December 29, 2009
Contact: Kimberly Starr, people email@example.com
Eureka City Council’s Secret Agenda-
CLEAR VIOLATION of the BROWN ACT
On Tuesday, December 1, 2009, the Eureka City Counsel generated, in closed session, a plan to shut down the PEOPLE PROJECT Safe Sleep Zone protest at City Hall.
At that time, the protest, which provided a safe haven for many unsheltered people, had been going on for almost 30 nights. Earlier in the day of Tuesday Dec 1, 2009, City Manager, Mr. David Tyson, informed a participant in the protest that the Council would probably address the protest in the closed session that evening. In addition, EPD Chief Nielsen told the media that the protest would likely address it during the Tuesday closed session. After downloading the agendas for the open and closed sessions for that night, I made two phone calls- leaving a detailed message for Mr. Tyson and speaking directly with a woman Eureka City Clerk. I pointed out that there was nothing on either Tuesday night agenda which referenced the protest at City Hall;
and that if it were to be discussed at either meeting by the City Council, the Council would be violating open meeting acts (namely, the Brown Act).
Sure enough, later on Tuesday, the City Council devised a plan in closed session, had failed to agendize it, and then failed to bring its decisions to the open meeting that evening. Whether the entire discussion was appropriate for a closed session, according to the Brown Act, is the first question that should be examined. Moreover, however, the City Council was in clear violation of the Brown Act due to its secret agenda and decision-making. The City Council began implementing the ill-gotten decisions several days later.
Below are some excerpts from media articles wherein City officials are quoted referencing the Tuesday night decision(s). Below those excerpts are pertinent parts of the Ralph M. Brown Act. The Humboldt County District Attorney,both Mr. Paul Gallegos and Deputy DA Ms. Autumn Renshaw, have been informed of such crimes against transparency.
On Wednesday, December 30, 2009, I will be in Humboldt Superior Court, fighting criminal charges arising from the large City action on December 6, 2009 at City Hall. Two motions are set to be heard: a suppression motion (which involves an evidentiary hearing) and a motion to compel discovery- both filed by me, the defense.
End the Criminalization of Homelessness.
–Kimberly L. Starr
Bagley-Keene Open Meeting Act Preamble, Section 11120 and Brown Act Preamble, Section 54950
It is the public policy of this state that public agencies exist to aid in the conduct of the people’s business and the proceedings of public agencies be conducted openly so that the public may remain informed. In enacting this article the Legislature finds and declares that it is the intent of the law that actions of state agencies be taken openly and that their deliberation be conducted openly. The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
[EXCERPTS FROM EUREKA TIMES-STANDARD]
Tent city: Issues with Eureka City Hall campers may go before council
Donna Tam/The Times-Standard
Posted: 11/28/2009 01:24:11 AM PST
Eureka Police Chief Garr Nielsen said the department has been receiving calls from city employees about the overnighters, an issue that will probably go before the council on Tuesday. In addition to the parking spots, there have been some concerns over sanitation.
”Essentially it’s a policy decision on the part of the council, and the police department will act on the wishes of the council,” he said.
Eureka breaks up city hall parking lot encampment
Donna Tam/The Times-Standard
Harpham said arrangements were made with the Rescue Mission in case any of the occupants needed an alternative location to sleep overnight.
City Manager David Tyson said the encampment was beginning to impact city staff’s ability to access the parking lot, and was starting to disturb neighbors.
Chief Garr Nielsen said last month that the no-camping code would not be enforced as long as no problems occurred. He said police set up barricades and put up notices Thursday announcing that EPD would be enforcing the no-camping code.
On Sunday night, about a dozen people chose to stay after a meal served by the People Project. Authorities waited until 9 p.m. to begin enforcement to allow those who came for just the meal to leave.
Tyson said employees were also concerned about having their parking spaces blocked after leaving the office in the evenings and being accosted in the lot. Their concerns were discussed last week in a closed session City Council meeting regarding potential litigation.
