Q: At its last meeting, City Council members were told by the city attorney that the city no longer has to abide by some of the provisions of the Brown Act. He was citing the city’s ability to vote on an issue that was not on the agenda, telling them it was OK. Has the Brown Act been revised to include this change?
A: I am not aware of any changes in the law that would allow the City Council to refuse to comply with the requirements of the Brown Act.
Government Code § 54954.2(a)(2) continues to prohibit agencies from voting on or even discussing an issue that is not on the agenda for a regular meeting (“No action or discussion shall be undertaken on any item not appearing on the posted agenda”), except in certain limited circumstances spelled out in the statute.
With respect to voting, the Council may only vote on an issue not on the agenda only under the “following circumstances:”
(1) Upon a determination by a majority vote of the legislative body that an emergency situation exists, as defined in Section 54956.5.
(2) Upon a determination by a two-thirds vote of the members of the legislative body present at the meeting, or, if less than two-thirds of the members
are present, a unanimous vote of those members present, that there is a need to take immediate action and that the need for action came to the attention of the local agency subsequent to the agenda being posted as specified in subdivision (a).
(3) The item was posted pursuant to subdivision (a) for a prior meeting of the legislative body occurring not more than five calendar days prior to
the date action is taken on the item, and at the prior meeting the item was continued to the meeting at which action is being taken.
I did not find any court cases saying this provision is not currently in force. There is a case that says “Assembly Bill No. 1464 (2011–2012 Reg. Sess.), which was signed into law on June 27, 2012, and effective immediately, suspended Government Code section 54954.2, subdivision (a) during the 2012–2013 budget year.”
Schwarzburd v. Kensington Police Protection & Community Services Dist. Bd., 225 Cal. App. 4th 1345, 1352 n.6 (2014). Although it is not entirely clear, most likely it was the provision of section 54954.2(a) that requires posting of an agenda that was
suspended (in order to save the state money it would otherwise spend reimbursing local agencies for the expense of posting agendas).
But I have not found anything to indicate that this suspension of section 54954.2(a) was extended and remains in place. And a case from last year held that because an agency “discussed and adopted [an item] … even though that matter was not set forth on the meeting agenda, it violated the Brown Act. (§ 54954.2, subd. (a)(1) & (2).).”
San Joaquin Raptor Rescue Center v. County of Merced, 216 Cal. App. 4th 1167, 1177 (2013). While that case involved a vote in 2009, it should still be good law now that the 2012-13 budget year is over.
If in your reporting the City Attorney explains the basis for his advice that the City Council can refuse to follow state law, I’d be interested to hear what it was and giveyou a sense of whether it jibes with our understanding of the law.