Brown Act Primer: Enforcement

VII: Enforcement of the Brown Act

A. A knowing violation of the Brown Act with the intent to deprive the public of information to which it is entitled is a crime. However, no one has ever been successfully prosecuted for a violation of the Brown Act.

B. Individual citizens may bring essentially three types of legal suits to enforce the Brown Act: a suit over a government entity’s alleged violation of the Act based on the that entity’s past violation of the Brown Act; a suit to contest or enjoin ongoing or future actions in alleged violation of the Brown Act; and a suit to void an action taken by a government entity in alleged violation of the Brown Act.

Challenging past actions to stop their recurrence:

Under amendments to the Brown Act adopted in 2012, persons alleging a past violation of the Brown Act, and seeking to bar further violations–but NOT  to invalidate a specific government decision or action–must first attempt to resolve the matter, short of litigation, though an elaborate settlement procedure set forth in Government Code section 54960.2, as follows:

1) Within 9 months of the violation, a complainant must file a “cease and desist” letter with the government entity “clearly describing the past action of the legislative body and nature of the alleged violation.” Gov Code sec. 54960.2(1)

2) The legislative body has 60 days to respond with “an unconditional commitment to cease, desist from, and not repeat the past action.” Gov Code sec 54960.2(a)(4). (If it makes such a commitment within 30 days, the government body will immunize itself against any claim, in the course of litigation, for payment of the complainant’s attorney’s fees or costs, Gov Code Sec. 54960.2(b))

3) If the Government body responds with a timely and unconditional commitment, that will be the end of the dispute (unless, subsequently, the agency reneges on its commitment). However, if the government doesn’t respond, or responds unsatisfactorily or conditionally, the complainant may file suit, and must do so within 60 days. Gov Code Sec. 54960.2(a)(4).

Barring an  ongoing or future action:

1) “. . . any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter . . . or to determine the applicability of this chapter to ongoing actions or threatened future actions. . . of the legislative body.” Gov Code Sec 54960(a).  Because, practically speaking, lawsuits seeking injunctive relief against future actions usually are based on evidence of past violations, most cases involving prospective relief will be brought under Gov Code section 54960.2, discussed above.

Suits to Void Past Action:

If a complainant’s objective is to have a court declare a government action null and void on account of a Brown Act violation, the procedure spelled out in Gov Code Sec 54960.1 (a) applies.  Notice and a demand to “cure and correct” the violation must be given, in writing, within 90 days from the date the action was taken (30 days if the basis for the notice is that the action was not on an agenda or not adequately described).[foot]76. Gov’t Code § 54960.1(b).[/foot]

The local agency has 30 days to take action.[foot]77. Gov’t Code § 54960.1(c).[/foot] If the local agency responds and refuses to correct the problem or does nothing, the challenger has 15 days to initiate court proceedings to nullify the action.[foot]78 Gov’t Code § 54960.1(c).[/foot]

C. Other

The District Attorney or a member of the public may also sue to obtain a ruling that the local agency is violating the free speech rights of a member in seeking to silence that member.[foot]74. Gov’t Code § 54960(a).[/foot]

In all Brown Act cases brought by citizens, attorneys’ fees may be recovered. They are not mandatory, but they are usually awarded to prevailing plaintiffs.[foot]79 Gov’t Cod e § 54060.5. [/foot]

NOTES

73. Gov’t Code § 54960(a).
74. Gov’t Code § 54960(a).
75. Gov’t Code § 54960.1(a).
76. Gov’t Code § 54960.1(b).
77. Gov’t Code § 54960.1(c).
78. Gov’t Code § 54960.1(c).
79. Gov’t Cod e § 54060.5.

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