A&A: Does Brown Act Allow Adding Agenda Items Less Than 72-Hours Before A Meeting?

Q: A California City Council originally released an agenda for its regular meeting without a closed session. Each agenda usually has a closed session heading listed at the end of the meeting — but the council doesn’t meet in closed session; it’s like a placeholder.

On its action calendar, the council was scheduled to discuss and appoint a new interim city attorney.

Three hours before the 7 p.m. meeting, the city clerk sent out an amended agenda, adding a closed session item at the end of the meeting: “The action item appointing the interim city attorney was then moved to after the closed session.”

Can an agency add a closed session item within the 72-hours prior to a meeting? Can it move around its agenda like that? Doesn’t the agency need to determine if this is an “emergency” situation? Does this qualify as an emergency situation?

A: In general, California’s open meeting law, known as the Brown Act, requires that regular meetings be noticed by posting an agenda for the meeting at least 72 hours in advance. Gov’t Code § 54954.2(a). Regular meetings are defined, circuitously, as meetings “for which an agenda is posted at least 72 hours in advance of the meeting.” Gov’t Code § 54954(a). Special meetings, which are those not held at a regularly scheduled time or place and are not for the purposes of addressing an emergency, must only be noticed 24 hours in advance. Gov’t Code § 54956.

I cannot provide specific legal advice regarding whether a violation of the Brown Act occurred. Based on the information you provided, the meeting you describe may have been a “regular meeting” and thus required 72 – hours’ notice. This is even more likely if the agenda for the original time and place remained unchanged for the new time and place.

If you determine that a violation has occurred, you may choose to seek enforcement of the Brown Act. The District Attorney or “any interested person” can file a lawsuit to enforce the provisions of the Brown Act. You may wish to first bring your concerns to the District Attorney’s attention. If you wish to pursue an enforcement action yourself, you have three options to enforce the Act:

(1)  A lawsuit over an alleged previous violation of the Brown Act;

(2)  A lawsuit to contest or enjoin ongoing or future actions in alleged violation of the Brown Act; and

(3)  A lawsuit to void an action taken by a government entity in alleged violation of the Brown Act.  

With respect to option 1, persons alleging a past violation of the Brown Act and seeking to bar further violations – as opposed to seeking to invalidate a specific government decision or action – must first attempt to resolve the matter though an elaborate settlement procedure set forth in Cal. Gov. Code § 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.

With respect to option 2, barring an ongoing or future action, Cal. Gov. Code § 54960(a) provides that “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.” Since lawsuits seeking injunctive relief against future actions usually are based on evidence of past violations, most cases involving prospective relief will be brought under Cal. Gov. Code § 54960.2.

With respect to option 3, bringing suit to void a specific past action, Cal. Gov. 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 if in closed session, or within 30 days if the action was taken in open session. Cal. Gov. Code § 54960.1.

For additional information regarding Brown Act requirements and enforcement, you can reference the First Amendment Coalition’s Brown Act Primer webpage.

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.