Q: DMV code requires a Public Hearing before entering into a Red-Light Camera Contract. I contend the new contract our city council has approved is invalid because the requirement for a public hearing was not met. The city manager proposed a new contract when the current contract expires June 30. The Public Hearing was noticed on May 18 in a local newspaper for a June 1 meeting, at which time the city council was to vote on renewing the red-light camera contract. A summary of terms of contract was made available to the public and city council on May 27. Public Hearing on the contract appeared on agenda under the Consent Calendar and not the Public Hearing subsection. This agenda was attached to summary of the contract. I have not found language defining “Public Hearing” but I contend that
1) 30-days notice of hearing is required;
2) That notice was not properly served since it appeared under Consent Calendar which only can be discussed if a citizen or council member asks that it be pulled from Consent Calendar;
3) That even though it was called a hearing there was no opportunity to discuss or debate. No opportunity by the public to question data or evidence other than being allowed 3 minutes to address council.
Without going further, can you advise what action I might take? I am aware that So. San Francisco had to repay $3 million in fines it had collected in about 7 months since they had not met one of the criteria of a valid camera contract.
A: Your first question pertains to whether the proper noticing protocol was followed by the City Council regarding the agenda item at issue. Under California’s open meeting law, known as the Brown Act, meeting notice requirements are as follows:
1)Agendas for regular meetings must be posted 72 hours in advance of the meeting
2) Special meetings may be called 24 hours in advance by notifying each local newspaper of general circulation, radio station or tv station that has requested notice;
3) And closed sessions must be identified in an agenda posted at least 72 hours before each regular meeting, and must be orally disclosed in an open session held before the closed session. Gov’t Code §§ 54954.2(a), 54956, 54957.7.
The Act also provides that “[a]ny person may request that a copy of the agenda, or a copy of all the documents constituting the agenda packet, of any meeting of a legislative body be mailed to that person.” Gov’t Code § 54954.1.
Based on the facts that you provided, it seems that the City Council probably complied with the Act’s timing requirements given that the agenda was published in the newspaper two weeks before the meeting was held, though you may want to consider, too, whether the agenda was posted on the city’s website and in its offices at least 72 hours before the meeting.
The Brown Act gives little guidance as to the extent of information that must be provided on an agenda regarding a particular item, stating only that agendas must contain “a brief general description of each item of business to be transacted or discussed at the meeting. … A brief general description of an item generally need not exceed 20 words.” Gov’t Code § 54954.2(a).
Several cases provide some additional guidance:
In Shapiro v. San Diego City Council, 96 Cal. App. 4th 904 (2002), the court affirmed a trial court’s holding that agenda listings in the nature of “In the matter of giving direction to the City Manager on behalf of the City of San Diego regarding real estate interests in the Centre City East area of downtown San Diego” were insufficient to give notice that issues such as the hiring of a ballpark manager and the effect of the redevelopment on the homeless population would be discussed.
In another case, the Court of Appeal held that an agenda item called “continuation school site change” was insufficient to give the public notice that the board would take action to close the school at issue. Carlson v. Paradise Unified School District, 18 Cal. App. 3d 196 (1971).
Although the agenda requirements in that case were imposed by a provision of the Education Code, the analysis should be similar under the Brown Act. The court concluded that although the item listing was not deceitful since the board actually discussed a school site change, it was “entirely misleading and inadequate to show the whole scope of the board’s intended plans.” The court went on to state that “[i]t would have taken relatively little effort to add to the agenda that this ‘school site change’ also included the discontinuance of [a school site].”
There does not appear to be any distinction pertaining to notice requirements for items placed on the consent agenda and items placed on the regular agenda. In the situation you describe, so long as the consent agenda item pertaining to the contract was sufficiently descriptive (even if brief) to give the public notice of the contract’s basic terms, and the fact that the City Council intended to approve said contract, then it’s possible that the City Council complied with the Act.
It sounds like you would have liked to see the proposed contract prior to the City Council meeting. The contract was probably included in the City Council packet provided to members, which, under the Act, should be “made available upon request without delay” to requesting members of the public. Gov’t Code § 54957.5(a) (“Notwithstanding Section 6255 or any other provisions of law, agendas 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 an open meeting of the body, are disclosable public records under the California Public Records Act … and shall be made available upon request without delay”). There are certain exemptions to this disclosure requirement; however, it does not seem that any of these exemptions would apply to the contract that you describe.
If the City Council members had the contract in their packets, but the city did not release the entire packet to you upon request, then it’s possible that the Brown Act was violated.
Your second question is whether the Brown Act’s public comment requirements were met with respect to this particular agenda item. The Act requires 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.” Gov’t Code § 54954.3(a).
The Act permits legislative bodies to adopt “[r]easonable regulations” for public comment periods, including regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker, but the body may not “prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Gov’t Code § 54954.3(b), (c). The Attorney General has concluded that five minutes per speaker is a reasonable amount of time, 75 Ops. Cal. Atty. Gen. 89 (1992), and a court has said that it is not a violation of the Brown Act to limit public comment to two minutes per speaker on each agenda item. Chaffee v. San Francisco Public Library Comm., 134 Cal. App. 4th 109, 116 (2005).
Thus, so long as the public was given the opportunity to comment on the consent agenda item during the three-minute-per-speaker public comment period, it is likely that the City Council complied with the Act. There is nothing in the Act that states that the legislative body itself must debate a particular item.
If you feel that the Brown Act was violated, you may seek nullification of the decision to approve the contract made during the City Council meeting. To do this, you must first demand that the body cure or correct the action taken in violation of the Brown Act. “The demand shall be in writing and clearly describe the challenged action of the legislative body and nature of the alleged violation,” and must usually be made within 90 days — but sometimes within 30 days — of the action. Gov’t Code § 54960.1(b). Keep in mind that the Act imposes fairly strict requirements pertaining to its enforcement, including deadlines for taking certain necessary actions. Also, even if the Act was violated, it is not clear that a court would nullify action taken at the meeting. Nullification is most appropriate where violation of the Brown Act has deprived the people of the ability to participate in government.
For more information on enforcement of the Brown Act, see https://firstamendmentcoalition.org/category/resources/access-to-meetings/