HomeMy WebLinkAboutAgenda Report - November 19, 1986 (58)CITY COUNCIL MEETING
NOVEMBER 19, 1986
CHANGES IN BROWN
ACT OPEN MEETING
REQUIREMENTS City Attorney Stein advised the Council that on January 1,
1987, the new amendments to the Brown Act will become
CC -6 effective. A sugary regarding the subject changes was
CC -28 presented to the Council by City Attorney Stein and City
Clerk P.ei Tche.
Council discussion followed with questions being directed by
the Council to Mr. Stein and Mrs. Rebriche. No formal action
was taken by the Council or, the matter.
COUNCIL C0;1i11IUNICATION
PREPARED BY: City Attorney
BACKGROUND: On January 1, 1987, the new amendments to the
Brown Act will become effective. In order
• to adequately understand what effect these
changes will have on the City Council, the City Clerk and I will be
giving a short summary of the changes during the November 19, 1986 City
Council meeting for your consideration.
In this regard, I am attaching hereto a copy of memo from the League of
California Cities, including the report of the League's implementing
committee, to which Committee I was appointed. The resultant report of
the catmittee was reviewed by the League's City Attorneys Division.
Also attached hereto is an excerpt from the City Clerks' Association of
California November 1986 bulletin, detailing provisions of particular
importance to City Clerks relating.to the Brown Act amendments.
And finally, attached hereto is a copy of some additional canments that
I have prepared, as they relate to the Brown Act, wtLich you can review
prior to our next City Council meeting.
One section of the Lodi Municipal Code .will require amending because of
these Brown Act amendments:
(1) Section 2.04.020 - informal informational meetings. As it relates
to the Brown Act amendments, we will be required to have an agenda for
said meetings and said agenda must be posted within 72 hours prior to
said meeting. However, the language that I would propose would say
that there will be no formal action taken at the informal informational
meetings.
RE TOED ACTION: That the City Council receive the report of
the City Attorney and City Clerk and take the
appropriate action.
r � r
Ronald M. Stein
City Attorney
attachments
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Work League of California Cities
® 1400 K STREET • SACRAMENTO, CA 95814 • (916) 444-5790
WorkCalifornia Gales Sacramento CA.
Together ,
October 6, 1986
TO: City Attorneys and City Clerks
RE: Changes in Brown Act Open Meeting Requirements
Introduction
RECEIVED
DATE: fo/o /,r�—
ALiCE M. REIMCHE
CITY CLERK
CiTY OF LODI
AB 2674 (Connelly), Ch. 641 of the 1986 statutes, which dramatically changes
the Brown Act open meeting requirements, takes effect January 1, 1987. This
new law requires local agencies to post an agenda prior to each meeting of the
legislative body, requires local agencies to provide an opportunity for the
public to address the legislative body, generally prohibits the legislative
body from acting on items not appearing in the agenda, and authorizes bringing
suit to void certain actions taken in violation of the Brown Act.
Because the new law raises numerous questions of interpretation, Robert
Flandrick, City. Attorney of Baldwin Park, Bell and Whittier and President of
the City Attorneys Department, appuinted a committee to recommend a uniform
approach to implementing AB 2674. The members of this committee are: Steve
Amerikaner (Chair), City Attorney.of'Santa Barbara; Bill Adams, City Attorney
of Palm Springs; George Buchanan, Senior Assistant City Attorney of Los
Angeles; Frank Gillio, City Attorney of Los Altos Hills, Millbrae and Monte
Sereno; Alice Graff, City Attorney of Hayward; Ron Johnson, Senior Chief
Deputy City Attorney of .San Diego; and Ron Stein, City Attorney of Lodi.
This report is intended to help city attorneys resolve some of the
interpretive questions raised and ensure compliance with the spirit of the
Brown Act. A summary of the bill is followed by specific; practical
recommendations. The text of the bill should be carefully reviewed for
detailed provisions not covered in the summary. The recommendations at times
will propose alternative courses of action or merely identify issues which
could arise. While the bill applies to every local "legislative body,"
including certain advisory bodies such as planning commissions, references
will generally be made only to cities and city councils. All code section
references are to the Government Code. Because the bill requires considerable
attention to detail to ensure compliance, the Committee recommends that prior
to January 1, 1987, each city adopt written internal procedures to provide the
council and staff with guidance.
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Summary of AB 2674
Posting Agendas. AB 2674 requires a city to post an agenda in a location
which is freely accessible to the public at least 72 hours before each regular
meeting of the city council. The agenda must include a brief description of
each item of business to be transacted or discussed at the meeting together
with the time and location of the meeting. The council is prohibited from
taking action on any item not appearing on the posted agenda unless: (1) a
council majority determines that an "emergency situation," as defined, exists;
(2) the council determines by a two-thirds vote, or by a unanimous vote if
less than two-thirds of the council members are present, that the "need to
take action" on the item arose subsequent to the posting of the agenda; or (3)
the item was included in a properly posted agenda for a prior meeting
occurring not more than five days prior to the meeting at which the action is
taken and was continued to the meeting at which the action is taken. (Section
54954.2).
Notice of each special meeting must be posted at least 24 hours prior to the
special meeting. (Section 54956).
Public Discussion. AB 2674 requires that every agenda for a regular
meeting provide an opportunity for members of the public to address the
legislative body on items of interest to the public within the body's subject
matter jurisdiction. If an item discussed by a member of the public did not
appear in the agenda, the same restrictions on council action discussed above
will apply. The council does not have to allow the public time to speak on an
item which was previously considered by a council committee if an opportunity
for public input was afforded at the committee meeting. (Section 54954.3).
Violations. AB 2674 authorizes any interested person to seek a judicial
determination that an action taken by the council in violation of the public
meeting or agenda posting requirements of the Brown Act is null and void.
Prior to filing a lawsuit and within 30 days of the action, the interested
person must make a demand of the council that it cure the challenged action.
if the council takes no curative action within 30 days of the demand, the
interested person must file suit within the earlier of: (1) 15 days after the
expiration of the 30 -day period; (2) 15 days after receipt of written notice
from the city council of its decision to cure, or not to cure, the challenged
action; or (3) 75 days from the date the challenged action was taken.
Notwithstanding the foregoing, an action of the council cannot be determined
to be null and void if: (1) the action was taken in substantial compliance
with the Brown Act; (2) the action was taken in connection with the issuance
of an evidence of indebtedness; (3) the action taken gave rise to a
contractual obligation upon which a party has, in good faith, detrimentally
relied; or (4) the action was taken in connection with the collection of any
tax. (Section 54960.1).
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Recommendations and Discussion
1. New Section 54954.2 (a) provides that an agenda shall be posted in a
location that is freely accessible to the public. What is meant by
"freely accessible"?
Since the statute does not specify locations where the agenda must be
posted, cities should take a common sense approach to what is
reasonable. If a meeting is to be held early in the week, the agenda
should not be posted only in a building which is closed on weekends.
Possible alternative locations might include a library, a supermarket,
a newspaper building or a bulletin board located. outside of city hall.
The agenda should regularly be posted in the same location (or
locations) rather than rotating locations. The agenda should be
posted in a location where the agenda will remain undisturbed. While
the statute does not require the city to maintain the agenda after it
is posted, it may not be reasonable to post the agenda in a location
where the agenda is regularly torn down before the meeting.
2. Should a record be kept of the time and location of posting of the
agenda?
The Committee recommends that each city adopt, by resolution or
otherwise, a procedure to be followed in posting agendas. The
Committee recommends that the procedure include one of two alternative
methods of keeping a record of posting. Under the first alternative,
the clerk would routinely sign a declaration of the time and place
where the agenda was posted and keep those in his or her office for
public reference. Under the second alternative, each meeting's agenda
would include a clerk's report on the posting of the agenda, which
would be reflected in the minutes of the meeting.
3. New Section.54954.`2 (a) requires that the agenda contain a brief
general description of each item of business to be transacted or
discussed at the meeting. Now much detail must be included in this
description?
For the purpose of 'clarifying this point, the following letter was
placed in the July 3, 1986 Senate Journal at page 6703 at the .time of
the Senate floor vote on AB 2674: "The intent of subsection (a) of
Section 54954.2 [Section 5 of AB 2674] is to require local public
agencies to post agendas that contain.sufficient descriptions of the
items of business to be transacted at a meeting of a council, board of
supervisors, commission, etc., to enable members of the general public
to determine the general nature or subject matter of each agenda item,
so that they may seek further information on items of interest. It is
not the purpose of this bill to require agendas to contain the degree
of information required to satisfy constitutional due process
requirements."
The Committee recommends that the description be reasonably calculated
to adequately inform the public. For example if the item involves a
land use decision, the agenda should include a description of the
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action proposed and the location or street address of the p-operty in
plain English, and if the item involves a contract, the agenda should
describe the nature of the contract. Emphasis should be placed on
informing the public of the substance of the matter rather than
precisely describing the contemplated council action.
4. New Section 54954.2 (a) provides that "no action shall be taken" on
any item not appearing on the posted agenda. What is meant by the
phrase "no action shall be taken"?
