Future Council Members, Participation, and the Brown Act
Q: I am going to be on the City Council in a tiny city starting in November. (There were three open seats and three candidates, so it is a walk-in.)
I and another of the future Council members are part of a local conservation group. We have filed an appeal to the City Council asking them to overturn a project approval by the Planning Commission. The likely hearing date is Sept. 18th, before we are on the Council. The mayor (who supports the project) says that it would violate the Brown
Act if, as future members, either of us participated in the appeal or spoke to the Council during the appeal meeting. (We both regularly address the Council at other meetings.)
DOES it violate the Brown Act if we help present our group’s appeal to the present City Council?? IF NOT, any suggestions about what to do when he tries to exclude us from participating?
A: Section 54952.1 of the Brown Act provides that “[a]ny person elected to serve as a member of a legislative body who has not yet assumed the duties of office shall conform his or her conduct to the requirements of this chapter and shall be treated for purposes of enforcement of this chapter as if he or she has already assumed office.” Cal Govt. Code Section 54952.1. However, the Brown Act does not address whether a city council member, present or future, can advocate for a position in the city council. The Brown Act does provide that “[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body…” and that “[t]he legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.” Cal Govt Code Section 54954.3. These provisions therefore allow for public comments and regulations of parameters such as time on a particular issue, but they do not preclude an incoming member of the city council from speaking on an issue.
Other sections of the Government code address the organization of city governments, however these sections leave most internal rules to the governing body itself. Section 36813 provides that “[t]he council may establish rules for the conduct of its proceedings.”
To the extent the mayor continues to state that it would violate the Brown Act if, as a future member, you participated in the appeal or spoke to the Council during the appeal meeting, I would suggest that you ask him/her to cite the specific provision of the Government Code on which he or she is relying, and remind the mayor that in the event you are forced to sue to protect your public comment rights under the Act, you may be entitled to your attorneys fees.