There are times a law is adhered to in a way that no longer suits its original intent, and its essence, its very spirit, should be revisited and thus applied.
It is so with the Ralph M. Brown Act, passed in 1953 by the California Legislature, in response to concerns that public business was being conducted in private. Too often now, elected officials use it as an excuse not to talk to the public about public matters.
Let me first say that a newspaper works essentially as a proxy for the public. We ask questions as a representative of the people to elected and city officials on matters that are in the course of their job descriptions, which is, of course, the public’s business. So when an official refuses to answer our questions, they are, in fact, refusing to answer questions to the public. A common excuse is that a topic cannot be addressed because it might be placed on an upcoming agenda. This is wrong.
This point must be made very clear, discussing a topic and providing the public (us) information about it is substantially different than saying how one will vote. For instance, if one were to ask about the city’s budget and plans to use reserve funds to balance it, an elected official could talk about the conditions that led up to the situation, the various options, what they felt about the various options, what their own ideas were, and that they looked forward to the discussion before they would officially decide on how they might vote. This way, the elected official would avoid indicating how they might vote on a particular issue, which is what they would seek to avoid as it might be construed as a serial meeting.
However, there is further protection from the appearance of a serial meeting. Such a meeting is essentially a game of telephone, in which once councilmember could discuss a matter with another councilmember, who might then discuss it with a third, thus gaining consensus on a particular issue if that is the majority of the council. This could be done in person, by phone or by email.
That is a far cry from discussing an issue openly in a newspaper article on an issue of public interest in advance of a meeting. Yet, I suspect city officials likely warn councilmembers to err on the side of caution and just clam up. Doing so limits the information going out to the public to what is in staff reports on a particular issue, and thus limits public awareness of what the decision makers are thinking. In limiting public awareness, it limits public interest and input at the meetings in which these decisions are made.
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Councilmembers who say they can’t discuss a topic that could be placed on an agenda, or is placed on an agenda, are doing a disservice to the public, and anyone who advises them to do so is complicit.
Adherence to the Brown Act in this way is essentially in opposition to its spirit, which sought to bring more light to the decision-making process of the people’s business.
Another aspect of the Brown Act that is moving away from its original spirit is limiting public comment. In 1953, of course, there was no idea of the internet and Zoom, but the pandemic allowed for expanded public comment and viewing — though local cable used to provide access. Because of the horrid nature of Zoom bombing, many cities disbanded the ability to take public comment remotely. While submitting the public and staff to awful interruptions can be hard to bear, there is a provision of the Brown Act that addresses interruptions that says the board or council can empty the chambers but allow the press. I’m no attorney, but certainly there could be an interpretation of this law that could allow for the clearing of Zoom callers temporarily and the readmittance when deemed appropriate.
The primary focus, however, should be on the elected official’s ultimate obligation, and that is to the public. When a decision is made to not discuss a matter of public importance because of a law designed to encourage openness, one has to think about the interpretation of the law and by who. The Brown Act was to prevent public business from being conducted in private and does not in any form prevent an elected official from speaking in public to the public and its proxy. Any policy that includes such a provision, including deferring to the mayor or board president when asked for a perspective, is simply a matter of engaging in public relations rather than public service, and ultimately keeping the public in the dark.
Jon Mays is the editor-in-chief of the Daily Journal. He can be reached at jon@smdailyjournal.com. Follow Jon on X @jonmays.
(2) comments
The SMUHSD has been in violation of the Brown Act for years.
The 2021 incident is believed to have cost the taxpayers $40 million via the cover-up.
Would the SMUHSD Taxpayers and specifically, the San Bruno residents approve of the covert $40 million "discount" and loss athletic fields in San Bruno?
The public NEVER got the chance to comment because of the intentional Brown Act violation to defraud the public.
Just prior to the Crestmoor debacle, a Brown Act complaint against with the SM District Attorney’s Office was filed in July 2021. The SMUHSD "restructured" its agenda and withheld administrative contracts from public review.
The SMUHSD had been "put on notice" of its Brown Act problems, yet ignored he SM District Attorney's advice.
The Whistleblower who filed the complaint, became an IMMEDIATE target of retaliation by the SMUHSD administration.
The defrauding of the Trustees and the public and coordinated Brown Act violations were in tandem with the California Commission on Teacher Credentialing’s investigation of Superintendent Skelly and Deputy Superintendent Black—also in July/August 2021- as reported in the SM Daily Journal.
Why the retaliation against the Whistleblower?
1. The SMUHSD Trustees and the public were defrauded and had NO IDEA about the $40 million debacle of the sale Crestmoor High School by the SMUHSD Superintendents and legal counsel.
2. Superintendent Kevin Skelly was about to get a lucrative new contract and the public disclosure of the collapse of the Crestmoor agreement may end his hopes of a lucrative contract extension.
-The sale of Crestmoor High School property- San Bruno
In December 2020, the SMUHSD signed a contract with DR Horton for the sale of the 40-acre Crestmoor property for $125 million.
In late July, 2021, DR Horton cancelled the contract… but the SMUHSD suppressed the information from the Trustees and the Public. but continued to list DR Horton as the BUYER in the public agenda. This continued UNTIL Superintendent Skelly received his two -year $329 per year a contract extension on August 12, 2021.
