The good, the bad and the ugly of government transparency during a pandemic.
Good morning.
Sara Rubin here, on a weekend day that I generally dedicate to catching up on paper media and do my best to avoid technology. That feels especially crucial in this era of virtual socializing, virtual work meetings, virtual cultural experiences and yes, virtual government meetings.
Part of what I love about my work as a journalist is attending government meetings, running into neighbors and acquaintances, and seeing how the sausage is made. It’s people just like us who sit on the dais deliberating and voting on decisions that affect our lives, and people just like us who populate the audience. If so moved, you can walk up to a microphone and tell those officials at the dais what you think. (They may or may not listen.)
One of the things I miss in this Zoom era is attending public meetings in person. But I’ve been grateful for the virtual transition government agencies have made, streaming their meetings. It makes it a lot less of a burden as a member of the public to attend. You can stream a meeting in the background while you cook dinner, listening as if it’s the radio; you can call in when it’s your moment to speak instead of waiting on an uncomfortable bench of hours, and make your voice heard from your living room couch. You don’t have to find a babysitter, you don’t have to put on pants.
It’s one of the silver linings of pandemic adaptations, this increased access for the public to government meetings. But the virtual experience is also imperfect. As David Snyder, executive director of the First Amendment Coalition, puts it: “The downside is you lack the in-person interaction that really is at the core of local democracy—the right of the public to directly address their appointed leaders. Something is lost when members can turn off a camera.”
In California, virtual meetings are happening thanks to an executive order issued by the governor on the heels of his declaration of a state of emergency last year, modifying the state’s normal open meetings rules. When that state of emergency goes away, which it will eventually, it remains unknown if local agencies will hold onto some type of virtual access. It’s no doubt cumbersome and costly to run a hybrid in-person and virtual meeting, but I hope they do.
I also hope the Monterey County Superior Court system keeps available its option to attend court by telephone. It’s something that attorneys could already do pre-pandemic (and a cost-savings benefit for their clients, who don’t have to pay their lawyers to get to and from court). But the public access phone line is new. In court, unlike a city council meeting, the public is not welcome to speak up, but the courtroom is a public forum, and anyone can drop in to listen to attorneys reason their cases and judges issue decisions. Now, you can also do that by calling in to listen.
It’s not clear whether that system will be allowed to continue and if it will. As Monterey County Superior Court Executive Officer Chris Ruhl notes, the remote access system came about under Emergency Rule 3, which is set to expire 90 days after the governor’s emergency order expires. “It is unclear at this point what will continue to be allowed by rule after that,” Ruhl writes by email.
Before I start to sound too rosy in my outlook on the pandemic improving open government, there are limitations. The governor’s orders allow government agencies to be briefed in closed session on Covid-19, but not to discuss Covid-19. During the pandemic, we’ve also seen at least two local agencies—the Monterey County Board of Supervisors and Carmel City Council—hide behind a closed-session exemption to discuss Covid-19, but that has nothing to do with the pandemic.
Government code section 54950 is “on matters posing a threat to the security of public buildings, a threat to the security of essential public services, including water, drinking water, wastewater treatment, natural gas service, and electric service, or a threat to the public’s right of access to public services or public facilities.” Snyder says that’s things like vulnerability of a dam, rail system or power plant to a terrorist attack—not, for example, a virus that’s already in our midst. “Like all closed session provisions of the Brown Act, this is supposed to be interpreted very narrowly, with a deference toward openness,” Snyder adds.
We only know these agencies were using this exemption to discuss Covid-19 behind closed doors because members told us. I tried asking Carmel City Attorney Brian Pierik what they talked about, and got nowhere. “I can't disclose what's discussed in closed session,” he says. “I cannot discuss with you what was in closed session.”
It’s a serious limitation of the closed-session rules—the public gets to see the reason an agency thinks they can talk about something behind closed doors without the public listening in (reasons include personnel matters, real estate transactions and litigation), but without even a kernel of insight, we don’t know if they’re interpreting the law correctly or not.
In honor of Sunshine Week every year, our friends at the Electronic Frontier Foundation and MuckRock News compile what they call the “Foilies”—named after FOIA, for the U.S. Freedom of Information Act—and give out awards to the worst fails in government transparency. They’re funny/sad. Check out this week’s cover story in the print issue of the Weekly for the Foilies, ranging from bizarre to hilarious to infuriating.
And here’s to remembering, as Louis Brandeis said, “Sunlight is said to be the best of disinfectants.”
-Sara Rubin, editor, sara@mcweekly.com