Is the Brown Act Harming Democracy?

When created, the Brown Act was supposed to ensure transparency in government. No more back room deals. All decisions made in public. But the Pandemic taught us a few things about improving participation in our government, and the Brown Act hasn’t learned them yet. Here’s what to fix…

One thing we learned during the Pandemic was that many MORE people attended our meetings than before, when they were crammed into the 3rd floor “school room” adjacent to the GCSD offices. Of course, there were exceptions. Who can forget over 100 people overflowing the meeting room, the adjacent conference room, and down the stairwell for Off-Leash Dog Walking or the Quarry Park Pump Track? But those exceptions prove another point… What do public council/board meetings have in common with Day Care? They are both Germ Exchange, aka SuperSpreader, Events. In an era of Infectious Diseases, crowding together is best only for the viruses. The Pandemic may be past us – with “only” 170,000 COVID deaths a year now – but the “Triple Endemic” of viruses continues.  Chart the viral load in your local wastewater by yourself in real time for your location using this site:
http://publichealth.verily.com/#Half%20Moon%20Bay,%20CA:SARS-CoV-2

We learned that many more people can attend because they don’t have to drive, then park, and then walk into the meeting facility. They especially don’t have to drive in the dark, in the rain, over the hill and back to attend meetings anywhere. And this vast reduction in Vehicle Miles Traveled (VMT) applies to public officials and consultants and generally useful people you might want to address your Council/Board. In spite of the time and cost and participation improvements from Zoom/Virtual Meetings, the State ignored them, and allowed things to regress to the Bad Olde Daze.

As of March 1, the law now requires, with limited exceptions ^[1] all elected officials to attend those meetings in person. And several County meetings have been held in locations remote to the Coastside, but which bear on us and our community, and held without a virtual participation option: Parks’ meetings in Redwood City, and the County’s “Retreat” at Canada College last month are just two examples. This law change has had two effects.

First, I’m told by a government employee that ‘members are dropping like flies’ on various committees and boards. The figure 20% was used. This is only verbal and anecdotal, of course, but at the MCC 3 of our 5 members have already expressed reluctance to continue in person, and 1 of our soon-to-be appointed replacements will also decline if the in-person requirement continues. Given that we already lost 50+ years of experience at the MCC this past year, and are still shorthanded, this is a major detriment to our ability to function on behalf of our community.

Secondly, residents are being denied full access to our democratic process if virtual meetings are not REQUIRED as an option for every public body.  It is particularly disenfranchising for Coastside residents who have to travel over the hill and back, even when Hwy 92 doesn’t have a hole in it.  Or a rock blocking the tunnel.

Requiring Council/Board members to attend will expose them and their family members to COVID-19 and other infectious diseases now in community spread. The current death rate from COVID-19 has remained above 170,000 per year (chart), and the nationwide concern about a triple-demic is well documented. The current public health situation is not temporary, and the risk of repeated exposure to inevitable new variants of COVID-19 include not only the initial risks (potentially mitigated via vaccines, Paxlovid, etc.) of contracting COVID, but also the greatly increased chances of contracting of Long COVID, which has been shown to markedly increase the probability of adverse outcomes (VA studies), especially for the elderly population which characterizes this Council and its family members. Emerging public health evidence (e.g. from China) is that COVID-19 will continue for some time to come in our population, as new variants escape the protection of vaccines and other treatments. President Biden recently extended the COVID public health emergency through April.  Note that the meeting space for the MCC has the size and poor ventilation (one-wall windows) of a school classroom. There is inadequate ventilation in the best of times, and it lacks HEPA filters and UV sterilization and refreshing circulation, such as is available on commercial aircraft. Wearing masks is not a long term solution, as even typical N-95 masks are only about 80% effective over a period of a few hours, which means the compound probability of contracting an airborne disease from repeated exposure would be about 50% after 3 meetings, and 67% after 5. Putting our Council Members at risk is unacceptable.^[3]

Certainly, were a handicapped person to join the Council, I would expect ADA provisions to provide accommodations, including waivers of in-person attendance to that person, as we are a semi-rural area with no public transportation to our meeting site. The health risks posed by Long COVID present a similar need for accommodation. Similarly, I would hope that the immuno-compromised family members of a council member would receive protection in a similar manner, given the Triple-demic and age of infectious diseases in which we now live.

