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December 21, 2012

Past Legislative Body Actions Subject to Legal Challenge Under Brown Act Amendments


Effective January 1, 2013, the district attorney or any interested person may file an action claiming an alleged violation of the Ralph M. Brown Act (Government Code § 54950 et seq.) based on a legislative body’s past actions.  Governor Brown signed Senate Bill 1003 into law on September 28, 2012, amending provisions that authorize legal procedures to stop or prevent violations of the Brown Act’s meeting requirements.

The Brown Act requires each legislative body of a local agency to provide the time and place for holding regular meetings and requires that all meetings of a legislative body be open and public and all persons be permitted to attend unless a closed session is authorized.

The Brown Act currently allows the district attorney or any interested person to commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing current or threatened violations or to determine the applicability of the Brown Act to ongoing actions or threatened actions of a legislative body. (Government Code § 54960.) SB 1003 amends Government Code section 54960 to allow the district attorney or any interested person to commence legal action to challenge a legislative body’s past actions.

SB 1003 adds Government Code section 54960.2, which describes procedural conditions that must be met when filing a challenge to a legislative body’s past actions.  The conditions are: (1) the district attorney or any interested person must submit a cease and desist letter by mail or fax to the clerk or secretary of the legislative body; (2) the cease and desist letter must be submitted to the legislative body within nine months of the alleged violation; (3) the legislative body, within 30 days, either fails to respond to the cease and desist letter or fails to provide an unconditional commitment to cease and desist from, and not repeat, the past action; and (4) the district attorney or interested person commences the action within 60 days of the legislative body’s response to the cease and desist letter, failure to respond to the letter within 30 days, or failure to provide an unconditional commitment to cease and desist from, and not repeat, the past action.  A legal challenge to a legislative body’s past action may not be commenced unless all of these requirements are met.

Pursuant to Government Code section 54960.2, if a legislative body elects to respond to the cease and desist letter with an unconditional commitment to cease and desist from, and not repeat, the past action, no legal challenge can be filed.  Additionally, if the court, while making a determination regarding the applicability of the Brown Act to a legislative body’s past actions, determines the legislative body has provided an unconditional commitment after the expiration of the 30-day period, the court must dismiss the legal challenge with prejudice. Section 54960.2(c)(1) specifies the format for a legislative body’s correspondence regarding its unconditional commitment to cease and desist from, and not repeat, the past action.  The unconditional commitment must be approved by the legislative body as an action item in public session.

Pursuant to Government Code section 54960.2, the legislative body’s unconditional commitment to cease and desist from, and not repeat, the past action “shall not be construed or admissible as evidence of violation of the Brown Act.”  However, once the legislative body provides the unconditional commitment, it cannot take or engage in the same challenged action described in the cease and desist letter, unless it properly resolves or rescinds the unconditional commitment by majority vote as prescribed in subdivision (c)(3) of section 54960.2.  If the unconditional commitment is rescinded, the district attorney or any interested person may file a legal challenge under section 54960(a).

Finally, SB 1033 amends Government Code section 54960.5 to allow a court to award costs and reasonable attorney fees to the plaintiff in action brought pursuant to section 54960.2 when it is determined the legislative body violated the Brown Act.  The amendment also allows a court to award costs and reasonable attorney fees to the plaintiff when an action brought under section 54960.2 is dismissed with prejudice because the legislative body provided an unconditional commitment after the 30-day period expired as a result of the legal action.

A legislative body may recover its costs and attorney’s fees only if the legislative body prevails in court and the court finds the action was clearly frivolous and totally lacking in merit.

Significance
SB 1003 expands the potential legal challenges under the Brown Act to include the past actions of a legislative body.  Prior to these amendments, the district attorney or any interested person could challenge only ongoing or future legislative body actions.  Furthermore, SB 1003 allows a successful plaintiff in an action filed pursuant to Government Code section 54960.2 to recover court costs and reasonable attorney fees.

We anticipate these amendments will result in increased Brown Act challenges to legislative body actions.  Legislative bodies and administration must continue their vigilance in meeting all Brown Act requirements when preparing agendas and conducting meetings.  When a challenge is received under the new procedures, adherence to time limits and other statutory requirements is critical.    

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