The Committee believes that the existing definition, of "action taken"
should be referred to for guidance. Government Code Section 54952.6
defines "action taken" 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 a 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."
5. May the council simply discuss an item which was not included in the
posted agenda if no formal "action" is taken?
The language of the statute is inconsistent on this point. New
Section 54954.2 (a) provides that the agenda must include a
description of each item of business "to be transacted or discussed."
This section then states that "[n]o action" shall be taken on any item
not appearing on the agenda, but does not explicitly extend this
prohibition to the discussion of such items. Clearly if the council
or staff intends to bring up an item for discussion at a meeting, the .
item should be included in the agenda unless it falls within one of
the exceptions under Section 54954.2 (b). If council members give
reports, the nature of the reports should be described in the agenda.
However, it is unclear whether the council may discuss an item which
is brought up by a member of the public and neither was described in
the agenda nor falls within one of the exceptions under Section
54954.2 (b). Under a strict interpretation of the statute, such an
item should not be discussed. However, es a practical matter, it will
be difficult to restrain council members from responding to the
public, and such discussion is not explicitly prohibited.
6. As stated in question 5, supra, it is unclear whether the council can
even discuss an item which is not included in the agenda but which is
raised by a member of the public. At the same time, clearly the
council cannot take "action" on such a matter. Assuming discussion is
permitted, how can the council respond to the public's concern without
running afoul of the prohibition against taking "action"?
Four alternatives are available to the council. First, the council }
can simply do nothing to resolve the concern of the public. However, =
council members may believe that this would make them appear to be
unresponsive to their constituents. Second, the council can adopt, in
advance, a rule whereby anv matter raised by the public is
automatically referred tc staff or placed on the next meeting's
agenda. Third, the prohibition on taking "action" can be construed to
refer onlY to substantive actions taken by the council. Under such a
construction, the council would be free to take procedural actions
In
such as referring matters to staff or placing matters on the next
agonda. Piny risk that such a procedural action would be deemed a
Prohibited "action" could be minimized by authorizing the presiding
officer, in advance, to take such procedural action by edict. Fourth,
the.c:ouncri can make a determination pursuant to Section 54954.2 (b)
that the need to take action arose after the agenda was posted.(see
quo'.tlon 7) or that an emergency situation exists. Upon making such a
detorminat.ion, the council is free to take any appropriate action.
1. Nei, Section 54954.2 (b) (2) provides that the council may take action
on an item not appearing on the agenda upon a "determination" by a
two-thirds vote (or a unanimous vote if less than two-thirds of the
council are present) that "the need to take action arose" after the
agenda was posted. What does the phrase "the need to take action
r,roso" moan?
fIc>arly if the need for action on an item was known by the council or
t<rff prior to posting the agenda but was not included for reasons of
'4c helul i;,q convenience or oversight, the need to take action did not
rri;Gr after- the agenda was posted. A more difficult question is
irro i. ntvd where, for example, a developer faces a conditional use
porrait approvaI deadline but does not seek council approval until
after tfie agenda for a meeting is posted. In this situation, it could
he Argued that tho "need" for action did not arise until after the
aoond�a wat posted because it was not until this time that the matter
wa,, presented to the council for action. On the other hand, it could
he :o,qued that the underlying need to act before the deadline existed
prior to posting thc! agenda regardless of whether the developer had
rvque%tod council action at that time. The Committee recommends that
eitios auopt. the latter view, as that approach is more in harmony with
tiw "pct's apparent intent of ensuring prior public notice of matters
to Oe considered at a meeting. If this latter approach is adopted,
ox,k tinct ordinances which include time deadlines should be reviewed to
eliminate the hardstip placed on parties who seek council action.
within the deadline but whose requests were filed after the agenda was
fro0t,d, Ordinances should be revised so that the filing of an
.rpplicaticrn or, request tolls any applicable deadline for a specified
tser•iod of time to enable the council to act.
to prrtc�ct subdividers who request subdivision map extensions after
,hi, jgenda i:: posted, Government Code Sections 66452.6 (e) and 66463.5
(c) (t.ho tiubdivision Map Act) were amended by A6 2740 (Cortese) Ch.
78' of the 19136 statutes, to extend a tentative map for the time
riuired to process a developer's application to extend a tentative
s.k1hdivision mao or tentative parcel map.
i3. New Section 54954.2 (b) (1) and (2) provides that action may be taken
on items not ;appearing on the posted agenda upon a "determination"
that the item arose zfter the time of posting or that an emergency
situation exists. To what extent must facts be presented to support
these determinations?
the "(Jote.rmination" requirement does not mean that formal findings
ru<.t h -F made, although a separate vote should be taken in making the
.1 rion. Nevertheless, the Committee recommends that the
c; 'i ;: f " roi l ect what the need for action was and why the need arose
after the posting.of the agenda, or why an emergency situation exists_
Cities which keep action minutes may wish to establish a.policy
whereby the need for any late additions are substantiated in writing
and kept in the council file.
9. New Section 54954.3 (a) provides that the public shall be given an
opportunity to speak on "items of interest to the public." Does this
include agenda items? At what point during the meeting must this
opportunity to speak be prov-ided?
The Committee recommends that cities interpret this provision broadly
to provide an opportunity to speak on all items within the subject
matter jurisdiction of the council, including agenda items. The
provision does not specify whether the opportunity to speak must be
provided prior to council action on an item. However, the intent of
the legislation is probably most fully carried out by providing the
opportunity to speak prior to council ection. This provision does net_
require the council to allow public input on each item as it comes up
during the course of a meeting. Thus the Committee believes that a
city may set aside a fixed period of time early in the meeting to
receive public comment, both on agenda items and other matters, and
decline to permit public comment at other times during the meeting
(except as required for public hearings as discussed below).
The �ommittee believes that the determination of whether an item is
within the subject matter jurisdiction of the council is a
discretionary decision to be made by the council.
This provision for public input is completely independent from
statutory -requirements for public hearings on particular matters (e.g.
hearings on subdivision approvals and assessment proceedings) and in
no way affects these requirements. Public comment which is a part of
required public hearings should continue to be heard at the time the
item is before the council.
10. New Section. 54954.3 (b) provides that a city may adopt regulations
governing public discussion "to ensure that the intent of subdivision
(a) is carried out, including, but not limited to, regulations
limiting the total amount of time a',located for public testimony on
particular issues and for each .individual speaker." If a city adopts
such regulations, what may they include?
The Committee believes that these regulations may include provisions
specifying the total amount of time devoted to public input, how such
time should be al'c:cated among speakers, at what point during the
meeting the public will be allowed to speak, time limits on
individuals, time limits on particular items and limits on the subject
matter of discussion. The Committee suggests that each city adopt
such regulations prior to January 1, 1987, the effective date of the
statute.
11. New Section 54960.1 provides a procedure by which actions taken in
violation of the Brown Act may be determined to be void. What types
of Brown Act violations are susceptible to a judicial determination
that the underlying action is void?
-6-
New Section 54960.1 creates a cause of action to judicially declare
void only those council actions taken in violation of Sections 54953,
54954.2 or 54956. Thus actions taken in violation of -the open meeting
requirements, such as during seriatim meetings; can be set aside by a
court. Similarly, actions improperly taken on items which should have
been, but were not, described in an agenda posted at the prescribed
time may also be set aside. However, violations of Brown Act
provisions other than those contained in the aforementioned sections,
e.g. where the council prohibits a member of the public from tape
recording a meeting (Section 54953.5), do not render the underlying
council actions subject to invalidation. Of course, these latter
violations may still be enjoined (Section 54960) or subject council
members to criminal liability (Section 54959).
12. New Section 54960.1 authorizes any interested person to bring an
action "for the purpose of obtaining a judicial determination" that an
action taken in violation of the Brown Act "is null and void." Does
this provision make such a council action void ab initio?
This provision does not clearly specify whether an action taken by the
council in violation of the Brown Act is void ab initio or whether it
is voidable upon a finding by the court that a violation occurred.
This distinction may be quite significant in certain situations. For
example, suppose a city council approves a general plan amendment in
violation of the Brown Act, but the action is not directly challenged
within the period prescribed by Section 54960.1. The council then
a;proves a development project on the property subject to the general
plan amendment. An opponent of the project then challenges the
development project approval on the grounds that it is inconsistent
with the general plan prior to the amendment, and that the amendment
is void because it was adopted in violation of the Brown Act. If the
amendment is deemed to be void ab initio, the development project is
inconsistent with the general plan and cannot proceed. However, if
the amendment could only be set aside if a lawsuit had been filed
within the prescribed period (which has now expired), the amendment is
valid and the development project is consistent with the general plan.
Based cn the language of the statute and the legislative history; the
Committee believes that an improper council action is not void ab
initio: Section 54960.1 (a) authorizes bringing an action to obtain a
"judicial determination" that an improper action is void. The use of
the word "determination" implies that the action is not void until the
time of the determination. Further, Section 54960.1 (b) provides that
an improper council action "shall not be determined to be null and
void" if certain conditions exist. Significantly, this section does
not say "an action shall be void unless" certain conditions exist.
