Question
I would like an opinion on whether circumstances surrounding the County Board of Supervisors’ placement of Measure A1 on the Nov ballot in Alameda County violated the Brown Act.
a. The measure was first discussed at a special retreat on May 8. The Agenda (see url below) includes no mention of the Oakland Zoo or any parcel tax measure
b. The Minutes of that meeting (url below) include no mention of the Oakland Zoo or any parcel tax measure.
c. The only way the public could have learned about this measure at that time was to have happened to have attended the meeting (without any notice or indication that this matter would be discussed) or to read the brief story written by an Oakland Trib reporter which has since mysteriously vanished from the website.
d. We were only alerted to the retreat discussion by the news article, which someone sent to us. Following this, repeated attempts to obtain copies of the materials discussed at the retreat through the County Supervisors’ Office were met with claims that no one knew anything about a Zoo parcel tax measure (perhaps not surprising as neither the Agenda nor the Minutes mention it anywhere). Full materials from that meeting were still not available and the Minutes are in only the most summary form, merely stating that updates were provided. There are no attachments available on the website. There is no audio or video available.
e. The next and only other appearance of this matter was at a July 24 meeting, the last item on the last meeting before the Supervisors’ recess, where the Measure was approved for the ballot. However, the minutes of this meeting were as of Sept 11, 2012 still not posted, and were not available after the meeting, so we could not determine whether the Agenda version was indeed the approved version until the measure was submitted to the Registrar of Voters.
We would like to know whether this violated the Brown Act or other Open Meetings acts and whether we have any recourse.
Answer
The Brown Act, at Government Code section 52954.2, requires that for regular meetings the agenda contain “a brief general description of each item of business to be transacted or discussed at the meeting. . . . A brief general description of an item generally need not exceed 20 words. . . . No action or discussion shall be undertaken on any item not appearing on the posted agenda . . . ”
The Attorney General’s publication The Brown Act: Open Meetings for Local Legislative Bodies states that “The purpose of the brief general description is to inform interested members of the public about the subject matter under consideration so that they can determine whether to monitor or participate in the meeting of the body.”
The description should thus, at a minimum, alert the public that something they care about is subject to the agency’s consideration. See Carlson v. Paradise Unified School Dist., 18 Cal. App. 3d 196, 200 (1971) (in which a similar provision of the Education Code was violated when the agenda listed a “school site change” but did not indicate that the board would also discuss transferring the students to different schools). A description must give the public “fair warning” of a specific or unusual proposal. Thus, an agenda description “that could have referred to any number of routine [matters]” was not sufficient to put the public on notice that something non-routine would be discussed. See Campbell Elem. Teachers Ass’n v. Abbott, 76 Cal. App. 3d 796, 805 (1978).
The same standards applies to notices of special meetings as well. Moreno v. City of King, 127 Cal. App. 4th 17, 26 (2005).
Given this, it would appear that the failure to mention the zoo at all would not sufficiently notify the public that the Board was considering taking action regarding the Zoo.
What remedies you have if the Board did in fact violate the Brown Act is a complicated issue.
First, you can refer violations of the law to a grand jury or the district attorney for criminal prosecution, see Government Code section 54959, or civil enforcement. See Govt. Code section 54960.
Second, “any interested person” can bring a civil action “for the purpose of stopping or preventing violations or threatened violations” of the Brown Act. Govt. Code section 54960. For example, it is possible to obtain a declaration a court that a past act of a board was done in violation of the Brown Act. See California Alliance for Utility Safety and Education v. City of San Diego, 56 Cal. App. 4th 1024, 1029-31 (1997).
However, if you want to a court order that will void the action that was taken (instead of just a declaration that the law was violated), relief which is available for violations of section 54954.2, it is likely too late to do so. Section 54960.1 requires that for alleged violations of section 54954.2 that occurred in an open session, a written demand must be made within 30 days of the action, regardless of when the violation was discovered, that the board “cure and correct” the action taken. Govt Code section 54960.1(b), (c)(1).
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.
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