A&A: Council-elect make decisions, but claim documents are not public

Q: I cover an unincorporated community that voted in June to incorporate. Voters approved incorporation and also elected a five-member council.  A committee has been formed to raise private funds to put on a celebration on mark the historic occasion. Two elected members of the city council-elect (who will not be sworn in until the day of the celelbration) serve on this committee.

My questions: is this committee considered private? Am I entitled to the financial records of this committee? I have requested the budget for the event, how much has been raised in donations and the names of the major donors but have been denied. A couple of additional facts: no city money is going toward the celebration. Also, although the five council members-elect have not been sworn, they have been meeting as a council-elect since July and making decision (hiring an interim city manager, a city clerk and a city attorney, etc.).

A: The first part of your question involves an analysis of whether the fundraising committee, which, from what I understand, solicits private funds and includes two members of the city council, is a “local agency” under the Public Records Act, thereby making its records subject to the Act.

The PRA applies to public records, which are defined as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” Gov’t Code section 6252(e).

A “local agency” “includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.” Gov’t Code section 6252(a).

Section 54952(c) of the Government Code defines a “legislative body” as:

(1) A board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that either:

(A) Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity.

(B) Receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency.

Gov’t Code section 54952(c)(1).

It seems that if the fundraising committee was created by the newly elected city council, it would qualify as an arm of the city council that would likely be considered a “legislative body” under Section 54952(c)(1)(A) for purposes of the Public Records Act. See Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist., 87 Cal. App. 4th 862, 870 (2001) (under 54952(c)(1), the city took part in creating association to the extent that it helped “bring [it] into existence” to exercise delegated government authority, and therefore the Brown Act applied to association’s meetings).

If the committee was created by the elected legislative body (the city council), which delegated its authority to to the committee to plan and organize the celebration for the city’s incorporation, then arguably this committee would qualify as a “local agency” under the Public Records Act (via the Brown Act), and therefore, records maintained by the committee would be subject to inspection under the Act, unless some exemption applies. Also, although the committee might not be receiving any funds from the city for the celebration itself, it is possible it receives operating funds from the city, in which case, it could also qualify as a “legislative body” under Section 54952(c)(1)(B), given that it counts two city council members among its ranks.

On the other hand, a court that interprets the Act narrowly might find that the committee is not covered by the Act. This was the case in California State University v. Superior Court, where the court found that a nonprofit corporation created pursuant to an Education Code section to provide commercial services to the university was not a “state agency” under the Act. 90 Cal. App. 4th 810, 829-30 (2001).

There could be differences, however, between the committee you describe and a nongovernmental auxiliary organization, that might tip in favor of making the committee subject to the Act. The analysis is necessarily fact specific, but the factors described above, such as whether the committee was created by the city council elect; whether it receives any financial support from the city; or whether it was created purely by private citizens could play into whether the Act applies.

Your second inquiry involves consideration of whether the city council members-elect, who have not been sworn in yet, but have been meeting and making decisions related to city business, are subject to the Brown Act. The Brown Act applies to “legislative bodies,” which include commissions, committees, boards or other bodies of a local agency, “whether permanent or temporary, decision-making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body.” Gov’t Code § 54952(b).

It seems to me if there was a “charter, ordinance, resolution” or some formal action of a legislative body that led to the incorporation of this previously incorporated area, then the council shouldn’t be able to avoid the Brown Act by saying “we’re not sworn in yet.” Furthermore, these members-elect are acting like a city council, making staffing and other administrative decisions that are within the purview of legislative bodies such as city councils.

The new city’s bylaws probably prescribe how these decisions should be made, i.e., by the city council, and not by a council in waiting. Therefore, to the extent that these individuals are meeting as a city council-elect, and making binding decisions on the city, it would seem appropriate that their meetings be held to the open meeting standards set forth in the Brown Act.

As such, under the Act, “All meetings of the legislative body of a local agency shall be open and public, . . . .” Gov. Code § 54953. The Brown Act defines a “meeting” as “a congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.” Gov’t Code § 549523.2(a).

It is impossible to say, though, whether a court considering the issue would reach the same conclusion.

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.