FAC, ACLU sue Fresno over secret budget committee meetings

It all began with investigative reporting by Fresnoland’s Omar Rashad. He discovered that before the city of Fresno passed its most recent budget in June, key negotiations were done in secret meetings. Doesn’t that violate open meetings law, his article asked?

Yes, it does, according to the First Amendment Coalition and the American Civil Liberties Union of Northern California that sent a letter to the city in September demanding its budget committee stop meeting in secret and flouting the Brown Act, the state’s open meetings law for local governments. If it continued, it risked legal action.

Unfortunately, the city insisted it’s perfectly legal for its budget committee to negotiate a nearly $2 billion dollar budget proposal behind closed doors.

So yesterday, Wednesday, Nov. 15, the FAC and ACLU of Northern California, sued the city of Fresno for violating the Brown Act. The lawsuit asks the court to order Fresno to comply with the Brown Act’s open meeting, notice and public comment requirements.

Thanks to Rashad’s reporting, we learned these secret meetings have been going on since at least 2018, and in the city’s most recent budget, more than 75 changes and amendments were made, totaling nearly $30 million. All of these proposed changes were made without any notice to, or input from, the public.

Although the Fresno City Council rubber-stamped the final budget in open session, the public was shut out of committee meetings where it was shaped. Fresno stands alone as the only city among the state’s 10 largest by population that doesn’t open budget committee deliberations to the public, Fresnoland reported.

According to Fresnoland, “What I understand is this committee is the effective final word on the final budget, that the final budget is often rubber stamped by the full city council and the committee is where the real work gets done,” said David Loy, the legal director at the First Amendment Coalition.

The Fresno City Council’s budget committee is composed of three councilmembers every year. This year, the budget committee’s members were Council President Tyler Maxwell, Vice President Annalisa Perea and Councilmember Mike Karbassi.

The lawsuit says the city council’s budget committee was created by formal action and has had continuing subject matter jurisdiction since 2018 — two elements that would make it subject to the Brown Act.

City Attorney Andrew Janz told Fresnoland that the city’s budget subcommittee is a temporary, or ad hoc, committee and, therefore, exempt from the Ralph M. Brown Act, the California law requiring legislative bodies to meet publicly.

“It complies with the Brown Act’s narrow exception for ad hoc committees which are not required to follow the noticing and meeting rules,” Janz wrote in an email to Fresnoland. “That exception applies only to committees 1) comprised exclusively of less than a quorum of the council, 2) for a discrete task, 3) whose meetings are not set by formal action, 4) which dissolves upon completion of its task.”

However, Fresnoland confirmed that the budget subcommittee, which city officials assert is temporary, has met annually over the same general subject in June since at least 2019.

According to four legal experts who spoke with Fresnoland, that could make the subcommittee subject to public disclosure requirements under the Brown Act.

According to the FAC, there are few decisions more important than how to spend taxpayer dollars. Fresno residents may have opinions to share about the city’s priorities before the city council votes on the final budget. Should money go toward repairing roads? Addressing homelessness? Helping small businesses?

Fresnoland reported, “The day the budget was passed, Fresno Mayor Jerry Dyer said at a press conference, ‘A lot of sausage was made in the back room.’

“The public has the right to see how the sausage is made in the back room, not just how it’s sold in the showroom,” according to the FAC.

According to the lawsuit
Under the California Constitution, the people have “the right of access to information concerning the conduct of the people’s business.” To that end, “meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”

The Constitution further requires that any “statute, court rule or other authority … shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”

The Brown Act provides that “the public commissions, boards and councils and the other public agencies in this state exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.”

As the Brown Act declares, “The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

The Brown Act was designed “to facilitate public participation in all phases of local government decision-making, and to curb misuse of [the] democratic process by secret legislation by public bodies.”