The legislative history of AB 2674 also supports the position that an
improper action is not void ab initio. When introduced on Janua)y 15,
1986, Section 54960.1 (a) stated, "Any action taken by a legislative
body of a local agency in violation of Section 54953 or 54954.2 is
null and void." On March 3, 1986, the bill was amended, at the
League's request, to delete the foregoing provision.
Note that Section 54960.1 (a) authorizes an action by mandamus or
injunction. The Committee believes that the most appropriate means to
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declare a legislative decision void is declaratory relief. When
introduced, AB 2674 also authorized an action for declaratory relief.
This authority was inexplicably dropped when the bill was amended on
March 10, 1986.The Legislative Counsel's Digest of AB 2674 at the time
the bill was adopted continued to _state that the bill authorizes
actions by mandamus, injunction or declaratory relief.
13. New section 54960.1 provides that, prior to seeking a judicial
determination that an improper council action is void, the complainant
must make a demand of the council to cure or correct the allegedly
improper action. The council may then cure or correct the challenged
action or decide not to do so. Procedurally, how should the council
respond to such a demand?
The Committee recommends that upon receipt of a demand, an item with
two sub -items should be added to the next meeting's agenda. The first
sub -item should be consideration of the demand, i.e. whether the
challenged action can reasonably be said to have violated the Brown
Act. The second sub -item should be consideration of the underlying
subject matter of the challenged action if the council decided, in
considering the demand, that the challenged action may have violated
the Brown Act. (Alternatively, the council may want to consider the
demand at one meeting and, if it finds the demand to be valid,
consider the subject matter of the challenged action at a subsequent
meeting. However, since an action to cure or correct must be taken
within 30 days of receipt of the demand, the council may need to take
prompt action.)
1) The first sub -item to be considered is the demand that the
council cure or correct the allegedly improper action. The
rationale for considering the demand as a separate sub -item, as
opposed to discussing the subject matter of the challenged action
at the same time, is two -fold. First, it ensures that the
council, rather than staff, makes the determination of whether a
violation may have occurred. Second, it avoids any implication
that the council, by considering the underlying matter, is
admitting that a violation took place or is waiving a possible
defense of substantial compliance. Since filing a demand is a
preliminary step to bringing a suit, the Committee believes that
the council generally will be able to consider the demand in
closed session pursuant to Section 54956.9 on the basis that a
significant exposure to litigation exists.
In considering the demand, the council may want to take one of
two approaches. It could ask: Was there an actual violation of
the Brown Act? Alternatively: Is there a colorable claim that
the Brown Act was violated?
2) If the council decides to act upon the demand, it shoui4 then
consider the second sub -item, i.e. whether action should be taken
on the matter considered in the allegedly improper action. The
Committee recommends that this sub -item on the agenda should not
be termed on the agenda a ratification or confirmation of the
allegedly improper action, because such terminology implies that
the action was invalid when taken and presupposes that the
council will not be influenced by public input to take a
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different action. The Committee therefore suggests it be termed
a "consideration."
In considering the underlying matter, should the council set
aside the original action prior to taking corrective action? As
discussed in question 9 supra, the Committee believes that an
action taken in violation of the hrown Act is not void ab initio,
so such an action remains in effect at the time curative action
is being considered. However, the Committee recommends that the
council should not declare the original action to be void,
because then any action taken, e.g, the imposition of a fee,
would not be effective until the corrective action was taken. At
the same time, the council should not just ignore the fact that
the original action was taken, because this could create
confusion if the corrective action differed in substance from the
original action. Thus the Committee recommends that the
corrective ordinance or resolution state that the original action
is superseded or rescinded as of the effective date of the
corrective action. To establish a record the corrective
ordinance or resolution should also describe the original action
and why the corrective action is being taken.
The foregoing procedure may also help cities in demonstrating
compliance with the Permit Streamlining Act (PSA) which, among
other things, requires a city to approve or disapprove a
development project within one year of accepting the application.
Has a city complied with the PSA if an allegedly improper
approval or disapproval occurs before the one year deadline and
the corrective action occurs after the deadline? The Committee
believes that the.city has complied with the PSA in this
situation, because it took an action, albeit defective, which was
not void ab initio and which was taken prior to the deadline.
In considering the underlying matter, should the council build a
new record from scratch, or can it rely on the record developed
when taking the allegedly improper action? Certainly the council
must permit new public testimony on the underlying matter. At
the same time, the Committee believes that the council can
incorporate the record of the prior meeting in support of any .
findings, provided that no member of the public shows that he or
she has suffered prejudice (e.g. by not being present at the
earlier meeting and not being able to review the testimony
offered at the earlier meeting.) In allowing additional
testimony at the subsequent meeting, the council probably can
limit members of the public from repeating testimony given at the
previous meeting. However, it would be more prudent simply to
state that all previous testimony will be considered part of the
record and that such testimony need not be repeated.
14. New Section 54960.1
with the collection
void. How broad is
any tax?"
(c) provides that an action taken "in connection
of any tax" shall not be determined to be null and
the phrase "in connection with the collection of
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Although the statute;is not:clear.the author`of AB:2674:has indicated
that he did not intend for this. phrase . to includee , cola ettion of
any fee or assessment'or to include the imposition"ef any tax.
15. Amended Section 54960.5 provides that a court may award court costs
and attorneys fees to theplaintiff in an action brought pursuant t0
the Brown Act where the court finds a violation. -,;.If the council
purportedly takes corrective action after the statutory deadline and
after the suit has been filed,.is a court nevertheless authorized to
award attorneys fees?'`
If the council takes corrective action, any previously filed suit must
be dismissed with prejudice pursuant to Section.54960.1 (d).
Accordingly, the Committee believes that a court has no authority to
award attorneys.fees under this provision because no Brown Act
Violation has been found.-- At ,the same time, a council's decision to
take corrective action has no effect on the authority of a court to
award attorneys fees in an action brought pursuant to Section 54960.
AB2674.1egal
13
5. Notice of special meetings must be posted 24 hours prior
to the meeting in a location freely accessible to the
public. (Sec. 54956)
Full text of the bill is available from the Legislative Bill Room
in Sacramento.
3,.
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EXCERPT FROM CITY CLERKS' ASSOCIATION OF CALIFORNIA BULLETIN
VOLUME 13, NUMBER 7 NOVEMBER 1986
BROWN ACT AMENDMENTS
AB 2674 was approved by the Governor on August 29 and will
become effective January 1, 1987. Provisions of particular importance
to City Clerks are:
1. Regular meeting agendas must be posted 72 hours before the
meeting in a location freely accessible to public. (Sec.
54954.2)
2. Agenda must contain a brief description of each item to be
acted on. (Sec. 54954.2)
3. Items not on the posted agenda may be acted on if:
A. Majority of the legislative body determines that an
emergency exists (as defined in Sec. 54956.5)
B. 2/3 of the legislative body, or if less than 2/3 are
present a unanimous vote of those present, determine
that the need to take action arose after the agenda
was posted.
C. The item was on a posted agenda for a meeting less
than six calendar days prior and was continued to the
meeting when action is being taken.
4. Every regular meeting agenda` must give the public an
opportunity to speak on items within the jurisdiction of
the legislative body. Except.
A. Time need not be given if the item was considered by a
Council cowittee at a public hearing, unless the item
has been substantially changed. (Sec. 54954.3)
B. Regulations may be adopted limiting the total amount
of time on a particular issue and for each speaker.
(Sec. 54954.3)
No action can be taken on non -docketed items unless they
meet the criteria above.
5. Notice of special meetings must be posted 24 hours prior
to the meeting in a location freely accessible to the
public. (Sec. 54956)
Full text of the bill is available from the Legislative Bill Room
in Sacramento.
2. Agenda must
be posted at
a location which is freely accessible to
the public.
If you post
an agenda at City Hall 72 hours prior to
the Council
session, and
you find that City Hall is closed, it is
better to post it someplace where the public would access, such as
the Library,
supennarket
or a bulletin board located outside of
City Hall.
b) that the City Council has determine by a 2/3 vote, or
by unanimous vote if less: than 2/3 of the City Council
members are present, that they need to take action on the
item arose subsequent to the posting of the agenda, or
c) the item was included in a properly posted agenda for a prior
meeting occuring not more than 5 days prior to the meeting at
which the action was taken and was continued to the meeting
at which the action was taken.
5. Notices of special meetings must be posted 24 hours prior to the
meeting.
6. There must be an opportunity for members of the public to address
the legislative body on items of interest to the public within the
body's subject matter jurisdiction. Note: It does not mean that
the public must be given an opportunity to speak on every agenda
item at the time that the item occurs, but it does require that
some time and space be set aside for comments by the public.
very good education program for the public, that although they may
bring up items that were not on the agenda, that they must be made
aware and realize that no action can be taken on their item except
under the exceptions.
8. As to the question of action on an item not appearing on the
agenda, there must be a 2/3 vote that. the need .to take the action
arose after the agenda was posted. so this will require two
votes: (1) That the need to take the action arose after the
agenda was prepared, and (2) the action which 'could be taken.
(Note: If the mayor just refers the item to staff, this would not
be "action taken", therefore, no vote would be required.)