The SMUHSD defrauded the public by continuing to LIST Dr. Horton as the Buyer in its Public Agenda for Closed Session, when the contact had been cancelled.
According to the public agenda during the Closed Session, the Trustees discussed a the sale to a buyer (DR Horton) of a contract that was already cancelled. -So what DID the Trustees discuss in these TWO Closed Session meetings. The law requires a disclosure.
The SMUHSD Trustees had a legal responsibility to report out the cancelled $125 million contract to the public.
he contract was completed with its cancellation and the public had a right to know.
This is fraud.-The Trustees have been made aware of these events, yet have REFUSED to cure the issues in order to suppress the facts from the taxpayers.
DR Horton- Listed as the BUYER on Public Agendas-The Contract was cancelled-
The August 5, 2021 and August 12, 2021 Closed Session Agendas for the SMUHSD LIST DR Horton as the BUYER when the contracts were already cancelled. The Superintendents knew the agenda's were false and that they were defrauding the Trustees and the public.
SMUHSD CLOSED SESSION-August 5 and August 12, 2021
C.1. [* ]Conference with Real Property Negotiator - - Kevin Skelly, Superintendent, Yancy Hawkins, Associate Superintendent Chief Business Officer, Harold Freiman, Lozano Smith, Landis Graden, DCG Strategies, property - Crestmoor, 300 Piedmont Avenue, San Bruno, CA 94066, negotiating parties - San Mateo Union High School District and D.R. Horton Bay, Inc., under negotiation - price and terms of payment, pursuant to Government Code section 54956.8
(links to SMUHSD Public Agenda)
SMUHSD Agenda August 5, 2021
https://agendaonline.net/public/Meeting.aspx?AgencyID=126&MeetingID=84277&AgencyTypeID=1&IsArchived=False
SMUHSD Agenda August 12, 2021
https://agendaonline.net/public/Meeting.aspx?AgencyID=126&MeetingID=84364&AgencyTypeID=1&IsArchived=False
Skelly's Contract
August 12, 2021- Superintendent Kevin Skelly is awarded. a new 2-year $329,000 per year contract
SummerHill Homes "becomes" the Buyer
August 26, 2021- SMUHSD changes the name of the BUYER to SummerHill Homes, deal was cancelled on July 23, 2021?
SMUHSD Agenda -CLOSED SESSION-August 26, 2021
--Buyer - SummerHill Homes--
D.7. [* ] Conference with Real Property Negotiator - - Kevin Skelly, Superintendent, Yancy Hawkins, Associate Superintendent Chief Business Officer, Kelly Rem , Lozano Smith, Landis Graden, DCG Strategies, property - Crestmoor, 300 Piedmont Avenue, San Bruno, CA 94066, negotiating parties - San Mateo Union High School District and SummerHill Homes, LLC, under negotiation - price and terms of payment, pursuant to Government Code section 54956.8
SMUHSD Agenda August 26, 2021
https://agendaonline.net/public/Meeting.aspx?AgencyID=126&MeetingID=84497&AgencyTypeID=1&IsArchived=False
Zoom Links
President Griffin- August 26, 2021 SMUHSD Meeting-
A clearly embarrassed SMUHSD Board President Robert Griffin (a Certified Public Accountant by profession) announces an "Exclusive Deal" with Summerville Homes
“The builder placed a binding deposit with the SMUHSD,
prohibiting the district from negotiating with ANY other builder.
Cued to SMUHSD President Griffin's announcement
https://www.youtube.com/live/4eAUECntVZ4?si=kZ1sUOWpKZJoB6eg
Math and Fraud
December 2020- Buyer- DR Horton- $125 Million
July 2021- DR Horton cancels the $125 Million Deal
August 26, 2021 -Buyer- Summer-Hill Homes - $85 Million
9There is no report to the SMUHSD or the public of the cancelled DR Horton contract.)
How does the exact same Crestmoor High School property lose $40 million in value from July to August in 2021?
Why did SMUHSD Trustee President-Robert Griffin, a partner in a CPA firm, fail to report these issues to the public? (He knows how to read a balance sheet- right?)
What other extreme Brown Act violations took place in the Summer/Fall of 2021? –The violations of the law were frequent and excessive.
The SMUHSD Trustees and the public were defrauded of millions of dollars.
The following Trustees not only “sat at the table,” in these and many more Closed Session Meeting, but also enabled these actions (and many more) to transpire.
• Trustee Robert Griffin
• Trustee Greg Land
• Trustee Ligia Andre Zuniga
--It’s time to tell the truth. Its time for an investigation... its worth the $40 million
The San Bruno City Council found the fraud-
The fraud of the Crestmoor Real Estate debacle was “discovered/disclosed” in an August 24, 2021 San Bruno City Council Meeting- “following up on the Crestmoor Sale.”
The recording shows the city administrators baffled by the fact that the Crestmoor deal was cancelled in July 2021.... yet no one at the SMUHSD knows anything about it.
Zoom of the SB City Council Meeting (cued to the disclosure)
https://youtu.be/hVmtKPHpxc4?si=7EhHsRJ72P_vAHaE
Thank your for taking on the challenge of explaining the Brown Act. You did an excellent job.
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