San Diego Business Journal

Why Can't Brown Act Get Any Respect?

A gadfly, according to various dictionaries, is "a persistent critic, especially of established institutions and policies." Another definition gets more to the point: "an annoying, insistent pest."

Aren't those perfect descriptions for local San Diego attorney Michael Aguirre?

The problem with a gadfly is that they are, to put it delicately, a pain in the rear. They're usually found fighting for causes that other people wouldn't take the time to bother with. And, they tend to take a shotgun approach to whatever it is they tackle.

Mike Aguirre is no exception. For example, he was one of the people who complained about San Diego City Council members getting to buy Super Bowl tickets at face price for this year's game at Qualcomm Stadium.

It was a silly complaint , city officials who work hard to bring the Big Game here shouldn't have to pay scalpers' prices to attend , and it forced the state Fair Political Practices Commission, and the city's Ethics Commission, to investigate. Both panels saw nothing wrong with the ticket purchase, something any person with an ounce of sense could have told you.

This is the type of cause a gadfly like Mike Aguirre always seems to be taking on. The problem with a gadfly, however, is that despite all the silly causes they chase after, they sometimes go after something that makes sense.

Example 1 is Mr. Aguirre's current cause: a lawsuit claiming that four members of the county Board of Supervisors held private talks before their public vote to approve new boundaries for their supervisorial districts. The issue is that four of the supervisors , Bill Horn, Greg Cox, Dianne Jacob and Ron Roberts , wanted to keep hold of their board seats and held secret discussions about the new district boundaries.

If that is true, it's a violation of the Ralph M. Brown Act.

What's the Brown Act, you ask? Well, it's the state's open meeting law, and it mandates that local governmental bodies deliberate in public.

The problem with the Brown Act is that it is routinely violated, generally misunderstood, and largely ignored.

Want an example? In 1998, attorney James L. Markman spoke to the annual meeting of the League of California Cities. He has represented numerous small cities throughout Southern California for more than 20 years. Here's what Markman , who at the time claimed he represented more cities than any other attorney in the state , said, as quoted in the Los Angeles Times:

"Does anyone here really believe that the only time council members discuss issues of interest in the city is at open council meetings and (lawful) executive sessions? Does anyone here think two councilmen or three haven't committed to go a certain way on an issue other than at the council meeting?"

For those unfamiliar with the Brown Act, it simply says that public bodies must do their deliberating in public (there are exceptions, of course), so the public can hold elected officials accountable.

Sounds simple and reasonable, no? Well, many elected officials view public deliberations as a pain in the rear. Democracy isn't always pretty, or easy, and too many officials view the reasonable requirements of the Brown Act as something to avoid.

That's where Mr. Aguirre comes in. His lawsuit contends supervisors conducted meetings among themselves that were designed to avoid the state's open meetings law. Some supervisors call Aguirre's lawsuit "frivolous," and attorneys for the county say that state law allows for two supervisors to meet and talk privately about county business. The Brown Act requires a public meeting only when a majority of the board , three supervisors , is present.

As much as we think Mr. Aguirre is overly litigious in his approach to most local issues, this is one he's right to press.

But let's be clear about this: We are not saying supervisors did anything wrong , that's for the court to decide , but even if they are found to have acted properly, Aguirre's suit may serve as a wake-up call to all elected officials that public deliberations are a cornerstone of our democracy that can't be ignored on a whim.

And, no matter what the outcome of this case, our elected officials would do well to read A Guide to the Ralph M. Brown Act on the League of California Cities Web site at (

Here's what it says in the section titled "Beyond the Law:"

"Problems may crop up, for example when an informal get-together takes on the appearance of a meeting a narrow legalistic approach (to following the Brown Act) will not avoid or resolve potential controversies The Brown Act should be neither an excuse for bureaucratic obfuscation nor a mechanism for public filibusters The ability of an elected official to confer with constituents or colleagues must be balanced against the important public policy prohibiting decision-making outside of public meetings."

Public meetings and public decision-making by publicly elected officials. In these difficult times, what could be more American than that?

, John Hollon