After the Los Angeles Times and others complained about the county supervisors’ closing the doors during a meeting with Governor Jerry Brown about shifting state prisoners to the county, the supervisors asked the legislature to carve out a narrow exception to the Brown Act, the state’s open meeting law.

The supervisors want the law amended to allow them to meet privately with the U.S. president or the governor on issues posing threats to public buildings or public services. -db

From the Los Angeles Times, February 7, 2012, by Ari Bloomekatz.

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The State Attorney General narrowed the scope of the real estate negotiation exception to the Brown Act, the open meeting law. The interpretation places higher value on the public’s right to know over local government’s interest in protecting bargaining power in real estate negotiations. -db

From Best Best & Krieger Attorneys at Law, February 3, 2012.

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Debate over the use of iPads by city council members during meetings continues in Petaluma with no consensus as yet.

Some say that it is invaluable in allowing members to gain access to documents, research information and eliminate volumes of paper. Others say that the public may think that the iPads are being used to send and receive messages pertaining to city business in violation of the state’s open meeting law, the Brown Act. -db

From the Petaluma Patch, February 6, 2012, by Karina Ioffee.

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Q: I am interested in a possible cause of action arising from events at a meeting of the high school Site Council, at which public comment was cut off by the chair.  The individual was repeatedly ruled “out of order.”

The person was then ordered out of the meeting and, when he failed to comply, an armed police officer was summoned. The officer, however, determined that situation was not a police matter and refused to remove the man from the meeting.

Nonetheless, the action had a chilling effect on parents and other members of the public attending the meeting.  This seems to be a First Amendment violation as well as a violation of the Brown Act. Can you help?

A: It sounds like you may already know that under the Brown Act — California’s open meetings law — the legislative bodies of local agencies are required to provide opportunities for the public to comment at regular meetings, as follows:

(a) Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2.

However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body.

Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item.

(b) The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.

(c) The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law.

Gov’t Code § 54954.3

With respect to removing individuals from public meetings, the Brown Act provides that:

In the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue in session.

Only matters appearing on the agenda may be considered in such a session. Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section.

Nothing in this section shall prohibit the legislative body from establishing a procedure for readmitting an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting. Gov’t Code § 54957.9.

As you can see, this provision allows for removing individuals from a meeting only when they have “willfully interrupted” the meeting so as to “render the orderly conduct of such meeting unfeasible.”

Obviously, there may often be room to disagree as to whether interruption was willful and whether it rendered the orderly conduct of the meeting unfeasible.

The provision must, however, be applied consistent with the mandate in California’s Constitution that “a statute, court rule, or other authority … shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”

In addition, note — as you may also already know — that the Brown Act’s public comment requirements create a “limited public forum” under the First Amendment. See Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719, 729 (C.D. Cal. 1996).

Spaces such as sidewalks and parks have traditionally been used for conduct protected by the First Amendment, and are considered “public forums,” and therefore conduct in these forums is protected by the First Amendment and can only be restricted if a high standard is met.

The other end of the spectrum is the “non-public forum,” or places not traditionally open to the public for speech or petition-related activities. Restrictions in non-public forums need only be reasonable and are generally upheld.

In between these two extremes are “limited public forums,” or areas that traditionally have not been made open to the public, but have become public forums for at least some purposes because the government body that regulates a particular area has made it available for use by the public.

The same high standard that applies to public forums — the restriction must be narrowly drawn and serve a compelling interest — also applies to limited public forums where the conduct fits within the time or purpose for which the place has been made open. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

Meetings of public bodies typically fit into this “limited public forum” category.

In order to restrict speech in a public forum or limited public forum, reasonable time, place and manner regulations are permissible, but restrictions must be “content neutral” (as opposed to “content based”) and narrowly tailored to serve a significant government interest, and must allow ample alternative channels of communication. Perry Educ. Ass’n, 460 U.S. at 45.

Restrictions on speech in a public forum “must be justified without reference to the protected speech’s content.” ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006). Content-neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988).

Regulations related to public comment, therefore, must be neutrally administered. Baca, 936 F. Supp. at 728-29 (if access to the forum is limited based on subject matter or speaker identity, limitations must be reasonable in light of the purpose served by the forum and must be viewpoint neutral).

As for next steps, the Brown Act provides that any person may sue to “prevent[] violations … of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to actions … of the legislative body.” Gov’t Code § 54960(a).

In other words, you could sue for a determination that the body’s actions in cutting off public comment and/or removing you from the meeting violated the Brown Act (as well as the First Amendment).

Whether you would be likely to prevail in such an action would require a highly fact-intensive analysis that is beyond what we can provide through this service.

You might be able to locate legal assistance through one of the following resources, however:

California State Bar-certified attorney referral services (http://www.calbar.ca.gov/Public/LawyerReferralServicesLRS.aspx

866-442-2529)

ACLU of Southern California (http://www.aclu-sc.org/contents/view/6)

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.

Q:  I was fired a year ago, but I am only now reading that the board violated the Brown Act by not disclosing that my position would be discussed in closed session — 54957. (2) is the violation. I see from your A&A section that there is only only a 90-day window of opportunity to submit a Cure & Correct letter, but I do not see that spelled out in the Brown Act itself. Where is the statue of limitations spelled out? And if it is only 90 days, are there lawsuits that have been successful in having that deadline set aside?

