A recent exchange between Californians Aware and a San Diego area school board shows how a Brown Act remedy can be used to stop practices the challenger believes to violate the letter of the Act, or at least its spirit, in a process relatively prompt and inexpensive for both sides.
As noted here just before the cease and desist demand was added to the Act’s enforcement arsenal in 2012, Government Code section 54960.1 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 the delay, cost or uncertainty of a lawsuit.
Under this approach, either the district attorney or anyone else can send a local board, council or commission a “cease and desist” letter specifying an act or omission believed to violate one or more requirements of the Brown Act, and demanding that the body commit not to repeat it. The demand letter can 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:
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In the event that this commitment is rescinded, you will have the right to commence legal action pursuant to subdivision (a) of Section 54960 of the Government Code.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 demand provides such a response, approved at an open session of a regular or special meeting as a separate item not part of the consent agenda, a lawsuit seeking a judge’s declaration that the body had violated the Brown Act will be barred.
If the body does not respond to this effect within 30 days of the challenge, the challenger has 60 days to file the judicial declaration lawsuit. If the body provides an unconditional commitment after the 30-day period expires and the challenger has already filed the action, the action will be dismissed with prejudice, but the challenger will be entitled to attorney fees and costs incurred in the litigation to date, if the court concludes that the filing of the action caused the body to make the unconditional commitment.
The body can rescind its commitment if it does 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.”
Finally, If the body simply reneges on an unconditional commitment by repeating a practice it had pledged not to, that event will be deemed 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 will not even be an issue in any civil or criminal action.
As an example, CalAware sent a March 19 demand letter to the then board president of the Cajon Valley Union School District, based on complaints from a local reporter and a disfavored board trustee. The practices CalAware alleged to be unlawful were three:
- Refusal to permit inspection and/or copying of audiotape recordings made by the District of open and public meetings of the Board of Education.
- Destruction of audiotape recordings made by the District of open and public meetings of the Board of Education—subsequent to a Public Records Act request for them—within the 30-day retention period specified in Section 54953.5 (b).
- Preventing a trustee from asking questions of staff during a meeting concerning items on the agenda.
While denying that the challenged practices were Brown Act violations, the district’s lawyer sent CalAware a letter received May 1 stating,
At the Board meeting on Tuesday, April 30, 2019, the Governing Board voted in open session to confirm Board Member Otero’s letter to you stating that the District will unconditionally commit to cease, desist from, and not repeat any of the alleged Brown Act violations asserted in your letter of March 19, 2019.