How can I stop city from violating Brown Act during budget meetings?

Answer

Under the Brown Act’s public comment requirements, Gov’t Code section 54954.3(a), a legislative body may adopt “[r]easonable regulations” for public comment periods, including regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker, but the body may not “prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Gov’t Code section 54954.3(b), (c).

With respect to the amount of time each speaker is given, California courts have found the practice of limiting public comment to two minutes per speaker to be reasonable.  Chaffee v. San Francisco Public Library Commission, 134 Cal. App. 4th 109 (2005).

That said, under the circumstances you describe, i.e., restricting public comment on a 500-page document that covers several different city departments, the three minutes allotted per speaker may not be reasonable and certainly a limit of three minutes total for public comment on a voluminous document would be unreasonable.

With respect to the city council’s practice of placing public comment at the end of the agenda, such a practice may violate the Brown Act.  The Brown Act requires that time be made for public comment “before or during the legislative body’s consideration of the item.”  Govt. Code § 54954.3.  Additionally, public comment is required prior to a body taking action and voting on a particular item.  Id.  By putting the public comment period at the end of the meeting, the city may be violating the Brown Act by preventing a meaningful public discussion of the budget prior to the council’s vote.

A citizen may sue to compel the local agency to comply with the Brown Act; obtain a ruling that a particular practice of the local agency violates the Brown Act; or obtain a ruling that the local agency is violating the free speech rights of one or more of its members in seeking to silence that member. Gov’t Code section 54960(a).

If the agency does not cure or correct within the prescribed time limitations, the next step would be to seek a judicial determination that the board’s actions are null and void.  Gov’t Code § 54960.1(a).  A citizen who prevails in an action to enforce the Brown Act may be entitled to recover attorneys’ fees.  The details of this enforcement procedure are set out in Section 54960.1(a) of the Government Code.

Again, it is not necessary that an attorney file any court action, although if you reach this stage with the agency, you may want to seek assistance in order to ensure that the proper procedure is followed.  Another option is bringing an action to seek a judicial determination that a particular act by the board violated the Brown Act.  Gov’t Code 54960.  Under that course of action, nothing is nullified — a successful litigant simply ends up with a court order stating that the action at issue violated the brown Act (and that the legislative body should not do it again).  You can find additional information about enforcing the Brown Act on the FAC’s website athttp://www.firstAmendment Coalition.org/category/resources/access-to-meetings/.

Your ultimate recourse would be to bring a lawsuit to enforce the Brown Act.  Such lawsuits are typically initiated by a verified petition (i.e., a request filed under oath) that asks the court to issue a writ of mandate, which is a type of order directing the public agency to take a specified action.  Attorney’s fees are available to a plaintiff who prevails in litigation filed pursuant to the Act, Gov’t Code § 6259(d).

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.