Here are priorities to reform the Brown Act for government transparency

After nearly 70 years of implementation and 14 months of a pandemic, meaningful improvements to the open meetings guarantees in the Ralph M. Brown Act will take longer than one seven-month legislative session. 

Since my November 2020, CalMatters op-ed, I’ve heard from local officials, professional staff and public transparency advocates up and down California, all of whom agree that reform must be a shared priority.

Remote meetings and public comment have benefited people who previously had to travel long distances or who simply could not leave home or work. However, for too many people, especially Native Californians, in areas with inadequate broadband, remote-only access has meant no participation at all. In some jurisdictions, confusing new pre-registration requirements have kept even those with broadband from fully exercising their public comment rights.

For 2021, the Legislature should prioritize core fixes, avoid unintended consequences and create a path to meaningful reform.

The most important priorities are (1) to establish a clear legal basis and transparent procedures for Brown Act bodies to authorize remote meetings during emergencies, (2) to require equal and consistent opportunities for remote and in-person real-time public comment and (3) to require online notice and agenda posting, materials distribution by email and acceptance of electronic written public comment. The Legislature also should strictly limit remote pre-registration requirements to the minimum necessary to connect public speakers, who should be able, just as they would in person, to request to speak at any point pending the completion of public comment for an agenda item.

Pending Brown Act updates include Assembly Bill 339, which puts remote and in-person public comment on an equal footing and adds translation requirements; Assembly Bill 361, which provides mechanisms for holding remote meetings during emergencies; Assembly Bill 703, which regulates remote access to public comment; and Senate Bill 274, which requires that public notices and agenda materials be delivered by email or postal mail upon request. Other pending bills would update internet noticing and remote comment rules for statewide bodies and for state and local educational entities.

However, the Legislature should avoid pursuing well intentioned changes – some of which appear in the legislation referenced above – that put us at risk of unhelpful, unintended consequences. 

For example, efforts to diversify language access, plan effectively for technological outages and simplify the process for remote meetings require more study and consultation. Without further refinement, these proposals could place unfunded fiscal burdens on local governments, create due process barriers that could be used as a stumbling-block to decision-making, and interfere with public input on time-limited permits and appeals. They might even disincentivize budget-strapped local governments from establishing Brown Act-compliant advisory bodies and ultimately exclude or silence underrepresented voices and perspectives.

Instead, the Legislature should commit to longer-term consultations about language justice as well as hybrid and remote meeting infrastructure. It’s vital that these consultations include the broadest range of types of local councils, boards, commissions and districts, videoconferencing and translation technology providers, and, most importantly, members of the public who actually give comment as well as elected and appointed officials who are accountable for implementing and enforcing the Brown Act from the dais.

In the spirit of the Brown Act itself, these cannot be conversations solely for public sector professionals.

In the meantime, legislators should amend proposals to:

• Require that meeting notices and agendas be posted in machine-readable formats for automatic translation and audio conversion;
• Make clear that translations from another language into English do not count against a public commenter’s time limits;
• Allow flexibility for public comment infrastructure at off-site informational field hearings;
• If technology fails, suspend meetings only when decision-makers are completely cut off from the public, with no alternative means of real-time access; and
• Find a way, if only temporarily, to allow continued remote participation by those local officials, including civic volunteers, who cannot yet return in person, without them having to offer unrestricted public access to their private residences and offices during meetings. 

This past year we’ve learned that videoconferencing and teleconferencing are legitimate, and in some ways better, ways to participate in local government. But the pandemic also has laid bare longstanding inequities that separate too many Californians from decision-makers. Short-term fixes aren’t sufficient, and long-term reform cannot come soon enough.

The views expressed here are my own and not necessarily those of the commissions on which I serve.

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Shawn Landres has also written about progress on reforming the Brown Act.