CC Resolution 1986-098 Implementing 1986 Amendments to the Brown Act^!4 RESOLUTION NO. 86-98
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
LA QUINTA IMPLEMENTING 1986 AMENDMENTS TO THE
BROWN ACT.
WHEREAS, the 1986 state legislature made substantial changes in
the Brown Act open meeting law requirements, which legislation takes
effect January 1, 1987; and
WHEREAS, the City Council desires to provide for certain local
rules to implement and interpret said legislative amendments to the
Brown Act.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City
of La Quinta does hereby resolve as follows:
1. Posting of Agendas. The City Clerk, or his designee, shall
post a meeting agenda in the following three locations at least 72
hours before each regular meeting of the City Council, to wit: 1) on
the door of the City Council meeting room at City Hall; 2) on the
public bulletin board located at the La Quinta Post Office; and 3)
the bulletin board located at the Community Center. The City Council
finds and determines that such locations are freely accessible to the
public and the Council further finds and determines that the City is
required to post an agenda only on the door of the meeting room at
City Hall; and this direction to post in three locations is directory
only and not mandatory. Following posting of said agenda, the City
Clerk or his designee, shall sign a declaration of the time and place
of the posting of the said agenda and shall retain said declaration
of posting as a public record as part of the council meeting record
to which the posting relates. The provisions of this section as to
place of posting and declaration of posting shall also apply to the
special meeting posting requirements of Government Code 54956.
2. Public Comment. Pursuant to Government Code 54954.3, each
agenda for a regular meeting shall provide an item entitled public
comment". The purpose of such item shall be to provide an
opportunity for members of the public to directly address the City
Council on items of interest to the public that are within the
subject matter jurisdiction of the City Council.
In order to assure that the intent of Government Code 54954.3 is
carried out, the following time periods are hereby provided for
public comment or discussion: 30 minutes is the total amount of time
allocated for public testimony on a particular issue; and three
minutes is the amount of time allocated for each individual speaker.
BIB]
06-17-1998-U01
11:46:18AM-U01
ADMIN-U01
CCRES-U02
86-U02
98-U02
^!4Government Code 54954.2 provides that no action shall be taken on any
item not appearing on the agenda unless the action is authorized by
Government Code 54954.2 b). On items of public comment or
discussion, any matter raised by the public which does not
specifically appear on the agenda shall, upon direction of any
council member, be automatically referred to the staff or placed on
the next meeting1s agenda. It is hereby determined that such
requests or direction by a council member shall not be considered
action taken by the council on said item raised by the public.
Further, council discussion of the matter shall not be considered
action taken.
APPROVED and ADOPTED this 2nd day of December 19?6.
jd)*/i;L / / *
MAYO*
ATTEST: APPROVED AS TO FORM:
CITY RICITY CLERK
BIB]
06-17-1998-U01
11:46:18AM-U01
ADMIN-U01
CCRES-U02
86-U02
98-U02
^!4 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 access*ble*?
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 descri*ption of each item of business to be transacted or
discussed at the meeting. How 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 fSection 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
3
BIB]
06-17-1998-U01
11:46:18AM-U01
ADMIN-U01
CCRES-U02
86-U02
98-U02
^!4 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 ode 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. Nay 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, 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
4-
BIB]
06-17-1998-U01
11:46:18AM-U01
ADMIN-U01
CCRES-U02
86-U02
98-U02
^!4 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 in 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 tmdetermination1 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 arose1 after the
agenda was posted. What does the phrase 1the need to take action
arose1 mean?
Clearly if the need for action on an item was known by the council or
staff prior to posting the agenda but was not included for reasons of
scheduling convenience or oversight, the need to take action did 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 54g54.2 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
5-
BIB]
06-17-1998-U01
11:46:18AM-U01
ADMIN-U01
CCRES-U02
86-U02
98-U02
^!4 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
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 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 allocated for public testimony on
particular issues and for each individual speaker.1 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 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 determine* to be void. What types
of Brown Act violations are susceptib*e *o a 3ud;ci9* determination
that the underlying action is void?
6-
BIB]
06-17-1998-U01
11:46:18AM-U01
ADMIN-U01
CCRES-U02
86-U02
98-U02
^!4 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 *eet**gs, Can De Sit as*de by a
Court. Similarly, actions improperly taken on items which should have
been1 but were n*t, described in an agenda posted at the prescribed
time *ay also be set as*de. 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 crim*nal 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.1 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 vi*latio* 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 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 on the language of the statut* and the legislative history, the
Coff*nittee believes that an impro*er council action is not void ab
initio. Section 54960.1 a) authorizes bringing an action to oFtain a
*icial 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) st*ated, 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
7
BIB]
06-17-1998-U01
11:46:18AM-U01
ADMIN-U01
CCRES-U02
86-U02
98-U02
^!4 declare a legislative decision void is declaratory relief. When
introduced, AS 2674 also authorized in 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 biThi***orizes
actions by mandamus, injunction or declaratory relief.
13 New section *496O.1 provides that1 prior to seeking a judicial
determination that an improper council action is void1 the complainant
*ust make a demand of the council to cure or correct the allegedly
improper action. The council ay then cure or correct the challenged
action or decide not to do so. Procedurally1 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 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
8-
BIB]
06-17-1998-U01
11:46:18AM-U01
ADMIN-U01
CCRES-U02
86-U02
98-U02
^!4 different action. The Committee therefore suggests It be te*ed
a uconsideration.w
In considering the underlying matter, should the council set
aside the original action prior to taking corrective action? As
discussed in question 9 *, the Committee believes that an
action taken in violation 0 the Brown Act Is not void ab lnitio,
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 c) provides that an action taken *in connection
with the collection of any tax1 shall not be determined to be null and
void. How broad is the phrase in connection with the collection of
any tax?"
9-
BIB]
06-17-1998-U01
11:46:18AM-U01
ADMIN-U01
CCRES-U02
86-U02
98-U02
^!4 Although the statute is not clear1 the author of AB 2674 has indicated
that he did not intend for this phrase to include*llection of
any fee or assessment or to include the imposition of any tax.
15. Amended Section 54960.5 provides that a court *ay 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 tI*e 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 54g60.1 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.
A82674 1 egal
10
BIB]
06-17-1998-U01
11:46:18AM-U01
ADMIN-U01
CCRES-U02
86-U02
98-U02