Q: I have served a Brown Act Violation Cure or Correct/Cease and Desist Letter to a local city agency in California. I was wondering which would be the best next step if they do not comply. File a lawsuit? Contact the DA? I quoted an opinion from the CA Attorney General in the document which supports my position. I can’t afford to pay an attorney. Do you have any ideas?
A: If the city agency is noncompliant with the Brown Act, and you sent the appropriate letter within the time limits provided in the Brown Act (see below) to notify the agency of its noncompliance, the next step in enforcing the Brown Act is filing a lawsuit. The Brown Act provides that the District Attorney or “any interested person” can file a lawsuit to enforce the provisions of the Act. You may wish to first bring your concerns to the District Attorney’s attention to see if he or she wishes to pursue an enforcement action. If you wish to pursue an enforcement action yourself.
As an overview, citizens have three legal 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.
You can find more about the Brown Act, including sample complaint letters, 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.