A&A: Unposted Supporting Documents and Public Comment on those Documents

Unposted Supporting Documents and Public Comment on those Documents

Q: The County Board of Supervisors had an agenda item that has been hotly contested for a number of years by this unincorporated community.  Before the meeting, this item was posted.  The “findings of fact” that support the item were not.  These “findings” were not made available to the public until one and a half hours before the meeting.  In fact one of the supervisors complained about not receiving the “findings” until early that morning.

My husband was the first opponent of the item to speak, and was interrupted by the County Counsel and told he could only address items that were in “the findings”.  I was the only one out of a group of approximately 20 residents who obtained the “findings” from the Clerk of the Board that morning.  There was no way any of us had time to review the 50 page document before the meeting.  Even though I complained about a possible Brown Act violation, the supervisors in the end still voted to approve the item over our objections.

Should we have been able to review the “findings” prior to that day?  Is this a Brown Act violation? Should I submit a cure and correct letter to the Board of Supervisors since the “findings” had several major errors? If I were to file a Correct and Cure letter with the board of supervisors do I absolutely have to file a lawsuit after the time allowed for them to correct the item?

A: As you know, the Brown Act is California’s open meetings law, and governs meetings of local agencies. See Govt Code 54950 et seq.  Your first question relates to when you are entitled to an agenda packet under the Brown Act.  “[A]gendas of public meetings and any other writings, when distributed to all, or a majority of all, of the members of a legislative body of a local agency by any person in connection with a matter subject to discussion or consideration at a public meeting of the body, are disclosable public records under the California Public Records Act . . ., and shall be made available upon request without delay.”  Govt. Code Section 54957.5.  The language of Section 54957.5 would strongly suggest that you should have been entitled to the findings as soon as they became available, and certainly by the time they were disseminated to members of the Board of Supervisors.  The California Attorney General’s Office has also interpreted the provision this way, advising that where the materials provided to the legislative body are not privileged or confidential, they are to be made available as soon as they are assembled, even before they are distributed to the body.  Here, it is unclear when the members of the Board were provided with the findings, but you likely have a strong argument that were not made available in a sufficient amount of time before the meeting.

Next, you asked about the permissibility of the Board stopping your husband from speaking at the meeting.  The Brown Act provides that “[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.”  Cal. Govt. Code Section 54954.3(a).  This Section also addresses special meetings: “[e]very notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item.”  Cal. Govt. Code Section 54954.3(a).  Based on the information you have provided, it appears as though the meeting may have a been a “special meeting,” rather than a regular meeting of the board.  Either way, your husband should have been able to address the item described in the notice for the meeting.  It would seem to be an unreasonable restriction for the Board to restrict your husband’s comments to the findings that were distributed just before the meeting, even where his comments related to the topic in the notice for the meeting.

The Act also provides 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.”  Govt. Code Section 54954.3(b).  However, a meeting of a legislative body is considered to be a limited public forum for First Amendment purposes, and as such, the body faces a substantial burden in justifying any content-based restrictions on speech of members of the public during the public comment portion of the meeting.  Any limitations on content must be shown to be necessary to serve a compelling state interest, and must be narrowly tailored to achieve that goal. See, e.g., Leventhal v. Vista Unified School Dist., 973 F.Supp. 951 (S.D. Cal. 1997).  The restrictions adopted by the body must be reasonable, must be viewpoint neutral, and must preserve the purposes of the body’s limited forum.  In addition, the Act specifically provides that: “[t]he legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.  Cal. Govt. Code Section 54954.3(c).  A policy which attempts to suppress critical speech may be considered an unconstitutional content-based restriction. For example, the Leventhal court held that policies prohibiting members of the public from criticizing school district employees were unconstitutional because the policies promoted only one viewpoint — e.g. praising and maintaining the status quo.  By allowing only one viewpoint to be expressed, the policies foreclosed meaningful public debate on a particular subject.

In the event you believe there has been a violation of the Brown Act that you wish to pursue, you should be aware that the Act provides both criminal and civil penalties for violations.  There have been, to our knowledge, only a few criminal prosecutions under the Brown Act, and to date they generally have not been successful.  As for civil remedies, there are two options.  First, pursuant to Government Code section 54960.1, you may seek to void the action taken at the Board meeting.  The requirements for taking such an action require you to seek to have the agency “cure and correct” the action taken at the improperly held meeting, and then bring a lawsuit if they do not.  The requirements are very specific, they have very short deadlines, and they are generally strictly enforced.  Generally speaking, the demand must be made within 90 days from the date the action is taken   If the legislative body fails to correct the action within the requisite time period, you must file the lawsuit within 15 days.  Alternatively, you may seek a writ of mandate under Government Code section 54960, or bring an action for declaratory or injunctive relief.  The full text of the Brown Act, and these Government Code sections, can be found on our web site.

You are not required to initiate litigation after the time allowed for an agency to cure a correct a violation of the Brown Act.  However, if you decide not to initiate litigation after the agency’s response to the request to cure and correct, of after the time period for such response expires, you will thereafter be barred from initiating litigation.  Cal Govt Code Section 54950.1(c)(4) provides “[w]ithin 15 days of receipt of the written notice of the legislative body’s decision to cure or correct, or not to cure or correct, or within 15 days of the expiration of the 30-day period to cure or correct, whichever is earlier, the demanding party shall be required to commence the action pursuant to subdivision (a) or thereafter be barred from commencing the action.”  So, while you are not required to initiate litigation, if you do not within the specified time, you will be barred from commencing litigation on that action.