Brown Act Committee Exception on Public Comment May Not Apply to Special Meetings
by Steven Graham on February 27, 2019
“If you will it, it is no dream…”
In an unpublished opinion filed on February 22, 2019, the California Court of Appeal for the Second District held that the City of Los Angeles violated the Brown Act when the Los Angeles City Council prevented a member of the public from commenting on real estate development at a special meeting. At issue was the application of the so-called “committee exception” to the requirement that members of the public be allowed to address the legislative body “before or during” its deliberations on an item of business.
In 2015, a Los Angeles City Council committee held a public meeting to consider a real estate development. At that meeting, the committee received public comments, including from Eric Preven, who lived near the development. After public comment and deliberations, the committee voted unanimously to make a report and recommendation to the full City Council. At a special meeting called for the next day, the full City Council considered the report and recommendation. The City Council did not, however, receive public comment. In declining to receive public comment, the Los Angeles City Council relied on the so-called “committee exception.”
Under the “committee exception,” a legislative body is not required to receive public comment on an item when:
(1) The item has already been considered by a committee made up exclusively of members of the legislative body at a public meeting;
(2) All interested members of the public had an opportunity to speak on the item before or during the committee’s consideration of the item; and
(3) The item has not substantially changed.
The Court, after analyzing the plain language and legislative history of Government Code section 54954.3(a), held that the “committee exception” only applies to regular meetings of a legislative body. Special meetings, like the meeting held by the Los Angeles City Council, require that the legislative body take public comments “before or during” its deliberations on any item on the agenda, even items that meet the requirements of the “committee exception.”
The Court also considered the City’s argument that the City Council had substantially complied with the Brown Act because by taking public comment at the committee meeting, the City Council had received public comment “before or during” deliberations on the item. The Court rejected this argument as an overbroad interpretation of Section 54954.3(a), holding that to do so would in effect extend the “committee exception” to special meetings, which would render the express regular meeting “committee exception” language of Section 54954.3(a) superfluous and unnecessary. The City also attempted to analogize the facts in this case to those in Chaffee v. San Francisco Library Commission (2004) 115 Cal.App.4th 461, 468, where the San Francisco Library Commission received public comment only once during a single meeting lasting multiple days. The Court distinguished the two cases, holding that while in Chaffee the legislative body considered an item over multiple days, it did so at a single meeting with the same members. On the other hand, in this case, the committee was not composed of same members as the city council and there were two separate meetings.
While the decision of the Second District is unpublished, and the City of Los Angeles is still considering whether to appeal the decision, local agencies subject to the Brown Act should consider whether their policies on taking public comment at special meetings are compliant with the Brown Act.