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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