A: The Brown Act at Government code section 54960.1 requires that for any legal action that seeks to nullify an agency decision because of a Brown Act violation, that the “cure or correct” demand regarding the violation be made within 90 days from the date the action was taken.

The only exception cited is if the action was taken in an open session but in violation of Section 54954.2 (failure to provide notice of the action on the agenda), in which case the demand must be made within 30 days. See Boyle v. City of Redondo Beach, 70 Cal. App. 4th 1109 (2009).

The date runs from the date the action occurred, not the date upon which one learned of the action. See Regents of the University of California v. Superior Court (Molloy), 20 Cal. 4th 509 (1999) (interpreting a parallel provision of the Bagley-Keene Act).

The “cure or correct” demand requirements, and the associated timing requirement, of section 54960.1 only apply to the sections listed therein: 54953, 54954.2, 54954.5, 54954.6, 54956 or 54956.5. Those are the only sections by which an individual is authorized to bring an action that seeks to nullify a board action.

However, as you are aware, section 54957(b)(2) contains its own nullification provision, independent of section 54960.1. That is, it provides that any action taken in violation of it “shall be null and void.”

Lawsuits brought for violations of section 54957 are thus brought under section 54960. Because no statute of limitations is indicated in section 54960, the question of what statute of limitations does apply is difficult to answer in the scope of the services we offer in this hotline.

An argument can be made that the applicable statute of limitations is the one for civil actions based on statutory violations found in Civil Code found in Code of Civil Procedure section 338(a), which is three years running from the first date on which the action could have been commenced.

However, at least one unpublished decision appears to assume that the strict requirements of section 54960.1 apply, see Horton v. San Diego Unified Sch. Dist., 2003 Cal. App. Unpub. LEXIS 2251 ( March 10, 2003), and notes further that in termination decisions, the aggrieved former employee may be required to exhaust administrative remedies as well under a strict timeline.

Bryan Cave LLP is general counsel for the First Amendment Coalition 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.

The Hanford City Council has so far not released an anonymous packet of documents to the public and may never. The documents make allegations against city leaders which the council discussed in closed meetings.

Jim Ewert, legal counsel for the California Newspaper Publisher Association, said the council may be on safe ground in denying public access to the documents but should consider if someone who intends to sue had supplied the documents. In that case disclosure is required under the state’s open meeting law, the Brown Act. -db

From the Hanford Sentinel, February 1, 2012, by Eiji Yamashita.

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An editorial in the Los Angeles Times says the board of supervisors for Los Angeles County “displays its contempt for the public” by closing the door before discussing such vital issues as the shift of convicts from state facilities to the county.

The Times argues that the mere wish to speak frankly does not allow a public agency to close its doors and the exemption cited for closing the door on the convict issue was passed in the 1970s to allow a government body to discuss how to keep protesters from denying citizens and workers access to public buildings. -db

From an editorial in the Los Angeles Times, January 31, 2012.

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Q: Our local water district board is appointing new general counsel. They have agendized this in a special meeting, allowing each prospect to give a presentation on their firm in open session. After each presentation, the board went into closed session pursuant to GC 54957(b)(1), ”Public Employee Appointment: General Counsel.” I have never seen this done before. Can a legislative body refer to General Counsel as a ”Public Employee” and use this GC as safe harbor for closed session?

A: As you are aware, California Government Code § 54957(b)(1) is a provision of the Brown Act that grants agencies the right to hold closed session meetings to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee.

Yet, the California Constitution and a series of case law requires that the provisions of the Brown Act permitting closed sessions be “narrowly construed.” Cal. Const., Art. I, section 3(b)(2). See also, e.g., Trancas Property Owners Assn. v. City of Malibu, 138 Cal. App. 4th 172, 185 (2006); Shapiro v. Board of Directors, 134 Cal. App. 4th 170, 174 (2005).

That said, California courts have stated that the purpose of the exception is to prevent undue embarrassment to public employees or candidates, and to permit free and candid discussions of personnel matters. Morrison v. Housing Authority of the City of Los Angeles Bd. of Commissioners, 107 Cal. App. 4th 860, 873 (2003); Bollinger v. San Diego Civil Service Commission, 71 Cal. App. 4th 568, 574-575 (1999).

Moreover, a great deal of the language from Gov’t Code § 54957(b)(1), including what an “employee” is, has been defined by other sections of the statute and the courts. Under the code, an “employee” is defined to include officers and independent contractors who function as employees. Gov’t Code § 54957(b)(4). Therefore, the statute is not limited to rank-and-file employees. See Lucas v. Board of Trustees, 18 Cal. App. 3d 988, 990 (1971); 80 Ops. Cal. Atty. Gen. 308 (1997).

Turning now to your question, it seems that the legislative counsel can refer to the general counsel applicants as a “public employee” for the sake of using the safe harbor afforded by Gov’t Code § 54957(b)(1). For one, a subsequent section of the statute indicates that independent contractors, which the law firm of the general counsel would be, fall under the statute. Further, there is precedent indicating that applicants are within the scope of the statute’s intent. I see little reason why the water district board would be in violation of the Brown Act.

Bryan Cave LLP is general counsel for the First Amendment Coalition 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.

The Rio School District has over half of the 36 complaints about violations of the state’s open meeting law, the Brown Act, according to a report by the district attorney’s office.

