Q: After nearly two years of trying, we finally got a photograph of three of our County Board of Supervisors (we have a five member Board) having lunch together as they regularly do. We can’t take it to the DA as he has been compromised as has our County Counsel.
What can we do?
A: The Brown Act, at Govt. Code section 54952.2, defines a “meeting” as “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.”
Thus a majority of the members of a board having lunch together could be a “meeting” if they were hearing, discussing or deliberating upon matters within the board’s jurisdiction, as opposed to, for example, merely having a social lunch in which no agency matters were discussed.
The Brown Act may be enforced in two ways. One, as you noted, is for the District Attorney to prosecute violations as misdemeanors. Govt. Code section 54959. The other is by way of private enforcement actions brought as civil lawsuits by individuals. Government Code section 54960.
Such private actions may be brought to declare actions taken in violation of the Brown Act null and void, or to declare that a particular policy or practice is in violation of the law. Govt. Code section 54960.1(d).
However, if one seeks to have an action of the board declared null and void, one must first, in a timely manner, sometimes within 30 days of the violation, demand in writing that the agency “cure and correct” the violations of law. A party who prevails in a Brown Act lawsuit may be entitled to an award of attorneys’ fees and costs. Govt. Code section 54960.5.
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.