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Underpinning of the Brown Act for Neighborhood Councils Turns Out to be Bogus

EASTSIDER-We know that enough ink and electrons have been spent arguing about what the Ralph M. Brown Act means for Neighborhood Councils to fill a small library.

However, a little research demonstrates that the assumptions underlying these interpretations are not correct. At all. 

The Charter and the Plan 

If you take a look at Article IX -- Department of Neighborhood Empowerment (the NC Charter Amendments), there is absolutely no reference to the Brown Act. Period. 

The closest we get is in Section 904, where it says: 

(f)     "The Regulations shall not restrict the method by which the members of a neighborhood council are chosen, if the process otherwise satisfies the requirements of this  Article. 

(g)     The Regulations shall require that neighborhood councils adopt fair and open procedures for the conduct of their business.”

 The other key document for Neighborhood Councils is the Plan itself (Ordinance No. 17406). As the only other formative legal document, it does indeed make reference to the Brown Act, but not in any way that the “powers that be” have twisted the language. 

Under Section 3(d) we find the following actual language: 

“(d) A description of its meeting procedures which shall include provisions that each neighborhood council shall do the following: 

(1). Meet at least once per calendar 

(2)   Obey any or all applicable sections of the state’s Ralph M. Brown Act” (emphasis added)

 

Note what this says: “any or all applicable sections” of the Brown Act, not the slavish regurgitation of the entire Brown Act as it applies to actual legislators! 

Parse It 

Remember, members of a Neighborhood Council are not legislators, and the framers of the Plan knew that. In fact, according to Merriam-Webster, a legislator is one who makes laws: 

“leg·​is·​la·​tor | \ ˈle-jə-ˌslā-tər, -ˌslā-ˌtȯr also ˌle-jə-ˈslā-ˌtȯr \

Definition of legislator: one that makes laws especially for a political unit especially : a member of a legislative body” 

Far from making laws, Neighborhood Councils are expressly neutered into volunteer, unpaid, stakeholders who wish to participate in making advisory-only recommendations to the folks who are the actual legislators- - the Los Angeles City Council! 

And just to emphasize my point, let’s see what the 2006 Review Commission determined when they looked at the Neighborhood Council System. I quote no lesser a personage than Raphael J. Sonenshein in his book, Los Angeles: Structure of a City Government, published by the League of Women Voters in 2006. You can find a link to the PDF here

On page 171, a page entitled Neighborhood Councils and The Brown Act, there are two statements material to our inquiry: 

When Los Angeles adopted a system of neighborhood councils in 1999, the question arose whether or not these advisory bodies would be covered by the Brown Act. The city attorney’s office determined that, as bodies created by city government, neighborhood councils must comply with the open meetings provisions of the Brown Act.” 

and a paragraph later, 

Debate continues on whether or not the Brown Act, in its entirety, should apply to neighborhood councils, or whether or not a modified version of the Brown Act might be developed with the assistance of state lawmakers.” 

You will not be surprised that LA City has never, from 1999 to 2021, modified the relevant sections of the Plan, nor done anything to clarify/modify any reach of the Act beyond open meetings. Period. 

The City Attorney 

I am only aware of two actual published City Attorney documents relevant to our discussion. First, back in 2007, Rocky Delgadillo published  a memorandum parsing the relationships between BONC and DONE, especially relating to DONE’s General Manager. 

That document was addressed to Sonenshein’s NC Review Commission in 2007, and there is nothing in the document contradicting the Charter or the Review Commission. 

Notably, Rocky went to Franklin High, and much later became LA City Attorney for two terms. Now, of course, he is a Superlawyer for DLA/Piper, the favorite firm for big time developers in LA and other places. 

“DLA Piper is a global law firm with lawyers located in more than 40 countries throughout the Americas, Europe, the Middle East, Africa and Asia Pacific, positioning us to help clients with their legal needs around the world. 

We strive to be the leading global business law firm by delivering quality and value to our clients.” 

Not bad for a home boy. 

Of course, I can’t resist reminding everyone that he also acted as the private attorney representing the Downtown NC interests against the Skid Row Formation Committee, when they tried to break away from the corruption of LA City Hall. 