Homeless encampments temporarily set up at Eureka City Hall parking lot
Donna Tam/The Times-Standard
Despite laws that prohibit such behavior, the city says it’s not going to stop the camping as long as the campers keep a low profile.
BELOW ARE EXCERPTS FROM THE RALPH M. BROWN ACT:
[HERE is a link to the First Amendment Project‘s guide to the open meeting laws of the Brown Act: https://peopleproject.files.wordpress.com/2010/01/brown-act-brochure-dec-03.pdf]
NOTICE AND AGENDA REQUIREMENTS
4. Closed Sessions
There are three types of “notice” obligations that accompany the conduct of a closed-session as a part of a duly noticed meeting. First, each item to be transacted or discussed in a closed session must be briefly described on an agenda for the meeting. (§ 54954.2(a).) Second, prior to adjourning into closed session, a representative of the legislative body must orally announce the items to be discussed in closed session. (§ 54957.7(a).) This requirement may be satisfied by merely referring to the relevant portion of the written agenda for the meeting. However, the Act contains specific additional requirements for closed sessions regarding pending litigation where the body believes it is subject to a significant exposure to potential litigation. (§ 54956.9(b)(3).) Third, once the closed session has been completed, the agency must reconvene in open session, where it may be required to report votes and actions taken in closed session.
(§ 54957.1.) These requirements are discussed in detail below.
A. Agenda Requirement
At least 72 hours prior to each regular meeting, legislative bodies must prepare an agenda containing a brief general description of each item to be transacted or discussed, including items which will be handled in closed session. (§ 54954.2(a).) A description of each item generally need not exceed 20 words, although the description must be sufficient to provide interested persons with an understanding of the subject matter which will be considered. (Carlson v. Paradise Unified School Dist. (1971) 18
Cal.App.3d 196, 200.) In the case of pending litigation, the legislative body must make
reference in the agenda or publicly announce the specific subsection of section 54956.9
under which the closed session is being held. (§ 54956.9(c).)
B. Oral Announcement Prior to Closed Sessions
In addition to the agenda requirement for regular and special meetings, the Act requires
a representative of the legislative body to orally announce the items to be discussed in
closed session prior to any closed-session meeting. (§ 54957.7(a).) This requirement may be satisfied by referring to the item by number as it appears on the agenda. However, such a referral usually would not be sufficient in the case of a closed session
concerning significant exposure to litigation.
Pursuant to section 54956.9, a closed session may be conducted in order to permit an
agency to receive advice from its legal counsel. When the impetus for such a closed
session is the agency’s exposure to potential litigation, the Act carefully regulates the
circumstances under which a closed session may be called, and the types of announcement which must accompany such a meeting. (§ 54956.9(b)(3).) These
required disclosures may be made as a part of the written agenda or as a part of the oral announcement made prior to any closed session. These requirements do not mandate disclosure of privileged communications exempt from disclosure under the Public Records Act. (§ 54956.9(b)(3)(F).) A summary of the disclosure requirements surrounding closed sessions based on an agency’s exposure to potential litigation is set
• Where the agency believes that facts creating significant exposure to litigation are not known to potential plaintiffs, the facts need not be disclosed. (§ 54956.9(b)(3)(A).)
• Where facts (e.g., an accident, disaster, incident, or transaction) creating
significant exposure to litigation are known to potential plaintiffs, the
facts must be publicly stated on the agenda or announced. (§ 54956.9(b)(3)(B).)
• Where the agency receives a claim or other written communication threatening litigation, reference to the claim or communication must be publicly stated on the agenda or announced, and the claim or communication must be available for public inspection pursuant to section 54957.5. (§ 54956.9(b)(3)(C).)
• Where a person makes a statement in an open and public meeting threatening litigation, reference to the statement must be publicly stated on the agenda or announced. (§ 54956.9(b)(3)(D).)
