History shows the Brown Act is a Paper Tiger

Westminster Councilman Tyler Diep

In the more than 53 years since the Brown Act, California’s open meeting law, was enacted there has never been a successful criminal prosecution for violation of the law. In fact, criminal charges have been alleged five times with only one of those going to trial resulting in a hung jury.

With this reality in mind, the determination by Senior Deputy District Attorney Raymond S. Armstrong that there was no criminal violation of the Brown Act by Westminster City Council members Tyler Diep, Tri Ta, and Andy Quach should not have been surprising. The burden of proof prosecutors must meet in order to pursue criminal violations of the Brown Act is extremely high. Adding to that burden is the difficulty in getting to the facts of any complaint. “We can’t just go around knocking down doors asking local legislative bodies why did you decide this way or how did you arrive at this decision?” said Senior Deputy District Attorney Bill Feccia. To do so would violate the separation of powers guaranteed by the California Constitution according to Feccia. In 1996, the Fourth District Court of Appeals ruled in Steiner vs. Superior Court that decisions made by legislative bodies cannot be investigated without evidence of serious misconduct that involves criminal behavior. Feccia indicates that that ruling significantly shuts down the ability of the district attorney to investigate allegations of wrong doing.

The key point in my complaint regarding the distribution of this letter, from the majority of Westminster City Council members to Vietnamese language media, is that in order to issue such a letter the parties who were listed as signers must have met to discuss the letter, and buy doing so, discuss in private a matter pending before them for decision. From my point of view, they met and took action by issuing a letter. I see the letter itself as evidence that an illegal meeting did in fact occur.

On this point, DA investigators disagree. Feccia and Armstrong contend that because the letter does not communicate any information that was not previously discussed in open session of the City Council there was no decision that would qualify as a criminal violation. They further suggest that since there is no evidence that any new information was exchanged among the parties to the letter, that such discussions if they occurred, did not violate the Brown Act.

That is where things get a bit weird. According to Armstrong, his investigation found evidence to support the contention that not all parties to the letter had agreed to its content and distribution. Armstrong would not say whether Councilman Quach or Councilman Ta had not agreed to sign on to the letter, only that they found evidence that showed there was no agreement. If three members did not meet, then regardless of the content of the letter, there was no violation of the Brown Act.

I had posed several questions to Armstrong regarding who they spoke with in the course of their investigation; did they ask specific questions of specific individuals; and who they contacted through their investigation? I was told that by law or policy, they cannot disclose those details of their investigation. Basically, we have to trust that a thorough investigation was conducted.

So let’s presume for a moment that, as unbelievable as it may be, that Tyler Diep distributed to Vietnamese language media a letter representing the concurrence of two other members of the City Council without agreement from both colleagues. What would have possessed Mr. Diep to presume the authority to release a letter, under the names of his colleagues without having actually received their permission to do so? Are we to actually believe that Mr. Diep is so brazen as to release for publication a letter without permission from one of his two senior colleagues on the Council?

Mr. Armstrong would not say which of the two other signatories to the letter had not given permission. The only way we will ever know is if one of the three come forward and reveal who had not agreed to the letter.

We are left with only two possible conclusions to this episode. One conclusion is that Tyler Diep falsely represented to several Vietnamese language publications that he was authorized to distribute a community letter from the “Vietnamese members of the Westminster City Council.” The other conclusion is that the three Vietnamese members of the Westminster City Council did in fact confer on the drafting and issuance of the letter in secret and are claiming that one member of the group had not agreed in order to avoid a violation of the Brown Act. Simply put, either Tyler Diep has lied to the Vietnamese community regarding the authenticity of the community letter he released and members Ta and Quach remain silent in their complicity with his deception; or at least two of these three members have deliberately mislead DA investigators.

While I understand the position of the DA’s office that the mere distribution of a community letter without specific authorization by vote of the City Council when it repeats information disclosed in a public meeting, I am convinced that such an action violates the spirit, if not the letter of the law. Absent a declarative judgment or opinion from the Attorney General, this finding seems to permit the majority of any government body to represent the position of a majority of members based solely on discussion during a public meeting and absent an official vote. This finding opens the door for secret meetings, where matters pending before the government entity can be discussed in private by a majority of members, so long as only previously disclosed opinions and ideas are exchanged in the meeting. The problem is that by not holding the discussion in public, the public is deprived of factual knowledge of the existence and/or content of those discussions. This alone turns the entire purpose of the Brown Act on its head.

The sad reality of the enforcement of the Brown Act is that unless, you have clear and indisputable audio or video evidence, and can prove intent to deprive the public of information that the parties know should be known, there is very little chance that a criminal prosecution for violation of the Brown Act would ever occur.

  2 comments for “History shows the Brown Act is a Paper Tiger

  1. junior
    July 13, 2010 at 9:48 am

    You can sue based on a Brown Act violation(s). If you are successful the municipality is responsible to pay your attorney’s costs.

  2. junior
    July 13, 2010 at 3:02 pm

    I believe that you are correct Chris; the letter does appear to be prima facie evidence that the council majority did meet and make a decision in violation of the Brown Act.

    You could file suit alleging a violation of the Brown Act. I believe that the court would find in your favor.

    The court’s remedy would likely be that the court would tell these elected officials to not do that again and they would be ordered to attend educational sessions on the Brown Act. Also, if you win the case I believe that the court would order that you are to be reimbursed by the City of Westminster for reasonable attorney’s fees and costs.

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