Q: We believe that our employer in California scheduled several serial meetings and special meetings without proper notice and that discussions during those meetings resulted in retaliation against us. What Brown Act rules apply to this situation?
A: Here is an overview of the Brown Act rules regarding serial and special meetings.
“Serial meetings” under the Brown Act involve a series of communications between a majority of the members of a particular legislative body in violation of the Act’s mandate that any such communications take place at properly noticed and agendized public meetings. You can read more about serial meetings on the FAC’s website here. The Attorney General’s guide to the Brown Act also contains an informative section on serial meetings that you might want to review, found here.
Special meetings are meetings of a body subject to the Brown Act, but which do not take place at a regularly scheduled time or place. Such special meetings may only be called with 24-hour advance notice. See Cal. Gov. Code § 54956. Notice of the meeting time, location, and agenda must be posted in a location freely accessible to the public, and notice must be given directly to all members of the legislative body, among others. Furthermore, only the agenda topics listed on the advance notice may be discussed at the meeting.
The Brown Act provides that “any interested person”—meaning any citizen of the State of California—may file a lawsuit to enforce the provisions of the Act. Cal. Gov. Code § 54960; McKee v. Orange Unified School District, 110 Cal. App. 4th 1310 (2003).
Cal. Gov. Code § 54960.1 sets forth the procedure for nullification of a legislative action taken in violation of the Brown Act. Unfortunately, § 54960.1 provides tight timing requirements on filing such an action, including the required cure-and-correct letter to the legislative body. “To state a cause of action, a complaint based on [section] 54960.1 must allege: (1) that a legislative body of a local agency violated one or more enumerated Brown Act statutes; (2) that there was “action taken” by the local legislative body in connection with the violation; and (3) that before commencing the action, plaintiff made a timely demand of the legislative body to cure or correct the action alleged to have been taken in violation of the enumerated statutes, and the legislative body did not cure or correct the challenged action.” Olson v. Hornbrook Comm. Servs. Dist., 33 Cal. App. 5th 502, 517 (2019) (emphasis added). We are unaware of any California statutes or case law that have waived the timing requirement.
On the other hand, either a citizen or the district attorney can file a lawsuit seeking a judicial determination that a violation of the Brown Act took place, and ordering that the council cease from engaging in future violations of the Brown Act. Under Government Code § 54960(a):
The district attorney or 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 by members of the legislative body of a local agency or to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body, or to determine the applicability of this chapter to past actions of the legislative body, subject to Section 54960.2, or to determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid or invalid under the laws of this state or of the United States, or to compel the legislative body to audio record its closed sessions as hereinafter provided.
You also describe that you and others were retaliated against for voicing concerns to your employer. While we cannot provide specific advice through this service, I can give you an overview of the First Amendment and its application to government employees.
It is important to note that “public employees do not surrender all their First Amendment rights by reason of their employment.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). “It is well settled that ‘a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.’” Id. at 413 (quoting Connick v. Myers, 461 U.S. 138, 142 (1983)). However, as noted, “[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” Garcetti, 547 U.S. at 418 (citing Waters v. Churchill, 511 U.S. 661, 671 (1994) (plurality opinion) (“[T]he government as employer indeed has far broader powers than does the government as sovereign.”).
Generally speaking whether government employee’s speech receives First Amendment protection depends on three factors: (1) Whether the speech is a matter of “public concern”; (2) whether the employee spoke as a private citizen and not a public employee (i.e., speech is not pursuant to “official duties”); and (3) whether the employee’s speech interest outweighs the agency’s interest in efficiency and effectiveness. Garcetti v. Ceballos, 547 U.S. 410 (2006). The last factor involves a balancing test derived from the Supreme Court’s decision in. Pickering v. Board of Education, 391 U.S. 563 (1968). In Pickering, the Court held that while teachers as public employees do not enjoy the complete protection of the First Amendment because of the government’s “interests as an employer in regulating the speech of its employees,” a balance must be struck between “the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 568. However, the Court made clear in Pickering that the negative impact of the teacher’s expression must be substantial and material. If the teacher’s speech “neither [was] shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally,” then “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public,” and the teacher’s speech enjoys First Amendment protection. Id. at 568, 573. Each situation is necessarily fact-specific, so it is difficult to say in the abstract what type and modes of speech would be protected under Pickering, and which might not be protected.
Bryan Cave Leighton Paisner 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.