The office said it might have to take legal action against the district unless they paid greater attention to the issue, perhaps providing training for board members. -db

From the Ventura County Star, January 25, 2012, by Cheri Carlson.

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The Los Alamitos City Council voted 3-1 to prosecute Councilman Warren Kusumoto for an alleged violation of the Brown Act, the state’s open meeting law.

Kusumoto had disclosed that in closed-door discussions on a lawsuit against the city, he had a different viewpoint  from the council majority. The City Attorney said in that disclosure he had violated the rule against the confidentiality of closed meetings although Kusumoto’s views on the lawsuit were well known in the community. -db

From the Orange County Register, January 18, 2012, by Roxana Kopetman.

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Q: A county water agency has hired a consultant for a major capital project and has released the feasibility study done by the consultant but has not responded for a request to review the consulting contract itself. This isn’t academic: the agency asserts that the consultants’ excel spread sheet originals containing the actual cell-by-cell math calculations are proprietary to the consultant and the water agency itself isn’t privy to the calculations.

Here’s the dilemma: first, this means that the agency head has stood before the county board of supervisors endorsing a study and associated utility rates to end users without having had anyone in his agency replicate the spread sheets and verify the numbers; second it means no rate payer is privy to the math so that interested rate payers may not confirm that that methods used are accurate; and just as usefully no rate payers or voters who will be on the hook for a billion in new bonds will be able to run sensitivity analysis to assess potential alternatives to the proposed program and expenditures. This seems especially inappropriate in times of public revenue shortfalls in California. Are there precedents to shed light on this unhappy practice by the water agency?

A: It seems that you should be able to file a formal Public Records Act request in order to demand a copy of the employment contract between the county water agency and the consultant. Pursuant to Government Code § 6254.8, the employment contracts of public employees are expressly a matter of public record. I can’t think of a reason of why this provision would not also apply to contractors hired by an agency.

However, as best I can tell, there is no way to force a vendor to release the proprietary formulas or methodology they used to reach the prices agreed upon in the contract. So, the contract is a public record, but only to the extent of what lies within the four corners of the document. The code does not guarantee the public access to the “scratch-work” or calculations used to finalize the contract.

Further, Gov’t Code § 6254(k) creates a specific exemption for the records that are protected by state or federal laws, including the evidence code. California Evidence Code § 1060 allows parties not to disclose trade secrets so long as it doesn’t “conceal fraud or otherwise work injustice.”

This may allow the contractor to refuse to disclose the methodology for how it reached its final numbers as long as they can demonstrate that doing so would not perpetrate injustice or conceal fraud. So, trade secrets are normally exempt from disclosure, but without more precise insight about what information they’re protecting, it’s not possible to run through the analysis courts have established to determine if their methodology/formulas actually garner “trade secret” protection under the law.

Whether their calculations are an actual trade secret or just proprietary information is unclear, but there are examples where even proprietary information can be withheld (e.g., the Tax Code prevents local tax agencies from releasing proprietary information they acquire about companies during audits or other collections).

One way you might be able to obtain the information you’re looking for is through the Brown Act. As you may know, the Brown Act is the law that regulates the conduct of the governing bodies of all local public agencies. The Brown Act is intended to provide public access to local government meetings and serves to facilitate participation in all phases of local government decision-making.

One of the requirements of the law is that the public be given access to copies of any “agenda, background materials, and any other writings related to matters for public discussion.” Gov’t Code § 54957.5.

So, if the water agency circulated any type of written information at a meeting of the County Board of Supervisors, you are entitled to a copy of that. You also may obtain records if the water agency presented information to the Board of Supervisors in a closed session.

The public has the right to hear oral reports of certain actions taken in closed session at an open session held afterwards. Gov’t Code § 54957.1(a).

Additionally, upon the submission of a written request, the public has the right to receive copies of any contracts, settlement agreements or other documents finally approved or adopted in the closed session. Gov’t Code § 54957.1(b).

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition 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 citizens has been able to forestall a move by the Los Angeles Board of Supervisors to restrict the public in addressing the board.

A proposal before the board would limit speakers to three minutes for  various items on the agenda and two minutes for items not on the agenda. The board has also been asked to strengthen rules allowing them to throw disruptive speakers out of the meeting. -db

From the Los Angeles Daily News, January 10, 2012, by Christina Villacorte.

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Q: I have concerns that my school District has violated the Brown Act.  When the school board made our interim Superintendent a permanent Superintendent without any public input because it wasn’t properly agendized.

I am also concerned that a committee I serve on has been deemed a closed door confidential meeting per the Brown Act. I am an unpaid, parent volunteer on the committee and one of several stakeholders (parents, community, retired teacher, district employees and paid consultants). This committee was handpicked by the Superintendent and parents were selected as committee members to ensure transparency.

There are no school board members on the committee and there was no school board vote to create the committee, yet we are being told (after several meetings) that we are now an extension of the school board and the meetings and everything said in them is confidential. I am concerned California Education Codes and Public Contract Codes are not being followed and this may be the reason why the committee members are now being told the meetings are confidential to keep me from speaking publicly about what I have witnessed.

I would like to know if this committee is an open, public meeting versus a closed door Brown Act Meeting. There are no meeting minutes and no 72- hour posting of an Agenda, as required by the Brown Act. I have been repeatedly asked to resign from the committee and have been treated very badly because I am asking questions. I would appreciate any assistance you can provide.

