Sending a “Cure and Correct” demand letter is only appropriate when an action has actually been taken that needs to be corrected. In other words, if the Brown Act is violated yet no action was taken, then a cure and correct demand letter would not be sent. Rather, a person would turn to the courts for an order preventing future violations or would ask the district attorney to do so.
The act of sending a cure and correct demand letter triggers a number of requirements and deadlines that you must consider before you send your demand:
A Cure and Correct Letter must be sent within 30 days of alleged Brown Act violations occurring at open and public meetings or within 90 days of alleged violations that do not occur at open and public meetings.
The Legislative body must correct action within 30 days of receiving the letter and inform the demanding party in writing of its action or decision not to take action.
No response for 30 days is considered a decision by the legislative body not to take action.
Any litigation challenging the legislative body’s response to the cure and correct demand letter must be taken within 15 days of the body’s official written response, or within 15 days of the day the legislative body’s 30-day response deadline passes. For more information, see our Brown Act Primer or our Brown Act text page.
Here is a sample “Cure and Correct” Demand Letter:
Name of Legislative Body
Name of Local Agency
This letter is to call your attention to what I believe was a substantial violation of a central provision of the Ralph M. Brown Act, one which may jeopardize the finality of the action taken by (name of legislative body and local agency).
The nature of the violation is as follows: In its meeting of (date), the (name of legislative body) took action to (describe the action taken, specifying the proposal and in what fashion it was acted upon, i.e. by either a formal vote, an “approval in concept,” or some other reflection of a consensus that the body would act or not act in a certain manner in the future).
The action taken was not in compliance with the Brown Act because (specify one or both) it occurred as the culmination of a discussion in closed session of a matter which the Act does not permit to be discussed in closed session (and/or) there was no adequate notice to the public on the posted agenda for the meeting that the matter acted upon would be discussed, and there was no finding of fact made by the (name of legislative body) that urgent action was necessary on a matter unforeseen at the time the agenda was posted.
In the event it appears to you that the conduct of the (name of legislative body) specified herein did not amount to the taking of action, I call your attention to Section 54952.6, which defines “action taken” for the purposes of the Act expansively, i.e. as “a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.”
As you are aware, the Brown Act creates specific agenda obligations for notifying the public with a “brief description” of each item to be discussed or acted upon, and also creates a legal remedy for illegally taken actions—namely, the judicial invalidation of them upon proper findings of fact and conclusions of law.
Pursuant to that provision (Government Code Section 54960.1), I demand that the (name of legislative body) cure and correct the illegally taken action as follows: (specify whatever corrective action you believe necessary to redress the illegality and provide the public the awareness and opportunity to comment of which it was deprived, e.g. the formal and explicit withdrawal from any commitment made, coupled with a disclosure at a subsequent meeting of why individual members of the legislative body took the positions — by vote or otherwise — that they did, accompanied by the full opportunity for informed comment by members of the public at the same meeting, notice of which is properly included on the posted agenda. Informed comment might in certain circumstances include the provision of any and all documents in the possession of the local agency related to the action taken, with copies available to the public on request at the offices of the agency and also at the meeting at which reconsideration of the matter is to occur.)
As provided by Section 54960.1, you have 30 days from the receipt of this demand to either cure or correct the challenged action or inform me of your decision not to do so. If you fail to cure or correct as demanded, such inaction may leave me no recourse but to seek a judicial invalidation of the challenged action pursuant to Section 54960.1, in which case I would also ask the court to order you to pay my seek court costs and reasonable attorney fees in this matter, pursuant to Section 54960.5.
cc (Name and title of agency’s legal advisor)