9. As to the item on the agenda "Comments by City Council Members", I
would recormpand that if there is an item that arises subsequent to
the agenda's preparation, and which action reed not be immediately
taken, that the Council member bring up the item and request that
it be referred to staff. The mayor would then refer the item to
staff acid this would not constitute action taken, and there would
be no requirement of a 2/3 vote.
the action be taken immediately.
The other area under the council members comments portion -
reports or ccmendations - my recommendation would be if the
Council is required to take action, then I would suggest th,t you
advise the City Clerk prior to the agenda's being prepared, that
you will be discussing that subject and it is then placed on the
agenda. If, however, there is no action taken, then I see no
reason why the Council person cannot bring that item up under
Council members cents.
10. As to the time that people can speak, it has been reccanrnnded that
we adopt regulations governing public discussion. This could be
important, especially, when dealing with the issues of subject
matter jurisdiction. Discussions of nuclear war, etc. may or may
i
not be items that':in' 'the subject matter' jurisdiction of the
Council, and this would be a good time to discuss that:
A
Secondly, we should detennine if we want to set aside a particular
-
amount of time for the public to speak on agenda or other items of
interest, and if so, do we want to have a certain amount of time
per speaker, or a certain amount of time totally.
'
11. Regarding the Government Code Section requiring that no action
'rye
shall be taken on any item not appearing on the agenda, the
statute is inconsistent on whether an item can be discussed that
was not on the agenda. It will be important to remind the Council
of this provision, and if they are going to discuss an item which
Y
could have been on the agenda, then it should be put on the
Y
agenda. It might be important to give notice to Council ff>�?r&ers
on a bi-weekly basis that if there are any items that they want to
have on the agenda, that they should give notice to the City Clerk
of same prior to the preparation of the agenda so that it can be
included in the agenda which must be posted 72 hours before the
z
session.
brownact,txta.Olv,p4
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.,..
- Y�
ORDI1904CE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LODI
AMENDING TITLE 2, CHAPTER 2.04, SECTION 2.04.020 OF THE
LODI MUNICIPAL CODE RELATING TO INFORMAL INFORMATIONAL MEETINGS.
BE IT ORDAINED BY THE LODI CITY COUNCIL.
SECTION 1. Lodi Municipal Code Title 2, Chapter 2.04, Section
2.04.020 is hereby amended to read as follows:
"Informal informational meetings of the city council shall be
held on each Tuesday morning of each month at the hour of seven
a.m. in the council chambers of the city. An agenda shall be
prepared for such meeting, which shall be posted within 72 hours
prior to the meetir_g in a location freely accessible to the
public. No formal action shall be taken by the City Council at
such meeting. The city manager and such department heads as the
council may request shall be present and present such information
as may be deemed desirable.
SECTION 2. All ordinances and parts of ordinances in conf=..ict
herewith repealed insofar as such conflict may exist.
SECTION 3. This ordinance shall be published one time in the "Lodi
News Sentinel",_a daily newspaper of general circulation printed and
published in the City of Lodi and shall be in force and take effect
thirty days from and after its passage and approval.
Approved this day of
FRED M. REID
MAYOR
Attest:
ALICE M. REIMCHE
City Clerk
State of California
County of -San Joaquin, ss.
I, Alice M. Reimche, City Clerk of the City of Lodi, do hereby certify
that Ordinance No. was introduced at a regular meeting of the
City Council of the City of Lodi held
and was thereafter passed, adopted and ordered to print at a regular
meeting of said Council held by the following vote:
Ayes: Council Members -
Noes: Council Members -
Absent: Council Members -
Abstain: Council Members -
I further certify that Ordinance No. was approved and signed by
the Mayor on the date of its passage and the same has been published
pursuant to law.
�■®� w
■■' ague.6f California Cities
jE.®� 1400 K STREET • SACRAMENTO. CA 95814 • (916) 444-5790
California Cities
.
a
Work Together
Sacramento, CA.
-;
September 25, 1986
s
TO: Frank Gillio Ron Johnson
Alice Graff Bill Adams
=
_-'
George Buchanan Ron Stein
;,
FROM: Paul Valle-Riestra
F
.:
RE: AB 2674 Implementation Committee
Please find enclosed the final draft of the AB 2674 Report. You will recall
s;r
you gave Steve Amerikaner final editorial control over the report to make any
T
last minute changes.. I hope to mail the final report to all city attorneys
and city clerks prior to the Annual Conference.
Many thanks to each of you for the time and energy you put into this -
u.,
Committee. I believe that there rt one and. will save cit
Po is a good Y
officials across the state considerable time and,frustration sorting through
this "inexplicable" bill.
AB 2674 (Connelly), Ch. 641 of the 1986 statutes, whichdramaticallychanges
the Brown Act open meeting requirements,_ takes effect January 1, 1987. This
new law requires local agencies to post an agenda prior to each meeting of the
legislative body, requires local agencies to provide an opportunity for the
public to address the legislative body, generally prohibits the legislative
body from acting on items not appearing in the agenda, and authorizes bringing
actions to void certain council_ actions taken An violation of the Brown Act.
Because the new law raises numerous questions of interpretation, Robert
Fiandrick, City Attorney of Baldwin Park, Bell and Whittier and President of
the City Attorneys Department, appointed a committee to recommend a uniform
approach to implementing AB 2674. The members of this committee -are: - Steve
Amerikaner (Chair), City Attorney of Santa Barbara; Bill Adams, City Attorney
of Palm Springs; George Buchanan, Senior Assistant City Attorney of Los
Angeles; Frank Gillio, City Attorney of Los Altos Hills, Millbrae and Monte
Sereno; Alice Graff, City Attorney of Hayward; Ron Johnson, Senior Chief
Deputy City Attorney of San Diego; and Ron Stein, City Attorney of Lodi.
This report is intended to help city attorneys resolve some of the
interpretive questions raised and ensure compliance with the spirit of the
z. Brown Act. A summary of the bill is followed by specific, practical
recommendations. The textofthe bill should be carefully reviewed for
detailed provisions not covered in the summary. The recommendations at times
will propose alternative courses of action or merely identify issues which'`
could :arise. While the bill applies to every: local "legislative body,"
including certain advisory bodies such as planning commissions-, references
will generally be made only to cities and city councils. All. code 'section
references are to the Government Code. Because the bill requires considerable
attention to detail'to ensure compliance, the Committee recommends that prior
to January 1, 1987, each city adopt written internal procedures to provide the
council and staff with guidance.
Summary of AB 2674
Posting Agendas. AB 2674 requires a city to post an agenda in a location
which is freely accessible to the public at least 72 hours before each regular
meeting of the city council. The agenda must include a brief description of
each item of business to be transacted or discussed at the meeting together
7
AB 2674 (Connelly), Ch. 641 of the 1986 statutes, whichdramaticallychanges
the Brown Act open meeting requirements,_ takes effect January 1, 1987. This
new law requires local agencies to post an agenda prior to each meeting of the
legislative body, requires local agencies to provide an opportunity for the
public to address the legislative body, generally prohibits the legislative
body from acting on items not appearing in the agenda, and authorizes bringing
actions to void certain council_ actions taken An violation of the Brown Act.
Because the new law raises numerous questions of interpretation, Robert
Fiandrick, City Attorney of Baldwin Park, Bell and Whittier and President of
the City Attorneys Department, appointed a committee to recommend a uniform
approach to implementing AB 2674. The members of this committee -are: - Steve
Amerikaner (Chair), City Attorney of Santa Barbara; Bill Adams, City Attorney
of Palm Springs; George Buchanan, Senior Assistant City Attorney of Los
Angeles; Frank Gillio, City Attorney of Los Altos Hills, Millbrae and Monte
Sereno; Alice Graff, City Attorney of Hayward; Ron Johnson, Senior Chief
Deputy City Attorney of San Diego; and Ron Stein, City Attorney of Lodi.
This report is intended to help city attorneys resolve some of the
interpretive questions raised and ensure compliance with the spirit of the
z. Brown Act. A summary of the bill is followed by specific, practical
recommendations. The textofthe bill should be carefully reviewed for
detailed provisions not covered in the summary. The recommendations at times
will propose alternative courses of action or merely identify issues which'`
could :arise. While the bill applies to every: local "legislative body,"
including certain advisory bodies such as planning commissions-, references
will generally be made only to cities and city councils. All. code 'section
references are to the Government Code. Because the bill requires considerable
attention to detail'to ensure compliance, the Committee recommends that prior
to January 1, 1987, each city adopt written internal procedures to provide the
council and staff with guidance.
Summary of AB 2674
Posting Agendas. AB 2674 requires a city to post an agenda in a location
which is freely accessible to the public at least 72 hours before each regular
meeting of the city council. The agenda must include a brief description of
each item of business to be transacted or discussed at the meeting together
Recommendations and Discussion
1. New Section 54954.2 (a) provides that an agenda shall be posted in a
location that is freely accessible to the public. What is meant by
"freely accessible"?
Because the statute does not specify locations where the agenda must
be posted, cities should take a common sense approach to what is
reasonable. If a meeting is to be held early, in the week, the agenda
should not be -posted only in a building which is closed on weekends.
