Supervisor Michael Antonovich (Creative Commons).

Amid the heightened scrutiny, the Board of Supervisors passed a measure Tuesday urging Sacramento to amend the Brown Act, a state law guaranteeing the public’s right to attend and participate in the meetings of their local legislative bodies.

While organizations such as the Los Angeles Times and the legal activist group, Californians Aware, believe the Los Angeles Board of Supervisors is a constant violator of the Brown Act, the Board asserts it has the right to hold closed meetings under certain circumstances.

But does holding a closed meeting, or executive session, violate the First Amendment rights of the public?

Jonathon Kotler, a trial and appellate attorney and professor at the USC Annenberg School for Communication and Journalism, said the Brown Act has nothing to do with the First Amendment and that there is no constitutional “right to know.”

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Benjamin Gottlieb: Why does the Los Angeles Board of Supervisors want to amend the Brown Act?

Jonathon Kotler: The same reason that any government employee who is honest with you hates the Brown Act. Nobody likes to have people looking over their shoulders. The difference though is that we own the soldiers, and they don’t quite understand that.

BG: This measure, recommended by Supervisor Michael Antonovich, is a unified plea to Sacramento to amend the Brown Act by allowing the Board of Supervisors to meet in executive session, also known as a closed session, with the President and Governor…

JK: Yes, but you have to understand that there is already grounds in the Brown Act for executive sessions. It doesn’t change anything. It’s grandstanding. It would allow executive session in a very limited circumstance, which you couldn’t go to Vegas to get outside of ever occurring.

BG: So what you’re saying is that closed meetings are already allowed under the Brown Act?

JK: Yes. You could go to executive session to do things like discussing contracts, if you have personnel issues. You could go to executive session to discuss pending litigation or something that might lead to pending litigation. The Brown Act does have certain types of discussions that could go to executive session.

All this would do is add another one and, as I said, the one their trying to add is never going to happen anyway. I would think the President of the United States would have a whole lot better things to do than to meet with our five little kings and discuss local security issues.

BG: But what about the Governor of California? If the Board of Supervisors wants to discuss local security with the governor or access to public services, wouldn’t this amendment to the Brown Act allow for them to do this behind closed doors?

JK: For one thing, you don’t need to amend the Brown Act for that because the Patriot Act already covers that. Like I said, its just Antonovich grandstanding. He’s got 30 years history of grandstanding and that’s all this is. From a freedom of information standpoint, there’s nothing to be concerned about.

BG: What about the public’s right to know?

JK: People assume that there is a right to know. That there is a right to access. Why? The First Amendment doesn’t say anything about that. You’ve got a right to report, and reporters have always argued that the right to report doesn’t mean anything unless the have the right to be there so they can report on what’s happening.  The courts have uniformly said, “No, that it’s strictly statutory and that it’s unconstitutional,” which is why we have things like the Brown Act, Sunshine Act and things like that.

To the extent that the press and the public – and it makes no difference, they stand in the same position here – have the right of access to their government, that is because the government allows it, usually by statute and sometimes by ordinance. And if were talking about the courts, then by court rule. There is nothing in the Constitution that says you have a right to attend a meeting, say, of the City Council. 

Put it this way, if you didn’t have the Brown Act – which is a law, not constitutional law, a state law passed by the state legislature -- and you walked down to the Board of Supervisors meeting and the door was locked, make the legal argument for allowing you in.

BG: It’s a meeting of public officials, discussing matters important to our city.

JK: The constitution says that Congress shall make no laws abridging freedom of the press. But this doesn’t. You could say anything you’d want to say.

BG: But isn’t the Board of Supervisors blocking the press’s access? Our right to know?

JK: The press goes on and on about the “right to know.” You know where the language came from? It’s not in any court decision. It came from language made up by media attorneys.

We would like to have the right to know, we should have the right to know, but absent of specific statutory language, you don’t. So the access that you have to your government, if we’re talking about the legislature, is what the legislature gives you. The access you have to court hearings is what the courts give you. There is no independent right.

BG: So then is the Brown Act unique to California?

JK: No every state has an equivalent, well most of them do.

BG: What about federal laws?

JK: Yeah. There are two kinds of laws. There is access to stuff of government – documents, records and those sorts of things. That’s covered by the Freedom of Information Act. And then there is the government and the Sunshine Act, which talks about open meetings. But there are always exceptions. It’s interesting, for example, the Freedom of Information Act was passed by Congress. It doesn’t apply to the courts because of checks and balances. By that same logic, it doesn’t apply to the President. So who does that leave?

BG: The legislature.

JK: Guess what? Congress exempted itself from the Freedom of Information Act. And people don’t understand that. It’s the most cynical piece of legislation you can possibly have.      

BG: So to boil it down. What does Tuesday’s Board of Supervisors measure really mean?

JK: It an exception to existing law that would only come into effect if the Governor or the President of the United States decided that he wanted to meet with the Los Angeles Board of Supervisors to discuss local security issues. What’s the likelihood of that happening?

If Brown were to meet with the Board of Supervisors to discuss national security issues, the Brown Act wouldn’t cover that right now. But the Patriot Act would, so you wouldn’t need it.

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