By Lawrence Grossman

THINK OF THIS AS A (POSSIBLE) CONFESSION. I (may have) committed a crime. But I hope it was just a civics lesson.

Here is my story. I joined the city Finance Committee about four years ago and currently serve as chair (there are four other members). In that time I have learned a bit about the workings of city government and recently have come face to face with what feels like a “Catch-22” moment torn out of Joseph Heller’s novel.

I am talking about the Brown Act, a 60-year-old California law dealing with “open government.”

I understand that the purpose of the Brown Act is to ensure that the public’s business is conducted in public, which is clearly a laudable goal. To that end, among other things the Brown Act prohibits me as a member of the Finance Committee from communicating in any manner outside official public meetings about any committee issue with a majority of the committee (myself counted) or the City Council. (Technically, if I were to meet with a majority of the Council, those members would be in violation of the Brown Act, not me.) Non-compliance with the Brown Act may lead to real penalties.

It is curious that the Brown Act, or any similar law, does not apply to Congress or the California state Legislature. That may be because if Brown Act rules applied to them, the majority party could not caucus. Nor does the Brown Act apply to Benicia (or any) city staff. I have not been able to determine if other states have comparably restrictive laws.

As long as I was just a member of the Finance Committee but not the chair, the Brown Act seemed odd but of no consequence. As chair, the Brown Act now seems very odd and very consequential.

Simply stated, I find that the Brown Act requires communication in an extremely limited and unnatural manner, severely restricting non-public and private substantive communication. In effect, the Brown Act prohibits and penalizes specific types of speech.

While the Brown Act aims to improve government, I believe that compliance with the Brown Act presents the potential for less effective government. In fact, to someone like me accustomed to communicating in nongovernmental settings, it feels like these rules meaningfully impair the ability of the Finance Committee to work.

Take a monthly example: I can’t call or email more than one member about an issue on the monthly agenda. Beyond one member on a topic, I have to stop and schedule a formal meeting, which commonly means delaying discussion for a month or more.

Moreover, to comply with the Brown Act, before I discuss anything with any committee member I need to find out if they have discussed the subject with some other member; if so, we can’t talk. Of course, by asking the question, we are communicating and probably violating the law!

Wow, there it is — a genuine Catch-22 moment in Benicia!

To quote Wikipedia: “Joseph Heller coined the term in his 1961 novel ‘Catch-22,’ which describes absurd bureaucratic constraints on soldiers in World War II. … The term is applied to various loopholes and quirks of the military system, always with the implication that rules are inaccessible to and slanted against those lower in the hierarchy.” Hmm …

Another recent example: I came across what I believed to be useful information and I sent it as an email to all members of the committee as well as the three ex-officio members (the city treasurer and two Council people), The Herald reporter who covers our committee, and city staff. A member emailed back, copied to all, saying it was useful. I responded to all that we might discuss it at an upcoming meeting.

I have been advised by city staff that this exchange may have been a violation of the Brown Act.

Is this really what I have to think about before I speak, open or send an email, or pick up the phone? Apparently the answer is “yes” — but I’m getting a headache.

To be safe, is it better simply to not communicate between formal meetings? Unfortunately, I think this is the reality.

So that’s where things stand with today’s civics lesson. I am left with unanswered questions far beyond the scope of the Finance Committee or, further, of my private resources.

Question 1: Is the Brown Act worthwhile? Do we assess both the benefits and the costs of the Brown Act, or do we simply assume that it is good law?

Question 2: How does the Brown Act’s restriction of speech and assembly accord with the U.S. Constitution? The answer is certainly not obvious to a layperson such as me.

That said, I tip my hat to Joseph Heller! And I will comply!

Lawrence Grossman is the principal of Grossman Financial Management and a certified financial planner, SEC-registered investment adviser and accredited investment fiduciary. He is chair of Benicia’s Finance Committee.