Can a city council member who is not a member of a committee make a public comment during the committee’s meeting?

Answer

As discussed generally on our website, the Brown Act governs each meeting of a “legislative body” of a “local agency” in California. Govt. Code §§ 54951, 54952. Such meetings must generally be open to the public, with opportunity for public comment, based on an agenda made available to the public in advance, except to the extent the Brown Act specifically allows certain matters to be discussed in closed session.

As the “governing body of a local agency,” a city council is a legislative body under the Brown Act. Govt. Code § 54952(a). I assume the committee you mentioned is also a “legislative body” because it is a committee “created by charter, ordinance, resolution, or formal action of a legislative body.” Govt. Code § 54952(b).

Ordinarily, any member of the public may give public comment during the meeting of a legislative body. With respect to public comments, Government Code section 54954.3(a) states, “Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.”

This statute “has been construed to mean that for each agenda of a regular meeting, there must be a period of time provided for general public comment on any matter within the subject matter jurisdiction of the legislative body, as well as an opportunity for public comment on each specific agenda item as it is taken up by the body.” Galbiso v. Orosi Public Utility Dist., 167 Cal. App. 4th 1063, 1079 (2008). In ordinary circumstances, a city council member might be considered a member of the public entitled to give public comment at the meeting of another legislative body.

However, other issues can arise if the legislative body in question contains other members of the same city council. Depending on the number of members of the city council and the subject matter of the committee’s discussion, it’s possible that allowing one city council member to address a committee containing two other members of the same city council might result in an unlawful meeting of the city council.

Under the Brown Act, a “meeting” is generally defined as “any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location” when otherwise permitted, “to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.” Govt. Code § 54952.2(a).

It’s possible a court might rule that if the committee in question has two city council members on it, and there are five council members in total, there may be an unlawful meeting of the city council that was not properly noticed or agendized under the Brown Act if one member of the council is addressing two other members of the council during the committee’s meeting regarding matters within the subject matter jurisdiction of the city council.

However, the Brown Act does not apply, in relevant part, to

• “The attendance of a majority of the members of a legislative body at an open and publicized meeting organized to address a topic of local community concern by a person or organization other than the local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency.” Govt. Code § 54952.2(c)(3).
• “The attendance of a majority of the members of a legislative body at an open and noticed meeting of another body of the local agency, or at an open and noticed meeting of a legislative body of another local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency.” Govt. Code § 54952.2(c)(4).

It’s possible one of these exceptions might apply to your situation, depending on the facts, including but not limited to whether the subject matter of the city council member’s comments concerned issues within the city council’s jurisdiction.