A: You have two questions here:(1) The propriety of appointing the interim superintendent to the position permanently, and (2) the applicability of the Brown Act to the committee to which you are assigned. I will address each question in turn.

1. The Brown Act permits an agency to appoint a person to a position in a closed session. Govt. Code section 54957. However, prior to holding the closed session, the agency must notify the public in open session, on its agenda, or both, of the items to be discussed in the closed session. Govt. Code section 54957.7. According to Govt. Code section 54954.5, the suggested listing of such a session is

PUBLIC EMPLOYEE APPOINTMENT
Title: Superintendent

The agency cannot act on the matter if the item is not noticed in this or a similar way. Govt. Code 54954.2.

2. Regarding the Funds for Education committee, the Brown Act applies to

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

If the committee fits this description, then it must comply with the Brown Act. If the committee was only formed by the Superintendent, then it would not be covered by the Brown Act. If not covered by the Brown Act, and absent some independent requirement in the Education Code, there is no statutory requirement that the committee open its meetings, or notice and agendize its closed sessions.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition 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.

According to one former county counsel, it is legal for school board members to participate in campaigns for bond measures so long as public funds are not involved, but questions arose when all trustees for the San Mateo County Community College District served on a committee that met in private to plan a bond measure campaign. -db

From a commentary in The Almanac, January 10, 2012, by Dave Boyce.

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A Visalia resident discovered that without public hearing last October, the Visalia City Council approved a $50,000 expense account for its newly appointed Elections Task Force.

The city claims it feared a lawsuit so was justified in acting in closed session, but no one was threatening to sue over the creation of the task force. -db

From an editorial in the Visalia Times-Delta, January 9, 2012.

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The lawsuit over closed lunch meetings of the Tulare County Board of Supervisors is going to the California Supreme Court.

The suit centered on 30 closed lunch meetings in 2009 during which at least a majority of the supervisors were present. The supervisors claimed they never discussed county business during the lunches. -db

From the Visalia Times-Delta, January 10, 2012, written by Staff reports.

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A state appeals court upheld a lower court ruling that the City of Montebello did not violate the Brown Act, the state’s open meeting law, in approving a $3.2 million real estate agreement with a businessman.

The Montebello redevelopment agency approved the deal in a closed meeting preceding a public session. -db

From the Metropolitan News-Enterprise, January 4, 2012, by Kenneth Ofgang.

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The increasing numbers of closed door sessions conducted by the Stockton City Council has prompted open government advocates to protest the practice. Under a threat of bankruptcy, the council has met in closed meetings three times for every two open meetings.

The council may meet in closed session to discuss certain financial matters, but in doing so they close the public out of the discussion and deprive them of a chance to participate in crucial decisions, say the council’s critics. -db

From the Stockton Record, December 27, 2011, by Scott Smith.

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A county judge ruled that four members of the Dunsmuir City Council must defend itself against allegations that they violated the Brown Act, the state’s open meeting law.

A citizen sued the council for alleged conflict of interest and holding meetings without public participation. -db

From the Record Searchlight, January 2, 2012, by Sean Longoria.

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Under amendments to the Brown Act, California’s open meeting law, government agencies are now required to disclose more details about items under consideration at meetings. The amendments will go into effect, January 1 of 2012.

The amendments also require agencies to provide notice in writing to the media of special meetings and notice by telephone in the case of emergency meetings. -db

From the Ridgecrest Daily Independent, December 20, 2011, by Stephanie Forshee.

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Q: At a recent Town Hall meeting, water rates were discussed. A majority of directors of the water district were in attendance to answer any questions. They did not notice this meeting. Items were discussed that they will vote on. Is this a Brown Act violation?

A: Under the Brown Act, a “meeting” includes any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains. Gov’t Code § 54952.2(a).

Members of a legislative body do not have to meet face to face in order to conduct a “meeting” or take action within the meeting of the Brown Act. In 2006, in a case called Wolfe v. City of Fremont, the Court of Appeal noted that “serial individual meetings that do not result in a ‘collective concurrence’ do not violate the Brown Act.” 144 Cal. App. 4th 533, 545 n. 6 (2006).

The Brown Act was subsequently amended in 2009 to supersede this holding from the Wolfe case. Now the Brown Act provides that:

“A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” Govt. Code § 54952.2 .

However, the Brown Act does seem to provide an exception for meetings such as the one you describe.

Gov’t Code § 54952.2(c) provides that “[n]othing in this section shall impose the requirements of this chapter upon any of the following,” including, among other things, “The attendance of a majority of the members of a legislative body at an open and publicized meeting organized to address a topic of local community concern by a person or organization other than the local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency.” Gov’t Code § 54952.2(c)(3).

Thus, it could be that, so long as the meeting was not organized by the local agency itself, and the members did not “discuss among themselves, other than as part of the scheduled program,” agency business, this particular town hall meeting would pass muster under the Brown Act.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition 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.

Q: After nearly two years of trying, we finally got a photograph of three of our County Board of Supervisors (we have a five member Board) having lunch together as they regularly do. We can’t take it to the DA as he has been compromised as has our County Counsel.

What can we do?

A: The Brown Act, at Govt. Code section 54952.2, defines a “meeting” as “any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.”

