A&A:Public comments on water rates closed, item still on agenda

Q: The current City Council Agenda contains the following item: “DISCUSSION AND POTENTIAL ACTION ITEMS. Introduce and Waive the First Reading of One of the Three Ordinances Relating to Establishing Rates for Water Service Fees.” Here is the problem. We are not being allowed to comment about this item at all, even though it has been on multiple Agenda’s and postponed multiple times. The City Attorney says we can’t comment on it because the Prop 218 hearing has been closed and no further comments can be taken. That would have been fine if they had voted on the day they closed the hearing, but they didn’t. The vote has been delayed again and again. I don’t want to comment on the RATES themselves. I want to comment on the “foot dragging” by certain City Council members. I’m not allowed to say anything during “Public Comments” because it is on the Agenda. But when it comes up on the Agenda, I am not allowed to tell the Council to “get their act together and VOTE already” because the Prop 218 hearing has closed. Something doesn’t seem right here.

A: I understand your frustration. Unfortunately, it is possible for legislative bodies to prevent public comment on an item, but only under a very limited exception. As you seem to know, the Brown Act requires that legislative bodies provide an opportunity for members of the public to address the body on any items on the agenda. Gov’t Code § 54954.3 ((“Every 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….”). As noted, there is one exception to this general rule. If an item has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, the legislative body need not provide an opportunity for members of the public to address the body on that particular item in subsequent meetings. Gov’t Code § 54954.3. This exception does not apply, however, if the item has been substantially changed since the committee heard the item. Gov’t Code § 54954.3. From the information in your submission, it is not entirely clear whether this exception would apply. If it does not, then the legislative body is required to provide the public with the opportunity to address the body on that item.

If you determine that a violation of the Brown Act occurred, the Act provides the public with certain remedies. First, you may seek to void an action taken at such 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 (but the demand must be made within 30 days if there is a violation of the agenda requirements set forth in Section 54954.2 — which sounds to be the case here). If the legislative body fails to correct the action within the requisite time period, you must file the lawsuit within 15 days. Please see the provisions of California Government Code 54960.1 regarding the particulars of the timeline.

In the alternative, you may consider filing an action for injunctive or declaratory relief. This alternative remedy is available for the purpose of stopping or preventing violations or threatened violations under California Government Code section 54960, but this type of action will not have the effect of voiding the action. The procedures and time limitations set forth in Section 54960.1 do not apply to Section 54960. Ingram v. Flippo, 74 Cal. App. 4th 1280, 1288, 1290 (1999). CFAC’s website contains a link to the statute for your reference (see http://www.cfac.org/content/index.php/cfac-meetings/index/).