SB 1003 by Senator Leland Yee (D-San Francisco), signed into law last Friday by Governor Jerry Brown, offers a way for local government bodies to avoid litigation by pledging to abandon meeting-related practices that prompt accusations of Brown Act violations–without conceding that they are unlawful. It also gives citizens the opportunity to demand and achieve such changes without having to file a lawsuit.

The bill was introduced in response to an unpublished opinion of the Fifth District Court of Appeal (McKee v. Tulare County Board of Supervisors) holding that past actions or practices of a local legislative body that were not persisting into the present could not be the basis for mandatory, injunctive or declaratory relief under Government Code Section 54960.

As introduced, the bill would have simply added the word “past” to the section, to allow such remedies “to determine the applicability of this chapter to past actions or threatened future action of the legislative body.” That would have brought the Brown Act in conformity with the Bagley-Keene Open Meeting Law, which already takes this approach.

But the League of California Cities and an array of other local government lobbies typically active on Brown Act measures argued that such a change would expose them to an unreasonably open-ended period of liability. They negotiated a more limited but also more complicated alternative with the co-sponsors of the bill, the California Newspaper Publishers Association (a party to the unsuccessful Fifth District action) and Californians Aware (whose founding president, the late Richard McKee, was the original plaintiff in the Fifth District action).

The resulting law, effective January 1, provides dual actions “to determine the applicability” of the Brown Act: one with respect to “ongoing actions or threatened future action” by the body (essentially the existing approach), and the other concerning one or more past actions, where “action” means not only the “action taken” susceptible to a nullification lawsuit under Section 54960.1 but any practice suspected of violating any provision of the Act.

Cease and Desist Letter and Response
Under the latter novel procedure, the district attorney or anyone else would be authorized to send the body a “cease and desist” letter specifying an act or omission occurring on or after January 1, 2013 believed to violate one or more requirements of the Brown Act and demanding that the body commit not to repeat it. That letter could be sent at any time within nine months of the alleged violation.

On receipt of the cease and desist letter the body would have 30 days to respond with the following “unconditional commitment” as set forth in the statute:

To ______________________:

The name of legislative body] has received your cease and desist letter dated [date] alleging that the following described past action of the legislative body violates the Ralph M. Brown Act:

[Describe alleged past action, as set forth in the cease and desist letter]

In order to avoid unnecessary litigation and without admitting any violation of the Ralph M. Brown Act, the [name of legislative body] hereby unconditionally commits that it will cease, desist from, and not repeat the challenged past action as described above.

The [name of legislative body] may rescind this commitment only by a majority vote of its membership taken in open session at a regular meeting and noticed on its posted agenda as “Rescission of Brown Act Commitment.” You will be provided with written notice, sent by any means or media you provide in response to this message, to whatever address or addresses you specify, of any intention to consider rescinding this commitment at least 30 days before any such regular meeting. In the event that this commitment is rescinded, you will have the right to commence legal action pursuant to subdivision (a) of Section 54960 of the Government Code. That notice will be delivered to you by the same means as this commitment, or may be mailed to an address that you have designated in writing.

Very truly yours,
________________________________________________
[Chairperson or acting chairperson of the legislative body]

If the body within 30 days of receiving the cease and desist letter provided such a response, approved at an open session of a regular or special meeting as a separate item not part of the consent agenda, an action under Section 54960 would be barred.

If the body did not respond to this effect within 30 days of the challenge, the challenger would have 60 days to file the Section 54960 action. If the body provided an unconditional commitment after the 30-day period expired and the challenger had already filed the action, the action would be dismissed with prejudice, but the challenger would be entitled to attorney fees and costs incurred in the litigation to date if the court concluded that the filing of the action caused the body to make the unconditional commitment.

Formal Withdrawal of Unconditional Commitment
The body could rescind its commitment if it did so formally and conspicuously, at an open session of a regular or special meeting, as a separate item not part of the consent agenda, after at least 30 days written notice to the challenger—and to the district attorney—of its intention to do so.

The rescission would entitle the district attorney or anyone else—not just the original challenger—to consider the alleged violation to be impending and to file an action to “prevent(. . .) a violation or threatened future violation.”

Breach of Unconditional Commitment
But if the body reneged on an unconditional commitment by repeating a practice it had pledged not to, that event would be an independent violation of the Brown Act, with potential civil and even criminal consequences, regardless of the validity of the practice under the Brown Act otherwise; that validity would not even be an issue in any civil or criminal action.

_______________________________________________

TIMELINES

Date X ————————Legislative body acts or omits to act in a certain manner.

X+9 months—————— Last day for challenger to submit cease and desist letter.

X+9 months + 30 days—— Last day for body to respond with commitment to cease.

X+9 months+ 30 days+ 60 days—— Last day for challenger to file action in court.

Shortest possible duration of process to filing of action: X+1day approx. (challenge letter)+2 days approx. (rejection of challenge letter approved in special meeting) +1 day approx. (action filed)
Total: Less than a week

Longest possible duration: X+9 months (challenge letter)+30 days (rejection of challenge letter approved in special meeting) + 60 days (action filed)
Total: One year