Thus a majority of the members of a board having lunch together could be a “meeting” if they were hearing, discussing or deliberating upon matters within the board’s jurisdiction, as opposed to, for example, merely having a social lunch in which no agency matters were discussed.

The Brown Act may be enforced in two ways. One, as you noted, is for the District Attorney to prosecute violations as misdemeanors. Govt. Code section 54959. The other is by way of private enforcement actions brought as civil lawsuits by individuals. Government Code section 54960.

Such private actions may be brought to declare actions taken in violation of the Brown Act null and void, or to declare that a particular policy or practice is in violation of the law. Govt. Code section 54960.1(d).

However, if one seeks to have an action of the board declared null and void, one must first, in a timely manner, sometimes within 30 days of the violation, demand in writing that the agency “cure and correct” the violations of law. A party who prevails in a Brown Act lawsuit may be entitled to an award of attorneys’ fees and costs. Govt. Code section 54960.5.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition 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.

Q: During a hearing on a massive development project the several county supervisors walked around the room, talked on cell phones, or to each other or staff, worked on their computers and otherwise did not listen to any of the public testimony. This is particularly discouraging because this is a massive project with terrible impacts to our community. Does failure to pay attention to the testimony being giver or discussing the matter privately between themselves constitute a Brown Act violation? If so, is the deadline for sending a cure and correct letter 30 days?

A: Although the Brown Act does require that local agency governing board meetings be open to the public, and that the public be permitted to address the board regarding any item within the agency’s jurisdiction, Govt. Code section 54954.3(a), the Brown Act does not require that any Board member pay attention to those comments.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition 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.

An ex-school board member alleged that the Galt Joint Union Elementary School District board violated the Brown Act, California’s open meeting act by not allowing public comments while conducting public interviews to fill a vacant seat on the board.

The board has agreed to repeat the meeting to satisfy the Brown Act. -db

From the Lodi News-Sentinel, December 13, 2011, by Jennifer Bonnett.

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In a special meeting called to discuss a draft of the general plan, a member of the city council spoke on an item not on the agenda, a possible violation of the Brown Act, the state’s open meeting law.

A council member said the council did not violate the law in that members were allowed to report briefly on their activities. -db

From Sign On San Diego,  December 1, 2011, by Jonathan Horn.

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The Pasadena City Council may have blundered when they met recently to discuss job cuts in the face of budget problems. The meeting agenda was posted at 9 p.m. on a Sunday and the meeting began at 8:30 a.m. the next day.

A full 24 hour meeting notice is required by the Brown Act, the state’s open meeting law.

From the Pasadena Weekly, December 1, 2011, by André Coleman.

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Q: I am a city commissioner, and I was recently advised against voicing my opinion to the press on any subject that is or in the future may be under my commission’s jurisdiction.  The concern is that  later other commissioners may choose to speak to the press on the same subject and give rise to a Brown Act violation.

I am very concerned that this interpretation of the Brown Act violates my First Amendment right of freedom of speech, and also censors the press. Obviously I wouldn’t be meeting with commissioners in private to discuss a subject, or even publicly to discuss a subject. I would be speaking to the press publicly. I would appreciate any advice you could provide me on this matter.

A: It might be useful to know more about the basis for the advice you received against communicating with the press about issues that fall within your commission’s subject matter jurisdiction. I am not aware of any basis for a broad prohibition along these lines, though it is possible to imagine situations where Brown Act issues could conceivably be implicated.

The background for these issues is the Legislature’s intent for the Brown Act, which is that the actions and deliberations of public commissions, boards, councils, and other public agencies be performed publicly. Gov’t Code § 54950.

As the declaration of public policy set forth in the Brown Act itself states:

“[t]he people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

Accordingly, the provisions of the Brown Act are geared toward maximizing publicity and transparency about public business. Communications between members of legislative bodies of local agencies and the press would generally seem to promote transparency rather than subvert it.

It is possible that the concern underlying the advice you received relates to the so-called serial meeting prohibition of the Brown Act, which is intended to prevent legislative bodies from deliberating on public business outside the context of public meetings.

The Brown Act defines “meeting” as “any congregation of a majority of the members of a legislative body at the same time and location … to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.” Gov’t Code § 54952.2(a).

The Brown Act further provides that:

“[a] majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” Gov’t Code § 54952.2(b)(1).

California courts had held that this kind of prohibited serial meeting must result in a “collective concurrence” for it to violate the Brown Act, Wolfe v. City of Fremont, 144 Cal. App. 4th 533, 545 (2006), but the Legislature subsequently amended the Brown Act to remove the “collective concurrence” requirement.

There may be some uncertainty on the part of bodies subject to the Brown Act as to what exactly might constitute using a series of communications through intermediaries to discuss items of business with the subject matter jurisdiction of the legislative body and — in particular — whether expressing an opinion to the press could fall within the prohibition.

While I am not aware of any authority addressing this particular issue directly, interpreting the serial meeting prohibition to foreclose communications between members of legislative bodies of local agencies and the press would seem to be highly problematic, as you suggest.

Note that the Brown Act expressly permits:

“[t]he attendance of a majority of the members of a legislative body at a conference or similar gathering open to the public that involves a discussion of issues of general interest to the public or to public agencies of the type represented by the legislative body, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specified nature that is within the subject matter jurisdiction of the local agency.” Gov’t Code § 54952.2(c)(2).

