This story was originally published by Fresnoland, a nonprofit news organization.
Speaking with reporters at City Hall in June after passing a record-breaking $1.87 billion budget, Fresno Mayor Jerry Dyer was all smiles.
The budget’s adoption capped a months-long process that included five public hearings, two city council meetings, and dozens of modifications made by the city council’s budget subcommittee and Dyer’s administration.
“A lot of sausage was being made in the back room,” Dyer told reporters at a June 22 news conference, praising the work of the City Council’s budget subcommittee.
During the final scramble to adopt the budget before the end of the fiscal year, Dyer’s team met with the budget subcommittee several times over eight days behind closed doors. More than 75 changes and amendments to the proposed budget emerged from those meetings totaling almost $30 million.
How those decisions were made and prioritized remains unclear because the budget subcommittee meetings were not open to the public; nor were its agendas, minutes, and attendance.
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.
“This is, in my view, a major Brown Act problem,” said David Loy, the legal director at the First Amendment Coalition. “They’ve been doing this for four or five years. Basically hashing out the budget reconciliation in secret and then sort of presenting it to the full council — the public has a right to be in that group.”
A 5-year-old temporary budget subcommittee?
Loy said the Brown Act deals with what’s being done in practice, regardless of city officials calling the budget subcommittee a temporary body exempt from the state law.
Additionally, The League of California Cities, which lobbies on behalf of local city governments in the Sacramento legislature, listed budget committees as an example of standing committees in its 2016 Brown Act guide: “For example, if a governing body creates long-term committees on budget and finance or on public safety, those are standing committees subject to the Brown Act.”
Fresnoland also reviewed the 10 largest cities in California by population — Fresno is No. 5 — and found that every city with a budget committee keeps it open to the public, except Fresno. That includes Los Angeles, San Diego, San Francisco, Sacramento, Long Beach, Oakland, Anaheim, and Bakersfield — all with budget committees subject to the Brown Act with agendas, minutes, and attendance made public.
San Jose, California’s third largest city by population, does not have a budget committee; the city’s budget reconciliation is done publicly by the entire city council, said Bonny Duong, San Jose’s assistant budget director.
Legal experts who spoke with Fresnoland said the subcommittee’s annual meetings over the same subject for five years appear to meet the criteria for a standing committee subject to the Brown Act.
“It does look a lot like it’s a standing committee with a continuing mandate to deal with these budget issues every year,” said Loy from the First Amendment Coalition. “Whether it meets once a year, once a month, once a week — in my view, that looks a lot like a standing committee subject to the Brown Act.”
Chris Micheli, a law professor at the McGeorge School of Law in Sacramento, agreed that Fresno’s budget subcommittee having continuing subject matter jurisdiction over five years would make it a standing committee in practice.
“You would think the budget committee of the city council probably has continuing jurisdiction over the city’s budget,” Micheli told Fresnoland.
Continuing subject matter jurisdiction refers to the general subject matter being discussed. That could range from the budget to infrastructure to education, said Gunita Singh, a staff attorney at the Reporters Committee for Freedom of the Press.
Fresno city clerk’s office launches audit to track down subcommittee records
Janz pushed back against any criticism of transparency in the City of Fresno’s budget process. While he emphasized over email that the budget subcommittee is exempt from the Brown Act as a temporary ad hoc body, he refused to elaborate or answer any follow-up questions over the phone.
While Janz told Fresnoland that the subcommittee is established during the budget process and then dissolved following the passage of a budget every year since 2019, the city does not have the paperwork to prove it.
A 2004 city resolution requires filing a specific form for the Fresno City Council to create commissions, committees, and boards. However, the City Clerk is only in possession of one document used to create an old budget subcommittee in 2018, despite the city council’s committee rosters listing the budget subcommittee’s membership in subsequent years.
Additionally, the 2023 city council committee roster includes a recommendation to make the budget subcommittee a standing committee.
City Clerk Todd Stermer on Monday confirmed his office is not in possession of formation documents for budget subcommittees formed between 2019 to 2023.
