1st Amendment News

Brown signs “Richard McKee bill” to tighten Brown Act enforcement

The measure strengthening the public’s ability to enforce the Brown Act was signed into law by Governor Jerry Brown last week.

Known as the “Richard McKee Act,” the legislation allows members of the public to send local government bodies a cease-and-desist letter if they believe government agencies have violated the Brown Act.

The government agency can avoid a court case if it makes a clear commitment to stop the challenged behavior. If it refuses, it allows the case to continue on in court.

“You don’t have to hire a high-priced attorney,” said Sen. Leland Yee, who introduced the measure. “It can be as simple as writing a letter and raising the issues of concern.”

The legislation was introduced to overturn an appellate court decision in McKee v Tulare County Bd. of Supervisors. That lawsuit was initiated by the late Rich McKee, the Visalia Times-Delta and CNPA. It challenged the Tulare County Board of Supervisors’ practice of holding over 46 regular lunchtime meetings outside of public view, without public notification and paid for with public funds. The appeals court ruled that the Brown Act did not allow a prospective remedy–like a declaratory judgment or injunction–based on past violations.

The bill,  SB 1003, was co-sponsored by CNPA and Californians Aware. It takes effect on January 1, 2013.

The lawsuit underlying the new law is described in a recent edition of the  CNPA’s Legislative Report:

It challenged the Tulare County Board of Supervisors’ practice of holding over 46 regular lunchtime meetings outside of public view, without public notification and paid for with public funds.

The plaintiffs contended that the lunches were meetings that violated the Brown Act’s requirement that meetings of local legislative bodies be noticed, open and public. After the action was filed, the Supervisors told the court that they had suspended the lunchtime meetings.

The court ruled that the Brown Act did not provide a remedy for “past” violations. Further, since the petitioners did not allege a “present” violation of the Act, they had no right to relief because the Supervisor’s acknowledged that the lunches were suspended.

When the case went to appeal, FAC took the lead on an  amicus brief  joined by more than 90 newspapers and other publications ranging from the state’s biggest dailies (LA Times, San Jose Mercury News, Sacramento Bee) to its smallest weekly newspapers, as well as news wires, out-of-state media associations and national media/First Amendment organizations. Amici were attracted by concern about enforcing the Brown Act  as well as the opportunity to honor open-government advocate Rich McKee, who had very recently passed away.

An appeal was denied at the 5th District Court of Appeal more than a year later because the panel ruled the alleged open-meeting law violations were in the past and there was no evidence the lunch meetings would continue.

The California Supreme Court later declined to hear the case.–DF

 

 

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