California Open Meeting Laws

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Open Meeting Laws in California

Five common open meeting laws imposing requirements on government agencies in California are:

1) The Bagley-Keene Open Meeting Act, which applies to State agencies;

2) The Ralph M. Brown Act, which applies to local agencies (e.g., cities, counties, school boards, water boards, etc.);

3) The Legislative Open Meetings Act, which applies to the State Legislature;

4) California Rules of Court, Rule 10.6, which applies to the Judicial Council; and

5) The Government in Sunshine Act, which applies to Federal agencies in California.

Violations of the Bagley-Keene Open Meeting Act, the Legislative Open Meetings Act, Rule 10.6, and the Government in Sunshine Act are not very common, so this page does not address those open meeting laws. However, local agencies frequently violate the Ralph M. Brown Act. Additionally, some local agencies have adopted their own ordinances (for example, the San Francisco Sunshine Ordinance) that supplement state and federal law, but those local ordinances are not addressed on this site. When reviewing the open meeting laws for a specific agency, you should be cognizant of any local ordinances and regulations.

The Ralph M. Brown Act

The Ralph M. Brown Act, commonly referred to as simply the "Brown Act," requires meetings of local agencies to be open to the public. This open meeting law is a constitutional right for all Californians. The Brown Act begins with a very clear purpose:

In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.

The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.

(Gov't Code § 54950)

Under the Brown Act, local agencies must provide the public with advance notice of meetings, and allow the public to address the governing body prior to taking action on an agenda item. As discussed below, there are a few exceptions to the notice and public comment requirements.

Meetings

A meeting is defined as "any congregation of a majority of the members of a legislative body at the same time and location, including teleconference... to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body." The most obvious way a meeting can occur is when a majority of members of an agency gather in the same room to engage in business. However, there are additional ways a meeting can occur, including "serial" meetings and "spoke and wheel" meetings.

A serial meeting occurs when a series of communications, each involving less than a majority of a governing body, results in a majority of the governing body engaging in the discussion. For example, suppose a governing body is made up of five members--three members would then be a majority. If Member 1 and Member 2 discuss an issue, that is less than a majority and would not be considered a meeting. If, however, after the discussion between Member 1 and Member 2, Member 2 has the same discussion with Member 3, a meeting has occurred. This is a meeting even though Member 2 and Member 3 are less than a majority. The reason is that, as a whole, three members have discussed the issue, which is a majority of the governing body (even though only two members discussed the issue at any given time). Therefore, a serial meeting has occurred.

A spoke and wheel meeting occurs when a third party meets individually with a majority of the members of a governing body. For example, suppose a governing body's attorney wants to know if a project will be approved. Prior to the public meeting where the project will be discussed, the attorney calls Member 1 of the governing body to discuss the project, resulting in Member 1 stating the project should move forward. The attorney then calls Member 2 of the governing body to discus the project, resulting in Member 2 stating the project should move forward. The attorney then calls Member 3 of the governing body to discus the project, resulting in Member 3 stating the project should move forward. A majority of the governing body has now discussed the issue through a third party (their attorney) and a spoke and wheel meeting has occurred.

Regular Meeting Agenda Requirements

The Brown Act requires local agencies to designate the time and place for holding regular meetings. At least 72 hours before any regular meeting, the local agency must post in a public place and on its website, if it has one, an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.

A local agency is prohibited from discussing any item of business not appearing on the agenda, unless an emergency situation exists. However, brief replies to public comment are permissible, so long as the governing body doesn't engage in any substantive discussion of an item not on the agenda.

Public Comment

The agenda must provide an opportunity for members of the public to address the governing body on any item of interest to the public, before or during the governing body's consideration of the item. Further, any meeting with teleconferencing must allow members of the public to directly address the governing body.

The requirement to allow the public to comment on agenda items is not, however, absolute and without limitation. A local agency is permitted to place reasonable time limits on public comments for both particular issues and individual speakers. The local agency is also not required to provide an opportunity for the public to comment on an item that has already been considered by a committee at a public meeting where the public was permitted to comment.

In limiting public comment, it is unlawful for a local agency to prohibit public criticism of its policies, procedures, programs, or services, or the acts or omissions of the governing body.

Closed Sessions

Although the purpose of the Brown Act is to allow the public to participate in meetings and to be informed of what their local agencies are doing, there are some exceptions that have been carved out. The purpose of these exceptions is to allow a local agency to discuss matters privately when discussing the matter openly would be against public policy. Improper discussions during closed sessions is a heavily litigated area of the Brown Act.

