Q: Is it a Brown Act violation to intentionally provide false information on the agenda, agenda description, or supporting documents provided with the agenda for a County Board meeting?
A: As you appear to be aware, the Brown Act requires legislative bodies to post an agenda for all meetings. “At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing 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(a)(1). The description must be adequate and not misleading—according to the attorney general, “the purpose of the brief general description is to inform interested members of the public about the subject matter under consideration so that they can determine whether to monitor or participate in the meeting of the body.” The Brown Act, Open Meetings For Local Legislative Bodies, Office of the Attorney General (2003), at pp. 16-17. An agenda that contains intentionally inaccurate information would violate the Brown Act.
If an individual believes a County is violating the Brown Act, he or she may bring essentially three types of legal suits to enforce the Brown Act: (1) a suit over a government entity’s alleged violation of the Act based on the that entity’s past violation of the Brown Act; (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 alleging a past violation of the Brown Act and seeking to stop further violations must first attempt to resolve the matter, short of litigation, though an elaborate settlement procedure set forth in Government Code section 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, which can be accessed on the California Legislature’s website.
With respect to (2) – barring an ongoing or future action, Government Code 54960(a) provides, “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 section 54960.2, discussed above.
With respect to (3) – suits to void a specific past action – Government Code 54960.1 provides the mechanism for bringing such a challenge, which includes a demand to the agency that it “cure and correct” the violation before filing a lawsuit. If action was taken on the intentionally misleading agenda item, the procedure for remedying the violation would typically be to send the legislative body a demand that it cure or correct the action taken in violation of the Brown Act. “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.
In all Brown Act cases brought by citizens, attorneys’ fees may be recovered at the discretion of the court. § 54060.5.
You can find more information regarding the Brown Act here: Brown Act
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.