A&A: “Briefings” on controversial project really serial meetings?

Q: The planning commission was given six days to review a 117 page packet for a very controversial project for the gateway of our city, which has not been developed.

The day before the commission hearing, the city manager held a series of “briefing” meetings with groups of the 2-3 planning commissioners at a time (our commission has 7 members). According to the schedule, more than a quorum of commissioners were scheduled for a meeting that day either in person or by telephone.

At the meeting attended by two commissioners, the city manager squelched any dissent about the project and was insistent that they take a positive action on the project the following evening.

How much evidence do we need to send a cure and demand letter? Apparently these small group serial briefings are commonplace, but not usually so coercive. We citizens in the community are tired of our city manager engaging in coercion and back room dealings and need to make it stop. Unfortunately, no one on city council has enough spine to expose this or to throw the rascal out. We need guidance as to appropriate approach and a reality check as to whether any action we take could have any real impact. This is a very small community of only 7,000 citizens and there is a very strong “old boy network” at play.

A: It seems that from the information you have provided, the mere act of holding several smaller meetings where all members of the planning commission are presented with the same information — coercion by the city manager aside — may well constitute serial meetings in themselves, since a majority of members are hearing the same (or similar) information, and then acting upon that information, which the public has not heard.

As for evidence, the Brown Act does not specify what information or evidence must form the basis of a cure-and-correct letter. From a strategic standpoint, it sounds like you are doing a good job of documenting what you know about these serial meetings. Keeping a good record of events, including when these meetings were held, who as in attendance, where they were held, etc., could be of value if you or the district attorney decides to bring legal action against the legislative body for violations of the Brown Act.

As for what impact any action you might take would have, it’s extremely hard to say. From a legal perspective, the Brown Act does not specify a particular way that a violation may be cured and corrected, but conceivably the legislative body could satisfy the Brown Act by reopening the process to permit public awareness of all the facts and views, as well as give the public the opportunity to express its views on the issue. It is also possible that a cure-and-correct letter might generate publicity, which might in itself further your goals.

You may also want to make the district attorney aware of those violations. Either a citizen or the district attorney may sue to compel the local agency to comply with the Brown Act; obtain a ruling that a particular practice of the local agency violates the Brown Act; or obtain a ruling that the local agency is violating the free speech rights of one or more of its members in seeking to silence that member. Gov’t Code section 54960(a).

Please note, however, that the Brown Act imposes fairly strict requirements on the enforcement of the Brown Act, including deadlines for taking certain necessary actions. You might find the information on the FAC’s web site at https://firstamendmentcoalition.org/category/resources/access-to-meetings/ useful for proceeding. You might also try the First Amendment Coalition’s Attorney’s Assistance Request Form for finding an attorney who might be able to assist you (https://firstamendmentcoalition.org/lawyers-assistance-request-form/).

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.