Q: I recently witnessed a Planning Commission vote which was changed after adjournment. There is a “protocol” listed on the city’s website that says a vote can be changed within 48 hours. That sounds like a violation of the Brown Act to me.
A: Given that, per the Brown Act, legislative bodies are generally required to conduct their business in open meetings, and cannot meet or otherwise confer with each other outside the confines of a properly agendized and noticed meeting, it would seem that the action you describe might be in violation of the Brown Act.
Under the Brown Act, a “meeting” is defined as any “congregation by majority” of the legislative body at the same time and place to “hear, discuss, or deliberate” on any matter within the body’s jurisdiction. Gov’t Code 54952.2(a). Even where the majority of the members of a particular legislative body communicate with each other through other means on a particular topic, such as email or through an intermediary, this can also constitute what’s known as a “serial meeting” that would be subject to (or, more appropriately, in violation of) the Brown Act. Gov’t Code 54952.2(b).
With the situation you describe, let’s say that within 48 hours of a regularly noticed Brown Act meeting, the members of the legislative body somehow communicate with each other to change their vote – i.e., perhaps an email from a county staffer goes out to all the members asking if for their input, or the members communicate directly with each other about changing the vote – and then action is taken, it seems to me that this would violate the Brown Act.
Even if the commission members’ post-meeting communications were limited to something along the lines of a “yes” or “no” communicated to a county staffer, it would seem that this would constitute a gathering of those members 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). And therefore would seem to be a violation of the Brown Act.
You might want to write to the county and the planning commission to point out that its protocol allowing for vote changing by the planning commission (and potentially other legislative bodies?) outside the confines of a properly noticed meeting is likely in violation of the Brown Act. You might also want to let them know that, if necessary, you or some other member of the public could bring judicial enforcement under Government Code 54960.1 to stop this practice by the planning commission.
You can learn more about “meetings” and the Brown Act on the FAC’s website here.
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.