A&A: Could this act of intimidation be a Brown Act violation?

Q: I attended the board meeting of the Waterworks District. During the meeting an agenda item came up for two job descriptions relating to the person who currently holds those positions. There were comments made by an ex-board member and another member of the public concerning this problem. One board member in particular had a very abrasive response to these comments. To break the dialogue, she asked for a 10-minute recess. At this point she pulled her phone out and called her husband to come down to the meeting due to one of the people who was commenting on the agenda item C.

Before the meeting started back from break, she tells the chairman of the board ” Eric is going to come down and have a word with John, it will be off the record, in the parking lot.” This smacks of intimidation. The item they were discussing was also brought up in a closed session without being noticed on the agenda prior to this meeting.

Another issue at this meeting concerned three of the board members discussing who would make a motion and who would second the motion when the meeting returned on break.

I also am interested in retaining an attorney to write a corrective letter and possible legal action against the district for numerous violations of the Brown Act.

A: If I am understanding your question correctly, a member of the board called her husband to come to the meeting location so he could talk with “John,” in the parking lot, who sounds like he is a member of the public who made comments to the board concerning the staff position under discussion.  The item was also previously discussed in closed session, which you are concerned was improper.

I am not sure there is anything in the Brown Act that would necessarily prohibit the board member’s husband from discussing an item on the agenda with another member of the public, unless the husband’s discussions with this individual are relayed back to his wife (the sitting board member) and other members of the board such that a “serial meeting” is held.  The Brown Act prohibits “serial meetings” and communications amongst a majority of the members of a particular legislative body that take place outside the confines of a properly noticed meeting.

In other words, under the Brown Act, a serial meeting in violation of the Act may have occurred if “a series of communications of any kind [was used], directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.”  Gov’t Code § 54952.2(b).  Note that the legislative body need not have taken any action on a particular item for such a violation to occur.  See Frazer v. Dixon Unified School District, 18 Cal. App. 4th 781, 796-798 (1993).  If the Board has five or fewer members, a private meeting of three members to deliberate on an action could constitute
a serial meeting in violation of the Brown Act.

As I mentioned, it sounds like this may not necessarily be the case.  However, as you suggest, if the board member’s action in calling her husband to talk to John in the parking lot is meant as intimidation, then there may be a bigger First Amendment question at stake – i.e., using intimidation as a means of silencing the board’s critics.  Such tactics are troubling indeed, and if John does feel like his speech is being targeted through these means, then he might
want to seek assistance from an attorney.

With respect to the item also being discussed in closed session, the Brown Act requires such items to be posted on an agenda, viewable by the public.  “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…”  Gov’t Code § 54954.2(a)(1)(emphasis added).

Finally, with respect to your question regarding the timing of the motion that was introduced and passed, the Brown Act does not address legislative procedural issues.  You might be able to find the answer to this in the board’s bylaws, or in the city or county ordinance that governs the operation of the board.

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 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.

Which respect to (1) – challenging past actions to stop their recurrence, which was added to the Brown Act in 2012 – persons alleging a past violation of the Brown Act, and seeking to bar further violations – but NOT  to invalidate a specific government decision or action – 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 here.

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 Board that it “cure and correct” the violation before filing a lawsuit. If action was taken based on improper procedure, the way to remedy 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.  Id. at § 54060.5.

You can find more information in FAC’s  Brown Act Primer: Access to Meetings.

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.