April 21, 2007

L.A. County violated state's open meetings law


From the Los Angeles Times
Legal experts say L.A. County violated state's open meetings law
By Jack Leonard and Susannah Rosenblatt
Times Staff Writers

April 21, 2007

The Los Angeles County Board of Supervisors, long criticized for conducting public business behind closed doors, violated the state's open meetings law earlier this week when members privately selected a headhunting firm to find a new top manager, according to several open-government experts.

The board unanimously voted during a closed meeting on Tuesday to negotiate a recruitment contract with Ralph Andersen & Associates. Legal experts said the state's Ralph M. Brown Act requires such discussions to be held in public.

The board's decision was made as the district attorney's office investigates a separate allegation that supervisors violated the Brown Act three weeks ago. Prosecutors launched their probe after a member of the public complained that the board tried to discuss in private the federal government's decision to continue funding for Martin Luther King Jr.-Harbor Hospital.

"I think their track record as to recognizing their responsibility to the public is really a miserable one," said Rich McKee, an open-government activist who has successfully sued the county and other public agencies for violating the Brown Act.

Supervisor Zev Yaroslavsky, who chairs the board, said he and his colleagues relied on the advice of their county counsel, who told them their actions were legal. He noted that supervisors ultimately discussed the hospital funding issue in public.

"I think that the board has expended a lot of time, energy and resources to comply with the Brown Act," Yaroslavsky said. "It doesn't mean that you're perfect, but I think the county has done a far better job than it has done in the past and a far better job than many local government entities are doing."

The controversy comes at a time of growing concern about secrecy in California government. Open-government activists complain that a recent Supreme Court decision has prompted closings of police disciplinary hearings, and an attorney general's opinion has limited the information prosecutors can release about criminal cases.

There are few sanctions for public agencies that break the state's open meetings law. Prosecutors rarely file charges against public officials accused of discussing public matters in secret. The usual remedy is for prosecutors or members of the public to file suit to invalidate the vote. A judge can order the guilty agency to pay a plaintiff's legal fees.

County supervisors have a mixed record on Brown Act compliance. In 2001, they voted in closed session to instruct lawyers to block a ballot initiative that sought higher wages for workers who cared for disabled people. McKee and The Times sued. A state appellate court ruled that the board broke the law and tried to conceal it.

In 2004, Dist. Atty. Steve Cooley concluded that supervisors violated the law when they met privately and decided to close the trauma center at Martin Luther King Jr./Drew Medical Center. The Times sued again.

But a Superior Court judge disagreed with Cooley, ruling that the board was justified in privately discussing the trauma unit's fate as it grappled with threats from federal health inspectors to pull about $200 million in funding.

In the most recent episode, county supervisors met Tuesday morning to privately discuss the choice of a recruitment firm to find candidates to replace Chief Administrative Officer David Janssen. Earlier this year, the county offered the CAO job to two candidates, only to be rejected by both.

Some supervisors had criticized the county's approach to finding candidates. So, though the board rarely interviews recruitment firms, Janssen said supervisors wanted to be involved. Officials from two headhunting firms spoke during the meeting before the board made its selection, Janssen said.

The Brown Act prohibits elected bodies from privately discussing issues that involve an independent contractor, unless the contractor is working as a county employee.

County Counsel Raymond G. Fortner Jr. said the county's decision complied with state law because the recruitment firm will perform work similar to that of a county human resources employee. "They're doing essentially what county staff are doing or can do," Fortner said. "It's a short-term, temporary item."

But several 1st Amendment lawyers said they doubted such an explanation would hold up in court and described the board's action as a violation of the law.

"I think that the county counsel's position is dead wrong," said James Chadwick, a partner with Sheppard Mullin in San Francisco. "It's one of the clearer examples of a violation of the Brown Act that I've heard."

Terry Francke, author of a book about the Brown Act and general counsel for Californians Aware, a nonprofit open-government group, agreed.

"If they knew they were going to talk about independent contractor recruiting firms," he said, "they should have recognized right away that that should have been in open session."



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