Similarly permitted is:

“[t]he attendance of a majority of the members of a legislative body at an open and publicized meeting organized to address a topic of local community concern by a person or organization other than the local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency.” Gov’t Code § 54952.2(c)(3).

These provisions seem to underscore that discussion of public business that is truly open to the public is not contrary to the Brown Act and that what is meant to be prohibited is “subterfuge; a concerted plan to engage in collective deliberation on public business through a series of letters or telephone calls passing from one member of the governing body to the next.” Roberts v. City of Palmdale, 5 Cal. 4th 363, 376 (1993).

An interpretation of the Brown Act that results in a wholesale prohibition against legislative body members’ speaking with the press — which, in turn, would seem to necessarily reduce instead of promote transparency as to the body’s workings — seems untenable in light of the principles underlying the Brown Act.

Jim Ewert of the California Newspaper Publisher Association said that the Patterson City Council violated the Brown Act, the state’s open meeting act, when it failed to provide the identity of those who voted in a closed session for an interim city attorney.

Ewert said it did not matter that the rankings of candidates occurred during a discussion, that the public had the right to know who voted which way since the council reached a consensus. -db

From the Patterson Irrigator, November 30, 2011, by Nick Rappley.

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Without comment a California appeals court reversed an order that the Times-Delta/Advance-Register and allies pay legal costs for Tulare County in a Brown Act suit. The newspaper and others had charged that the Tulare County Board of Supervisors violated the Brown Act, the state’s open meeting law, by conducting a series of lunch meetings closed to the public.

The supervisors said the meetings were for morale-building, and a county judge agreed that the plaintiffs did not show that the supervisors violated the Brown Act and ordered the plaintiffs to pay the county’s legal costs. -db

From the Tulare Advance-Register, November 29, 2011, written from staff reports.

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Q: As a school board member I have tried, but failed, to have the copious exorbitant legal billings by the district’s attorney released to the public.  So far the attorney’s fees of $50k to $70k per month (the amount of almost $1million is rapidly approaching) have been discussed in closed session and the rest of the board members what to keep it that way .

I consider the attorney just like any other a vendor and if confidentiality is an issue, a case number can be assigned to the items billed.   Please advice if the board can keeping these expenditures in closed session.

A: The provision of the Brown Act that authorizes closed sessions for discussion of pending litigation is set forth in its entirety below. The bottom line, though, is that by its terms, it seems to authorize only a closed session “to confer with, or receive advice from, its legal counsel regarding pending litigation” and would not seem to cover discussions about what an attorney has charged the school district.

What you describe sounds like a discussion about spending public funds and would not seem to involve getting advice from legal counsel about pending litigation. Even if some of the bills in question contain information that might legitimately subject to attorney work product or otherwise be privileged, there doesn’t seem to be any reason for that to preclude a public discussion of whether the district is getting its money’s worth or should consider retaining different counsel. To the extent such documents would be part of the discussion, the solution would seem to be redacting that information — consistent with the Public Records Act — and not moving the whole conversation behind closed doors.

Gov’t Code § 54956.9 .

“Nothing in this chapter shall be construed to prevent a legislative body of a local agency, based on advice of its legal counsel, from holding a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.

For purposes of this chapter, all expressions of the lawyer-client privilege other than those provided in this section are hereby abrogated. This section is the exclusive expression of the lawyer-client privilege for purposes of conducting closed-session meetings pursuant to this chapter.

For purposes of this section, “litigation” includes any adjudicatory proceeding, including eminent domain, before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator.

For purposes of this section, litigation shall be considered pending when any of the following circumstances exist:

(a) Litigation, to which the local agency is a party, has been initiated formally.

(b) (1) A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency.

(2) Based on existing facts and circumstances, the legislative body of the local agency is meeting only to decide whether a closed session is authorized pursuant to paragraph (1) of this subdivision.

(3) For purposes of paragraphs (1) and (2), “existing facts and circumstances” shall consist only of one of the following:

(A) Facts and circumstances that might result in litigation against the local agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs, which facts and circumstances need not be disclosed.

(B) Facts and circumstances, including, but not limited to, an accident, disaster, incident, or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which facts or circumstances shall be publicly stated on the agenda or announced.

(C) The receipt of a claim pursuant to the Tort Claims Act or some other written communication from a potential plaintiff threatening litigation, which claim or communication shall be available for public inspection pursuant to Section 54957.5.

(D) A statement made by a person in an open and public meeting threatening litigation on a specific matter within the responsibility of the legislative body.

(E) A statement threatening litigation made by a person outside an open and public meeting on a specific matter within the responsibility of the legislative body so long as the official or employee of the local agency receiving knowledge of the threat makes a contemporaneous or other record of the statement prior to the meeting, which record shall be available for public inspection pursuant to Section 54957.5. The records so created need not identify the alleged victim of unlawful or tortious sexual conduct or anyone making the threat on their behalf, or identify a public employee who is the alleged perpetrator of any unlawful or tortious conduct upon which a threat of litigation is based, unless the identity of the person has been publicly disclosed.

(F) Nothing in this section shall require disclosure of written communications that are privileged and not subject to disclosure pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1).

(c) Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation.

Prior to holding a closed session pursuant to this section, the legislative body of the local agency shall state on the agenda or publicly announce the subdivision of this section that authorizes the closed session. If the session is closed pursuant to subdivision (a), the body shall state the title of or otherwise specifically identify the litigation to be discussed, unless the body states that to do so would jeopardize the agency’s ability to effectuate service of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.

