The testy exchange between Santa Rosa City Attorney Caroline Fowler and City Councilman Gary Wysocky at the Oct. 15 council meeting was troubling on a number of fronts.
As Staff Writer Kevin McCallum reported Tuesday, Fowler interjected when Wysocky asked Human Resources Director Fran Elm to discuss whether the proposed three-year labor agreement between the city and firefighters differed from one that was presented to the City Council on June 25. Fowler warned Wysocky that he would be committing a crime if he pursued the question.
"You cannot discuss any of the conversations that took place in closed session or you are committing a misdemeanor," Fowler warned him.
A moment later she reiterates this when Wysocky seeks to clarify, saying, "even if it leads to a ..."
"Anything!" she interrupts in a raised voice.
On principle and on the law, the city attorney is simply wrong.
First, Wysocky is to be applauded, not scolded. The Ralph M. Brown Act of California is to ensure transparency, not to protect the kind of culture of secrecy that seems to be all-pervasive at Santa Rosa City Hall these days.
The Brown Act is set up to create greater openness through requirements that ensure government meetings are accessible and council actions are brought to light. Requirements about nondisclosure of closed-door discussions are primarily to protect the public's interest — by not compromising the public agency's negotiating position, etc. — not to keep long-term secrets from the public.
Wysocky may have been guilty of pushing the envelope here, as he is wont to do. But his intent clearly was to allow the public greater insight into why the City Council was on the verge of approving a labor contract that, while being an improvement over past agreements, ensured the growth of Santa Rosa's structural deficit.
"I'm just looking for open government and to make sure that the public understands how we got here," he said.
So while Fowler is certainly correct that individual elected officials shouldn't reveal what is said in closed session, she missed an opportunity to educate the public and remind the council that once negotiations are concluded fuller disclosure may occur. In short, the City Council could collectively decide — in the spirit of greater transparency and accountability — to reveal what went on in negotiations.
Moreover, Wysocky was not on the verge of committing a "misdemeanor" as the city attorney alleged. In fact, the state attorney general issued an opinion 20 years ago that a public agency may <i>not</i> make it a misdemeanor to disclose closed session material.
Had Wysocky spilled the beans, his council colleagues could pursue consequences such as seeking a court injunction — violation of which would be a punishable as a crime — or referral to a grand jury. But there is no misdemeanor attached to unauthorized disclosure.
On the other hand, state law does allow a misdemeanor charge to be pursued in cases where a government body fails to live up to its obligations under the Brown Act — such as when the Santa Rosa City Council decided in a closed session on Feb. 12 to accept a settlement in building tax lawsuit but didn't report the action after reconvening in public.
The misguided tax and settlement cost the city $327,472 in public funds. How the council handled the disclosure cost the city its credibility. At the time, Fowler said the city was not required to report on the council's decision because the settlement wasn't final until the two sides exchanged legal documents.