A&A: How Can We Obtain Criminal Charges Against Our Community Service District for Violations of the Brown Act?

Q: We are requesting assistance in criminally prosecuting Community Service District (CSD) members and General Manager for multiple past and ongoing violations of the Brown Act.

A: Unfortunately, we cannot provide individual representation through this hotline, nor can we provide specific legal advice. If you are looking for an attorney to represent you, a good place to look would be the County Bar Association’s lawyer referral service.

We can, however, provide you with general legal advice about the Brown Act and how it is enforced. At the outset, the Brown Act does not provide for criminal penalties, except for Cal. Gov. Code § 54959, which states that “Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this chapter, is guilty of a misdemeanor.” We are unaware of any convictions that have actually been obtained under this provision.

Note that the Brown Act specifically regulates the decision-making process of local agencies, and generally requires that their actions and deliberations occur at noticed, open, and public meetings. As such, the employment and retaliation actions you describe are more likely to be covered by other provisions of law. However, if the DCSD failed to agendize its meetings, held meetings in non-public locations, and/or improperly held closed sessions, then those actions are likely in violation of the Brown Act.

The Brown Act enables the district attorney or “any interested person” to bring an action to prevent violations or even nullify previous actions that were taken improperly. Cal. Gov. Code § 54960. As such, you may wish to first bring your concerns to the district attorney’s attention.

Should you decide to pursue an enforcement action yourself, you have essentially three options to enforce the Act:

(1) a suit over a government entity’s alleged violation of the Act based on 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.  

With respect to option 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, through 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, which can be accessed on the California Legislature’s website here.

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 § 54960.2, discussed above.

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, or 30 days if the action was taken in open session.  § 54960.1.  In all Brown Act cases brought by citizens, attorneys’ fees may be recovered at the discretion of the court.  § 54960.5.  

More information about the Brown Act, including your options for enforcement, can be found at the First Amendment Coalition’s website here.

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.