Limited Discussion of Non-Agendized Items

Category: Business & Facilities
Date: Nov 3, 2016 02:16 PM
Five Culver City residents sued the City for violating the City’s open meeting law, the Brown Act. The residents alleged the City Council discussed a change to parking restrictions even though it was not on the agenda and took action on that issue when the Council decided the new challenge to those restrictions could proceed as an appeal of an earlier denial by city staff members.

The parking restrictions were imposed in 1982. In 2004, the Council adopted an ordinance for preferential parking zones throughout the City. In 2013, the Council adopted regulations for the establishment of preferential parking/residential parking permit zones and delegated to a “Traffic Committee” comprised of city staff members the ability to administer and implement those regulations.

In April 2014, a lawyer for Grace Lutheran Church sent a letter to the city traffic analyst seeking information about the application process for a change to the existing 2013 parking restrictions. The analyst responded that the city engineer could not act on such request because non-residents could not seek modification of the restrictions. On August 1, 2014, the church sent a letter to Councilmember Andrew Weissman complaining about this response. At the Council’s next meeting, Weissman mentioned the church’s letter during the portion of the meeting set aside for the receipt and filing of correspondence from the public. Following a six-minute discussion, the church’s request was placed on the agenda for the next council meeting on September 8, 2014.

In November 2014, the five residents claimed the Council had discussed the church’s letter by acting upon it by placing it on the agenda for the next meeting even though the 2013 regulations did not provide for such action.

The City brought an anti-SLAPP motion under California Code of Civil Procedure section 425.16 seeking to dismiss the action because the City’s alleged misconduct arose from First Amendment activity. Section 425.16 was enacted to address a sharp rise in the number of lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The trial court undertakes a two step process when considering an anti-SLAPP motion. First, it determines whether the challenged action arises from protected activity. If so, the trial court must then determine whether the plaintiff has shown a probability of prevailing on the claim.

The Brown Act requires most meetings of a local agency’s legislative body be open to the public for attendance by all. Among its provisions, the Brown Act requires that an agenda be posted at least 72 hours before a regular meeting and forbids action on any item not on that agenda. However, there are three exceptions to the agenda requirement. Even if an item is not on the agenda, members of the legislative body may (1) briefly respond to statements made or questions posed by persons exercising their public testimony rights, (2) in response to questions posed by the public, a member of the legislative body may ask a question for clarification, make a brief announcement or make a brief report on his or her activities and (3) a member of the legislative body may provide a reference to staff for factual information, request staff to report back to the body at a later date or take action to direct staff to place a matter of business on a future agenda.

The parties conceded that the City’s statements concerning the parking restrictions and its direction to place the issue on a future agenda were forms of protected activity under the First Amendment. The Court of Appeal then held that it was not probable that the citizens would prevail on the merits. The Court concluded that Weisman did no more than ask for clarification as to the appropriate avenue of response to the church’s letter and the matter was placed on a future agenda, thus satisfying one of the three exceptions under the Brown Act.

Cruz v. City of Culver City
(2016) 2 Cal.App.5th 239.

In addition to properly agendizing meeting items, employers must ensure that any discussion of an item that is not agendized falls within one of the narrow exceptions to the Brown Act. We recommend that a legislative body consult legal counsel regarding how to properly agendize items and for assistance with determining whether and to what extent an issue that is not on an agenda can be discussed.
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