Board may have violated Brown Act
By Michelle Maitre, STAFF WRITER, The Oakland Tribune
Tuesday, November 11, 2003

Alameda County supervisors may have violated California's open meeting laws last week when they didn't clearly notify the public that a hot-button health care topic would be discussed at a board retreat, an expert said Monday.

County officials dispute that any violation occurred, but nonetheless say they could have more clearly outlined the discussion in the public meeting agenda.

The debate centers around a Nov. 4 special meeting -- billed as a board retreat -- during which supervisors received a presentation on the results of a recent poll gauging voter interest in a proposed half-cent sales tax increase to help pay for public health care.

Union officials and health care advocates who have been following the issue were dismayed when they learned supervisors had discussed the poll, since no one knew the results would be before the board that day.

The posted agenda for the open-session meeting describes the discussion topic as a "review of issues (regarding) organization/management of county operations."

At the meeting, supervisors heard a lengthy presentation from a political consultant hired to conduct the community survey. Supervisors asked questions during the presentation and discussed potential obstacles to the passage of the increase.

"There's no way in the world anyone could have guessed about the real agenda from that description," said Terry Francke, general counsel for the California First Amendment Coalition, a nonprofit watchdog agency that specializes in open government issues.

Francke said the state's open meeting law -- the Ralph M. Brown Act, commonly called the Brown Act -- requires public entities to provide a brief, general description of items under discussion.

"The language in that agenda listing did not begin to describe a political consultant's presentation on public support for a tax," Francke said, "and it may even had misdirected (the public) by making (the meeting) sound not only vague but boring."

County Counsel Richard Winnie said the county did not break the law, but said the agenda should have included more specifics on the content of the supervisors' discussion.

"It should have been reported very specifically," Winnie said, "but calling it a violation of the Brown Act -- I think that goes a little too far because really there was general language that encompasses this."

Winnie said the language included in the agenda encompasses the discussion of important county issues. The Alameda County Medical Center, he said, "is the most important county issue around."

Francke disagreed.

"I don't think the courts would agree with that at all," he said. "The prospect of an increase in tax is inarguably the most politically sensitive topic that government can discuss and when you're doing it, it's time to call a tax a tax and let people know what it is you're going to be discussing."

Winnie said the consultant's presentation was nearly identical to one made a week earlier at a meeting of a blue ribbon committee working to develop a long-term fiscal solution for the medical center.

"I realize that doesn't cover it (the Brown Act)," Winnie said, "but nothing at that presentation was really a surprise to anybody" who has been following blue ribbon meetings.

The board's meeting didn't sit well with several groups who have been following discussions about the financially ailing medical center, which includes Highland and Fairmont hospitals, along with John George Psychiatric Pavilion and outpatient clinics.

The facilities have been wracked with a deficit of about $51 million, forcing the closure of two clinics in Oakland and San Leandro.

County officials, searching for an additional revenue stream to bolster the health funding, are moving ahead with a plan to ask county voters to approve a half-cent sales tax. The initiative, which would likely appear on the March 2004 ballot, could generate from $85 million to $95 million a year for the medical center and other health initiatives in the county.

Carla Woodworth, executive director of the California Physician's Alliance, said she would have liked to have sat in on the board's discussion of the poll. She said she was "chagrined" to learn the board had presented the poll results without clearly notifying the public.

"I'm a stickler for the Brown Act," Woodworth said. "It's very important for open government. I think if they have these discussions, they should be done in front of the public and with enough notice so folks can understand the issues."

She said it's important for the public to hear the supervisors' thoughts on the issue, as well as the presentation itself.

Winnie said the incident has made officials "more sensitive to the issue" and the need to be specific on board agendas.

"I certainly have made a point," Winnie said, "and I think the board has learned from it. The board does want public input on this subject ... and does have an interest in making sure the public is involved in and gets as many opportunities to address this issue as possible."

Contact Michelle Maitre at mmaitre@angnewspapers.com