It seems that the Orange County District Attorney has a rather lenient interpretation of the Brown Act when it comes to obvious violations on the part of Westminster City Councilmen Tyler Diep, Andy Quach, and Tri Ta. At least that is the only conclusion I can reach from their response to my complaint regarding the publishing of a letter from these members of the City Council regarding the conflict over Black April events in March. Senior Deputy District Attorney Raymond S. Armstrong responded to my concerns related to the obvious violation of the Brown Act in a June 28, 2010 letter.
We are in receipt of your complaint alleging a violation of the Brown Act by members of the Westminster City Council. The Orange County District Attorney (OCDA) carefully reviewed all the information you provided and conducted an independent investigation. The OCDA reviewed records of the Westminster City Council meetings and obtained additional information from the Westminster City Attorney. The evidence we obtained does not show a Brown Act violation.
Armstrong continues:
There is no evidence to sustain a civil action for multiple reasons. First, the sending of the letter itself does not demonstrate that a majority of the members of the council agreed to any decision on the matter, or even discussed it, at any time other than at the publicly held city council meeting referred to above. The OCDA’s inquiry did not reveal any evidence to the contrary. The letter simply reiterated the sentiment of the Westminster Council expressed at the public meeting. Second, the sending of the letter did not constitute “action taken,†because it did not signify a “collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision.†It only requested community members themselves to attempt resolving their differences. Third, even assuming the act of sending a letter constituted “action†as defined above, given the specific nature of the conflict the letter sought to resolve, there is no evidence or threat that it is likely to reoccur in the future.
Bluntly, Mr. Armstrong seems to have missed my point. The violation was not that three members, representing the Council majority, had agreed to a particular action in their published letter. The violation is the fact that they met and agreed to sign on to a group letter in their official capacity as members of the City Council. The letter is evidence that they met and discussed in private, a matter that was pending before the City Council. That fact, in and of itself, is a clear violation of the Brown Act. A letter representing the opinion of the majority of the City Council, that had not been publicly discussed, is an additional violation of the Brown Act. By signing the letter with their official titles as members of the Westminster City Council, represent an official action of the City Council.
Mr. Armstrong would have us believe that just because the letter reflects discussions that occurred in public session there is no violation of the Brown Act. This opinion is simply absurd and unsupported by any legal precedent. Terry Francke of Californian’s Aware puts it this way in his commentary today in the Voice of Orange County.
The district attorney’s office seems to believe that if a local body secretly discusses and authorizes a message to someone reflecting its consensus on a policy matter, the Brown Act is not violated unless that consensus deviates from sentiments expressed in a prior public meeting, or commits the majority to a particular decision having legal force. There is no legal authority whatsoever even remotely approaching that forgiving principle.
It is the mere discussion of policy matters among a majority, whatever the history or outcome, that triggers the Brown Act’s openness rules. And if the district attorney’s view were the law, it would be a serious erosion of the Brown Act, since the public’s ability to determine that the message is purely a reiteration of a known policy position would arise only upon public discovery of the message, an outcome which would in many cases be subject to the authors’ control.
Background
Back on April 26, I wrote in Black April Memorial Events in Westminster – Tarnished By Brown Act Violations and Politics about the possible violation of the Brown Act by three members of the Westminster City Council. My concern came from two separate acts by members Andy Quach, Tyler Diep, and Tri Ta.  The violation occurred around March 29 when Council Member Diep prepared, and apparently released to Vietnamese media, a joint statement of those three members of the council regarding the permit dispute between the Vietnamese Community of Southern California and Supervisor Janet Nguyen who was holding a permit to recognize the fall of Saigon in 1975, known as Black April on April 30, 2010 on behalf of herself and a coalition of community groups.
In order for such a statement to have been issued these three members, who comprise a majority of Council members, would have had to have either direct or serial meetings to agree upon the joint statement. As this matter had been discussed by the City Council on March 24 and was likely to return to the Council for a decision on the matter, such a meeting was in clear violation of the Brown Act.
On Monday, May 3, 2010, Richard McKee acting on behalf of Californians Aware submitted a letter (here) to the city of Westminster demanding that they rescind their action (the circulation of a joint letter signed by Council members Diep, Quach, and Ta) which the three members took outside a regular meeting of the City Council because that action appears to be in violation of the Brown Act.
The City of Westminster refused to respond to Mr. McKee’s letter and City Manager Donald Lamm issued this response to me when I inquired about the status of their consideration of Mckee’s demand letter.
The letter referred to by Mr. McKee was prepared and submitted to the media by Tyler Diep, not during his official capacity as a City Council member, not as a “matter of business before the City Council,†but as a citizen of this community. Since his decision to release the letter was not made by the Westminster City Council, there is no official action that can be rescinded by the Council. Therefore, the City of Westminster does not have nor will we send any letter acknowledging errors as alleged by Mr. McKee.
The City of Westminster seems to believe that the letter issued under the signatures of three members of the City Council is that action of a single individual, Tyler Diep, and not in his official capacity as a member of the City Council. But Senior Deputy District Attorney Armstrong believes that the letter is in fact a representation of the opinions of the majority of Council members expressed at a public meeting of the City Council. In this case they get to have their cake and eat it too. All that is necessary is to turn the Brown Act, and the public’s right to have discussions of public policy held in public view, on its head.
I have some follow-up questions in to the DA’s office and will post their response as soon as I have it.