Non-Agenda Items, Emergency Items, and the Brown Act
Q: We may have a violation of the Brown Act. A non-agenda item was brought up and “deemed” an emergency and was voted upon. This after the City Attorney opened the meeting and stated that “the item” would not be discussed. The alleged emergency does not fit any of the emergency statements listed in the Brown Act. How does the public now pursue action against the city for this violation of the Brown Act?
A: Under Government Code Section 54960.1, any person can go to court to attempt to void action taken by a board in violation of the Brown Act. However, you must first submit a written demand within 90 days of the date the action was taken, unless the alleged violation was of the notice and agenda requirements, in which case the written demand must be submitted within 30 days.
Since it is possible that this situation would be considered to be a violation of the notice and agenda requirements in Section 54954.2, it would be a good idea to submit your written demand within 30 days of the date of the meeting.
Your letter should demand that the action be “cured or corrected,” and you can, if you want, suggest a specific cure or correction. In this case, voiding the action taken, and placing the item back on the agenda at a properly noticed meeting would probably be the most sensible solution.
Here is a link to a model letter on CFAC’s web site for demanding that a board cure a Brown Act violation:
http://www.cfac.org/templates/cureletter.html
Please note that sending such a letter triggers certain requirements. The board must respond within 30 days. Any litigation challenging the legislative body’s response to the cure and correct demand letter must be taken within 15 days of the body’s official written response, or within 15 days of the day the legislative body’s 30-day response deadline passes.
Please also note that this letter is only appropriate if the board actually took some action on the “item” at the meeting you describe. But if a vote was taken, that should be sufficient “action” to warrant a letter and, if necessary, litigation under Section 54960.1