Possible alternative locations might include a library,'a supermarket,
a newspaper building or a bulletin board located outside of city hall.
The agenda should regularly be posted in the same location (or
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f--. ?01k�l ,
=x
(2) the council.determines'by atwo-thirds vote, or, by a unanimous vote if
less,than two-thirds of the council members -,are present,that; the "need to
.. r-
take action" on,the item arose subsequent 1:611he posting'of the agenda; or.(3)
the item 'was included in a.properly posted agenda for a prior.meeting
occurring not;more than five days prior to the meeting at which the action is
taken and was continued to the meeting at which the action is taken. (Section
54954.2).
Notice of each special meeting must be posted at least 24 hours prior to the
special meeting. (Section 54956).
Public Discussion. AB 2674 requires that every agenda for a regular
meeting provide an opportunity for members of the public to address the
legislative body on items of interest to the public within the body's subject
matter jurisdiction. If an item discussed by a member of the public did not
appear in the agenda, the same restrictions on council action discussed above
will apply. The council does not have to allow the public time to speak an
item.which was 'previously considered by,a council committee if an opportunity
for public -input was afforded at the committee meeting. (Section 54954.3).
Violations. AB 2674 authorizes any interested person to seek a judicial
determination that an action taken by the council in violation of the public
meeting or agenda posting requirements of the Brown Act is null and void.
Prior to filing a lawsuit and within 30 days of the action-, the interested
person must make a demand of the council that it cure the challenged action.
If the council takes no curative action within 30 days of the demand, the
interested person must file suit within the earlier of: (1) 15 days after the
expiration of the 30 -day period; (2) 15 days after receipt of written notice
from the,city council of its decision to cure, or not to cure, the challenged
action; or (3) 75 days from the date the challenged action was taken.
Notwithstanding the foregoing, an action of the council cannot be determined
to be null and void if: (1) the action was taken in 'substantial compliance
with the Brown Act; (2) the action was taken in connect:.n with the issuance
r
of an evidence of indebtedness; (3) the action taken gave rise to a
contractual obligation upon which a party has, in good faith, detrimentally
relied; or (4) the action was taken in connection with the collection of any.
tax. (Section 54960.1).
Recommendations and Discussion
1. New Section 54954.2 (a) provides that an agenda shall be posted in a
location that is freely accessible to the public. What is meant by
"freely accessible"?
Because the statute does not specify locations where the agenda must
be posted, cities should take a common sense approach to what is
reasonable. If a meeting is to be held early, in the week, the agenda
should not be -posted only in a building which is closed on weekends.
Possible alternative locations might include a library,'a supermarket,
a newspaper building or a bulletin board located outside of city hall.
The agenda should regularly be posted in the same location (or
-2-
locations) rather than rotating locations. The agenda should be
posted in a location where the agenda will remain undisturbed. While
the statute does not require the city to maintain the agenda after it
is posted, It may not be reasonable to post the agenda in a location
where the agenda is regularly torn down before the meeting.
2. Should a record be kept of the time and location of posting of the
agenda?
The Committee recommends that each city adopt, by resolution or
otherwise, a procedure to be followed in posting agendas. The
Committee recommends that the procedure include one of two alternative
methods of keeping a record of posting. Under the first alternative,
the clerk would routinely sign a declaration of the time and place
where the agenda was posted and keep those in his or her office for
public reference. Under the second alternative, each meeting's agenda
would include a clerk's report on the posting of the agenda, which
would be reflected in the minutes of the meeting.
3. New Section 54954.2 (a) requires that the agenda contain a brief
general description of each item of business to be transacted or
discussed at the meeting. Now much detail must be included in this
description?
For the purpose of clarifying this point, the following letter was
placed in the July 3, 1986 Senate Journal at page 6703 at the time of
the Senate floor vote on AB 2674: "The intent of SLbsection (a) of
Section 54954.2 [Section 5 of AB 2674] is to require local public
agencies to post agendas that contain sufficient descriptions of the
items of business to be transacted at a meeting of a council, board of
supervisors, commission, etc., to enable members of the general public
to determine the general nature or subject matter of each agenda item,
so that they may seek further information on items of interest. It is
not the purpose of this bill to require agendas to contain the degree
of information required to satisfy constitutional due process
requirements."
The Committee recommends that the description be reasonably calculated
to adequately inform the public. For example if the item involves a
land use decision, the agenda should include a description of the
action proposed and the location or street address of the property in
plain English, and if the item involves a contract, the agenda should
describe the nature of the contract. Emphasis should be placed on
informing the public of the substance of the matter rather than
precisely describing the contemplated council action.
4. New Section 54954.2 (a) provides that "no action shall be taken" on
any item not appearing on the posted agenda. What is meant by the
phrase "no action shall be taken"?
The Committee believes that the existing definition of "action taken"
should be referred to for guidance. Government Code Section 54952.6
defines "action taken" 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 a negative decision, or an actual vote by a majority of the members
- 3 -
of a legislative body when sitting as a body or entity, upon a motion,
proposal, resolution, order or ordinance."
5. May the council simply discuss an item which was not included in the
posted agenda if no formal "action" is taken?
The language of the statute is inconsistent on this point. New
Section 54954.2 (a) provides that the agenda must include a
description of each item of business "to be transacted or discussed."
;his section then states that "[n]o action" shall be taken on any item
not appearing on the agenda, but does not explicitly extend this
prohibition to the discussion of such items. Clearly if the council
or staff intends to bring up an item for discussion at a meeting, the
item should be included in the agenda unless it falls within one of
the exceptions under Section 54954.2 (b). If council members give
reports, the nature of.the reports should be described in the agenda.
However, it is unclear whether the council may discuss an item which
is brought up by a member of the public and neither was described in
the agenda nor falls within one of the exceptions under Section
54954.2 (b). Under a strict interpretation of the statute, such an
item should not be discussed. However, as a practical matter, it will
be difficult to restrain council members from responding to the
public, and such discussion is not explicitly prohibited.
6. As stated in question 5, supra, it is unclear whether the council can
even discuss an item which is not included in the agenda but which is
raised by a member of the public. At the same time, clearly the
council cannot take "action" on such a matter. Assuming discussion is
permitted, how can the council respond to the public's concern without
running afoul of the prohibition against taking "action"?
Four alternatives are available to the council. First, the council
can simply do nothing to resolve the concern of the public. However,
council members may believe that this would make them appear to be
unresponsive to their constituents. Second, the council can adopt, in
advance, a rule whereby any matter raised by the public is
automatically referred to staff or placed on the next meeting's
agenda. Third, the prohibition on taking "action" can be construed to
refer only to substantive actions taken by the council. Under such a
construction, the council would be free to take procedural actions
such as referring matters to staff or placing matters on the next
agenda. Any risk that such a procedural action would be deemed a
prohibited "action" could be minimized by authorizing the presiding
officer, in advance, to take such procedural action by edict. Fourth,
the council can make a determination pursuant to Section 54954.2 (b)
that the need to take action arose after the agenda was posted (see
question 7) or that an emergency situation exists. Upon making such a
determination, the council is free to take any appropriate action.
7. New Section 54954.2 (b) (2) provides that the council may take action
on an item not appearing on the agenda upon a "determination" by a
two-thirds vote (or a unanimous vote if less than two-thirds of the
council are present) that"the need to take action arose" after the
agenda was posted. What does the phrase "the need to take action
arose" mean?
-4
r
Clearly if the need for action on an item was known by the council ov
staff prior to posting the agenda but was not included for reasons of
scheduling convenience or oversight,'the -need to,take actiondid not
arise after the agenda was posted. A more difficult. question is
presented where, for 'example, a`developer faces a conditional use
permit approval deadline but does not seek council approval until
after the agenda for a meeting is posted. In this situation, it could
be argued that the "need" for action did not arise until after the
agenda was posted because it was not until this time that the matter
was presented to the council for action. On the other hand, it could
be argued that the underlying need to act before the deadline existed
prior to posting the agenda regardless of whether the developer had
requested council action at that time. The Committee recommends that
cities adopt the latter view, as that approach is more in harmony with
the Act's apparent intent of ensuring prior public notice of matters
to be considered at a meeting. If this latter approach is adopted,
existing ordinances which include time deadlines should be reviewed to
eliminate the hardship placed on parties who seek council action
within the deadline but whose requests were filed after the agenda was
posted. Ordinances should be revised so that the filing of an
application or request tolls any applicable deadline for a specified
period of time to enable the council to act.
To protect subdividers who request subdivision map extensions after
the agenda is posted,.Government Code Sections 66452.6 (e) and 66463.5
(c) (the Subdivision Map Act) were amended by AB 2740 (Cortese) Ch.
787 of the 1986 statutes, to extend a tentative map for the time
required to process a developer's application to extend a tentative
subdivision map or tentative parcel map.
8. New Section 54954.2 (b) (1) and (2) provides that action may be taken
on items not appearing on the posted agenda upon a "determination"
that the item arose after the time of posting or that an emergency
situation exists. To what extent must facts be presented to support
these determinations?