• Where a person makes a statement outside of an open and public meeting threatening litigation, the agency may not conduct a closed session unless an agency official having knowledge of the threat makes a contemporaneous or other record of the statement prior to the meeting. Reference to the statement must be publicly stated on the agenda or announced, and the record must be available for public inspection pursuant to section 54957.5. However, the record, or the disclosable part thereof, need not identify the alleged victim of unlawful or tortious sexual conduct or anyone making a threat on their behalf, or identify a public employee who is the alleged perpetrator of any such
conduct, unless the identity of the person has been publicly disclosed.
C. Report at the Conclusion of Closed Sessions
Once a closed session has been completed, the legislative body must convene in open
session. (§ 54957.7(b).) If the legislative body took final action in the closed session,
the body may be required to make a report of the action taken and the vote thereon to
the public at the open session. (§ 54957.1(a).) The report may be made either orally
or in writing. (§ 54957.1(b).) In the case of a contract or settlement of a lawsuit,copies of the document also must be disclosed as soon as possible. (§ 54957.1(b) and (c).) If final action is contingent upon another party, the legislative body is under no obligation to release a report about the closed session. Once the other party has acted, making the decision final, the legislative body is under an obligation to respond to inquiries for information by providing a report of the action. (§ 54957.1(a).)
RIGHTS OF THE PUBLIC
Under the Brown Act, a member of the public can attend a meeting of a legislative body without having to register or give other information as a condition of attendance. (§ 54953.3; see also 27 Ops.Cal.Atty.Gen. 123 (1956).) If a register, questionnaire or similar document is posted or circulated at a meeting, it must clearly state that completion of the document is voluntary and not a precondition for attendance. (§ 54953.3.) A legislative body may not prohibit any person attending an open meeting from video recording, audio recording or broadcasting the proceedings, absent a reasonable finding that such activity would constitute a disruption of the proceedings. (§§ 54953.5, 54953.6; Nevens v. City of Chino (1965) 233 Cal.App.2d 775, 779; see also § 6091.)
Under the Act, the public is guaranteed the right to provide testimony at any regular or special meeting on any subject which will be considered by the legislative body before or during its consideration of the item. (§ 54954.3(a).) In 80 Ops.Cal.Atty.Gen. 247, 248-252 (1997), this office concluded under a similar provision in the Bagley-Keene Act that the public’s right to comment on all agenda items applied to quasi-judicial proceedings as well as quasi-legislative proceedings. In addition, the public has the right at every regular meeting to provide testimony on any matter under the legislative body’s jurisdiction. (§ 54954.3(a).) However, this office concluded that a body could prohibit a member of the public from speaking on a matter that was outside the jurisdiction of the body. (78 Ops.Cal.Atty.Gen. 224, 230 (1995).)
Members of the public who make written requests for documents which were finally approved in a closed session generally may receive copies of such documents at the conclusion of the meeting. (§ 54957.1(b).) This right to obtain documents does not include documents which are exempt from disclosure pursuant to section 6254 of the Public Records Act. (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 370-373; Cal.Atty.Gen., Indexed Letter, No. IL 77-67 (April 28, 1977).) Pursuant to section 6253(c), a fee equal to the direct cost of duplication may be charged to any person requesting a copy of a public record. (§ 54957.5(c)); North County Parents Organization for Children with Special Needs v. California Department of Education (1994) 23 Cal.App.4th 144, 147-148.) In the North County case, the court indicated that a pro rata share of equipment and conceivably personnel expenses directly involved in actually duplicating a record could be included in calculating the fee. However, research and retrieval costs may not be included in the fee. Thus, the direct cost of actually photocopying a record may be recovered, but associated costs such as the cost of research, redaction and retrieval may not be recovered.
In addition, members of the public may request in writing that the agenda or all of the documents comprising the meeting packet be mailed to them for a cost not to exceed the actual cost of providing the service. (§ 54954.1.) Upon receipt of such a written request, the agency shall mail the requested documents, provided that they are not exempt from disclosure pursuant to section 6254, to the requester at the time the agenda is posted or when the documents are provided to a majority of the members of the legislative body, whichever occurs first. The request must be renewed annually and failure of the requester to receive such documents does not invalidate any action which was the subject of the records.
