Court Holds Six-Minute Discussion on Non-Agendized Matter Doesn’t Violate Brown Act
by Derek P. Cole on August 15, 2016
When a person raises an issue not on a meeting agenda, how much can council or board members discuss the issue without running afoul of the Brown Act? A recent court case provides some helpful guidance.
In Cruz v. Culver City, a California appellate court held that a six-minute discussion about how to place an item on a future agenda did not violate the Brown Act. Fortunately for local agencies, the court rejected a challenge to the discussion that had relied on a hyper-technical reading of the Act’s language.
The Brown Act Language
The provision of the Brown Act in dispute was Government Code section 54954.2, which states the requirements for meeting agendas as well as what discussion and actions may occur concerning items not placed on agendas. The relevant language begins by stating that “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda ….” But the language also states exceptions, which are:
- Members of a legislative body or staff may “briefly respond” to statements or questions made by persons who address the body during the “public comment” portion of a meeting;
- Members of the legislative body or staff “on their own initiative or in response to questions posed by the public,” may “ask a question for clarification;” or
- A member of a legislative body or the body itself may refer a matter to agency staff “for factual information,” request that staff “report back to the body at a subsequent meeting concerning any matter,” or “direct staff to place a matter of business on a future agenda.”
The Facts of the Case
In Cruz, the six-minute discussion began when a city councilmember noted he had received a letter from a church concerning parking along a city street. Relaying that the church had raised an issue concerning who may appeal certain parking determinations, the councilmember asked that the council consider placing an item on a future agenda to address the church’s inquiry. During a brief ensuing discussion, city staff was asked to clarify whether the item should focus on appeal rights within city parking districts generally, or whether the item should deal only within the parking district in which the church was located.
Ultimately, the council agreed with staff’s recommendation to confine the item to a discussion about parking in the church’s vicinity, and staff committed to notify the affected parties (the church and residents of the affected parking district) of the meeting in which the item would be considered. The council made no decision on the merits of the parking issue and was careful to avoid discussing the issue’s substance until it could properly appear on a future agenda.
The Court’s Ruling
Noting it had reviewed both the video and a transcript of the City Council discussion, the court had little trouble rejecting the plaintiffs’ contention the discussion exceeded Brown Act limitations. It disagreed that the six-minute discussion was “substantive” or “substantial,” as the plaintiffs had contended. It easily found that the discussion fell within all three of the Brown Act exceptions for discussion about items not on an agenda.
A Helpful Result
The court did not provide much reasoning in ruling on the merits of the Brown Act issue. (Technically, the case upheld the City’s use of the “Anti-SLAPP” statute against the plaintiffs.) But the court’s ruling is especially helpful as it rejected what, at bottom, was a “gotcha” argument by the plaintiffs. The ruling provides citable court precedent and a clear set of facts agencies can rely upon in evaluating whether off-agenda discussions remain within Brown Act requirements.
In the author’s opinion, the key to the result of this case was that the city council focused its discussion on the logistics of considering a matter at a future meeting. The council was careful not to delve into the merits of the issue, but instead discussed only when and how the matter should be addressed. Although it took the council six minutes to decide how to proceed, this amount of time was not determinative. What mattered was that the council kept its discussion to a procedural nature.