Eminent Domain Report

Transparency in government is a staple of American democracy.  The Federal Freedom of Information Act and California’s Public Records Act are two examples of laws that are intended to provide transparency for government’s written information.  But many (if not all) state and local governments have also enacted sunshine laws, which generally require that government meetings be open and public.  In California, the Ralph M. Brown Act was passed in 1953.  Yet, despite having been around for over half a century, many local governments find themselves accused of running afoul of its provisions.  In this post, I discuss some recent examples and provide a few takeaways local governments and the people they serve should keep in mind.

Once is Probably Not Enough

The City of Hesperia is fighting a Brown Act challenge to meetings it held for a controversial development project.  According to Rene Ray De La Cruz’s article Residents Claim Tapestry Meetings Violated Brown Act, residents are upset because the City continued the meeting multiple times, allegedly without providing adequate notice or a new agenda.

It is too early to determine whether the council acted improperly.  Even so, this situation reminds us all of the importance of proper notice.  So what is proper notice?  Is once enough?

• 72 hours is the magic number – an agenda must be posted 72 hours prior to a regular meeting or one that is continued more than 5 days.
• Notice of any adjournment (i.e., continuation) must be posted within 24 hours of the original meeting.
• If the new meeting is more than 5 days later, a new agenda must be posted 72 hours prior to the new meeting.

Think Twice Before Going Off Agenda

The Brown Act requires that every agenda include a brief description of the business to be discussed, whether in open or closed session.  While members of the public are entitled to bring new items to the board’s attention, the board itself usually cannot.  And one judge in Marin County wants to make sure that doesn’t happen.  Nels Johnson’s article Judge: Marin Supervisors violated open government law with housing briefing explains that the Marin County supervisors erred when they held a 26 minute briefing on housing issues which were not listed on the agenda.  Apparently, the Board took no action, and only requested the briefing as a way to keep the public informed on the status of the County’s housing plan.  But the supervisors’ good intentions were not enough.  So what’s a body to do?

• Keep staff comments limited to responses to questions or statements during the session, brief announcements or requests for clarification.
• If non-agenda item comes up, the comments must be brief.
• If in doubt, cease discussion and make a motion to place the topic on a future agenda.
• Consider a Manager’s Report or similar agenda item as a catch-all. As long as there is no extended discussion and no action taken, this description is a proper agenda item.

Beware the Closed Session

The Brown Act acknowledges there are times when a public discussion is not always appropriate.  For example, personnel decisions, labor negotiations and real property negotiations may be held outside the public’s eye.  But as the City of Santa Ana is finding out, there is a limit.  In his Voice of OC article, Adam Elmahrek reports that the City Council is accused of violating the Brown Act by approving the City Manager’s bonus in closed session.  According to the article, the agenda stated only that the City Manager’s performance evaluation would be discussed in closed session; the agenda did not reveal any anticipated City Council action on the City’s Manager’s bonus.  In addition to some of the problems we saw in Hesperia and Marin County, the City’s action became subject to challenge because even if property agendized, it arguably didn’t fall into the narrow list of subjects allowed for closed sessions:

• Personnel – appointment, employment, performance, complaints or dismissal of unelected employees.
• Pending Litigation – where the agency is a party or expect to sue or be sued.
• Labor Negotiations – Instructions on compensation.
• Property Negotiations – Price or payment terms.

For a more detailed discussion of these categories, see the California League of City’s Guide to the Brown Act, available here.

It Isn’t Easy Being Green

We’re all trying to do what we can to paperless, and local governments are no exception.  But what happens when technology and the Brown Act collide?  Last month, the California Attorney General’s Office issued an opinion on this very subject.

The Brown Act provides that agencies can post their agendas on their websites at least 72 hours before the meeting.  As we all probably know, however, websites can and do crash.  If the agency’s website goes down for a portion of the 72 hours, is there a violation of the Brown Act?  Apparently not, at least according to the Attorney General.  As long as there has been substantial compliance with the Brown Act’s notice requirements, the legislative body may still hold its meeting despite technical difficulties.

So why is a Brown Act discussion on a blog about Eminent Domain?

Well, for starters, every government project must be approved by the appropriate governing body at some point, often as part of the budget.  And many projects must proceed through the CEQA process requiring additional meetings and approvals.  Perhaps most relevant here, any agency acquiring property through condemnation must first pass a Resolution of Necessity, which typically involves both closed session discussion about the property-negotiation process and open session discussion and a public hearing to adopt the Resolution itself.  All of these implicate the notice and agenda issues discussed above.

Closed sessions also become important in the right of way process, specifically the property negotiations and pending litigation provisions.  These can both become problematic.  For example, price and payment terms may be discussed behind closed doors, but when the contract becomes final, the information is subject to disclosure.  Another consideration is when those negotiations become so entwined with potentially filing a condemnation action so as to fall into the pending litigation category.

The purpose of the Brown Act is to ensure that government conducts its business openly under the eyes of the citizens it serves.  I’m sure no one wants to return to the days of smoke-filled backrooms but neither should the Brown Act be used as vehicle to challenge unpopular, but otherwise legal, decisions.  As this discussion illustrates, both agencies and members of the public should remember that it is not always what is done that causes the problem, but how it’s done.