The only allowed closed session items are the following:

License/Permit Determination

Conference with Real Property Negotiators

Conference with Legal Counsel (either Existing Litigation or Anticipated Litigation)

Liability Claims

Threat to Public Services or Facilities

Public Employee Appointment, Employment, Evaluation of Performance, Discipline, or Dismissal

Conference with Labor Negotiators

Case Review/Planning

Report Involving Trade Secrets and Hearings

Charge or Complaint Involving Information Protected by Federal Law

Conference Involving a Joint Powers Agency

Audit by California State Auditor's Office

One reason for a local agency to hold a closed session is to consult with its attorney on anticipated litigation due to someone making a threat of litigation. In this situation, a local agency can have the discussion in closed session so long as the litigation threat to be discussed in closed session is included in the agenda packet and made available upon request to members of the public before the meeting. Courts have made this explicitly clear, yet many local agencies continue to hold closed sessions without informing the public of the threatened litigation they are discussing behind closed doors. At first blush it may not seem too important to know exactly what litigation threats are being discussed, disclosing the facts and circumstances giving rise to the anticipated litigation assures the public that the governing body is meeting behind closed doors for a legitimate purpose, rather than an imagined threat of litigation (which could be almost anything, given human creativity).

Another reason for closed session that can lead to conflict is a local agency negotiating the purchase, sale, exchange, or lease of real property. Where an agency meets in closed session under this section of the Brown Act, it must disclose the property being negotiated (street address), the name of the negotiating parties (not their agents), and what is being negotiated (price, terms of payment, or both). This informs the public of any potential conflicts of interest in the purchase or sale of real property.

Finally, one of the most common conflicts that arises in Brown Act disputes involves public employees being appointed, disciplined, or dismissed in closed session (most of the time involving a controversial appointment of an executive officer). Where a local agency meets in closed session to discuss public employee appointment or employment, only the title of the position needs to be disclosed on the agenda. Often the appointment of an executive official involves discussing contract terms in closed session. The Brown Act specifically prohibits discussing compensation in closed session as part of appointing a public official. Although a local agency can get around this prohibition with the conference with labor negotiators exception (provided that the candidate is not present in the closed session), it is not uncommon for local agencies to violate the Brown Act by discussing compensation during contract negotiations.

As for the discipline or dismissal of an employee, no description is required on the agenda. However, public employees have the right to demand the discipline or dismissal discussion be conducted in open session, rather than closed session. Failure to provide this option renders the decision of the governing body null and void.

Every action taken to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session must be reported in open session at the same meeting where the closed session was held. Failure to report the action taken is a violation of the Brown Act.

Special Meeting Agenda Requirements

A special meeting may be called by the local agency by giving written notice to each member of the governing body, and to each local newspaper of general circulation and radio or tv station requesting notice in writing, and posting a notice on the local agency's website. The notice must be received at least 24 hours before the time of the meeting. No business can be considered at a special meeting other than the items listed on the agenda.

Not all topics are allowed to be discussed in a special meeting. The salaries and benefits of the governing body, or local agency executive, cannot be discussed during a special meeting.

Emergency Meeting Requirements

An emergency is defined as a "work stoppage, crippling activity, or other activity that severely impairs public health, safety, or both." When an emergency situation exists, a local agency is required to provide newspapers, ratio, and tv stations that have requested meeting notices at least one-hour notice of the emergency meeting. The local agency does not need to provide the 24-hour notice ordinarily required for special meetings.

Unlike an emergency, a "dire emergency" is one which poses such an immediate and significant threat that providing one-hour notice is not practicable. These situations are limited to a crippling disaster, mass destruction, terrorist act, or threatened terrorist activity. In such a situation, no notice need be given to the public or media about the meeting, but the meeting minutes must be posted for a minimum of 10 days in a public place as soon after the meeting as possible.

Enforcement: Cure or Correct

When a local agency takes action in violation of the Brown Act, a court can declare that action null and void under Government Code § 54960.1. However, not all actions can be declared null and void. The Brown Act violation must have occurred in one of the following six ways:

1) Failing to follow the teleconferencing rules, including allowing public participation, in violation of section 54953.

2) Failing to post an agenda for a regular meeting, or taking action on an item not on the agenda, in violation of section 54954.2.

3) Failing to adequately describe a closed session item, or holding an improper closed session, in violation of section 54954.5.

