Q: Recently I learned our City Manager approved the implementation of a significant change to a public fee-paid service without presenting it for a city council review or approval, thus also without ever notifying the affected public as a whole or the media of the change. Impacted residents were individually notified to comply with the change only when their turn came up in a multi-year implementation plan.
As his authority for doing so, the CM cites arguably limitless permissive verbiage in the city’s municipal code which gives department directors “final authority” to make minor exceptions and changes to specified code details as well as corresponding “final authority” to disposition any related disputes.
In my lay opinion, this covertly and unilaterally implemented action by the CM and his staff to bypass our Brown Act rights to be informed and involved with the normal change review and approval process was in itself (or should have been) a violation of the Brown Act regardless of the validity or invalidity of the CM’s city code citation. Yet so far I’ve been unable to find either a court opinion or words in the Act itself which either speak to this scenario or otherwise supports my view of it. What say you?
Also would appreciate any advice you may have regarding my recourse options, at least any not involving unaffordable litigation.
A: The Brown Act is invoked if a “legislative body” is involved, and if a majority of the members of that particular body met and conferred about the public’s business. Under the Brown Act, a “legislative body” is defined to include a commission, committee, board or other body of a local agency created by charter, ordinance, resolution or formal action of a legislative body; or standing committees of a legislative body that have continuing subject matter jurisdiction. Cal. Govt. Code § 54952(b), (c).
Thus, city council members, school board members, water district board members, etc. – i.e., those people who are either appointed or elected to serve the public in a legislative capacity – would be members of legislative bodies that are subject to the Brown Act.
If a majority of the members of a particular body, e.g., 4 of 7 city council members, were to meet for whatever reason, then, except under a narrow set of circumstances, the Brown Act is invoked. Govt. Code § 54952.2.
On the other hand, city managers, police chiefs, fire chiefs, city attorneys, planning department heads, and those who work under these individuals typically are not elected or appointed members of a legislative bodies, but rather are “staff” that serve at the pleasure of those elected bodies (who, in turn, serve at the pleasure of the particular jurisdiction’s voters).
As such, meetings such as weekly department head meetings, planning department meetings, etc., would not be subject to the Brown Act unless a majority of the members of the governing legislative body were at those meetings (e.g., 4 of the 7 council members decided to sit in).
That said, even though meetings held by the city manager with his or her staff are not likely covered by the Brown Act, you should presumptively be able to obtain documents and other writings regarding these meetings and other city business through the Public Records Act.
The California Public Records act provides access to any “writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency.” Govt. Code § 6252(e).
When a member of the public makes a request under the Public Records Act, the agency must respond within 10 days of the request, stating whether diclosable records exist that match the request and provide an estimated deadline for producing them. Govt. Code 6253(c).
If an agency determines that a particular record is exempt they “shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Govt. Code § 6255(a).
You can find more information about the Public Records Act, including a sample request letter, on the FAC’s website here.
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.