HomeMy WebLinkAboutAgenda Statement 1987/01/06 Item 20 COUNCIL AGENDA STATEMENT
Item 20
Meeting Date 1/6/87
ITEM TITLE: . (a) Report on Brown Act Revisions
(b) Ordinance No.c2/f5 Amending Various Sections of the
Municipal Code Relating to Agendas for Public Meetings
SUBMITTED BY: Assistant City Attorney
(4/5ths Vote: Yes No X )
tLu t) bEhDINQ AND ADO, ,iuN
Chapter 641 of the Statutes of 1986 (AB 2674) will become effective January 1,
1987. It will significantly affect oral communications, council comments and
agenda preparation. This is to report on those changes and present an
ordinance to the Council to amend the Municipal Code to comply with the new
requirements.
RECOMMENDATION:
,.. Accept the report;
2. Adopt the ordinance and place it on its first reading.
BOARDS/COMMISSIONS RECOMMENDATION: N/A
DISCUSSION:
The amendments will apply to all local legislative bodies as defined in the
Brown Act. The City Manager should promulgate internal written administrative
procedures to assure compliance by all the City's boards and conunissions. Our
discussion herein will only deal with the City Council.
In summary, the new law adds new requirements with regard to the posting of
agendas, the content of agendas, generally prohibits action with regard to
matters not on the agenda, requires a demand for cure of any alleged defect as
a prerequisite to suit, authorizes litigation to have the alleged improper
action declared "null and void" , and provides attorneys' fees for the
prevailing party in such suits. Matters of particular interest to the Council
follow.
Page 2, Item 20
Meeting Date 1/6/8
1. POSTING:
The new law requires that the agenda for a "regular" meeting be posted at
least seventy-two (72) hours before a regular meeting "in a location that is
freely accessible to members of the public" . It requires that the call and
notice for a "special" meeting be similarly posted, at least twenty-four (24)
hours prior to that special meeting. The posting requirement will not apply
to "emergency" meetings.
2. AGENDA SPECIFICITY:
Current law does not say how much detail must be shown with regard to agenda
items. The new law requires that the posted agenda contain "a brief general
description of each item of business to be transacted or discussed at the
meeting". The League of California Cities recommends that the description of
each agenda item be reasonably calculated to adequately inform the public.
This requirement will also apply to closed sessions. That is, although a
public meeting is not required to be held, because of some express provision
authorizing a closed session, there is no similar provision excluding closed
session matters from being placed on the public agenda with sufficient
specificity. Typically, the section authorizing the closed session makes
,.provision for the amount of specificity required in the public notice of the
asis for the closed session. In the absence of an agenda item, closed
sessions will also be prohibited, unless one of the exceptions to the agenda
requirement are present.
3. OTHER AGENDA CONTENT:
The new law requires that every agenda for regular public meetings "provide an
opportunity for members of the public to directly address the legislative body
on items of interest to the public that are within the subject matter
jurisdiction of the legislative body" . Although the City Council's current
procedure provides for public written and oral communications relating to City
business, there will be a major change in this respect since the new law also
prohibits action on any item not appearing on the agenda, subject to certain
exceptions.
4 . PROHIBITED ACTION:
The major change from current procedure with regard to off docket items
originating with either councilmembers, staff, or the public, is the
prohibition of action on any item not appearing on the posted agenda.
Page 3, Item 20
Meeting Date 1/6/87
Government Code §54952.6 defines "action taken" as "a collective decision made
by a majority of the members of the 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."
If action is prohibited, may an item not on the posted agenda raised by the
public, a councilmember or staff, be "discussed"? The League of California
Cities' discussion on this point suggests a strict interpretation of the
statute prohibits discussion of such as item. The League suggests three
alternatives if an exception is not applicable: (1) do nothing; (2) 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; (3) construe the
prohibition on taking 'action' to refer only to substantitive actions, leaving
the Council free to take procedural actions, such as referring matters to
staff or placing matters on the next agenda. A fourth alternative is for the
Council to make a determination pursuant to Section 54954.2(b) that one of the
authorized exceptions to the posted agenda requirement exists. In the event
an exception does not exist, the attached ordinance embodies option (3) above.
