Q: After holding closed door negotiations with a public coalition that included the local union, the Port of San Diego announced a hotel development deal that included a Project Labor Agreement with the union. The development will be build on public tidelands, which sacrifices the Port Master Plan-designated parkland. Were the extensive secret labor negotiations legal?
A: There are two basic steps in determining whether a meeting is subject to the Brown Act. First, a “legislative body” must be involved. If that criteria is met, then the gathering of the body must be a “meeting” in order for the Brown Act to apply.
The first step then is to determine whether the group involved is a “legislative body,” which the Brown Act defines. Not surprisingly, official bodies of local agencies count as legislative bodies. This includes bodies of a local agency, a local body created by state or federal law, or standing committees of legislative bodies. See Gov’t Code §§ 54952(a) – (b).
However, in certain situations, private bodies can also be subject to the Brown Act. Government Code § 54952 indicates that a legislative body includes a private corporation or entity that either:
(1) is created by the elected legislative body to exercise authority delegated to the corporation or entity by the legislative body or
(2) receives funds from the local agency and the corporation’s board of directors includes a member of the governing body of the local agency appointed as a full voting member to the board of directors of the corporation. Gov’t Code § 54952(c).
The Brown Act also defines what constitutes a “meeting.” Under the Brown Act, a “meeting” includes any 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 § 54952.2(a).
Members of a legislative body do not have to meet face to face in order to conduct a “meeting” or take action within the meeting of the Brown Act. The Brown Act provides that:
“A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” Govt. Code § 54952.2 (emphasis added) .
The Attorney General takes the position that a serial meeting, in violation of section 54952.2(b), may occur where there is a chain of communications (A communicates with B, B communicates with C, and so on), and/or when one intermediary acts as the hub of a wheel and communicates individually with the various spokes (i.e., board members A, B, C, etc). See The Brown Act, Open Meetings for Local Legislative Bodies, Office of the Attorney General, 2003, at p. 11, available at http://caag.state.ca.us/publications/2003_Main_BrownAct.pdf.
Further, courts have reached similar findings, indicating that a “series” of communications can be interpreted as a “meeting” for the purposes of the Brown Act. See Stockton Newspapers, Inc. v. Redevelopment Agency, 171 Cal. App. 3d 95, 105 (1985); Common Cause v. Stirling, 119 Cal. App. 3d 658 (1981).
Turning now to the situation you described, the answer to your question is going to depend largely on what you mean by “negotiations with the Port of San Diego.” It is possible that the coalition the union joined and/or the Port of San Diego were legislative bodies subject to the Brown Act.
There is a similar case called International Longshoreman’s and Warehousemen’s Union v. Los Angeles Export Terminal Inc., 69 Cal. App. 4th 287 (1999). In that case, the Los Angeles Harbor Commission entered an agreement with some businessmen and created a corporation in charge of building and operating a coal export facility on land leased by the Los Angeles Harbor Department. The Court found that the new corporation’s board of directors was held subject to the Brown Act because the city delegated authority to develop and run the facility rather than doing it itself.
If there is a similar type of corporation set up by the city of San Diego for the project you write about, then maybe the Brown Act is applicable. Although it seems that the Port is more likely to be subject to the Brown Act than the coalition, without further information about the deal and who exactly was involved in brokering it, it’s hard to say for sure.
Assuming that the group is subject to the Brown Act, the next step would be to determine if the discussions and negotiations that took place between the attorneys was a “meeting.” For that to be the case, a majority of the legislative body must have been involved. See Gov’t Code § 54952.2(a).
That means that a majority of the board of directors of the corporation set-up to handle the port deal must have been involved in the negotiation somehow if it were to be considered a “meeting” that ought to have been public. Of course, as mentioned above, they need not have all sat in a room at the same time to establish the majority, so it is still possible that this took place.
However, again, without more information (who was involved, how many board members, etc.?) it’s hard to say for sure.
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.