Question
Two years, ago, our city manager created a private, non-profit corporation in an effort to replace the city’s soon-to-be defunct redevelopment agency. The CEO is an Asst. City Manager and the Board of Directors are comprised of former city council members and other on various city commissions, etc. Plus, the RCDC uses city planning and other staff for its meetings,etc.
Citizens have repeatedly asked for information pertaining to the business they are conducting, but have been refused access to that information, being told that they are a private corporation, and they are not required to disclose or give out any information. They have their own attorney who advises them on such matters, yet they are flagrantly violating the law.
This corporation uses public funds that they lend to developers and others to start and improve businesses and purchase property. I know from doing research on your website that what they are doing is illegal, and I’m sure they know it too, but continue to do so because they feel they can get away with it.
As an added note, the city manager previously held the same job title in another city until an investigation revealed that he knowingly violated Prop. 218 while in office, among other questionable dealings. The grand jury published a scathing report criticizing his leadership and actions. The man quit before he could be fired, and was subsequently hired by our city for reasons that are becoming increasingly apparent.I would appreciate any help or guidance you can give me in this matter.
Answer
I believe your conclusions are correct. Both the Brown Act and the Public Records Act will apply to the governing body of a private organization that was formed by a public agency “in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation.” Govt Code section 54952(c)(1)(A). See Int’ Lonshoreman’s & Warehousemen’s Union v. Los Angeles Export Terminal, Inc., 69 Cal. App. 4th 287 (1999).
The only way to enforce the Public Records Act is by way of a private lawsuit and the Brown Act violations can be addressed by the same procedure. However, violations of the Brown Act may also be referred to the District Attorney for prosecution as misdemeanor. Other than that, your best non-legal actions are to just continue to bring this issue to light and hope that the public pressure on the city and the RCDC will compel them to comply with the law.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.
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.