There is a pending revision to the Brown Act, AB557, which would add 15 more days to the period of declared emergencies. It does not appear to address my/our health concerns.
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202320240AB557

I support the provisions of AB557, but would add two additional provisions to support the continued broadening of participation in our democracy that “virtual meeting” technology has fostered during the Pandemic:
1. REQUIRE all bodies to offer a virtual meeting option. Failure to do so restricts the ability of residents for whom travel time and distance is burdensome (e.g. at night, in the rain) to participate regularly, and increases Vehicle Miles Traveled for all. The latter has been a focus of much of the state’s regulatory efforts, and it is both harmful to the environment and inconsistent with the longstanding State concern over VMT to require physical attendance. This would also conserve the time and cost of having officials and consultants travel to attend in person meetings.
2. EXEMPT Board/Council members with immunocompromised family members from in person attendance. In an era of increasing infectious diseases like COVID, and with the potential of significant Long COVID damage (especially dangerous with repeat cases), requiring persons to put themselves and their families at risk in enclosed, often crowded spaces for hours at a time is both unconscionable as public health policy, and will suppress participation of qualified persons in government service.
3. EXEMPT Board/Council members exposed to infectious diseases from in person attendance.  This came up last night at MWSD, when one of the candidates for the Board did not show up in person because she had been exposed to COVID.  That is EXACTLY the type of Public Health behavior we want to nurture, and members electing to attend remotely for public health safety should: a) count towards a quorum for attendance, b) be allowed to vote and speak as though physically present, and c) have no limitation of the number of such instances.

To express your opinion on this matter, here are emails of local officials you can write to (hopefully) support my ‘campaign’:
[email protected]
[email protected]
[email protected] – Becker’s aide
[email protected] – Berman’s aide
[email protected] – San Mateo County Board of Supervisors

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Update from Sen. Josh Becker:

In follow up to my email request ^[2], I received this update from Becker’s staff:  “Senator Becker introduced Senate Bill 537 (SB537) last month. Below is a description of the bill. We do not yet have a fact sheet or an analysis of the bill, but I believe this addresses your inquiry regarding remote access to public meetings. The bill has not yet been assigned to a committee:

SB 537, as introduced, Becker. Open meetings: local agencies: teleconferences.

Existing law, the Ralph M. Brown Act, requires, with specified exceptions, that all meetings of a legislative body of a local agency, as those terms are defined, be open and public and that all persons be permitted to attend and participate. The act contains specified provisions regarding providing for the ability of the public to observe and provide comment. The act allows for meetings to occur through teleconference, subject to specified requirements.

This bill would state the intent of the Legislature to enact subsequent legislation that expands local government’s access to hold public meetings through teleconferencing and remote access.”

>> It’s a start, but as you read above, it doesn’t go far enough soon enough.

FOOTNOTES:

[1] Meeting Law Changes: Here is the analysis of the current Brown Act meeting requirements prepared by the SAM attorney: https://www.coastsidebuzz.com/wp-content/uploads/2023/03/SAM-atty-memo-re-Virtual-Participation-Options.pdf

[2] Requested Brown Act Change: Below is my email to Sen. Becker. Similar emails to Assymn. Berman, Gov. Newsom, and officials in SMC.
[pdf-embedder url=”https://www.coastsidebuzz.com/wp-content/uploads/2023/03/Becker-Request-for-Selected-Waiver-of-Brown-Act-Attendance-Requirements.pdf” title=”Becker – Request for Selected Waiver of Brown Act Attendance Requirements”]

[3] Mask Effectiveness [3] https://www.cdc.gov/mmwr/volumes/71/wr/mm7106e1.htm