessly changed the scheduled order of an agenda item, deferring it in the face of the many people who were present to speak on it. The malfeasance of that overt move was astounding. 

The issue was a receivership the city had imposed on a black family’s home in south Berkeley. The owner, a black man named Leonard Powell, had lived in that house for 40 years, raised his family there, and owned it free and clear. When an oddly machinated inspection took place during a falsely warranted police raid in 2014, some 23 Housing Code violations were found. Five different contractors estimated the costs of repair would come to between $150,000 and $180,000. The city pretended to provide funding, while secretly misrepresenting the availability to the money, and then falsely claimed Mr. Powell was recalcitrant with respect to the violations. This led to a suit to place the house under receivership. Nine months later, Mr.Powell was saddled with an $800,000 debt. The racketeers of NYC would have drooled with envy. 

The case was finally brought to City Council’s attention (on 6/11/19) by two Commission proposals (from Peace and Justice, and Housing Adjustment), dedicated to preventing any such injustice from happening again. Their proposals enumerated basic regulations limiting how the city was to deal with families and housing code violations, while reducing the option of receivership to the level of “last resort”. 

At the moment this item was to be addressed, the Mayor blithely announced that Council was going to address some business matters (budgetary questions) instead. Needless to say, the clamor of outrage stopped the meeting. It took some fifteen minutes to return Council to its previously announced agenda ordering. The Brown Act did nothing, at that moment, to guarantee that there would be transparency in governance. We had to win it for ourselves. 

h This raises the question, what kind of structural changes could be made in Council proceedings that would obviate this form of discretionary despotics? Lets review the Brown Act briefly. 

The underlying purpose of the "Act," for which "transparency" is the metaphor, is to prevent secret deals by elected representatives. It requires that all official decisions occur in public, in well-lighted places, and with sufficient advance notification of time, location, and agenda to allow the public to attend in an informed manner. It thus limits ad hoc discussions that policy-makers can have with each other, prohibiting unofficial meetings in which policy might secretly be decided. 

With respect to public participation, the “Act” establishes that speaking time must be allotted for public comment on all agenda items, and that time also be set aside for comment on items not on the agenda. However, it allows each body to set its own standards concerning actual time allotted for each public speaker (e.g. two minutes or three, generally). Though the public must be informed of these standards in advance, the “Act” simply states that they be "reasonable," that is, a balance between the business needs of an official body and the public’s desire to participate. "Balance," however, is essentially a pragmatic category, which demotes the ethics of "democratic" procedure to secondary status. It is in violation of those ethics that a Mayor could set an agenda item last if (or because) many people would show up to speak on it. Indeed, the concept of the "reasonable" in the Brown Act is nothing less than a "wildcard" that power can play against the people. 

Indeed, though the Mayor can unilaterally change the agenda order, the public, attending the session, has no comparable authority to do so, or even to move an item from the Consent Calendar to Action. Thus, there is a structural disparity in Council proceedings, an inherent imbalance between procedure and ethical principles that is essentially unreasonable. 

One glaring example of this imbalance occurs in the form of "decorum" rules which require a public speaker to address only the council body as a whole, rather than specific members. This appears to be common practice for California City Councils. While the motivations of such rules may be to shield delegates from abusive language or personal attacks, prohibiting a person from addressing their own representative in an elected body is not consistent with the Brown Act (let alone with the 1st Amendment). There are now court suits in litigation concerning this issue, and demanding such decorum rules be lifted – in Orange County in particular. 

In offering no resolution or recourse for such discretionary imbalances between the people and the Council, the “Act” paradoxically fosters the elitism and insularity that stand opposite participation and transparency. 

It also implicitly indicates that the "balance" provided for by the "Act," and the balance that would express a democratic ethics, are wholly distinct. A Council’s sense of "balance" between business and public input may act against constituency and social equity as a form of discretionary despotics. In opposition, it would seem that criticism designed to change an official’s mind (publicly) and thus their vote, or to reveal a hidden hypocrisy, or enumerate broken promises, or call out a consistently bad record on certain issues, should all be fair game for public commentary in any elective system. 

Indeed, we might point out that Berkeley City Council too often reveals a tendency to adopt dehumanizing (and at times sadistic) ordinances, which it couches as "reasonable." Ordinances punishing or tormenting homeless people for having an RV to sleep in, for instance, or punishing homeless people who set up encampments in order to create community, or ordinances giving the police the power to use stun guns and pepper spray in order to torture people into obedience (technological prohibitions against civil disobedience) have been passed. Representatives who can do this are clearly people who do not think that torture is wrong. The ethical issues at stake need to be raised with them – in public. 