The "determination" requirement does not mean that formal findings
must be made, although a separate vote should be taken in making the
determination. Nevertheless, the Committee recommends that the
minutes reflect what the need for action was and why the need arose
after the posting of the agenda, or why an emergency situation exists.
Cities which keep action minutes may wish to establish a policy
whereby the need for any late.additions are substantiated in writing
and kept in the council file.
9. New Section 54954.3 (a) provides that the public shall be given an
opportunity to speak on "items of interest to the public." Does this
include agenda items? At what point during the meeting must this
opportunity to speak be provided?
The Committee recommends that cities interpret this provision broadly
to provide an opportunity to speak on all items within the subject
matter jurisdiction of the council, including agenda items. The
provision does not specify whether the opportunity to speak must be
provided prior to council action on an item. However, the intent of
the legislation is probably most fully carried out by providing the
- 5 -
opportunity to speak prior to council action. This provision does not
require the council to allow public input on each item as it comes up
during the course of a meeting. Thus the Committee believes that a
city may set aside a fixed period of time. early in the meeting to
receive public comment, both on agenda items and other matters, and
decline to permit public comment at other times during the meeting
(except as required for public hearings as discussed below).
The Committee believes that the determination of whether an item is
within the subject matter jurisdiction of the council is a
discretionary decision to ba made by the council.
This provision for public input is completely independent from
statutory -requirements for public hearings on particular matters (e.g.
hearings on subdivision approvals and assessment proceedings) and in
no way affects these requirements. Public comment which is a part of
required public hearings should continue to be heard at the time the
item is before the council.
10. New Section 54954.3 (b) provides that a city may adopt regulations
governing public discussion "to ensure that the intent of subdivision
(a) is carried out, including, but not limited to, regulations
limiting the total amount of time allocated for public testimony on
particular issues and for each individual speaker." If a city adopts
such regulations, what may they include?
The Committee believes that these regulations may include provisions
f specifying the total amount of time devoted to public input, how such
! time should be allocated among speakers, at what point during the
meeting the public will be allowed to speak, time limits on
individuals, time limits on particular items and limits on the subject
matter of discussion. The Committee suggests that each city adopt
such regulations prior to January 1, 1987, the effective date of the
statute.
11. New Section 54960.1 provides a procedure by which actions taken in
violation of the Brown Act may be determined to be void. What types
of Brown Act violations are susceptible to a judicial determination
that the underlying action is void?
New Section 54960.1 creates a cause of action to judicially declare
void only those council actions taken in violation of Sections 54953,
54954.2 or 54956. Thus actions taken in violation of the open meeting
requirements, such as during seriatim meetings, can be set aside by a
court. Similarly, actions improperly taken on items which should have
been, but were not, descrybed in an agenda posted at the prescribed
time may also be set aside. However, violations of Brown Act
provisions other than those contained in the aforementioned sections,
e.g. where the council prohibits a member of the public from tape
recording a meeting (Section 54953.5),.do not render the underlying
council actions subject to invalidation. Of course, these latter
violations may still be enjoined (Section 54960) or subject council
members to criminal liability (Section 54959).
12. New Section 54960.1 authorizes any interested person to bring an
action "for the purpose of obtaining a judicial determination" that an
_6-
Based on the language of the statute and the legislative history, the
Committee believes that an improper council action is not void ab
initio. Section 54960.1 (a) authorizes bringing an action to obtain a
"judicial determination" that an improper action is void. The use of
the word "determination" implies that the action is not void until the
time of the determination. Further, Section 54960.1 (b) provides that
an improper council action "shall not be determined to be null and
void" if certain conditions exist. Significantly, this section does
not say "an action shall be void unless" certain conditions exist.
The legislative history of AB 2674 also supports the position that an
improper action is not void ab initio. When introduced on January 15,
1986, Section 54960.1 (a) statedi'Any action taken by a legislative
body of a local agency in violation of Section 54953 or 54954.2 is
null and void." On March 3, 1986, the bill was amended, at the
League's request, to delete the foregoing provision.
Note that Section 54960.1 (a) authorizes an action by mandamus or
injunction. The Committee believes that the most appropriate means to
declare a legislative decision void is declaratory relief. When
introduced, AB 2674 also authorized an action for declaratory relief.
This authority was inexplicably dropped when the bill was amended on
March 10, 1986.The Legislative Counsel's Digest of AB 2674 at the time
the bill was adopted continued to state that the bi 1 authorizes
actions by mandamus, injunction or declaratory relief.
13. New section 54960.1 provides that, prior to seeking a judicial
determination that an improper council action is void, the complainant
must make a demand of the council to cure or correct the allegedly
improper action. The council may then cure or correct the challenged
action or decide not to do so. Procedurally, how should the council,
respond to such a demand?
action taken in violation of the Brown Act "is null and void." Does
this provision make such a council action void ab initio?
E
This rrovision does not clearly specify whether an action taken by the
council in violation of the Brown Act is void ab initio or whether it
is voidable upon a finding by the court that a violation occurred.
This distinction may be quite significant in certain situations. For
example, suppose a city council approves a general plan amendment in
violation of the Brown Act, but the action is not directly challenged
within the period prescribed by Section 54960.1. The council then
_
approves a development project on the property subject to the general
plan amendment. An opponent of the project then challenges the
development project approval on the grounds that it is inconsistent
with the general plan prior to the amendment, and that the amendment
is void because it was adopted in violation of the Brown Acta If the
amendment is deemed to be void ab initio, the development project is
inconsistent with the general pTan and cannot proceed. However, if
the amendment could only be set aside if a lawsuit had been filed
within the prescribed period (which has now expired), the amendment is
valid and the development project is consistent with the general plan.
Based on the language of the statute and the legislative history, the
Committee believes that an improper council action is not void ab
initio. Section 54960.1 (a) authorizes bringing an action to obtain a
"judicial determination" that an improper action is void. The use of
the word "determination" implies that the action is not void until the
time of the determination. Further, Section 54960.1 (b) provides that
an improper council action "shall not be determined to be null and
void" if certain conditions exist. Significantly, this section does
not say "an action shall be void unless" certain conditions exist.
The legislative history of AB 2674 also supports the position that an
improper action is not void ab initio. When introduced on January 15,
1986, Section 54960.1 (a) statedi'Any action taken by a legislative
body of a local agency in violation of Section 54953 or 54954.2 is
null and void." On March 3, 1986, the bill was amended, at the
League's request, to delete the foregoing provision.
Note that Section 54960.1 (a) authorizes an action by mandamus or
injunction. The Committee believes that the most appropriate means to
declare a legislative decision void is declaratory relief. When
introduced, AB 2674 also authorized an action for declaratory relief.
This authority was inexplicably dropped when the bill was amended on
March 10, 1986.The Legislative Counsel's Digest of AB 2674 at the time
the bill was adopted continued to state that the bi 1 authorizes
actions by mandamus, injunction or declaratory relief.
13. New section 54960.1 provides that, prior to seeking a judicial
determination that an improper council action is void, the complainant
must make a demand of the council to cure or correct the allegedly
improper action. The council may then cure or correct the challenged
action or decide not to do so. Procedurally, how should the council,
respond to such a demand?
The Committee recommends that upon receipt of a demand, an,item with
two sub -items should be added to the next meeting's agenda. The first
sub -item should be consideration of the demand, i.e. whether the `
challenged action can reasonably be said to have violated the Brown
Act. The second sub -item should be consideration of the underlying
subject matter of the challenged action if the council decided, in
considering the demand, that the challenged action may have violated
the Brown Act. (Alternatively, the council may want to consider the
demand at one meeting and, if it finds the demand to be valid,
consider the subject matter of the challenged action at a subsequent
meeting. However, an action to cure or correct must be taken.within
30 days of receipt of the demand, so the council should emphasize
prompt action.)
The first sub -item to be considered is the demand that the council
cure or correct the allegedly improper action: The rationale for
considering the demand as a separate sub -item, as opposed to
discussing the subject matter of the challenged action at the same
time, is two -fold. First, it ensures that the council, rather than
staff, makes the determination of whether a violation occurred.
Second, it avoids any implication that the council, by considering the
underlying matter, is admitting that a violation took place or is
waiving a possible defense of substantial compliance. Because filing
a demand is a preliminary step to bringing a suit, generally the
council will be able to consider the demand in closed session pursuant
to Section 54956.9 on the basis that a significant exposure to
litigation exists.
In considering the demand, the council may want to take one of two
approaches. The council may review the allegedly improper action to
determine whether, in its view, a violation of the Brown Act occurred.
Alternatively the council may review the allegedly improper action to
determine whether the demand presents a colorable claim that a
violation occurred. In following the latter approach, the council may
decide to take curative action without admitting that a violation took
pl-ace.
If the council decides to act upon the demand, it should then consider
the second sub -item, i.e. whether action should be taken on the matter
considered in the allegedly improper action. The Committee recommends
that this sub -item on the agenda should not be termed on the agenda a
ratification or confirmation of the allegedly improper action, because
such terminology implies that the action was invalid when taken and
presupposes that the council will not be influenced by public input to
take a different action. The Committee therefore suggests it be
termed a "consideration."
