City Clerk requires Ad Hoc reports to be in announcements

Q:Why would our city clerk require city Commissions to move all ad hoc reports and standing committees from agenda items to the announcements portion of the meeting? They are not listed on the agenda unless the ad hoc specifies the exact language of the action/recommendation for our city council. Then it gets more complicated because an agency of the city can be listed on the agenda but a standing committee from one of the neighborhood groups is removed. Our ad hocs are under Brown Act and without the ability to have even a preliminary discussion on a report as a full body and have the public know we are covering the issue we’ve found it difficult to come to an agreement on the how to proceed in conveying our recommendations to council. I would appreciate any clarification as to the reasoning behind the city clerks request. My research on open meeting laws, accessing government records and the online resources about the Brown Act have not provided much help.

A: As I understand your submission, you are concerned with the fact that that the city council is no longer placing reports from ad hoc committees and standing committees as items on the agenda to be discussed during city council meetings.  Unfortunately, under the Brown Act, legislative bodies have sole control over the decision to place (or not) particular items on the agenda.  Government Code section 54954.3 provides, among other things, that in a public meeting, any “member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may … take action to direct staff to place a matter of business on a future agenda.”  While the Brown Act does not appear to prevent a body from adopting a rule or procedure to set a mechanism for non-legislative body members to place items on the agenda, it also does not require that the body do so.  You might want to request a copy of the body’s internal governing rules to see if it has adopted a rule that addresses the mechanisms for placing items on the agenda.

One way around this is to make use of the public comment period for this purpose.  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, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2.”  This language seems to contemplate that members of the public can comment, not only on items on the agenda, but also on topics that are not agendized so long as these topics are within the subject matter jurisdiction of the legislative body.  You might want to use your allotted public comment time to try to publicly pressure the city council into placing certain items concerning the reports from ad hoc and standing committees on future agendas.  Or you may simply use this time to discuss such reports.  As noted above, however, the city council would not be able to take “action” on any item not appearing on the agenda.  Gov’t Code § 54954.2.  Thus, although you may be able to comment on any item within the subject matter jurisdiction of the city council, whether or not on the agenda, the city council cannot take any action with respect to items not on the agenda.

Although I understand your concern that it would be ideal for the city council to discuss the reports from the ad hoc and standing committees during city council meetings, please note that some of these committees, if subject to the Brown Act, require their own open meetings at which point the public is free to attend such meetings and to address the committee during their own public comment period.  Below is some information concerning whether a particular committee is subject to the Brown Act.

The Brown Act provides that: “All meetings of the legislative body of a local agency shall be open and public, . . . .”  Gov. Code § 54953.  As used in the Act, “legislative body” is defined to include “any advisory commission, advisory committee or advisory body of a local agency, created by charter, ordinance, resolution, or by any similar formal action of a governing body of a local agency. . . .”  Gov. Code § 54952.3.  Whether the committee you reference is subject to the Act, therefore, depends on whether such group was created by a formal action of a legislative body.  (Gov’t Code § 549529(b)).  Assuming the committee was created by “formal action,” the next issue to look at is whether the committee falls under the ad hoc sub-quorum committee exemption.  If it does, then the meetings of such group would not be subject to the Brown Act and would not need to be public even though the committee can choose to make them so.  Government Code section 54952(b) exempts advisory committees that are comprised solely of less than a quorum of the members of the legislative body that created them.  The exemption does not apply, however, if the advisory committee is a standing committee.  A standing committee is a committee that has continuing jurisdiction over a particular subject matter (e.g., budget, finance, legislation).  (Gov’t Code § 54952(b)).  The California Attorney General’s Office illustrates, in its “The Brown Act” publication, how section 54952(b) operates with respect to committees created by city councils.  According to the Attorney General, if the city council creates an advisory committee comprised of two council members for the purpose of reviewing all issues related to parks and recreation in the city on an ongoing basis, for example, such committee, even though comprised of less than a quorum of the members of the body that created it, is a standing committee that is subject to the Act because it has continuing jurisdiction over issues related to parks and recreation in the city.  On the other hand, if the city council creates an advisory committee comprised of two city council members for the purpose of producing a report in six months on downtown traffic congestion, for example, such committee is exempt because it is comprised solely of less than a quorum of the members of the city council, and it is not a standing committee because it is charged with accomplishing a specific task in a short period of time.