A&A: City Council Met Prior to Public Meeting and Made Last-Minute Agenda Changes

Q: I requested and received emails from the City regarding a developer’s plan that was not made public. The mayor and a council member met before a public hearing in which the agenda was changed at the last minute. The vote was 4-1 in favor of the road we were promised would not go in. Does this violate the Brown Act?

A: The Brown Act, requires that a legislative body subject to the Act must post an agenda containing a “brief general description” of each item to be transacted or discussed at the meeting at least 72 hours before a regular meeting, including items to be discussed in closed session. The notice must be posted in a location that is freely accessible to members of the public. Government Code § 54954.2(a).

In general, the legislative body cannot take action on any item that is not on the agenda for a meeting. Government Code § 54954.2(a)(2). This prevents bodies from avoiding the requirements of the Brown Act by omitting important items from the agenda.

The Brown Act further requires that the public is permitted the opportunity to address the legislative body before discussion of items on the agenda Gov’t Code § 11125.7(a).   The circumstances in which the body may take action on items not appearing in the posted agenda are set out in Government Code § 54954.2(b), which also provides that “[p]rior to discussing any item pursuant to this subdivision, the legislative body shall publicly identify the item.”

(1) Upon a determination by a majority vote of the legislative body that an emergency situation exists, as defined in Section 54956.5.

(2) Upon a determination by a two-thirds vote of the members of the legislative body present at the meeting, or, if less than two-thirds of the membersare present, a unanimous vote of those members present, that there is a need to take immediate action and that the need for action came to the attention of the local agency subsequent to the agenda being posted as specified in subdivision (a).

(3) The item was posted pursuant to subdivision (a) for a prior meeting of the legislative body occurring not more than five calendar days prior to the date action is taken on the item, and at the prior meeting the item was continued to the meeting at which action is being taken. Government Code § 54954.2(b).

Government Code section 54960.1 provides the procedural mechanism for challenging an action that has been taken in violation of the Brown Act.  That section requires that you send a demand to the agency 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.

The legislative body would then have the opportunity to correct itself.  If the legislative body does not move to cure and correct on its own, then a lawsuit may be brought seeking judicial intervention.

Alternatively, if you simply seek to enjoin the agency from violating the Act in the future, you can file a lawsuit under Government Code section 54960(a), which 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.”

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.  No attorney-client relationship has been formed by way of this response.