Emailed Public Comments Were Not Read as Promised at Board of Supervisors Meeting Closed By Coronavirus

Answer

Amid the COVID-19 pandemic, Governor Newsom issued executive ordersN-25-20andN-29-20, which temporarily suspend any Brown Act requirements “expressly or impliedly requiring the physical presence of members, the clerk or other personnel of the body, or of the public as a condition of participation in or quorum for a public meeting”during the COVID-19 crisis. In addition, Order N-29-20 states: “A local . . . body . . . that holds a meeting via teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically…shall have satisfied any requirement that the body allow members of the public to attend the meeting and offer public comment.” As such, the Board’s email option appears to fulfill the open meeting requirements of the Brown Act, at least for the duration of the emergency and the Governor’s executive order.

However, the Governor’s orders also provide that all “local bodies are urged to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible to the provisions of … the Brown Act” (emphasis added). Soliciting email comments from the public, but failing to read them at the meeting, could be viewed as a failure to make “reasonable efforts” to comply with the public comment requirements of the Brown Act. Given the unique circumstances created by the COVID-19 outbreak, however, a reviewing court could always disagree on the reasonableness of the Board’s efforts to hold open meetings.

In any event, if you believe the open meeting requirements of the Brown Act are being violated, you may bring essentially three types of legal suits to enforce the Brown Act:

(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 option 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 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, which can be accessed on the California Legislature’s website here.

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 § 54960.2, discussed above.

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, or 30 days if the action was taken in open session. § 54960.1. In all Brown Act cases brought by citizens, attorneys’ fees may be recovered at the discretion of the court. § 54960.5.

More information about the Brown Act, including your options for enforcement, can be found at the First Amendment Coalition’s website 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.