Q: A recent city council meeting agend discussion item stated that “No action was called for.” The “summary recommendation” was that the city council “receive and file this report. ” However, without any public notice, the City Council took action. I know the Brown Act requires items on which Council acts to be on the agenda in advance, unless there is an emergency or need for immediate action wasn’t realized earlier. What should I do now?
A: The Brown Act provides that “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights under Section 54954.3.
In addition, on their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities.
Furthermore, a member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may provide a reference to staff or other resources for factual information, request staff to report back to the body at a subsequent meeting concerning any matter, or take action to direct staff to place a matter of business on a future agenda.” Cal Gov Code § 54954.2(a)(2).
“Action taken” is defined in the Brown Act to “a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.” Cal Gov Code § 54952.6.
From what I understand from your email below, as well as your email of July 1, to us, the city may have violated the Brown Act by failing to post on the agenda an item that it then took action on at a public meeting.
The Brown Act does not specify a particular way that a violation of the Brown Act may be cured and corrected, but presumably 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.
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. Notice and demand to cure and correct a violation must be given, in writing, within 90 days from the date the action was taken, or 30 days if the basis for the notice is that the action was not on an agenda or not adequately described. Cal. Gov’t Code § 54960.1(c)(1).
The local agency then has 30 days to take action. Cal. Gov’t Code § 54960.1(c)(2). If the local agency responds and refuses to correct the problem or does nothing, the challenger has 15 days to initiate court proceedings to nullify the action. Cal. Gov’t Code § 54960.1(c)(3)-(4).
You can find a template for a Brown Act complaint, as well as other useful information pertaining to the Act, on the FAC’s web site https://firstamendmentcoalition.org/category/resources/access-to-meetings/.