Stermer said he couldn’t speculate on why his office is not in possession of the documents, so it is unclear whether the paperwork was ever filed or if it is misplaced.
The budget subcommittee is one of seven city council bodies without formation documents on file, Stermer said. Since March, a city clerk staffer has been assigned to retroactively create necessary files for active city council commissions, boards, and committees without formation documents.
That process includes going through past written communications, Stermer said, including email chains, and scanning through minutes and notes of past public meetings to identify when active city council bodies with no formation documents were first created.
Confusion on the dais about the subcommittee dissolving
In addition to formation documents not being on file, three current council members who either currently serve or recently served on the budget subcommittee all gave slightly different — and at times conflicting — answers about whether the subcommittee is dissolved and reconvened every year.
On June 26, Council President Tyler Maxwell told Fresnoland that the budget subcommittee meets with the mayor’s administration twice a year.
“We do that in January — our mid-year review — and again during June for the budget process,” Maxwell said. “However, this subcommittee is trying to change that to where we’re meeting quarterly.”
Janz told Fresnoland over email that Maxwell was later advised meeting quarterly would not be possible for an ad hoc committee since it needs to dissolve after completing its task of issuing a budget proposal recommendation.
Councilmember Miguel Arias painted a slightly different picture. He said that although the budget subcommittee meets with the mayor’s administration in June, only the city council leadership — typically the president and vice president — meet with city administration for a mid-year budget review come January.
Councilmember Nelson Esparza, who was city council president last year, said he couldn’t recall whether the subcommittee met with the mayor’s administration in the middle of the fiscal year but remembered the mayor’s administration engaging his office regarding a midyear budget review.
Key budget discussions not held in public in Fresno
Legal experts said it’s unusual for a major city not to have a public budget committee. They also said convening and dissolving an ad hoc budget committee annually is uncommon.
“Certainly, I think there’s a question here as to whether the city is kind of calling this committee one thing and doing another thing in practice — using terminology to kind of skirt requirements that otherwise would apply in terms of public disclosure,” said Julia Stein, a former land use attorney and a professor at UCLA School of Law who has frequently worked with California’s public meeting and disclosure laws.
Fresno’s budget process is not entirely walled off from the public. Fresno residents have access to budget hearings and city council meetings where key topics are discussed during meetings open to the public, with recordings published online.
However, Fresno residents cannot access the budget subcommittee’s closed-door conversations, which play a critical role in finalizing budget decisions forwarded to the city council for approval.
“I call it where the rubber meets the road,” said City Councilmember Luis Chavez on the budget subcommittee’s key role in the budget process. “The council has outlined the vision, the mayor has brought forward his recommendation, and now it’s time to actually reconcile those two but also make sure you’re including key investments.”
Chavez said he was on the budget subcommittee in 2019, 2020, and 2021 and has over a dozen years of experience at Fresno City Hall, first as a staffer and then six years as a council member. Chavez said integral to the budget process are the budget subcommittee’s members being mindful of the rest of the council’s budget priorities.
“I think that’s why our budget subcommittee did a good job and took that into the back room and negotiated on behalf of the council,” Chavez said, speaking to the 2023 budget subcommittee. “So by the time it came back, it was pretty spot on, and there was not a lot of discussion or debate out on the dais.”
Committee discussions are integral not only in budget conversations. Legal experts told Fresnoland that committees are typically responsible for doing most of the heavy lifting that goes into major policy decisions because a lot of preparatory work and decision-making goes into producing a final recommendation presented for approval.
“The real work gets done in committees of a legislative body — whether it’s the United States Congress, the California Legislature, or your local city council or board of supervisors — it’s the same thing,” said Micheli, the McGeorge law school professor. “The real work and the real deliberations take place in committee.”
Micheli added that the public deserves the right to be there at every step of the process, listen to critical discussions and provide feedback.
“It’s not just for the public to know what the final decision or the final action taken is. It’s also important for the public to hear and be able to participate in those deliberations,” Micheli said. “And that’s most often done in committees.”
This article first appeared on Fresnoland and is republished here under a Creative Commons license.