A local agency shall be considered to be a “party” or to have a “significant exposure to litigation” if an officer or employee of the local agency is a party or has significant exposure to litigation concerning prior or prospective activities or alleged activities during the course and scope of that office or employment, including litigation in which it is an issue whether an activity is outside the course and scope of the office or employment.”

 

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.

An expert in open government law challenged the Barstow School Board contention that they had not violated the Brown Act, the state’s open meeting law, in failing to report a vote out of closed session.

The school board was considering the resignation of the school superintendent. -db

From the Desert Dispatch, November 21, 2011. by Katie Lucia.

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Q: I am a newly elected school board member. Our upcoming agenda will contain a closed session item that has also been discussed in closed session prior to my appointment. Can I ask the staff and board members who participated in the prior closed session to divulge what was discussed?

A: I am not aware of any authority specifying whether a new member of the legislative body is “a person … entitled to receive” confidential information disclosed in closed session prior to the member’s joining the body.

As you may know, the Brown Act provides that “[a] person may not disclose confidential information that has been acquired by being present in a closed session … to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information.” Govt. Code § 54963(a).

Since the purpose of a closed session is to permit the legislative body to meet behind closed doors, there would not seem to be a logical justification for keeping what transpired in a previous closed session secret from a new member of the body. In other words, the rationale for allowing closed sessions is that certain limited circumstances require frank discussion outside the public eye, but this rationale would not seem to apply to new members of the body.

One possible argument in favor of keeping such information from a new member would be that under a strict interpretation of § 54963(a), the new member who acquired the information second-hand would not be prohibited from further disclosing it (because § 54963(a) is limited to acquisition of the information be being present in a closed session).

The stronger policy argument, however, would seem to be that members of the legislative body should have knowledge of what is or has been before that body, even if some of that involves information from previously held closed sessions.

In any event, the phrase “unless the legislative body authorizes disclosure of that confidential information,” suggests that a new member’s request to the body to disclose the information to the new member would be appropriate.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.

Local governments are allowed to conduct public business behind closed doors to discuss a limited range of issues. Carolyn Schuk provides a primer on the Brown Act, California’s open meeting law, in the Santa Clara Weekly. -db

From a commentary in the Santa Clara Weekly, November 17, 2011, by Carolyn Schuk.

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After losing bid to show the Tulare County Board of Supervisors violated open-meetings law by holding closed lunch meetings, the plaintiffs are asking the California 5th District Court of Appeals to reconsider their ruling.

The Court ordered the plantiffs to pay legal costs in ruling the issue moot since the supervisors no longer conducted lunch meetings. -db

From the Visalia Times-Delta, November 15, 2011, by David Castellon.

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Q: My local downtown association, was created in 1987 by a resolution from our City Council, in accordance with the California Parking and Business Improvement Law of 1979 (amended 1989). Organization is classified as a 501 (c)(6).

The organization used to received money annually from the City, but no longer does. The City Council reviews the association annually, and gives them the authority to continue with the business improvement district, and allow the organization to levy assessments of the businesses within that district. The assessments are actually levied by the city and sent to them, and the city cuts a large lump sum check to the organization twice a year.

The former city attorney said the organization falls under the Brown Act. The current city attorney says they do not.

They have lately had several Closed Sessions on their agenda, to discuss their process for choosing a new Coordinator. ”Closed Session” is listed on the meeting schedule, and usually only says ”New Coordinator Position.” It is never known what happens at the closed sessions.
I am wondering if any of this is legal and fair to the business owners within the district which have to give the association money every year?

A: As a general matter, the Brown Act does not apply to private, nonprofit corporations unless the private entity was created by the governing body of an agency covered by the Brown Act and delegated governmental authority, or the private entity receives funds from a local agency and shares a director with that governing body of the same local agency. Govt. Code section 54952(c).

With respect to Business Improvement Districts, at least one court has found that under the specific facts of that case, that the BID was an agency covered by the Brown Act, even though the BID was governed by a private entity, the Hollywood Entertainment District Property Owners Association. Epstein v. Hollywood Entertainment District II BID, 87 Cal. App. 4th 862 (2001).

Most important to the court in finding both the BID and the POA subject to the Brown Act was the fact that the BID was originally created by the city, and that the POA was created by the city for the purposes of governing the BID and BID’s organizing documents reflected an intent that the POA perform, through the BID, government-type duties. However, the court indicated that it might have reached a different result had there been evidence that the POA independently existed at the time the BID was created.

I recommend that you read the full text of that case to see how closely the facts there mirror your own. You may also want to read an opinion published by the Attorney General prior to the Epstein decision that reaches a similar decision. 81 Ops.Cal. Atty.Gen. 281 (1998). Please be aware that for many BIDs created after the Epstein decision, the agencies that created them tried purposefully to avoid the Brown Act applying to the BID, and acted in a way that would be distinguishable from the facts of that case.

I cannot give you a legal opinion as to the specific question you ask. But generally, there is strong support for including BIDs that are created by public entity being subject to the brown Act, especially where the public entity continues to play a role in the management of the BID.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition 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.