PERMISSIBLE CLOSED SESSIONS
A. Narrow Construction
Under the Brown Act, closed sessions must be expressly authorized by explicit statutory provisions. Prior to the enactment of section 54962, the courts and this office had recognized impliedly authorized justifications for closed sessions. (Sutter Sensible Planning, Inc. v. Board of Supervisors (1981) 122 Cal.App.3d 813; Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41.) However, that legislation made it clear that closed sessions cannot be conducted unless they are expressly authorized by statute. Although confidential communication privileges continue to exist in other statutes such as the Public Records Act and Evidence Code section 1040, these provisions no longer can impliedly authorize a closed session.
Since closed sessions are an exception to open meeting requirements, the authority for such sessions has been narrowly construed. The law evinces a strong bias in favor of open meetings, and court decisions and opinions of this office have buttressed that legislative intent. (§ 54950.) The fact that material may be sensitive, embarrassing or controversial does not justify application of a closed session unless it is authorized by some specific exception. (Rowen v. Santa Clara Unified School District (1981) 121 Cal.App.3d 231, 235.) Rather, in many circumstances these characteristics may be further evidence of the need for public scrutiny and participation in discussing such matters. (See Civ. Code, § 47(b) [regarding privileged publication of defamatory remarks in a legislative proceeding].)
In 61 Ops.Cal.Atty.Gen. 220, 226 (1978), we concluded that meetings of the Board of Police Commissioners could not, as a general proposition, be held in closed session, even though the matters to be discussed were sensitive and the commission considered their disclosure contrary to the public interest.
D. Confidentiality of Closed Session
Section 54963 provides that a person may not disclose confidential information that has been acquired by attending a proper closed session to a person not entitled to receive it, unless the disclosure is authorized by the legislative body.
For purposes of this section, “confidential information” means a communication made in a closed session that is specifically related to the basis for the legislative body to meet lawfully in closed session.
If this prohibition is violated, it may be enforced by relying upon current available legal
remedies including the following:
• Injunctive relief to prevent the disclosure of confidential information.
• Disciplinary action against an employee who has willfully disclosed confidential information in violation of this prohibition. Such disciplinary action must be first preceded by training or notice of the prohibition.
• Referral of a member of a legislative body who has willfully disclosed confidential information to the grand jury.
However, section 54963 provides that no action may be taken against a person for any
• Making a confidential inquiry or complaint to a district attorney or grand jury concerning a perceived violation of law, including disclosing facts that are necessary to establish the illegality of an action taken by a legislative body or the potential illegality of an action that has been the subject of deliberation at a closed session if that action were ultimately to be taken by the legislative body.
• Expressing an opinion concerning the propriety or legality of actions taken by a legislative body in closed session, including disclosure of the nature and extent of the illegal or potentially illegal action.
• Disclosing information acquired by being present in a closed session that is not confidential information.
• Disclosing information under the whistle blower statutes contained in Labor Code section 1102.5 or Government Code section 53296.
2. Authorized Exceptions
All closed sessions must be conducted pursuant to expressly authorized statutory exceptions.
(§ 54962.) As stated previously, the closed session exception to open meeting laws has been narrowly construed by the courts.
PENALTIES AND REMEDIES FOR VIOLATION OF THE ACT
If a person or member of the media believes a violation of open meeting laws has occurred or is about to occur, he or she may wish to contact the local body, the attorney for that body, a superior agency or the district attorney. If such contacts are not successful in resolving the concerns, the complainant may wish to consider one of the remedies or penalties provided by the Legislature to combat violations of the Act. These include criminal penalties, civil injunctive relief and the award of attorney’s fees.
In addition, with certain statutory exceptions, actions taken in violation of the Brown Act may be declared null and void by a court.
1. Criminal Penalties
The Act provides criminal misdemeanor penalties for certain violations. Specifically, the Act punishes attendance by a member of a body at a meeting where action is taken in violation of the Act, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled. (§ 54959.) The term “action taken” as defined by section 54952.6 includes a collective decision, commitment or promise by a majority of the members of a body. The fact that the decision is tentative rather than final does not shield participants from criminal liability; whether “action”within the meaning of the statute was taken would be a factual question in each case. (61 Ops.Cal.Atty.Gen. 283, 292- 293 (1978).) Mere deliberation without the taking of some action will not trigger a criminal penalty.
