A legal expert and San Benito County Registrar John Hodges
believe the Board of Supervisors broke the state’s open meetings
law Aug. 31 by discussing the possibility of stripping the longtime
official of his authority over elections.
County Counsel Karen Forcum, however, says her advice for the
board to hold the talk behind closed doors did not violate the
Ralph M. Brown Act, because the meeting involved potential
litigation protected by the act.
Hollister – A legal expert and San Benito County Registrar John Hodges believe the Board of Supervisors broke the state’s open meetings law Aug. 31 by discussing the possibility of stripping the longtime official of his authority over elections.
County Counsel Karen Forcum, however, says her advice for the board to hold the talk behind closed doors did not violate the Ralph M. Brown Act, because the meeting involved potential litigation protected by the act.
The board met in closed session, which allows for discussion on certain types of topics that aren’t required for debate during the regular meeting. After the Aug. 31 closed session, Forcum
publicly reported a board decision to draft a resolution seeking legislation to change the registrar from an elected position to one that’s appointed by supervisors.
If the board approves such a resolution, the county would send it to the area’s two state lawmakers. They would have the option to pursue the legislation.
The only closed session agenda item Aug. 31 potentially relating to Hodges’ office was listed under the umbrella topic “significant exposure to litigation.”
Hodges says the board’s consideration about the authority of his office didn’t have the potential to spur litigation. He believes the board abused the closed session format, he said.
Jim Ewert, a lawyer for the California Newspaper Publishers Association and an open meeting law expert, said the board hasn’t shown how changing Hodges’ authority could lead to litigation. Even if supervisors had been discussing potential legal action relating to Hodges’ office, changing the authority of Hodges’ role doesn’t seem to carry legal ramifications, he said.
“They haven’t overcome that presumption that they have to meet openly and publicly,” Ewert said. “It doesn’t meet up with the requirements that the Legislature set forth for going into closed session to talk about litigation.
“There may be other facts that come out that change my opinion.”
Ewert said the decision to draft the resolution sounds political.
“And there’s nothing in the Brown Act that allows them to go into closed session to talk about political issues,” he said.
Supervisor Reb Monaco said he’s not an expert on the Brown Act, but he acknowledged the board may have violated the law.
“I hate to admit it, but I may have been naive,” Monaco said. “I understand that and I am very concerned about it myself. I would hope that Karen (Forcum) is going to explore that.”
Supervisor Ruth Kesler said she’s confident Forcum gave supervisors good advice.
“We have a county counsel sitting in our meetings, and there’s no way that would be allowed,” Kesler said. “She’d call us on it.”
Supervisors Bob Cruz and Pat Loe didn’t return calls. When reached, Supervisor Richard Scagliotti hung up his cell phone.
At the following meeting on Sept. 8, Hodges publicly questioned how the decision to draft a resolution seeking strip his authority related to any kind of potential litigation.
Forcum responded to Hodges at this week’s meeting by pointing out how his office recently had been the subject of litigation, including a federal government lawsuit requiring more resources for Spanish-speaking voters.
Thursday, Forcum elaborated on her reasoning to allow the board’s discussion, while emphasizing government law restricts how much she can say publicly about closed session. The issue of stripping Hodges’ authority, she said, was “not necessarily” the issue originally intended under ‘significant exposure’ on the agenda.
“What initiated the discussion is confidential – the facts and circumstances,” Forcum said
She’s confident the board didn’t break the law because it reported the decision publicly after the meeting, she said.
Ewert, though, said simply reporting the decision does not make it legal. Any discussion not falling under the ‘significant exposure’ exemption, or any discussion not placed on the agenda, should have been forbidden during closed session, he said.
The board should have halted its discussions once supervisors veered off whatever topic was penned for closed session, he said.
“The public was entitled to know what the facts and circumstances were that gave rise to that closed session,” Ewert said.
The District Attorney’s Office has the authority to enforce Brown Act violations, District Attorney John Sarsfield said. He didn’t know the details of the meeting, and nobody had submitted a complaint to his office, he said.
If the board is found in violation of the law, Ewert said there’s a range of potential penalties. The courts can order the board to record future closed session meetings to preserve discussions. In “extreme” circumstances, he said, the courts can force the board to meet again. In “very extreme circumstances,” he said, the action can be voided.
Kollin Kosmicki covers county and city government for the Free Lance. Reach him at 637-5566 ext 331 or [email protected]