In considering the underlying matter, should the council set aside the
original action prior to taking corrective action? As discussed in
question 9 supra, the Com:-tittee believes that an action taken in
violation of the Brown Act is not void ab initio, so such an action
remains in effect at the time curative action is being considered.
However, the Committee recommends that the council should not declare
the original action to be void, because then any action taken, e.g.
the imposition of a fee, would not be effective until the corrective
action was taken. At the same time, the council should not just
r
ignore the fact that the original action was taken, because.this could
create confusion if the corrective action differed in substance from
the original action. Thus the Committee recommends that the
corrective ordinance or resolution state that the original action is
superseded or rescinded as of the effective date of the corrective
action. The corrective ordinance or resolution should also describe
the original action and why the corrective action is being taken to
establish a record.
The foregoing procedure may also help cities in demonstrating
compliance with the Permit Streamlining Act (PSA) which, among other
things, requires a city to approve or disapprove a development project
within one year of accepting the application. Has a city complied
with the PSA if an allegedly improper approval or disapproval occurs
before the one year deadline and the corrective action occurs after
the deadline? The Committee believes that the city has complied with
the PSA in this situation, because it took an action, albeit
defective, which was not void ab initio and which was taken prior to
the deadline.
In considering the underlying matter, should the council build a new
record from scratch, or can it rely on the record developed when
taking the allegedly improper action? Certainly the council must
permit new public testimony on the underlying matter. At the same
time, the Committee believes that the council can incorporate the
record of the prior meeting in support of any findings, provided that
no member of the public shows that he or she has suffered prejudice.
In allowing additional testimony at the subsequent meeting, the
council probably can limit members.of the public from repeating
testimony given at the previous meeting. However, it would be more
prudent simply to state that all previous testimony will be considered
part of the record and that such testimony need not be repeated.
14. New Section 54960.1 (c) provides that an action taken "in connection
with -the collection of any tax" shall not be determined to be null and
void. How broad is the phrase "in connection with the collection of
any tax?"
f
Although the statute is not clear, the author of AB 2674 has indicated
that he did not intend for this phrase to include the collection of
any fee or assessment or to include the imposition of any tax.
9
15. Amended Section 54960.5 provides that a court may award court costs
and attorneys fees to the plaintiff in an action brought pursuant to
the Brown Act where the court finds a violation. If the council
purportedly takes corrective action after the statutory deadline and
after the suit has been filed, is a court nevertheless authorized to
award attorneys fees?
If the council takes corrective action, any previously filed suit must
be dismissed with prejudice pursuant to Section 54960.1 (d).
Accordingly, the Committee believes that a court has no authority to
award attorneys fees under this provision because no Brown Act
violation has been found. At the same time, a council's decision to
take corrective action has no effect on the authority of a court to
award attorneys fees in an action brought pursuant to Section 54960.
AMENDED IN SENATE JUNE 4, 1986
AMENDED IN SENATE MAY 22, 1986
AMENDED IN ASSEMBLY MARCH 18, 1986
AMENDED IN ASSEMBLY MARCH 10, 1986
AMENDED IN ASSEMBLY MARCH 3, 1986
CALIFORNIA LEGISLATURE -19&5-W REGULAR SESSION
ASSEMBLY BILL No. 2674
Introduced by Assembly Member Connelly
(Principal coauthor. Assembly Member Johnson)
(Gesuther Senator Marks) (Coauthors. Senators Ayala,
Bergeson, Craven, and Marks)
January 15, 1986'
An act to amend Sections 3514 35145, 72121, and 72129 of
the Education Code, to amend Sections 54956, 54956.5, and
54960.5 of, and to add Sections 54954.2, 54954.3, and 54960.1 to,
the Government Code, relating to local agencies.
LECISLaTIVE COUNSELS DIGEST
AB 26774, as amended, Connelly. Open meetings: local
agencies.
(1) Under existing provisions of the Ralph M. Brown Act
and the Education Code, the actions of legislative bodies of
local agencies and governing boards of school and community
college districts are required to be taken openly and their
deliberations are required to be conducted openly. Under
these existing laws, the legislative body of a local agency and
the. -governing boards of school and conununity college
districts are not required to post an agenda containing a brief
general description of each item of business to be transacted
or discussed at a regular meeting. Additionally, existing law
- 9 ao
FREPROD
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3 -- AB 2674
body, of a local agency and the governing boards of school or
community college districts are null and void, as specified. It
would require the interested person to make a demand of the
legislative or governing body to cure or correct the action, as
specified, before commencing the. action. It would provide ="
that the fact that a legislative or governing' body .takes a
subsequent action to, cure or correct an action pursuant to thisJ
section sh nstrued, or be admissible, as evidence
of a viola of the Ralph rown Act
(5) Existing law authorizes a court to award reasonable
attorneys' fee to a plaintiff where it is found the local agency
has violated provisions of law relating to open meetings, or to
a prevailing defendant in cases in which the court finds the
action was clearly frivrlous and totally lacking in merit.
This bill would authorize the award of reasonable attorneys'
fees in actions to determine null and void the actions of a local
agency as described in (4) above.
(6) The bill would also declare the Legislature's intent
with regard to the application of the Ralph M. Brown Act to
the governing boards of school and cominunity districts.
(7) The. California Constitution requires the state to
reimburse local agencies and school districts for certain costs
mandated by the state. Statutory provisions establish
procedures for making that reimbursement, including the
creation of a State Mandates Claims Fund to pay the costs of
mandates which do not exceed $500,000 statewide and other
procedures for claims whose statewide costs exceed $500,000.
This bill would provide that reimbursement for costs
mandated by the bill shall be made pursuant to those statutory
procedures and, if the statewide cost does not exceed
$500,000, shall be payable from the State Mandates Claims
Fund.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State -mandated local program: yes.
The people of the State of California do enact as follows:
1 SECTION 1. Section 35144 of the Education Code is
2 amended to read:
i 3 35144. A special meeting of the governing board of a
94 120 .
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�"�' �'a
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AB 2674 —4-
1
4-
1 school district may becalled at any by, the presiding,:;
2 officer of the board, or by a majority of the members
3 thereof, by delivering personally. or by mail 'written -
4 notice to each member of the board,. and to each local
5 newspaper of general circulation, radio, or television
6 station requesting notice in writing. The notice shall be
7 delivered personally or by mail at least 24 hours before
8 the time of the meeting as specified in the notice. The call
9 and notice shall specify the time and place of the special
10 meeting and the business to be transacted. No other
11 business shall be considered at those meetings by the
12 governing board. The written notice may be dispensed
13 with as to any member who at or prior to the time the
14 meeting convenes files with the clerk or secretary of the 1
15 board a written waiver of notice. The waiver may be
16 given by telegram. The written notice may also be
17 dispensed with as to any member who is actually present
18 at the meeting at the time it convenes.
19 The call and notice shall be posted at' least 24 hours
20 prior to the special meeting and shag speei€y the time and
21 itEar';on of *,e meeting and be posted in a location that ,
22 is ireely accessible to members of the public and district
23 employees.
24 SEC. 2. Section 35145 of the Education Code is
25 amended to read:
26 35145. Except as provided in Sections 54957 and
27 54957.6 of the Government Code and in Section 35146 of,
28 and subdivision (c) of Section. 48918 of, this code, all
29 meetings of the governing board of any school district
30 shall be open to the public, and all actions authorized or
31 required by law of the governing board shall be taken at
32 the meetings and shall be subject to the following
33 requirements:
34 (a) Minutes shall be taken at all of those meetings,c:
35 recording all actions taken by the governing board. The
36 minutes are public records and shall be available to the, ;"
37 public.
38 (b) An agenda shall be posted by the governing board,
39 or its designee, in accordance with the requirements of
40 Section 54954.2 of the Government Code. Any interested :.
DUCTU
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—5— AB 2674
person may commencean action by mandamus or.
7
2
injunction pursuant.. to Section 54960.1 < of the
Government Code for the purpose of obtaining ajudicial
deternu*nation that any. action taken -by the governing
5
board in violation of this subdivision or Section 351441,&—
(6
- null and void. Ve
7-,SEC--3--Sectio-n-12-121--o-f--the—Education
Code
8
amended to read:
9
72121. Except as provided in Sections 54957 and
10
54957.6 of the Government Code and in Section 72122 of,
11
and subdivision (c) of Sec tion 48914 of, this code, 'all
12
meetings of the governing board of any community
13
college district shall be open to the public, and all actions
14
authorized or req=* ed by law of the governing board
15
shall be taken at the meetings and shall be subject to the
16
following requirements:
17
(a) Minutes shall be taken at all of those meetings,
18
recording all actions taken by the governing board. The
19
minutes are public records and shall be available to the
20
21
public.
(b) An agenda shall be posted by the governing boar
22
or its designee, in accordance with the requirements of
23
Sectioi��4954.2 of thd Government Code. Any interested
24
25
person may commence an action by mandamus or
injunction pursuant to Section 54960.1 of the'
26
Government Code for the purpose of obtaining a judicial
27
determination that any action taken by the governing
28
board in violation of this subdivision or subdivision (b) of
29
Section 72129 is null and void.
