Question
I was fired a year ago, but I am only now reading that the board violated the Brown Act by not disclosing that my position would be discussed in closed session — 54957. (2) is the violation. I see from your A&A section that there is only only a 90-day window of opportunity to submit a Cure & Correct letter, but I do not see that spelled out in the Brown Act itself. Where is the statute of limitations spelled out? And if it is only 90 days, are there lawsuits that have been successful in having that deadline set aside?
Answer
The Brown Act at Government code section 54960.1 requires that for any legal action that seeks to nullify an agency decision because of a Brown Act violation, that the “cure or correct” demand regarding the violation be made within 90 days from the date the action was taken.
The only exception cited is if the action was taken in an open session but in violation of Section 54954.2 (failure to provide notice of the action on the agenda), in which case the demand must be made within 30 days. See Boyle v. City of Redondo Beach, 70 Cal. App. 4th 1109 (2009).
The date runs from the date the action occurred, not the date upon which one learned of the action. See Regents of the University of California v. Superior Court (Molloy), 20 Cal. 4th 509 (1999) (interpreting a parallel provision of the Bagley-Keene Act).
The “cure or correct” demand requirements, and the associated timing requirement, of section 54960.1 only apply to the sections listed therein: 54953, 54954.2, 54954.5, 54954.6, 54956 or 54956.5. Those are the only sections by which an individual is authorized to bring an action that seeks to nullify a board action.
However, as you are aware, section 54957(b)(2) contains its own nullification provision, independent of section 54960.1. That is, it provides that any action taken in violation of it “shall be null and void.”
Lawsuits brought for violations of section 54957 are thus brought under section 54960. Because no statute of limitations is indicated in section 54960, the question of what statute of limitations does apply is difficult to answer in the scope of the services we offer in this hotline.
An argument can be made that the applicable statute of limitations is the one for civil actions based on statutory violations found in Civil Code found in Code of Civil Procedure section 338(a), which is three years running from the first date on which the action could have been commenced.
However, at least one unpublished decision appears to assume that the strict requirements of section 54960.1 apply, see Horton v. San Diego Unified Sch. Dist., 2003 Cal. App. Unpub. LEXIS 2251 ( March 10, 2003), and notes further that in termination decisions, the aggrieved former employee may be required to exhaust administrative remedies as well under a strict timeline.
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.
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