As the current redistricting effort in Sacramento reaches critical mass, it’s time to talk about the elephant in the room: Did City Council members break the law as they navigated their way from map to map to “2.0”?

If the council has done its work outside the public view or in some way impeded the public’s ability to participate fully in the process, the answer may be yes.

After the Citizens’ Advisory Committee on Redistricting spent months vetting maps submitted by the public, council members took the project in a new direction – a direction that has created an atmosphere of mistrust and raises questions about how the council is deciding on new electoral boundaries.

When the City Council was suddenly presented with a new map at its Aug. 9 meeting, council members quickly passed it with a 6-3 vote.

Too quickly, some say.

If the council came to its consensus ahead of the public vote by way of behind-closed-doors discussions involving a majority of council members (four or more), that would be in violation of the Brown Act.

According to the Brown Act, legislative bodies exist for the purpose of conducting the people’s business, and that business must be done in open meetings where members of the public are allowed to participate.

That means that members of a governing body cannot privately make decisions on the public’s business – including redistricting.

The idea of “open meetings” may seem pretty simple, but sometimes it can get a little tricky.

“If a majority developed a meeting of minds on the subject through a sequence of meetings, each less than a majority but linked in an effort to develop consensus,” said Terry Francke, an attorney for the nonprofit group CalAware, “that would be a serial meeting violation of the Brown Act.”

A serial meeting, according to a summary of the Brown Act by the California Attorney General’s office, occurs as either a “daisy-chain” sequence (Member A contacts Member B, Member B contacts Member C, Member C contacts Member D and so on), or a “hub-and-spoke” sequence where a staff member (the hub) communicates with members of a legislative body (the spokes) one by one to come to a collective concurrence.

In either event, a violation of the Brown Act occurs because the serial meeting deprives the public of an opportunity to participate in decision making.

Councilmen Steve Cohn and Kevin McCarty – two of the six council members who voted to approve the 2.0 map – have each denied that consensus came from serial meetings.

Cohn said in an interview this week that council members “know the rules of the Brown Act” and the council “acted well within its bounds.”

Cohn said that, although members of the council did have opportunity to discuss the Neighborhoods 2.0 map before it was presented at the Aug. 9 meeting, he only conferred with two other council members – Sandy Sheedy and McCarty – not a majority.

McCarty also denied any Brown Act violation in discussions about the map.

“Steve (Cohn) had shared some of the concepts of 2.0 with me,” McCarty said in an interview on Monday. “Under the Brown Act, we could only talk to a few council members and (Cohn) was one of the few that I decided to talk to.”

McCarty said he spoke to two other council members about the map, but declined to say which two.

Council members Sheedy, Bonnie Pannell, Rob Fong and Darrell Fong – the remaining votes in favor of the 2.0 map – did not return calls by Thursday for comment on the matter.

The Brown Act does more than require the public’s business to be conducted in open meetings; it also gives the public the right to participate in meetings.

Every agenda for any regular public meeting must allow the public to speak on any item of interest, and the public must be allowed to speak on that specific item of business before or during consideration of it.

When Cohn introduced his 2.0 map on Aug. 9, he did so after public comment had concluded, and there was no opportunity for the public to discuss the new map before a vote to approve was taken.

Cohn denies this was a violation of the Brown act because the map was not “new,” rather a “revision of maps presented at a meeting two weeks earlier.”

Even if it’s not a violation of the Brown Act, presenting the map after the public comment concluded and then voting without any further public comment “would add weight to the suspicion that the goal was to bypass public participation,” Francke said.

Mayor Kevin Johnson spoke about the redistricting process in Sacramento at a press conference Tuesday and said that the best interests of the community weren’t held as “paramount” to the council.

“It wasn’t held as high as (the) self-interest of officials,” Johnson said. “When maps appear without any input at all – that’s just not the best of Sacramento, in my opinion.”

Sometimes, in the course of making public comment, members of the public may bring up an item that is not on the agenda, and this can create another sticky situation for council members.

The Brown Act states that if a member of the public brings up something not on the agenda, council can “briefly respond,” or refer to staff for more information or direct staff to place the issue on a future agenda. The council members cannot, however, engage in any discussion of the matter.

During public comment at Tuesday’s council meeting, one audience member asked council members a question about redistricting that went unanswered. When the audience demanded a response, Cohn said the council “is not allowed to discuss matters not on the agenda.”

This caused an uproar in the audience because, less than 30 minutes earlier, both Cohn and Rob Fong had responded to public comment made by County Supervisor Jimmy Yee on the very same item not on the agenda.

Were the council members’ prior responses with Yee a violation of the Brown Act?

If Cohn’s and Fong’s responses to Yee can be construed as “discussion” of the matter, the answer may arguably be yes.

When asked about the process that the council has gone through for redistricting, Cohn said the council has acted appropriately and legally.

“People like to scream about process,” Cohn said. “If (the Aug. 9 vote) had been the final vote, I’d understand, but people still have an opportunity to comment. It’s not being done in secret here.”

According to the Attorney General’s summary, certain violations of the Brown Act are misdemeanors.

Just about anyone can bring legal action against a legislative body for violations of the Brown Act, but the challenger must prove they are damaged or “prejudiced” as a result of the alleged violation.

Generally, governing bodies that violate the Brown Act will rescind the action that caused the violation and start over.

Read a summary of the Brown Act here.

Melissa Corker is a Staff Reporter for The Sacramento Press. Follow her on Twitter @MelissaCorker.