Question
Under the Brown Act, can a sitting city council conduct a secret vote (no public notification) whether to consider a legally filed candidate for a city commission appointment, and then, refuse to make public how each council member voted or how the tally went when they do appoint candidates to a commission?
Answer
The Brown Act prohibits action by secret ballot. Gov. Code § 54953(c) (“[n]o legislative body shall take action by secret ballot, whether preliminary or final”). Although the Brown Act authorizes a closed session to discuss the appointment of a public employee, the legislative body must publicly report any action taken in closed session at the public meeting during which the closed session was held, and must report the vote or abstention of every member present. Gov. Code § 54957.1.
Assuming the closed session was in violation violated of the Brown Act, a member of the public may seek to void the action taken. You must first seek to have the agency “cure and correct” the action taken at the improperly held meeting, and then bring a lawsuit if they do not. The requirements are very specific, they have very short deadlines, and they are generally strictly enforced. Generally speaking, the “cure and correct” demand must be made within 90 days from the date the action is taken (but the demand must be made within 30 days if there is a violation of the agenda requirements set forth in Section 54954.2). If the legislative body fails to correct the action within the requisite time period, you must file the lawsuit within 15 days. Please see the provisions of California Government Code 54960.1 regarding the particulars of the timeline.
Alternatively, you may consider filing an action for injunctive or declaratory relief for the purpose of stopping or preventing violations or threatened violations under California Government Code section 54960, but this type of action will not have the effect of voiding the action that was already taken. The procedures and time limitations set forth in Section 54960.1 do not apply to Section 54960. See Ingram v. Flippo, 74 Cal. App. 4th 1280, 1288, 1290 (1999).
Asked & Answered posts should not be relied on as legal advice, and FAC makes no guarantees about their completeness or accuracy. All posts carry a date of publication that readers should take note of in assessing their usefulness, given that laws and interpretations of them may change over time. Posts predating Jan. 1, 2023, that discuss the California Public Records Act may contain statute numbers no longer in use. Please see this page for a table showing how the California Public Records Act has been renumbered.