The Ralph M. Brown Act (California Government Code Sections 54950-54963) was initially enacted in the early 1950s to ensure, with few exceptions, that local legislative bodies, before discussing and acting upon the people’s business, give timely notice of meetings and provide for open meetings (rather than closed). The Act also mandates that the people are afforded both the opportunity to be present and to speak on such business prior to action. The law sets forth many prohibited actions by local legislative bodies in conducting the public’s business and provides remedies for violations of the law. Two such remedies are civil lawsuits to prevent or end violations and criminal prosecution to punish violators. Due to the complexity of the law, local legislative bodies inadvertently commit violations which have prompted legal actions. There are also occasions when legislative bodies are somewhat careless in their actions that result in violations.
A recent example of seemingly careless action by a legislative body resulting in alleged repeated Brown Act violations involved the Tulare County Board of Supervisors. In 2009, it came to the attention of Californians Aware, a Brown Act watchdog group, that the board had met for lunch, usually before an otherwise noticed meeting, as a full body some 11 times; more than a quorum of the board had met for lunch more than 30 times; and that some 228 lunch meals consumed by the board at taxpayer expense, suggesting the lunches were related to taxpayer business.
Californians Aware sent a letter demanding that the board cease and desist the lunches, labeling them as private, un-noticed meetings. The Board Chair responded that the suggestion that the board was violating the Brown Act was offensive and that the lunches were purely for social team building purposes. Californians Aware then initiated litigation to compel compliance with the Brown Act, seeking to prevent such meetings in the future absent proper notice.
After the filing of the lawsuit, the Board of Supervisors passed a resolution ending the practice of eating lunch together before meetings. The trial court dismissed the case, holding that because the lunches had been suspended, there was no "present" violation of the Brown Act and that "speculative allegations of past violations cannot reasonably be read to allege any 'threatened future' violations." The Court interpreted the Brown Act to apply only to “present and future actions” and thus indicated that it did not authorize injunctive relief for past violations. Plaintiffs appealed the dismissal to the appellate court which affirmed the trial court’s decision. in November, 2011. The California Supreme Court which was denied review.
Frustrated by the court rulings, plaintiffs immediately and successfully sought legislation to close what they thought was a loophole the court found in the existing Brown Act statutes. The new law is found in Senate Bill 1003, Chapter 732, as authored by Senator Leland Yee of San Francisco, and signed by the Governor September 28, 2012. It takes effect January 1, 2013. The new law adds Section 54960.2 to the Government Code to compliment the existing Sections 54960 and 54960.1. While leaving in place a prior statutory scheme for actions aimed at stopping or preventing ongoing or future violations, relief is now available with respect to past actions.
Under existing law, local legislative bodies are required to post the time and place for holding regular meetings. In addition, all meetings of a local legislative body must be open to the public unless a closed session is specifically authorized. Existing law further authorizes the district attorney or any interested person to file an action to determine the applicability of the Brown Act to actions or threatened future actions of the legislative body. The new provision, Section 54960.2 provides that:
As to past actions of local legislative bodies which the district attorney or other interested person believe to have been taken in violation of the Brown Act, lawsuits may still be filed to challenge the same BUT ONLY IF all of the following conditions are met:
1. Complainant has submitted to the local legislative body, within nine months of the action, a cease and desist letter which clearly described the action complained of and the nature of the alleged violation.
2. The time for the legislative body’s response has expired without response; OR
3. The legislative body has not responded with an unconditional commitment to cease and desist from and not repeat the past action;
4. Within sixty days of receipt of the legislative body’s response, or within sixty days of the expiration of the time to respond, whichever is earlier, the complainant commences legal action.
As to condition number 2 above, the legislative body may avoid litigation by responding to a cease and desist letter by making an unconditional commitment to do so, within 30 days of receipt. After expiration of the 30 day period, the legislative body may still pass an unconditional commitment to permanently cease and desist. However, with a late response, the court may award costs and attorney fees for litigation up to the time such response is provided.
The local legislative body’s commitment to cease and desist must be approved by a vote of the legislative body in open session at any called meeting. It may not be voted upon as group action such as multiple items on a consent agenda. The cease and desist commitment may be rescinded in like manner but only at regular meetings and upon at least 30 days notice to complainant. The local legislative body’s commitment to cease and desist is not to be construed as admissible evidence of a Brown Act violation.
Most interestingly, subsection (c) (3) of the new legislation seems to cloak past illegal action or some such actions with legality. It provides that “An action shall not be commenced to determine the applicability of this chapter to any past action... for which the legislative body has provided an unconditional commitment pursuant to this subdivision.” This subsection further provides “...if the court determines that the legislative body has provided a unconditional commitment... the action shall be dismissed with prejudice.” This might be viewed by some as a preventative measure for having the action reversed regardless of how egregious it may be. However, section 54960.1 still permits challenges, in specifically enumerated instances, to past actions which can expose the legislative body to liability for costs and attorney’s fees.