One of California’s most influential pieces of legislation turns 60 this year with nary a champagne cork popped. With due deference to the recently departed Huell Howser, the Brown Act, which lays out open-meeting practices for municipal governments, is indeed a piece of “California’s Gold.” As Voice of OC reporter Tracy Woods notes, when Governor Earl Warren signed the Brown Act into law in 1953, only two states had open-meeting laws. By the end of the decade, 19 states had followed California’s lead, and today, every state has some form of such a requirement.
The law was the work of Ralph M. Brown, a Democratic assemblyman from Modesto. As a full-time lawyer (California legislators were part-timers in those days), Brown saw firsthand how local government secrecy robbed his clients of their rights. Brown’s daughter, Valerie Pierson, told Woods, “I remember him talking about going to meetings and having things decided and the next day finding out they had a meeting after the meeting, and that’s when they really decided things.”
Though the Brown Act has been amended several times over the years—more than doubling the length of its original 21 pages—major changes in technology and public participation demand that legislators take a new look at the historic law. Over the past several months, I’ve been involved with the Working Group on Legal Frameworks for Public Participation—a network of public-sector officials and municipal lawyers, including the International City/County Management Association, the American Bar Association, the National League of Cities, and the International Muni Lawyers Association—whose goal is to amend open-meeting laws and encourage more informed public participation. A model state ordinance is in the works.
Think of the original Brown Act as a product of the Government 1.0 era, when communication tended to be one-way. By imposing regulations on meeting announcements and requiring open-comment periods at public meetings, the Brown Act dealt a major blow to the secretive “backroom deal.” But as a new generation of government officials professes to seek greater participation from constituents, old-fashioned public comment has become an impediment to engagement between elected officials and citizens. Not only is “public comment” the bane of public service, with gadflies monopolizing that portion of the meeting; it has also become the sum total of what passes for public participation. If anything, these “three-minutes-at-the-mic” rants discourage thoughtful participation and exchange of information.
Over 80 percent of the more than 3,000 public officials polled in a recent National League of Cities survey “agreed” or “strongly agreed” that “public engagement processes typically attract mostly the same people who complain or promote their favorite solutions.” Not one respondent “strongly disagreed” with that view. That’s consistent with my experience: many of the California public officials I work with see public comment as something to be endured, not an opportunity to find new solutions.
What might a Brown Act tailored to the twenty-first century’s Government 2.0 look like? Instead of telling the public what a government agency will do, residents would be brought into the discussion to help craft policy. Believe it or not, we’re seeing glimpses of the new model in California cities you’d never expect: Bell and Vallejo. The late Barnett Pearce’s 2010 report, Aligning the Work of Government to Strengthen the Work of Citizens, outlined California’s transition to more collaborative policymaking. As Daly City city manager Pat Martel told Pearce: “The old-school fashion that I was brought up in was ‘government makes the best decisions for the people.’ I think that civic engagement has taken us away from that model to one of a partnership between residents, community, and local government.”
Ideally, an updated Brown Act would encourage municipalities to experiment with more collaborative processes, such as establishing citywide advisory councils and developing meeting formats that provide more than a microphone rant as the means of public engagement. The explosion of new online platforms—from the Budget Challenge and MindMixer to Open Townhall and Crowdbrite, to name just a few—shouldn’t be shunned, but rather included in the new law. Most cities may not go as far as Portland to adopt their own set of “Public Involvement Principles,” but an amended Brown Act would give California cities the option of developing such frameworks if they choose. The Brown Act is one of California’s great pieces of legislation, but today, in a vastly different political and social context, the law needs a tune-up.