County Officers Who Did Not Collectively Deliberate Over Agreements Did Not Violate Brown Act

Category: Client Update
Date: Oct 20, 2014 01:43 PM

The County of Los Angeles enters into Social Program Agreements (SPAs) with social service organizations that provide social services to county residents.  In 1990, the County Board of Supervisors (Board) formally delegated authority to the County's Chief Administrative Officer (now the County CEO) to execute contracts and agreements as may be necessary to implement social programs that meet the social needs of the County's population.  In 1992, the Board ordered that the County CEO's contracting authority only be exercised when countersigned by the Auditor-Controller and the Board's Executive Officer.  In addition, though not specifically ordered by the Board, every SPA is reviewed and signed by the County Counsel. 

The Executive Officer, upon receipt of a request for funding from one of the offices of the individual Supervisors, analyzes the request and conducts research to determine whether fulfilling the request would serve a social need.  The Executive Officer only discusses the request with the office of the Supervisor that submitted the request.  If the Executive Officer determines that fulfilling the request would satisfy a social need of County residents, it prepares the SPA and forwards it to County Counsel for review.

County Counsel analyzes the SPA to determine whether it complies with the law.  If the SPA complies with the law, County Counsel returns the SPA to the Executive Officer.  The Executive Officer then sends the SPA to the requesting organization for signature.  Once the Executive Officer receives the signed SPA, it forwards the SPA to the Auditor-Controller for approval.  If the Auditor-Controller approves of the SPA, it signs and returns the SPA to the Executive Officer.  The Executive Officer executes the SPA and sends it to the County CEO for final approval.  Once the County CEO signs the SPA and returns it to the Executive Officer, the Auditor-Controller issues a check to the recipient organization.   

Robert Glen Golightly, a taxpayer, filed suit against the County and five members of the County Board of Supervisors (collectively referred to as the County), alleging that the County "secretly uses public funds" to enter into SPAs with social service providers in violation of the Brown Act, and that the County improperly delegated decisionmaking authority to County officials to enter into SPAs.  The County moved for summary judgment, which the court granted.  Golightly appealed, and the Court of Appeal affirmed.   

The Brown Act, Government Code section 54950 et seq., declares that all meetings of a local agency's legislative body "shall be open and public."  The Brown Act contains numerous definitions of "legislative body," including a "commission, committee, board, or other body of a local agency, whether permanent or temporary, decisionmaking or advisory, created by charter, ordinance, resolution, or formal action of a legislative body."  The Brown Act has been interpreted as applying to collective action or decisionmaking, whether that action takes the form of a collective decision, collective commitment or promise, or an actual vote by a majority of legislative body members.  While the Act applies to informal deliberative action, it does not apply to the action of one public official because the action of one official is not a meeting within the terms of the act.

Here, the Executive Officer, County Counsel, Auditor-Controller, and the County CEO individually scrutinize and approve or deny the SPA.  They review in sequence, and only for the issues within each officer's purview.  Because the four officials do not constitute a legislative body and do not collectively deliberate whether to approve a SPA, the Brown Act does not apply, and Golightly's claim that the County was violating the Brown Act was meritless.  

The Court of Appeal also rejected Golightly's claim that the County improperly delegated authority.  Government Code section 26227 states that the board of supervisors of any county may appropriate and expend money to meet the social needs of the population.  However, nothing prohibits a board of supervisors from delegating this authority.  In fact, Government Code section 23005 states that a board of supervisors may exercise its powers through agents and officers acting under its authority, and courts have long recognized that delegation is essential in order for legislative bodies to function.  Delegation of legislative power is only unconstitutional when a legislative body gives an administrative agency unrestricted authority to make fundamental policy decisions. 

Here, the officials are not making fundamental policy decisions.  They are merely executing SPAs and utilizing appropriated funds.  The Board has retained its budgeting authority, and has set up adequate safeguards for the SPA approval process.  Therefore, the Board properly delegated authority to the County CEO to enter into SPAs. 

Golightly's cause of action for waste of public funds was based on the assumption that the County was violating the Brown Act.  Because the Court held that the County was not violating the Brown Act, it also held that the waste claim was meritless.  The Court of Appeal thus affirmed the trial court's grant of summary judgment in favor of the County. 

Note:

The Court's holding, i.e., that the sequential review of an agreement by four different officials did not implicate the Brown Act, should not be misunderstood.  The Court noted that "the intent of the Brown Act cannot be avoided by subterfuge; a concerted plan to engage in collective deliberation on public business through a series of letters or telephone calls passing from one member of the governing body to the next would violate the open meeting requirement."  The issue is not whether the members of a legislative body are in one room.  If that were the case, any board or council could avoid the mandates of the Brown Act by making all of its decisions via email or teleconference.  Rather, the issue is whether any "collective deliberation" is taking place.  In Golightly, the officials were not attempting to reach a collective concurrence; they were individually analyzing different issues.  For instance, the County Counsel analyzed whether the SPA complied with the law, and the Executive Officer analyzed whether the SPA met a social need.  Accordingly, even if the four signatories could be considered a "committee" under the Brown Act, because they were performing distinct functions, not collectively deliberating, the Brown Act did not apply. 

Golightly v. Molina (2014) __ Cal.App.4th __ [2014 WL 4756948].

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