The City of Bakersfield violated the state’s open meeting and public records laws. It’s as simple as that. And the Kern County Superior Court judge who determined that is someone who should know. He spent much of his legal career, before being appointed to the bench, as a county attorney who insisted Kern County government obeyed those same laws.
Judge Stephen Schuett ruled this week that the Bakersfield City Council violated the Brown Act by meeting illegally in three closed-door sessions to discuss placing Measure N on the 2018 ballot. The narrowly-passed measure added 1 cent to the sales tax charged in the city.
"The city council shut the public out of crucial discussions on exactly the kinds of topics California law requires be discussed in full public view," said David Snyder, executive director of the California First Amendment Coalition, one of two groups that sued Bakersfield. "Bakersfield refused for two years to back down from its position that it was entitled to this extraordinary secrecy. They were wrong, and we are grateful Judge Schuett has set them straight."
City officials claimed the Brown Act allowed the closed-door meetings to obtain legal advice under a “pending litigation” exemption. But in his ruling, Schuett concluded city finance, not legal advice, was mainly discussed.
“The purpose of the Brown Act is to facilitate public participation in local government decisions and to curb misuse of the democratic process by secret legislation by public bodies,” Schuett pointed out in his ruling. “The fact that material may be sensitive, embarrassing or controversial does not justify application of a closed session.”
Schuett pointed out the purpose of the Brown Act is threatened by the city using the litigation exemption “as a subterfuge to allow the discussion of the city’s critical budget issues, the potential solutions to those issues, impacts on city revenues, and potential staff layoffs and curtailing of services.”
When challenged by open government groups, including the California First Amendment Coalition and CalAware, city officials released some requested documents related to the closed-door meeting, but declined to release others – calling some documents confidential and the release of others unnecessary, since the groups already obtained the documents from an undisclosed source.
Schuett didn’t buy that argument, either. In his ruling, he noted earlier court cases concluded that even when someone already possesses a public document, a government agency still must disclose the document under the state’s Public Records Act.
And since the requested documents, which were presented during illegal closed-door meetings, focused mostly on city finances and political strategy, they were not protected “confidential” attorney communications.
Folks sitting at home might be tempted to dismiss this court fight as just picking a bunch of nits. In fact, it’s a big deal. It’s all about trust. Can people who live in Bakersfield trust their city officials to obey the law, behave honorably, and conduct the city’s business in an open, transparent manner?
In ruling that city officials violated the state’s open meeting and public records laws, Schuett noted the city’s pattern of behavior, denial of wrongdoing and likelihood of future violations. He directed the city to obey the laws and placed Bakersfield on what can be described as “probation.”
For the next year, the City Council’s closed-door executive sessions must be tape recorded, which will make the nature and content of the meetings potentially subject to disclosure if challenged.
The court challenge and Schuett’s ruling does not upend Measure N, which is expected to raise millions of dollars to expand public safety and other public services in the city. That will be up to voters.
Measure N calls for the tax increase to continue indefinitely, unless successfully overturned by voters. That means, Bakersfield voters must be satisfied Measure N revenues are being properly and responsively spent. That means that Bakersfield voters also must be satisfied that city officials are dealing honestly and openly with them.
Read Kern County Superior Court Judge Stephen Schuett’s ruling and the lawsuit filed by the California First Amendment Coalition and CalAware: