Q: Last June, my local City Council approved a $120,000 contract to a lobbying firm to work on a pending piece of legislation. The approval was in closed session and labeled as “Pending Litigation.” Under the Brown Act, do I have legal grounds to pursue a Cease & Desist order?
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A: The Brown Act contains a few narrow exceptions to its requirement that all legislative deliberations occur in open session, including the pending litigation exception. That exception permits a legislative body to have a closed session “to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.” Cal. Gov’t Code § 54956.9(a).
I am not aware of any “pending legislation” exception to the Brown Act, and it does not seem that a discussion of pending legislation, or the funding of lobbyists to do the same, would fall within the pending litigation exception.
A member of the public who wishes to enforce the Brown Act has a couple of options:
(1) a suit over a government entity’s alleged violation of the Act based on that entity’s past violation of the Brown Act (which, from what I understand, is what you seek to pursue);
(2) a suit to contest or enjoin ongoing or future actions in alleged violation of the Brown Act; and
(3) a suit to void an action taken by a government entity in alleged violation of the Brown Act.
With respect to (1) – challenging past actions to stop their recurrence – persons claiming a past violation of the Brown Act, and seeking to stop future violations, but NOT to invalidate a specific government decision or action, must first attempt to resolve the matter through an elaborate settlement procedure set forth in Government Code § 54960.2.
The deadlines for filing a cease and desist letter with the government entity, as well as the government’s obligations in responding to such a complaint, are set forth in this code section (54960.2).
You’ll see that subsection (a)(2) provides that a cease and desist letter must be filed within nine months of the alleged violation.
Also note that subsection (a)(1) requires the cease and desist letter be sent by mail or fax and that it “clearly describ[e] the past action of the legislative body and nature of the alleged violation.”
With respect to (2) – obstructing an ongoing or future action – Government Code § 54960(a) provides that “any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter . . . or to determine the applicability of this chapter to ongoing actions or threatened future actions. . . of the legislative body.” Because, practically speaking, lawsuits seeking injunctive relief against future actions usually are based on evidence of past violations. Most cases involving prospective relief will be brought under Government Code § 54960.2, discussed above.
With respect to (3) – suits to void a specific past action which violated the Act – Government Code § 54960.1 provides the mechanism for bringing such a challenge. A complainant must demand the board “cure and correct” the violation before filing a lawsuit. “The demand shall be in writing and clearly describe the challenged action of the legislative body and nature of the alleged violation,” and must usually be made within 90 days of the action, or 30 days if
the action was taken in open session. Gov’t Code § 54960.1.
Although the First Amendment Coalition does not currently have a sample cease and desist letter available, you may be able to borrow ideas from the sample cure and correct letter found here: Template For Brown Act Complaint
Bryan Cave 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.