Q: Can a city council members in CA engage in text message/emailing while deliberating over an appeal brought by an applicant (CEQA Doc) after his application failed at the planning commission level?
A: If I understand correctly, you are asking whether a city council member can text or email other city council members over an issue that is formally before them. The Brown Act is violated when “a series of communications of any kind, directly or through intermediaries,” is used by a majority of the members of an agency to “discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” Gov. Code section 54952.2(b)(1).
Such communications includes those dispatched by email. (See The Brown Act, Open Meetings for Local Legislative Bodies, Office of the Attorney General, 2003, at p. 15, available at http://www.ag.ca.gov/publications/2003_Intro_BrownAct.pdf, citing 84 Ops. Cal. Atty. Gen. 30 (2001).)
If two council members communicate with each other (including by text or email) regarding the item outside of an officially noticed council meeting, and the city council is made up of five members total, then the Brown Act’s prohibition against such communications is probably not implicated (since two out of five would not be a majority of the council).
However, if one council member emailed two other council members regarding the issue, or following the initial communication between the two council members, one of those members relays those communications to a third council member, then at this point, a majority of council members (three out of five) are in on a discussion being held outside of a publicly noticed meeting, and thus a “serial” meeting in violation of section 54952.2(b)(1) might have occurred.
The Attorney General’s guide offers other illustrations of violations of the Brown Act’s prohibition of such serial meetings that you might find helpful as you analyze the situation in Pomona.
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.