The Brown Act Sets a Minimum Threshold. Good Government Exceeds It.

By Jon Kennedy for Mendo Local News' "Public Comment"

Jon Kennedy, founder and CEO of CivAssist, is an influential local government advocate with experience as a county supervisor, city manager, non-profit director and serial entrepreneur. He’s assisted dozens of small agencies with Brown Act and Public Records Request guidance.

Anyone who has ever read the Brown Act — California’s 70-year-old love letter to local government transparency — knows it’s a strange beast. Half of it is common sense, and the other half reads like the final exam from a community-college class called Advanced Bureaucracy: Theory and Practice.

So it’s no surprise when agencies technically follow the law but still leave the public feeling like something is being hidden behind a velvet curtain. Take the recent Hopland Public Utility District situation. Their closed session was properly agendized under Government Code §54956.9(d)(2). On paper, that’s the correct citation for discussing anticipated litigation. Strictly by statute, the board met the legal threshold.

But here’s the rub:

Complying with the law and practicing good transparency are not the same thing. The law says that when a board goes into closed session under (d)(2), they don’t have to identify the claimant, the letter, the dispute, or the triggering event. They don’t have to say it was about a Cure and Correct letter. They don’t have to say much at all unless they take formal action. “Direction given to staff” is legally sufficient.

But legal sufficiency is the floor, not the ceiling. And for the public — the people paying the bills, attending meetings, and showing up with pitchforks (or at least the modern equivalent: Facebook comments) — the floor often feels like a trapdoor.

There’s nothing in the Brown Act that prevents a board from voluntarily saying something like: “Tonight’s closed session involved reviewing a Cure and Correct letter regarding our October 9 meeting. The board discussed the matter with legal counsel and provided direction to staff to prepare a response.”

That is perfectly legal.

It doesn’t give away attorney-client privilege.

It doesn’t undermine the agency’s position.

And it gives the public what they always want: context.

Good transparency isn’t about spilling secrets — it’s about reducing the mystery so people don’t assume the worst. Most frustration in local government doesn’t come from wrongdoing; it comes from silence that looks like wrongdoing.

Some boards understand this instinctively. Others cling so tightly to the minimum requirements that the public ends up imagining conspiracies where none exist. And that gap — between bare compliance and good behavior — is where trust erodes.

Ironically, misunderstandings like these are what pushed me to build CivAssist, the agenda and minute platform I created years ago. I watched agencies get beat up for sloppy agenda language, vague closed session descriptions, and accidental omissions. Not malicious — just avoidable.

CivAssist forces clean noticing because it takes human error and accidental ambiguity out of the equation. But software aside, the real solution is cultural: Read the room.

If half the audience shows up asking about a Cure and Correct letter, and everyone knows that’s why closed session exists that night, then giving the bare-minimum statutory report isn’t caution

— it’s gasoline on a fire.

Transparency isn’t just a legal requirement. It’s a behavior. And the truth is: 95% of the time, boards can safely be more open than they think they can. The Brown Act protects attorney-client privilege and strategic discussions — not the secrecy of the topic itself. Agencies can be clearer, calmer, and more communicative without crossing any legal line.

If boards offered even a little more voluntary clarity, the public would be calmer, meetings would be shorter, and reporters wouldn’t have to play forensic detective with partial information.

Everyone wins.

Because at the end of the day, the Brown Act isn’t supposed to be a mystery thriller. If your residents have to hire a lawyer, a journalist, and a bloodhound just to figure out what happened in closed session, something has gone off the rails.