Did the Board chair violate the Brown Act by refusing public comment, holding a closed session?

Answer

The Brown Act does not address electoral procedures, and so rules governing the chair’s election would stem from some other source of law — perhaps the California Elections Code or the Board’s own bylaws. It may be worth reviewing those to see if they provide any guidance.

However, the Brown Act provides members of the public the affirmative right to address the legislative body on any topic listed on the agenda for the meeting, before or during the body’s consideration of that item. Cal. Gov. Code § 54954.3(a). Therefore, a refusal to permit the public to address the legislative body, as you’ve described, may have been a violation of the Act.

Note that the Brown Act allows local legislative bodies to conduct closed sessions to discuss a limited number of topics provided for in the Act, including but not limited to real estate negotiations, evaluations of public employees, and conferences with counsel. See, e.g., Cal. Gov. Code § 54956.7 – 54956.9. However, any topic of discussion at a meeting, including topics to be discussed in closed session, must be disclosed on an agenda posted at least 72 hours prior to a meeting. Cal. Gov. Code § 54954.2(a)(1). Therefore, instructing members of a legislative body to adjourn into closed session would not in itself be improper, so long as the topic of discussion was listed on the agenda and was one of the permitted subject matters listed in the Act.

If you believe a violation of the Brown Act has taken place, the District Attorney or “any interested person” can file a lawsuit to enforce the provisions of the Brown Act. You may wish to first bring your concerns to the District Attorney’s attention. If you wish to pursue an enforcement action yourself, you have three options to enforce the Act:

(1) A lawsuit over an alleged previous violation of the Brown Act;

(2) A lawsuit to contest or enjoin ongoing or future actions in alleged violation of the Brown Act; and

(3) A lawsuit to void an action taken by a government entity in alleged violation of the Brown Act.

With respect to option 1, persons alleging a past violation of the Brown Act and seeking to bar further violations — as opposed to seeking to invalidate a specific government decision or action — must first attempt to resolve the matter through an elaborate settlement procedure set forth in Cal. Gov. Code § 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.

With respect to option 2, barring an ongoing or future action, Cal. Gov. Code § 54960(a) provides that “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.” Since lawsuits seeking injunctive relief against future actions usually are based on evidence of past violations, most cases involving prospective relief will be brought under Cal. Gov. Code § 54960.2.

With respect to option 3, bringing suit to void a specific past action, Cal. Gov. 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. If action was taken based on improper procedure, the way to remedy the violation would typically be to send the legislative body a demand that it cure or correct the action taken in violation of the Brown Act. “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 if in closed session, or within 30 days if the action was taken in open session. Cal. Gov. Code § 54960.1.

You can find more about the Brown Act, including sample complaint letters, at the First Amendment Coalition’s website here. If you wish to pursue legal action, a good place to start would be your county bar association’s attorney referral service here.

Bryan Cave Leighton Paisner 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. No attorney-client relationship has been formed by way of this response.