The other document I found is a 2006 missive on The Brown Act and Neighborhood Councils, dated 2006 with no attribution, and part of the AB1234 Ethics Training which NC Board members have to go through. Or else. 

I don’t think that the document is generally available to stakeholders in LA City anymore You know, like the 4 million or so Angelenos covered by all this stuff. 

Instead, DONE has evidently decided only NC Board members have access to this secret knowledge.  Their vehicle is something called Cornerstone. If you think I am making this up, check out their “Portal”.  

“In an effort to make required trainings easier for Neighborhood Council Board Members and to provide access to more online trainings, the Department of Neighborhood Empowerment has transitioned all Board Member trainings to a platform called Cornerstone.” 

Fortunately for all of us non-Board members, I don’t think that the 2006 document has much probative value, in light of the Charter, the Review Commission, and the fact there is no attribution.  Further, since it is unsigned and hasn’t been modified since 2006, it is also probably legally worthless. 

How About Those Codes of Conduct? 

Thanks to Richard Larsen of Lincoln Heights for this one. At first blush, Neighborhood Councils are exempt from having a Code of Conduct. 

WHEREAS, neighborhood councils: (1) have no regulatory, quasi- regulatory, permit, licensing or planning authority or functions; (2) will not acquire real property in the foreseeable future; (3) have an annual operating budget exclusive of salaries that is less than $70,000; and good cause exists to grant an exemption for neighborhood councils from the requirement of adopting and promulgating a Conflict of Interest Code” 

Seems pretty straight up, right? 

But back in 2007, the City Ethics Commission got freaked out about gifts, and wasn’t so sure about exemption from a Code of Conduct. In a March Agenda, they worried about “Disclosing Potential Conflicts of Interest Among and Gifts to Neighborhood Council Members.” There is nothing to indicate that the matter has really been resolved. 

And more recently, in a 2017 Empower LA puff piece about Neighborhood Councils, DONE made it clear that Ordinance 176477 “Exempts Neighborhood Councils form adopting a conflict-of-interest code and Filling the Form 700 financial disclosure statements.” Period. 

I’d give you links, but the EmpowerLA newsletters defy my best attempts to find where they live and how/if they are even indexed at all. Anyhow, it illustrates the point that with Neighborhood Councils, nothing is ever simple. 

More importantly, I think it underlines that sad fact that the LA City Attorney isn’t in synch with itself.  Instead, the office has many fiefdoms for the different entities they “represent”, and only the ones with elected officials get the gravy.  The rest of us get what we get, and clearly they don’t talk to each other and coordinate. 

The Takeaway 

The 1999 Neighborhood Council experiment was designed to promote innovation and a healthy set of watchdogs over our elected officials.  Unfortunately, we now have learned with decades of experience, the almost universal fact that public bureaucracies hate innovation. And the NC system is living proof of the thesis. 

Under the Plan, BONC itself had a limited role in oversight of the Councils. By 2021, BONC has turned into a monster, stifling inclusion and experimentation with more and more unnecessary and stupid rules. 

DONE has morphed into the same. Instead of the lean operation designed to support and provide help to the Neighborhood Councils, it too is now a ruthless purveyor of mandatory bullshit choking the life’s blood out of Neighborhood Councils. 

Witness the current initiative to limit the free speech of Board members as though there was no First Amendment, and to impose a “digital media” mother may I scheme over the Neighborhood Councils. 

I fear the bureaucracy has prevailed over the great experiment, and it may be time to call it a day, eliminate the Neighborhood Councils and kill off the Charter amendments. 

Why? LA City politicians seem to only respond to fear, not logic. I think the City Council and the Mayor need to realize that if we kill off the Neighborhood Councils, it is likely that we will go back to the old system, controlled homeowners’ associations. You know, the ones that could tell the politicians to go to heck, and darn near succeeded in the Valley’s secession movement.

 

(Tony Butka is an Eastside community activist, who has served on a neighborhood council, has a background in government and is a contributor to CityWatch.) Edited for CityWatch by Linda Abrams.