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Op-Ed for OPINION page: A teachable moment about open-meeting laws

By Kimberly Rivers

Some comments made recently by a local elected official and top administrator in a local government agency indicate a deep lack of understanding about some basic state laws and a key facet of local government: You are doing the people’s business.

A member of the Ojai Unified school board and our superintendent indicated in two separate written formats (social media and in email) that the school board never in the past accepted written public comments during Ojai Unified School District school board public meetings. When the Ojai Valley News ran an editorial on this topic on July 16 (“A written public comment school board can’t ignore”), they doubled down and dug in. Some members of the public wrote in support of the statements, indicating they, too, didn’t understand the “sunshine” and open-meeting laws that govern all elected bodies in California.

This is troubling, if not surprising, that an elected official and a public servant paid with taxpayers’ dollars, and some members of the public, all don’t understand these laws. So, I thought it presents a teachable moment.

First, the OUSD school board has always accepted written public comments on school district issues at its public meetings. Always. I personally have submitted many written comments in the decade that my son has attended OUSD schools. I have watched others do the same. I have seen these comments, I have seen the school board members receive and review and sometimes comment on them.

Second, the school board did change its method of reviewing these submitted written comments in the face of the pandemic and I applaud it for following the lead of other elected bodies in taking the time to read these written comments aloud to foster public engagement and input. But now that things are shifting, the district is stopping that, which, for me, is totally fine.

Third, the local press (designated as the Fourth Estate for the watchdog role of local government the press has always had in our country) has been holding the district accountable to follow state laws and make these public written comments, which become part of the administrative record for those meetings, available to the public. In the past, the school district’s executive assistant would make copies of the written comments submitted and place them in the back of the board meeting room on a table for the public. The district has improved in responding to these requests. I think it could do even better.

But that first one — an elected official and the top administrator stating the board never accepted written comments for board meetings — is most concerning because it is false and because any elected body that had that policy would be in violation of state law and established case-law precedent, some of which says attempts to diminish avenues for the public to submit comments to elected bodies are a violation of the First Amendment. Can you imagine a city council or county board of supervisors saying they won’t accept written comments from the public regarding agenda items or other issues for public meetings?

Another issue raised by a member of the public was the concept that the public should have to pay to view these comments. That is not true.

All public written comments received and reviewed by any publicly elected body are part of the administrative record for that meeting and become subject to the California Public Records Act. Anything the entire board sees (except for a few exclusions, such as personnel matters, litigation and some real-property negotiations) must be made available to the public. But there is nothing wrong with having to ask for them. They just have to be provided upon request, not the next day or the day after. If the documents exist, and are held by the government entity, they must be made available.

I can ask to view any document subject to the Public Records Act and CANNOT be charged for copying because I didn't ask for a copy, but to VIEW it. As an example, I personally have VIEWED and SCANNED thousands of pages of public records in city, county, state and federal offices and NEVER ONCE WAS CHARGED ONE PENNY to do so. That being said, the Public Records Act does provide that in certain very specific instances when an agency must spend a bunch of time researching or compiling records, it can charge a direct-cost fee.
BUT that certainly does not apply to written public comments that 1. are in written form already (no transcription services required) 2. are easily/readily available to staff (so no research compiling needed) and 3. technology today makes it super easy and simple to provide any and all records — especially what are usually brief comments — to the public in a digital format. Anyone with a smart phone can scan pages and post on the internet.

It’s so very important that members of the public, whom local government serves, know and understand the California Public Records Act and the Brown Act and understand the duty of local government to conduct the public’s business in the light of day. We hear that term “transparency” thrown around, but make no mistake, it takes an informed public, and the local press, to make sure true transparency in government is taking place.

As a resource, I’ll offer a great primer on the California Public Records Act from the California-based nonprofit, The First Amendment Coalition: https://firstamendmentcoalition.org/cpra-primer/.

 

— Kimberly Rivers of Ojai is a journalist.

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