Q: After holding closed door negotiations with a public coalition that included the local union, the Port of San Diego announced  a hotel development deal that included a Project Labor Agreement with the union.  The development will be build on public tidelands, which sacrifices the Port Master Plan-designated parkland.  Were the extensive secret labor negotiations legal?

A: There are two basic steps in determining whether a meeting is subject to the Brown Act. First, a “legislative body” must be involved. If that criteria is met, then the gathering of the body must be a “meeting” in order for the Brown Act to apply.

The first step then is to determine whether the group involved is a “legislative body,” which the Brown Act defines. Not surprisingly, official bodies of local agencies count as legislative bodies. This includes bodies of a local agency, a local body created by state or federal law, or standing committees of legislative bodies. See Gov’t Code §§ 54952(a) – (b).

However, in certain situations, private bodies can also be subject to the Brown Act. Government Code § 54952 indicates that a legislative body includes a private corporation or entity that either:

(1) is created by the elected legislative body to exercise authority delegated to the corporation or entity by the legislative body or

(2) receives funds from the local agency and the corporation’s board of directors includes a member of the governing body of the local agency appointed as a full voting member to the board of directors of the corporation. Gov’t Code § 54952(c).

The Brown Act also defines what constitutes a “meeting.” Under the Brown Act, a “meeting” includes any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.” Gov’t Code § 54952.2(a).

Members of a legislative body do not have to meet face to face in order to conduct a “meeting” or take action within the meeting of the Brown Act. The Brown Act provides that:

“A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” Govt. Code § 54952.2 (emphasis added) .

The Attorney General takes the position that a serial meeting, in violation of section 54952.2(b), may occur where there is a chain of communications (A communicates with B, B communicates with C, and so on), and/or when one intermediary acts as the hub of a wheel and communicates individually with the various spokes (i.e., board members A, B, C, etc). See The Brown Act, Open Meetings for Local Legislative Bodies, Office of the Attorney General, 2003, at p. 11, available at http://caag.state.ca.us/publications/2003_Main_BrownAct.pdf.

Further, courts have reached similar findings, indicating that a “series” of communications can be interpreted as a “meeting” for the purposes of the Brown Act. See Stockton Newspapers, Inc. v. Redevelopment Agency, 171 Cal. App. 3d 95, 105 (1985); Common Cause v. Stirling, 119 Cal. App. 3d 658 (1981).

Turning now to the situation you described, the answer to your question is going to depend largely on what you mean by “negotiations with the Port of San Diego.” It is possible that the coalition the union joined and/or the Port of San Diego were legislative bodies subject to the Brown Act.

There is a similar case called International Longshoreman’s and Warehousemen’s Union v. Los Angeles Export Terminal Inc., 69 Cal. App. 4th 287 (1999). In that case, the Los Angeles Harbor Commission entered an agreement with some businessmen and created a corporation in charge of building and operating a coal export facility on land leased by the Los Angeles Harbor Department. The Court found that the new corporation’s board of directors was held subject to the Brown Act because the city delegated authority to develop and run the facility rather than doing it itself.

If there is a similar type of corporation set up by the city of San Diego for the project you write about, then maybe the Brown Act is applicable. Although it seems that the Port is more likely to be subject to the Brown Act than the coalition, without further information about the deal and who exactly was involved in brokering it, it’s hard to say for sure.

Assuming that the group is subject to the Brown Act, the next step would be to determine if the discussions and negotiations that took place between the attorneys was a “meeting.” For that to be the case, a majority of the legislative body must have been involved. See Gov’t Code § 54952.2(a).

That means that a majority of the board of directors of the corporation set-up to handle the port deal must have been involved in the negotiation somehow if it were to be considered a “meeting” that ought to have been public. Of course, as mentioned above, they need not have all sat in a room at the same time to establish the majority, so it is still possible that this took place.

However, again, without more information (who was involved, how many board members, etc.?) it’s hard to say for sure.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition 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 California  appeals court reversed a lower court ruling, holding that a private citizen could enforce a contract calling for open board meetings by corporations receiving government funds.

“We believe that the purpose of the provisions requiring compliance with the Brown Act was to ensure that meetings…relating to publicly funded programs would be open to the public and to extend to the general public the right to be informed regarding the matters to be discussed at such meetings and other Brown Act protections,” the appellate judge wrote. -db

From the Metropolitan News-Enterprise, November 14, 2011, by Kenneth Ofgang.

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The Orange County Sanitation District admitted to violating the Brown Act, the state’s open meeting law, when it voted on pay raises for 17 managers and 18 “confidential” workers behind closed doors. They will conduct a revote.

Because the workers are not represented by a bargaining group, the public has the right to discuss the raises and witness the vote. -db

From the Orange County Register, November 7, 2011, by Tony Saavedra.

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The 5th District Court of Appeals dismissed an open government suit by an open government advocate challenging closed lunch meetings held for morale-building purposes by the Tulare County Board of Supervisors.

The court said that there was no relief since the supervisors had stopped holding the meetings alleged to be violations of the state’s open meeting law, the Brown Act. -db

From the Metropolitan News-Enterprise, November 7, 2011, by Kenneth Ofgang.

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With two vacancies on the five-member board, the Palm Drive Hospital board is facing allegations that it violated California’s open meeting laws in meetings involving two directors. Seventy-two hour notice was not provided for meetings to review proposals to join with other hospitals. -db

From The Santa Rosa Press Democrat, October 20, 201, by Bob Norberg.

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