30
SEC. 4. Section 72129 of the Education Code' is
31
amended to read:
32
72129. (a) Special meetings maybe held at the call of
33
the president of the board or upon a call issued in writing
34
and signed by a majority of the members of the board.
35
(b) A notice of the meeting shall be posted at least 24 I ;y
36
`;
hours prior to the special meeting and shall specify the
37
time and location of the meeting and the business to be .. ....
A".
38
transacted and shall be posted in a location that is freely
39
accessible to members of the public and district
CI_
40
employees.
, tt
94 150
DUCTU
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AB 2674 —6-
1
SEC. 5. Section 54954.2 is added to the Government
2
Code, to read:
3
54954.2. (a) At least 72 hours before a regular
4
meeting, the legislative body of the local agency,or its
5
designee, shall post an agenda containing a brief general
6
description of each item of business to be transacted or
lK
7
discussed at the meeting. The agenda shall specify the
8
time and location of the regular meeting and shall be
9
posted in a location that is freely accessible to members
lo,_gf_t,he pEblic..No action shall bet en on any item not
11Lap
led agenda.
on the posted
12
-pearing
(U)_W6_F_vith-sTaTding su division (a), the legislative
13
body may take action on items of business not appearing
14
on the posted agenda under any of the following
15
conditions:
16
(1) Upon a determination by a majority- vote of the
17
legislative body that an emergency situation exists, as
18
defined in -Section 54956.5—
(2) Upon a determination by a two-thirds vote of the
20
legislative body, or, if less than two-thirds of the members
21
are present; a -unanimous vote of those members present,
OCi
22
23
that the (Beed' to take action arose subsequent tothe
b6irre-RO—Stle-d-as-speci fiM__in_s`u_G AMv1sioiC5)-
in
24
a enda
(S) The item was posted pursuant to subdivision (a)
the legislative body occurring not
for a prior meeting of
26
more than five calendar days prior to the date action is
27
taken on the item, and at the prior me --ting the item was
28
continued to the meeting at which action is being taken.
29
SEC. 6. Section 54954.3 is added to the Government
30
Code, to read:
31
54954.3. (a) Every agenda for regular meetings shall
32
provide an opportunity for members of the public to
33
directly address the lcgn!�slartive body (?Li-itrms of interest
34
Oin_� ji3b.' atter
to the public that are w �e
35
iurisdiction-oL the -legklative gsl,y,. provided that no
36
action shall be takenon any item not appearing on the
by
37
agenda unless the action is otherwise authorized
38,
subdivision (b) of Section 54954.2. However, in the case
39
of a meeting of a city council in a city or a board of
40
supervisors in a city and county, the agenda need not
94 176
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ODIT I ON
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QU EN
VE
'CONDI TRO
AB
8-1
2674 —8-
1
prior to the special meeting and shah speeify the time end
2
leeatien of the Ymee6ftg and be pested in a location that &.
3
is freely ac-essible to members of the public.
4
.' SEC. 8. Section 54956.5 of the Government Code is
5
amended to read:
6
54956.5. In the case of an emergency situation
7
involving matters upon which prompt action is necessary
8
due to the disruption or threatened disruption of public
9
facilities, a legislative body may ,hold an emergency ='
:. 10
meeting without complying with either the 24-hour
11
notice requirement or the 24-hour posting requirement y
12
of Section 54956 or both of the notice and posting
13
requirements.
14
For purposes of this section, "emergency situation"
16
means any of the following:
16
(a) Work stoppage or other activity which severely
f'
17
impairs public health, safety, or both, as determined by
18
a majority of the members of the legislative body. ,
-
19
(b) Crippling disaster which severely impairs public
20
health, safety, or both, as determined by a majority of the
21
members of the legislative body.
22
However, each local newspaper of general circulation '
23
and radio or television station which has requested notice r
24
of special meetings pursuant to Section 54956 shall be
r
25
notified by the presiding officer of the legislative body, or _
-'
26
designee thereof, one hour prior to the emergency r
F ` -
27
meeting by telephone and all telephone numbers
k.
28
provided in the most recent request of such newspaper t
29
or station for notification of special meetings shall be
30
exhausted. In the event that telephone services are not
31
functioning, the notice requirements of this section shall
.;
32
be deemed waived, and the legislative body, or designee
r
33
of the legislative body, shall notify those newspapers,
:
r
34
radio stations, or television stations of the fact of the
35
holding of the emergency meeting, the purpose of the
f
.:36
meeting, and any action taken at the meeting as soon
37
after the meeting as possible.
38
Notwithstanding Section 54957, the legislative body
{
39
shall not meet in closed session during a meeting called
.40
pursuant to this section:
94 210
TAFR
:r► c .-w u
AB
10—
2674 —10—
Within days of receipt of the written � e�
Within
2
,15
notice of the legislative body's decision to cure or correct,
3
the expiration of the 30 -day period to cure or correct, or
4
75 days from the date the challenged action was taken,
5
'whichever is earlier, the demanding party shall 'be
6
to commence the action pursuant to subdivision .
required
be barred from commencing the action. �it
7
8
(a) or thereafter
(c) An action taken shall not be determined to be null
9
and void if any of the following conditions exist:
10
(1) The action taken was in substantial compliance "
11
with Sections 54953,.54954.2, and 54956.
12
(2) The action taken was in connection with the sale
13
or issuance of notes, bonds, or other evidences of
14
indebtedness or any contract, instrument, or agreement '
15
16
thereto.
(3) The action taken gave rise to a contractual
1
obligation, including a contract let by competitive bid,
1
upon which a party has, in good faith, detrimentally
1
2
relied.
(4) The action taken was in connection with the
21
22
collection of any tax.
(d) During any action seeking a judicial
23
determination pursuant to subdivision (a) if the court
24
determines, pursuant to a showing by the legislative body
have been in violation of
25
that an action alleged to taken
26
Section 54953, 54954.2, or 54956 has been cured or
27
correcte�a'subsequent action of the legislative body,
28
the action filed pursuant to subdivision (a) shall be
29
dismissed with prejudice.
(e) The fact that a legislative body takes a subsequent
31
action to cure or correct an action taken pursuant to this
2
section shall not be conshued or admissible as evidence
3
of a violation of this chapter.
SEC. 10. Section 54960.5 of the Government Code is
35
amended to read:
36
54960.5. A court may award court costs and
37
reasonable attorney fees to the plaintiff in an action
38
brought pursuant to Section 54960 or 54960.1 where it is
39
found that a -legislative body of the local agency has ,
40
,violated this chapter. The costs and fees shall be paid by
s
94 240
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--11-- AB 2674
(f 1 the local agency and shall not become a personal liability
2 of any public officer or employee of the local agency.
3 A court may award court costs and reasonable attorney
4 , ;fees to a defendant in any action brought pursuant to
'5 'Section ; 54960 or '54960.1. : where 'the defendant has
6 ' prevailed in a final determination of such action, and the
7 court finds that the �6-M a Nearly frivolous and totally
8 lacking in merit.
9 SEC. 11. The Legislature doesnot intend, by
10 including an express reference to Sections 54954.2 and
11 54960.1 of the Government Code in Sections 35145 and
12 72121 of the Education Code, as amended by this act, to
13 imply that other sections of the Ralph A Brown Act
14 which have been .:onstrued as applying to meetings of
15 the governing boards of school and community college
16 districts shall not continue to apply to those meetings.
17 SEC. 12. Reimbursement to local agencies and school
18 districts for costs mandated by the state pursuant to this
19 act shall be made pursuant to Part 7 (commencing with .
t 20 Section 17500) of Division 4 of Title 2 of the Government
�
21 Code and, if the statewide cost of the claim for
22 reimbursement does not exceed five hundred thousand
23 dollars ($500,000), shall be made from the State Mandates
C 24 Claims Fund.
4
f
A.
r
f
i�
k .
1
--11-- AB 2674
(f 1 the local agency and shall not become a personal liability
2 of any public officer or employee of the local agency.
3 A court may award court costs and reasonable attorney
4 , ;fees to a defendant in any action brought pursuant to
'5 'Section ; 54960 or '54960.1. : where 'the defendant has
6 ' prevailed in a final determination of such action, and the
7 court finds that the �6-M a Nearly frivolous and totally
8 lacking in merit.
9 SEC. 11. The Legislature doesnot intend, by
10 including an express reference to Sections 54954.2 and
11 54960.1 of the Government Code in Sections 35145 and
12 72121 of the Education Code, as amended by this act, to
13 imply that other sections of the Ralph A Brown Act
14 which have been .:onstrued as applying to meetings of
15 the governing boards of school and community college
16 districts shall not continue to apply to those meetings.
17 SEC. 12. Reimbursement to local agencies and school
18 districts for costs mandated by the state pursuant to this
19 act shall be made pursuant to Part 7 (commencing with .
t 20 Section 17500) of Division 4 of Title 2 of the Government
�
21 Code and, if the statewide cost of the claim for
22 reimbursement does not exceed five hundred thousand
23 dollars ($500,000), shall be made from the State Mandates
C 24 Claims Fund.
4