Ralph M. Brown Act Amended To Require Cease And Desist Letter Before Bringing A Challenge To A Past Action of A Legislative Body

November 2, 2012 | Bulletin No. 1013399.2

Senate Bill 1003 (‘SB 1003”) amends the Ralph M. Brown Act (“Brown Act”), which generally requires the legislative bodies of local public agencies to hold open meetings.  The Brown Act requires that “[a]ll meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except,” as specifically provided in the Brown Act.  The Brown Act currently provides that a district attorney or other interested person may commence an action to stop or prevent violations or threatened violations of the open meeting laws or to determine the applicability of the laws to the actions or threatened future actions of a legislative body.

SB 1003 amends the Brown Act and adds section 54960.2 to the Government Code, which prohibits a district attorney or any interested person from filing an action to determine the applicability of the Brown Act to past actions of a legislative body unless the following conditions are met:  (1) the district attorney or interested person submits a cease and desist letter that clearly describes past action of the legislative body and the nature of the alleged violation, and (2) within 30 days from receipt of the letter, the legislative body fails to issue “an unconditional commitment to cease, desist from, and not repeat the past action that is alleged to violate” the Brown Act. 

The cease and desist letter must be submitted to the legislative body within nine months of the alleged violation, by mail or facsimile.  The unconditional commitment from the legislative body must be in substantially the same form as the example provided in the newly added section 54960.2(c)(1).  The unconditional commitment must be approved by the legislative body in open session at a regular or special meeting as a separate item of business. 

An action may not be brought to challenge a past action of the legislative body where the legislative body has provided an unconditional commitment to cease and desist and not repeat the past action.  If a court determines during an action seeking a judicial determination about the applicability of the Brown Act to a past action that the legislative body has provided an unconditional commitment, the court must dismiss the action with prejudice.  However, nothing in SB 1003 should affect the ability of the district attorney or any interested person to bring an action to determine the applicability of the Brown Act to ongoing actions or threatened future actions of the legislative body.

When an action brought to determine the applicability of the Brown Act to past actions of a legislative body is dismissed with prejudice because a legislative body has provided an unconditional commitment to cease and desist from the alleged past action “at any time after the 30-day period for making such a commitment has expired, the court shall award court costs and reasonable attorney fees to the plaintiff if the filing of that action caused the legislative body to issue the unconditional commitment.” 

The fact that a legislative body provides an unconditional commitment shall not be construed or admissible as evidence of a violation of the Brown Act.  A legislative body that wishes to rescind a commitment to cease and desist must do so by a majority vote of the membership of the legislative body. 

The provisions of SB 1003 become effective on January 1, 2013, and will not apply to a legislative body’s past action that occurred before January 1, 2013.

What This Means To You

SB 1003 amends the Brown Act to provide a cause of action for alleged past violations, upon notice to the legislative body and an opportunity to respond.  The cease and desist letter, pursuant to SB 1003, is in addition to the traditional cure or correct remedy, which continues to exist under the Brown Act.  Public agencies should familiarize themselves with the new requirements, which include prescribed timelines for presenting allegations to the legislative body, and for the legislative body to respond.

Questions

If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Jeffrey L. Massey, Christian M. Keiner or Meghan Covert Russell | 916.321.4500