Q: The City Council on held a real property negotiation in closed session without meeting the requirement to disclose the party being negotiated with. This has occurred three times before, and was recorded by me on June 1.
I want to delay the sale of the properties being negotiated.
I need to know how to use the “Cure and Correct” action to cause the Council to have to invalidate the property sale. I am not sure if an open session vote to proceed with the property sale can be invalidated with a “Cure and Correct” letter due to incorrect closed session procedure. If so, how would the form letter be worded to accomplish this?
Thanks for the response to my question. It appears that this violation may continue until the decision is brought to open session.One other question is as to the timing of my action on this. The Council discussion is whether to sell some specific City properties.
As I want to delay/stop the sale, should I wait until right after the open session vote to proceed with the property sale to serve the cure and correct letter? Or would the better procedure be to serve the cure and correct letter on the improper closed session procedure before it enters open session discussion?In addition, who would I seek for advice as to the language in my cure and correct letter?
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A: Brown Act remedies have different timelines:
a. Which respect to challenging past actions to stop their recurrence, persons alleging a past violation of the Brown Act, and seeking to bar further must file a cease and desist letter with the legislative body within nine months of the alleged violation. The statute can be found here.
b. With respect to barring ongoing or future actions, most cases involving will be based evidence of past violations brought under Government Code section 54960.2 discussed in (a). 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… subject to Section 54960.2.”
c. Finally, with respect to suits to void a specific past action, Government Code 54960.1 provides the procedure for sending a demand that the legislative body 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.
Here’s a link to a sample cure and correct letter. Unfortunately, reviewing specific documents goes beyond the scope of services the legal hotline provides. Here’s link to the CA Bar Attorney Referral Service if you are looking for an attorney to assist you with your letter: .
As you appear to be aware, the Brown Act serves to facilitate public participation in all phases of local government decision-making, and to curb misuse of the democratic process by secret legislation of public bodies. Bell v. Vista Unified School Dist., 82 Cal. App. 4th 672 (2000). The Brown Act is invoked if a “legislative body” is involved, and if a majority of the members of that particular body met and conferred about the public’s business.
The Act contains a few narrow exceptions to its requirement that all legislative deliberations occur in open session, including an exception to permit discussions regarding the legislative body’s purchase of real property.
However, as you note, invoking this exception requires a prior public session and certain disclosures:
“A legislative body of a local agency may hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease.
However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its negotiators, the real property or real properties which the negotiations may concern, and the person or persons with whom its negotiators may negotiate.” Gov’t Code § 54956.8.
It appears the legislative body may have violated the Brown Act by refusing to identify the person with whom it is negotiating in closed session. A citizen may bring one of three types of actions 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. Based on your inquiry, it appears you want to pursue option three.
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) – Government Code 54960.1 provides the mechanism for bringing a suit to void a specific past action. This includes a demand to the board that it “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.
In all Brown Act cases brought by citizens, attorneys’ fees may be recovered at the discretion of the court. Gov’t Code
§ 54060.5.
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.