_ 5. EXCEPTIONS TO THE POSTED AGENDA REQUIREMENT:
•
kMatters as to which action may be taken) :
There are three exceptions to the posted agenda requirement: an emergency;
the need to take action arose subsequent to the posting of the agenda; or the
matter was previously posted.
The Council could find, based on facts presented and memorialized in the
minutes of the Council meeting, by a majority vote, that an emergency
situation exists. Emergency situations for such purposes are narrowly defined
in §54956.5 to include a work stoppage or other activity which severely
impairs public health, safety, or both, as determine: by a majority of the
members of the legislative body; or a crippling disaster which severely
impairs public health, safety, or both, as determined by a majority of the
members of the legislative body. The emergency situation must also involve
"matters upon which prompt action is necessary due to the disruption or
threatened disruption of public facilities" .
The second exception to the no action prohibition is when the Council
determines by two-thirds vote (or if less than two-thirds of the members are
present, a unanimous vote of those members present) than the need to take
action arose subsequent to the agenda being posted. In this connection, the
League of California Cities' report states:
Page 4, Item 20
Meeting Date-1/6I 1
"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 post :u. 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.. . ."
Care must be taken to avoid this exception swallowing the rule.
The final exception is that the item was on a posted agenda for a prior
,meeting of the legislative body occurring not more than five days prior to the
ate action is taken on the item, and at that prior meeting the item was
.:ontinued to the meeting at which action is being taken. It is important to
note that the exception cannot exceed five calendar days.
6. EFFECTS OF VIOLATIONS:
Under current case law, actions taken in violation of the Brown Act are
nevertheless valid. Effective January 1, 1987, for the first time a lawsuit
will be authorized which could result in a decision that the action taken is
"null and void". The new law also establishes an administrative remedy for
persons affected by any alleged defect, and sets a specific time limit on when
challenging suits must be brought. First, no suit may be brought unless: (a)
it relates to an alleged violation of §54953 (allged unlawful closed
meeting), §54954.2 (alleged failure to identify agenda item with specificity,
post, or action taken on a matter not on the agenda nor covered by one of the
exceptions) or §54956 (a special meeting held without the required notice
and/or posting); and (b) the affected person makes a written demand to the
City Council for the action to be cured, within thirty days from the date the
action was taken. The City Council would then have thirty days to cure or
correct the challenged action and so inform the complaining party, or inform
the affected party of its decision not to cure or correct the challenged
action. The affected person must then bring the suit to have the challenged
Page 5, Item 20
Meeting Date 1/5/RI
action declared null and void within fifteen days of written notice of the
decision to cure or correct, expiration of the thirty day period to cure or
correct, or seventy-five days from the date of the challenged action,
whichever is earlier. Failure to timely bring the action will bar it
(Government Code §54960.1(b) ) .
7. CURE OR CORRECTION OF ALLEGED DEFECTS:
A demand for cure or correction raises a significant exposure to litigation
and would authorize a closed session pursuant to Section 54956.9. The demand
for cure should be placed on the posted agenda for the next regular meeting as
two sub-items. The Council first makes its own determination of whether a
violation has occurred. If it so determines, the second item for
consideration by the Council would be appropriate action on the underlying
matter.
Finally, there are certain matters as to which a court could not make a
finding that the action was null and void: If the action taken constituted
"substantial compliance"; was in connection with the sale or issuance of
notes, bonds, or other evidences of indebtedness or any contract, instrument,
or agreement thereto; gave rise to a contractual obligation, including a
._.contract let by competitive bid, upon which a party has, in good faith,
letrimentally relied; or was in connection with the collection of any tax.
The attached ordinance includes amendments to bring the current Municipal Code
provisions into compliance with the new law. Since the ordinance will not be
effective until after January 1, 1987, you are cautioned that the content of
the ordinance should be followed on and after January 1, 1987, even though the
ordinance technically yet will not be effective.
FISCAL IMPACT: Not known at this time.
2286a
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by the City Council of by the Cit Council of
Chula Vista, California Chula Vista, California
Dated O;�� Dated ir