Q: Our county budget committee meets behind closed doors and keeps no written records of meetings. County staff says it’s OK because the budget committee is an ad hoc committee. They say they can designate ANY committee as an ad hoc committee and meet behind closed doors.

A: Government Code section 54952(b) contains the definition of agencies that are covered by the Brown Act:

“A commission, committee, board or other body of a local agency, whether permanent or temporary, decision-making or advisory, created by charter, ordinance , resolution or formal action of a legislative body.

However, advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition,which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance or formal action of a legislative body are legislative bodies for the purposes of this chapter.”

The less-than-quorum-committees that are not the “standing committees” are often called “ad hoc committees.”

It can often be quite difficult to distinguish between standing committees and ad hoc committees. But there is some guidance:

1. Method of creation: How was the committee created. If it was created by “formal action,” it is subject to the Brown Act. A covered board thus directing a sub-quorum of its members to meet with others will usually satisfy that requirement. Joiner v. City of Sebastopol, 125 Cal. App. 3d 799 (1981).

2. Make-up of the committee: If the committee is wholly composed of members of a covered body, then it may not be a standing committee. However, if it has outside members, it necessarily be a standing committee.

3. Meeting schedule: if its meeting schedule is regular and fixed by a covered board, then the committee will be a standing committee.

4. Scope of authority: The California Attorney General has written (at 79 Ops. Cal. Atty.Gen 69 (1996)) that “standing committee” is commonly defined as “a committee to consider subjects of a particular class arising during a stated period.” “Subject matter” as used above mean “matter presented for authority” and “jurisdiction” means “power, right or authority to hear a cause.”

Importantly, it does not matter what the committee or the agency creating it has labeled it. The test is one of substance and function, not form. So an agency does not have the power to effectively designate a committee as an ad hoc committee if it the committee is functioning as a standing committee.

Holme Roberts & Owen LLP is general counsel for the First AmendmentCoalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

A group of library workers and patrons in Santa Clarita has demanded that the City Council rescind its vote on withdrawing from the Los Angeles County Library System and allow public discussions of the withdrawal. -db

The Santa Clarita Valley Signal
September 28, 2010
By Natalie Everett

Library patrons and workers sent the city of Santa Clarita a letter Tuesday demanding that the City Council take back its vote on withdrawing from the Los Angeles County Library System and hold three public hearings on the matter.

The letter accuses Santa Clarita City Council members of violating open-meeting laws and states that if the city doesn’t agree to the group’s terms, a lawsuit may follow.

“If you fail to cure or correct as demanded, such inaction may leave us no recourse but to seek a judicial invalidation of the challenged action,” according to the letter signed by 10 residents, one librarian and one representative of the library workers’ union.

The latter says the city has 30 days to respond. It alleges that the City Council circumvented California’s open-meeting law, the Ralph M. Brown Act, which requires elected officials to discuss public matters publicly before making decisions.

The letter provides no specifics on alleged Brown Act violations.

It alleges the city’s ad hoc library committee members, Councilwomen Laurie Ender and Marsha McLean, conducted a series of meetings behind closed doors that decided the library issue before the vote was taken Aug. 24.

However, since only two City Council members were on the ad hoc committee, there was no violation of the Brown Act, open-meeting-law experts say.

Public opposition

About 200 people showed up during the August City Council meeting at which the council decided the library issue, most in opposition to the city’s move to withdraw.

City officials say seceding from the county system would shield Santa Clarita’s three libraries from reduced hours and services as the county’s budget is increasingly tightened.

After three hours of testimony in support of the county library system from people young and old, the council voted 4-1 to take its three libraries away from the county and contract with the private Maryland-based library-management firm Library Systems & Services, or LSSI.

City officials said the move would save $400,000 a year, letting them buy more books and keep the libraries open longer.

Many outspoken library patrons donned “I Love L.A. County Libraries” T-shirts passed out by the Service Employees International Union Local 721, which represents county library employees.

Ender had requested the City Council consider the library takeover in July, during its last meeting before a six-week break.

The council reconvened Aug. 24.

Ad hoc committee formed

Terry Francke, executive director of a nonprofit open-government advocacy group, sympathized with the county library backers.

“If this committee was not the result of a public, on-the-record appointment and assignment, but sort of sprang up from no one knows where and no one knows when, then I can certainly understand the level of suspicion that might have led people to conclude that, ‘Well, if this was going on behind the scenes, what would prevent roping in a third or fourth member (into the discussion)?’”

While the committee was formed during a January 2008 City Council meeting, one of its original members, then-Councilman TimBen Boydston, said its original purpose was to discuss the new Newhall Library.

The committee’s original members were Boydston and McLean. Boydston said the committee met “once, maybe twice” during his tenure.

“It was mostly … to see if we could get the county to help get funding to help build Newhall Library,” Boydston said. “That was the main thrust. There was never any discussion of privatizing the libraries.”

Boydston recalled that city staff was unhappy with the county’s level of interest in Santa Clarita’s libraries.

“The city manager (Ken Pulskamp) didn’t feel that the county was paying enough money to support the library system because of the fact that they’re collecting taxes from all over the county,” Boydston said. “They just didn’t feel like they were getting enough revenue from the county.

“There was no specific talk about pulling out of the system or anything like that.”

Boydston’s appointed term on the council ended in April 2008 when Laurie Ender won a seat on the council. Ender then joined McLean on the library committee.

Brown Act violation alleged

City Attorney Carl Newton said the letter didn’t include any facts proving the Brown Act had been violated.

“They don’t say when, how or who did the violation,” Newton said. “I don’t see how we can respond to this.”

Newton said that in order for the Brown Act to have been violated, a majority of the council must have engaged in serial meetings. The ad hoc committee is just two council members, and is therefore not a law-breaking quorum, Newton said.

“We certainly have no knowledge that anything of that sort has occurred at all,” Newton said. “I’m not aware of any evidence that they’ve reached a consensus.”

Francke, who heads the Californians Aware advocacy group, said ad hoc committees are meant to be short-term arrangements that look for a practical solution to a single problem.

That’s why the Legislature allowed for these committees to work without being “hyper-formalized,” he said.

Francke said there generally aren’t a lot of complaints over ad hoc committees flying under the open-meeting radar.

“Once in a while, there’s a ridiculous extreme, with a sub-quorum panel assigned to look at a very complicated problem over a year or more,” he said. “And then it’s no longer a short-term assignment.”

That’s when people begin to wonder why they’re not in on the conversation, Francke said.

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The County Board of Supervisors is considering appointing an ad-hoc committee to consider ways to preserve health benefits for retirees but some supervisors think the issue is too important to discuss  behind closed doors. -DB

With 14 ad hoc committees, one four years old, the Highland City Council is needlessly conducting vast amounts of the people’s business behind closed doors, says an editorial in the Highland Community News. -DB