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UPS wants people to ask what Brown can do for them. California's public entities need to consider what Brown (i.e., the Brown Act) can do to them. Given the State's financial crisis, now is the right time to review California's open meeting laws. Failure to comply with these laws can lead to civil lawsuits and liability for attorney's fees. In times where every penny matters, these are costly penalties that can, and should, be avoided.

Overview of California's Open Meeting Laws

California regulates the preparation, substance and form of public entity meetings through two Acts: the Ralph M. Brown Act (Cal. Gov. Code Sections 54950 - 54962) and the Bagley-Keene Open Meeting Act (Gov. Code Sections 11120 - 11132.) The Acts enforce the policy that public entity meetings "be conducted openly so that the public may remain informed." (Gov. Code Sections 11120, 54950.)

Together, the Acts apply to local agencies (via Brown Act), such as counties and cities, and to state bodies (via Bagley-Keene Act), such as state boards and commissions. (Gov. Code Sections 54952, 54953, 11121, 11122.5.) The Acts' regulations apply to public entity "meetings," defined as a gathering of the majority of the members of the entity's governing body "at the same time and place to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction" of the entity. (Gov. Code Sections 54952.2, 11122.5.) Be careful to avoid "serial" meetings. (Gov. Code Section 54952.2(b).)

Examples of Requirements Under California's Open Meeting Laws

To ensure public entity meetings remain open and accessible to the general public, the Brown and Bagley-Keene Acts set forth specific rules that local agencies and state bodies must follow. For example:

• Local agencies cannot require a member of the public to register or identify himself or herself prior to speaking at a public meeting. (Gov. Code Sections 54953.3 and 11124.) The same rules apply to state body meetings under Bagley-Keene. (Gov. Code Section 54953.3.)

• Anyone attending a public meeting has the right to record the meeting, and the local agency must keep any recording it makes for at least 30 days. (Gov. Code Sections 54953.5(a), 54953.5(b).) Bagley-Keene sets forth similar guidelines for state body meetings. (Gov. Code Sections 11124.1(a), 11124.1(b).)

• Closed sessions meetings, where the public and the press are not allowed, can only be held for limited purposes. (Gov. Code Sections 54956.7 - 54957.) Bagley-Keene follows a similar approach. (Gov. Code Section 11126.)

• Local agencies must disclose the subject matter to be considered before holding a closed session meeting and the final decisions made during the session after the session ends. (Gov. Code Section 54957.1.) Bagley-Keene follows a similar standard for state body meetings. (Gov. Code Section 11126.3.)

• All open session meetings must comply with the Americans with Disabilities Act. (Gov. Code Section 54953.2.) The same rule applies to state bodies. (Gov. Code Section 11123.1.)

• A majority of the members of a local agency's governing body cannot communicate outside of an official meeting either directly, through their intermediaries or via "technological devices" with the intent to establish a "collective concurrence as to an action to be taken." (Gov. Code Section 54952.2(b).) The same rules apply to state body members. (Gov. Code Section 11122.5(b).)

• Persons who have been appointed but not yet assumed their duties as a member of a local agency's governing body "shall conform his or her conduct to the requirements" of the Brown Act and will be treated as if they have already assumed office. (Gov. Code Section 54952.1.) The Bagley-Keene Act enforces a similar rule. (Gov. Code Section 11121.95.)

• Under the Brown Act, local agencies can recover certain costs of complying with the Act through tax or assessment proceeds. (Gov. Code Section 54954.6(g).) Bagley-Keene, however, generally prohibits state bodies from doing the same unless the Act specifically provides otherwise. (Gov. Code Section 11126.7.)

Penalties for Violating California's Open Meeting Laws

Both Acts give individuals the right to file civil lawsuits for injunctive, mandatory or declaratory relief for violations of the Acts. (Gov. Code Sections 11130, 54960.) Individuals can also move to void actions taken during an unlawful meeting. (Gov. Code Sections 11130.3, 54960.1.) Public entities may attempt to cure a violation of either Act before an individual can sue, but the right to cure applies to violations of only some of the Acts' requirements. (Gov. Code Sections 11130.3(a), 54960.1(b).)

A plaintiff who prevails in a suit for Brown or Bagley-Keene violations may recover attorney's fees. (Gov. Code Sections 11130.5, 54960.5.) Public entities, however, can only recover attorney's fees under Bagley-Keene, for example, when the plaintiff's case is "clearly frivolous and totally lacking in merit." (Gov. Code Section 11130; see also Gov. Code Section 54960.5 (similar standard under Brown Act).)

Conclusion

The California Legislature has taken extensive measures to ensure that public entities hold meetings that the general public can attend, participate in and review. California Courts are willing to use the law's fee-shifting provisions to ensure compliance. California's public entities should take notice, and take time in the near future to review the requirements of the Brown and Bagley-Keene Acts.

For more information regarding California's open meeting laws, contact your legal counsel.