4) Failing to hold a public meeting prior to the hearing adopting a general tax, or assessment, in violation of section 54954.6.

5) Failing to post an agenda for a special meeting, or discussing the salaries of the governing body or executive in a special meeting, in violation of section 54956.

6) Failing to provide notice of an emergency meeting, or improperly declaring the need for an emergency meeting, in violation of section 54956.5.

Government Code § 54960.1 also provides five situations where an action will not be null and void, even when a violation listed above is found to have occurred. Three of those situations relate to an action taken on a specific type of item (e.g., issuance of bonds, contract with detrimental reliance, tax collections, etc.). The other situations are where the action taken was in substantial compliance with the Brown Act, and where the person seeking nullification had actual notice of the item (when seeking nullification based on a violation stemming from failure to give proper notice). Another requirement, which does not appear in the Brown Act, is that a plaintiff must show prejudice before a court will declare an action null and void. The prejudice inquiry involves asking whether members of the public had a fair opportunity to present their case. If they did, then no prejudice will be found. If not, prejudice exists and the action can be nullified.

Prior to bringing an action by mandamus or injunction under Government Code § 54960.1, a written demand must be made on the local agency's governing body to cure or correct the alleged violation. The written demand usually needs to be made within 90 days from the date of the violation. An exception to the 90 day limit is where the violation arises from an improper agenda and the action was taken in open session, in which case the written demand needs to be made within 30 days of the date of the violation.

After the written demand to cure or correct is made on the local agency, the local agency must cure or correct the violation within 30 days, or provide written notice that it will not cure or correct the violation. Failure to respond to the written demand within 30 days is deemed a decision not to cure or correct the violation. If the local agency refuses to cure or correct the violation, the person who made the written demand must commence an action by mandamus or injunction within 15 days of being notified of the refusal (or the expiration of the 30 day time for the local agency to respond).

Enforcement: Cease and Desist

While Government Code § 54960.1 is restricted to six specific violations, Government Code § 54960 authorizes the enforcement of any Brown Act violation. The process begins with a cease and desist letter, as described in Government Code § 54960.2.

The cease and desist letter must clearly describe the Brown Act violation, and must be submitted to the local agency within 9 months of the violation. The letter must be sent by mail or fax to the clerk or secretary of the local agency--it doesn't need to be formally served. Within 30 days of receiving the cease and desist letter, the local agency must provide an unconditional commitment to cease, desist from, and not repeat the past violation, and must adopt the unconditional commitment in an open meeting. Failure to provide the unconditional commitment allows the commencement of an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of the Brown Act, provided the action is filed within 60 days.

An unconditional commitment by a local agency is more powerful than it sounds. There is no fixed end date to the unconditional commitment, and any future violation of the commitment is itself a violation of the Brown Act, regardless of the merits of the alleged violation. Basically, this means the local agency cannot repeat the action described in the cease and desist letter without being subjected to court costs and attorney fees, which are substantial. That is a powerful tool to ensure future compliance.

Although there is no fixed end date to the unconditional commitment, the local agency can rescind its letter of unconditional commitment in an open meeting so long as it provides 30 days notice to both the person who filed the cease and desist letter and the District Attorney. Given that the rescission sounds a lot like the local agency doesn't want to follow open meeting laws, local agencies will usually hesitate to do so, especially if they are elected officials.

Criminal Penalty

Intentionally violating the Brown Act can be a misdemeanor. There is emphasis placed on the words "can be" because laws only have meaning when they are enforced. District Attorneys regularly refuse to pursue criminal charges for Brown Act violations, even large offices with public integrity divisions. I am not aware of any case where criminal charges have been brought under the Brown Act that were not subsequently dropped, and I have never heard of anyone actually being convicted. So does the Brown Act have a criminal penalty component? Yes. But if history is any guide, don't count on seeing it actually enforced.

Assistance

If you find yourself needing to enforce an open meeting law, or are unsure if a government agency is in compliance, you need an attorney with a strong understanding of open meeting laws. Contact me today to discuss the options available to you, as well as how to move forward. Although templates are available online for a written demand to cure or correct, as well as a cease and desist letter, I do not recommend using them. Instead, let an attorney who understands the nuances of law tailor the letter to your specific situation, as that will ensure the violation is properly described. Given that the letter could be due within 30 days of the violation, it is best to contact an attorney immediately.

Attorney Fees

I do not charge clients for my time to litigate Brown Act cases. I take these cases on contingency, which means I only get paid if you prevail and the other side (the local agency) will be on the hook for my fees.