Question
The question: Does the below discussion of their previous individual discussions constitute a serial meeting violation under the Brown Act?
Member A left his council seat to become mayor, leaving the two-year remainder of his council term open. Member B and C were newly appointed to the council – they were council members ELECT at the time of supposed serial meeting. Member D has been on the council for two years.
To fill the open seat staff gives them three options:
1. Filling the vacancy by appointment;
2. Adopted a procedure to fill the vacancy (an interview period to which anyone can apply and the selected interviewee is appointed);
3. Special election, to cost $70,000 to $75,000;
Member B says he would like to appoint E, a former councilmember who chose not to run for reelection in November. “In the last month nothing else has probably dominated our thoughts than what to do with this seat,” B said. “Between friends, family, church members, I began to ask people about filling the seat back with one of our former council members for experience.”
B then asks E if he/she would take the appointment, if B made it. He/she nods ‘yes’ from the audience.
A asks the city attorney “Is it appropriate to ask?”
“You know me, I’m about the process,” said the City Attorney. “I would adopt one of these three options then ask candidate … nominate candidates and ask if they’ll accept the nomination.”
Lazar reads the three options again. After which, D says:
“I said all throughout the election, I’ve favored the second option, an interview process, to fill the vacancy. Immediately after the election many people began talking to me about filling the seat with the third highest vote getter. … It became clearly evident to me that there was a preponderance of will in this community to do just that. I had the opportunity to have breakfast with then Councilman Elect C and we discussed that very option. He/she spoke favorably for it at that time. Couple weeks later met with then Mayor Elect A and once again voiced my opinion that I we should go with a selection process and he/she asked me if I would be averse to appointing the third highest vote getter. Given the preponderance of public will and his outreach of which I viewed a very good attempt to create a consensus among people, I relented and said I could go with that, to appoint the third highest vote getter. I can go with that, other than that, I would continue to go with the selection process outlined in option two.”
D makes motion use appointment processes. No second. The motion fails.
Then C says, “I think we’ve all been talking, this isn’t the first time we thought about this whole process. Once I came to the conclusion that I was the top vote getter in the second seat, that’s pretty much all I’ve thought about. I’ve talked to A, B, and D all individually about this, just about what would be the right thing to do. It was very clear that there was only two seats we were running for. There was also some expectation that the third seat would be filled by the third most vote getter. I don’t think I ever was under the assumption that if I had the third most votes, I’d be a shoe-in. I kept coming back to what is the best for the City. When B talked about the whole E idea, I thought it was a great idea. E is highly respected. Has years of experience on this council. … I would really be for having E on the council to lend his/her experience.”
B then makes motion to fill the seat by appointment. C seconds it.
“Before we get too far,” A interrupts. ‘I want to know publicly if E will accept this position if it was offered to her. Cause there’s no need to go forward -” E nods yes from the audience. “Okay,” A says.
A, B, and C vote in favor of the appointment process. D votes against it.
B makes a motion to appoint E. C seconds it. Audience member interrupts saying this is an outrage.
A says he will back E for the appointment only if he/she agrees not to run for reelection in 2008. From the audience E holds up two-fingers.
A, B, and C vote to appoint E. D votes against it.
Answer
It sounds like you know that the Brown Act prohibits the circumvention of its open meeting requirements by members of a legislative body developing a concurrence through serial conversations. Govt. Code Section 54952.2(b) (reproduced below). In order for the situation described below to constitute a serial meeting in violation of the Brown Act, a majority of the members of the legislative body would have to have developed a collective concurrence as to action taken on an item within the body’s subject matter jurisdiction. It is not clear from the information below whether a majority of the council’s members were involved in the discussions and whether a collective concurrence was formed.
You find the recent case Wolfe v. City of Fremont, 144 Cal. App. 4th 533 (2006), useful in thinking about this issue. In that case the court held that a city council might have violated the Brown Act by meeting among themselves in private and deciding to support a police department policy to govern response to activated home alarm systems (the lower court had dismissed the action against the council). A copy of this case and a subsequent order slightly modifying the decision are attached for your reference.
With respect to the status of some of the individuals involved, please note that Govt. Code Section 54952.1 provides that “[a]ny person elected to serve as a member of a legislative body who has not yet assumed the duties of office shall conform his or her conduct to the requirements of this chapter and shall be treated for purposes of enforcement of this chapter as if he or she has already assumed office.”
I hope this information is useful.
54952.2. (a) As used in this chapter, “meeting” includes any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains. (b) Except as authorized pursuant to Section 54953 [authorizing teleconferencing], any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the members of the legislative body is prohibited.
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