A&A: How much detail does the Brown Act require for agenda items?

Q: The board of supervisors recently passed a resolution requiring public water and sewer for homes built on properties smaller than 40 acres.  The resolution number was not listed on the agenda. Is this a violation of the Brown Act?

A: The Brown Act requires that agendas include “a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an item generally need not exceed 20 words.” Gov’t Code § 54954.2.

I’m not sure based on your question below whether the issue here is that the resolution wasn’t referred to on the agenda by number or if it wasn’t listed at all. As for the former, I am not aware of a Brown Act provision that requires agenda items related to resolutions to include the resolution number, though it is possible that the Board of Supervisors has imposed such a rule on itself.

As for the latter, a complete failure to list the item would seem to violate Gov’t Code § 54954.2.

If the item was listed in some fashion, but perhaps without the desired degree of specificity, there is often not a clear answer as to whether any particular agenda item is sufficiently informative, though a few court cases offer some limited guidance.

In Shapiro v. San Diego City Council, 96 Cal. App. 4th 904 (2002), the court affirmed a trial court’s holding that agenda listings in the nature of “in the matter of giving direction to the City Manager on behalf of the City of San Diego regarding real estate interests in the Centre City East area of downtown San Diego” were insufficient to give notice that issues such as the hiring of a ballpark manager and the effect of the redevelopment on the homeless population would be discussed.

In another case, the Court of Appeal held that an agenda item called “continuation school site change” was insufficient to give the public notice that the board would take action to close the school at issue. Carlson v. Paradise Unified School District, 18 Cal. App. 3d 196 (1971).

Although the agenda requirements in that case were imposed by a provision of the Education Code, the analysis should be similar under the Brown Act. The court concluded that although the item listing was not deceitful since the board actually discussed a school site change, it was “entirely misleading and inadequate to show the whole scope of the board’s intended plans.” The court went on to state that “[i]t would have taken relatively little effort to add to the agenda that this ‘school site change’ also included the discontinuance of [a school site].”

The key question is generally whether the agenda listing would give sufficient notice to a reasonable person that a particular matter would be deliberated or acted upon at the meeting. If not, there may be a violation of the Brown Act, as interested members of the public might have been deprived of an opportunity to observe and comment on the deliberations.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.