2. Civil Remedies
A. Injunctive, Mandatory or Declaratory Relief
The Act provides two distinct types of civil remedies:
(1) Injunction, mandamus or declaratory relief to prevent or stop violations or threatened violations. (§ 54960.)
(2) Action to void past acts of the body. (§ 54960.1.)
These remedies are discussed in turn below.
The district attorney or any interested person also may seek injunctive, mandatory or
declaratory relief in a superior court. (§ 54960.) An “interested person” may include,
in addition to the public, a public entity or its officers. Unlike the criminal remedy, these civil remedies do not require that the body take action or that the members act with a specific intent to deprive the public of information to which the members know that the public is entitled.
In granting complainants the power to seek injunctive, mandatory or declaratory relief,
the Legislature indicated on the face of the statute that such remedies were available
to stop or prevent violations of the Act. (§ 54960.) This point was reiterated by the
California Supreme Court in the case of Regents of the University of California v.
Superior Court (1999) 20 Cal.4th 509, 522, where it concluded that these remedies were not available to redress the past actions of a body. However, with respect to state agencies, the Legislature quickly acted to supersede this interpretation. (See § 11130.) A body may not always announce its intended action so as to give rise to an action for injunctive, mandatory or declaratory relief. Under these circumstances, the plaintiff may seek to support its case by demonstrating that a pattern of past conduct indicates the existence of present or future violations. (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904; Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.) Alternatively, the body may seek to demonstrate that there is a current controversy that is evidenced by past practices of the body, and the body has not renunciated such practices. (CAUSE v. City of San Diego (1997) 56 Cal.App.4th 1024, 1029.) The court indicated that since the city would not admit to a violation it was likely that the current practices would continue. The court in Common Cause v. Stirling (1983) 147 Cal.App.3d 518, 524, concluded that courts may presume that a municipality will continue similar practices in light of the city attorney’s refusal to admit the violation.
Where a legislative body has committed a violation of the Act concerning the conduct of closed sessions subject to the Act, a court may order the body to tape record future closed sessions pursuant to the procedures set forth in section 54960(b).
The Act specifically provides that before a suit can be initiated, the complainant must
make within 90 days a written demand to the board to cure or correct the violation, unless the action was taken in an open session but in violation of section 54954.2 (agenda requirements), in which case the written demand shall be made within 30 days from the date the action was taken. (§ 54960.1(c)(1); County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 978; Bell v. Vista Unified School Dist.(2000) 82 Cal.App.4th 672, 684.) The Act further provides that if the board refuses or fails to cure or correct a violation of sections 54953, 54954.2, 54954.5, 54954.6, 54956 or 54956.5 within 30 days from receipt of the written demand, the complainant may file a suit to have the action adjudged null and void. (§ 54960.1(c)(3).) Suits under this section must be brought within 15 days after receipt of the body’s decision to cure or correct, or not to cure or correct; or 15 days after the expiration of the 30-day period for the body to cure or correct — whichever is earlier. (§ 54960.1(c)(4); see Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1117, fn. 5.) Once an action is challenged, a body nevertheless may cure or correct that action without prejudice and, where a lawsuit has been filed, may have the suit dismissed. (§ 54960.1(e); see Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109; Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 685.) Since a violation may be cured or corrected after a lawsuit has been filed, the plaintiff need not wait for an answer to its demand that a body cure or correct an action before filing suit. (See Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672 [where the demand and the lawsuit were filed on the same day].)
B. Voidability of Action
Either interested persons or the district attorney may seek to have actions taken in
violation of the Act declared null and void by a court. (§ 54960.1.) In Boyle v. City
of Redondo Beach (1999) 70 Cal.App.4th 1109, 1118, the court ruled that merely
conferring with and giving direction to staff, where no vote was taken and no decision
made, did not constitute action that could be adjudged null and void.