Closed door assessor appointment – possible Brown Act violation

Answer

The Brown Act serves to facilitate public participation in all phases of local government, and prohibits “serial meetings” and communications amongst a majority of the members of a particular legislative body that take place outside the confines of a properly noticed meeting.

In other words, under the Brown Act, a serial meeting in violation of the Act may have occurred if  “a series of communications of any kind [was used], directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.”  Gov’t Code § 54952.2(b).

Note that the legislative body need not have taken any action on a particular item for such a violation to occur.  See Frazer v. Dixon Unified School District, 18 Cal. App. 4th 781, 796-798 (1993).  If this individual communicated his promise to a majority of the members of the board out of view of the public “to discuss, deliberate, or take action on” his appointment, then there may be a Brown Act violation.

There are three ways to enforce the Brown Act—the third of which addresses your question about negating this individual’s appointment:
(1) a suit over a government entity’s alleged violation of the Act based on the 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 (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, though an elaborate settlement procedure set forth in Government Code section 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 (2) – barring an ongoing or future action, Government Code 54960(a) provides, “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.” Because, practically speaking, lawsuits seeking injunctive relief against future actions usually are based on evidence of past violations, most cases involving prospective relief will be brought under Government Code section 54960.2, discussed above.

Negating the appointment would be found under remedy (3) – suits to void a specific past action.  Government 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. “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.  Gov’t Code § 54960.1.

In all Brown Act cases brought by citizens, attorneys’ fees may be recovered at the discretion of the court.  Gov’t Code § 54060.5.

Bryan Cave 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.