In the face of a city government that seemingly cannot refrain from some form of despotic misanthropy (often indicative of backroom deals), we ordinary people have two options. One is to bring about a democratizing change in the rules (and ethics) of council. The other is to organize alternative policy-making bodies. 

Two issues

Two issues are raised here. If mayoral prerogative has discretionary power to change the agenda, the ethics of balance is violated by not providing a comparable power for the floor – those who come to provide "input." To the extent to which the rules do not, people are silenced. Under the Brown Act’s ethics of democratization, however, one would expect some correction of official discretionary autocracy. 

Second, if it is proper for a speaker to address a representative, why would it not be similarly proper for the representative to respond, and thus for the two of them to enter into a brief give-and-take, to wit, delegate reasoning in dialogue with constituent reasoning? Especially since dialogue is the democratic alternative to the subservient compliance of monologue. 

Let us look at these possibilities structurally. 

On democratizing council prerogatives

In Berkeley, the ethics of silencing the public prevails – through relegation to monologue, and constraint to imposed rules. Though each speaker is offered two minutes to speak, if ten or more people come to speak on an issue, each person gets one minute. This truncates a person’s ability to include data or depth of thought in advance. Though others can cede time to a speaker, that simply sacrifices the others’ ability to speak – again a form of silencing. Thus, a fully reasoned presentation can only occur through the unethical sacrifice of public participation. In addition, once public comment is over, any public statement is ruled “out of order.” Yet, if different groups arrive to advocate or defend specific interests differently, predetermined procedure like this erases the meanings inherent in those differences. In effect, a democracy-oriented ethos has been supplanted by despotic procedure, an absence of respect for the thinking and interests of constituencies. 

Democratic procedure, by definition, must enable the people who will be affected by a policy to participate in articulating and deciding (in dialogue) the policy that will affect them. Yet that principle stands in opposition to the alleged "reasonableness" and imbalance of Council’s discretionary impositions on the people – such as its ordering of the agenda. 

How could an agenda be democratized, that is, foster the “Act’s” public purpose? If X number of people come to speak on an item, let that item take precedence on the agenda over others for which fewer than X number of people have come. That is, let the agenda be flexible in terms of public interest. It would merely require the existence of a body to take a tally of the attendees. 

Addressing a specific councilmember cannot be banned under the 1st Amendment. But with respect to policy-making, that is not enough. Policy always involves dialogue, implying that constraint to monologue both silences and excludes. If individual councilmembers are to be addressed, whether to criticize or to convince, the one addressed should have to be able to respond. Dialogue, even at that molecular level, must be in accord with the "Act." And certain benefits would immediately accrue. It would break the structure of elitism while establishing a new equity in governance. The question it raises would concern regulation – how to keep it from becoming a full-scale discussion? 

In effect, the balancing of Council vs. public interests, the democratization of the agenda, and the extension of the ability of public speakers to address specific officials in molecular dialogue, present a City Council with both organizational and ethical issues. 

Let us consider a body charged with overseeing the ethical legitimacy of such an expansion of participation in Council, a body focused on ethics, and thus independent of predetermined rules and procedures. Let us call it a “Council Oversight Body,” and give it referee status over imbalances between Council business and the public’s desire for significance. Its focus would be the implementation of principled democratic political process, as a body charged with the ability to ethically judge the "reasonable," in the spirit of the "Act." Concepts of decorum, time allotments for speakers, dialogic input between speakers and the Council as called for by the particular character of each Council session (constituency interest, attendance, controversy of topic, etc.) would all come undeer its purview. 

A representative of such a body would sit on Council, off to the side in the company of the Manager and the City Attorney, and act to preserve the ethics of representation, the responsibility of representatives to constituents, and the maintenance of an open environment for the expression of ideas and interests. 


A Council Review Commission

One more step is needed to correct for the extent to which the “Act” permits discretionary despotism – a Council Review Commission (CRC). Analogous to the Police Review Commission, it would be a venue in which proposals for further restructuring and democratizing City Council could be voiced and discussed. Its purpose would be to critique and judge Council rules and operations, and discuss how to establish greater dialogue in the political process. Its meetings would themselves be a mode of public participation in the political process. 

While the PRC needs official status because the police are a closed institution, a CRC would not, since Council and the Commissions are open. A CRC could meet and be at liberty to propose things on an autonomous basis. It could independently judge, as a venue for public discussion, the extent to which the Council was resistant to forms of democratization or not. 

Its meetings would be open to the public for both input and dialogue on issues of City Council procedures and ethics. It would thus represent a degree of popular determination of how government should function, an actual venue for feedback based on dialogue, and about the institution of dialogue in actual governance.