Thursday, November 2, 2006
C.A. Revives Brown Act Suit Over Council Members’ Private Talks
By KENNETH OFGANG, Staff Writer
Allegations that council members in the Bay Area city of Fremont had private discussions about a new police department policy on burglar alarm responses were sufficient to plead a violation of the Ralph M. Brown Act, the First District Court of Appeal has ruled.
Div. One Tuesday reinstated a suit by Fremont resident J. Dennis Wolfe. While the city manager and police chief were improperly named as defendants, Wolfe may proceed against the city and the individual council members, the court held.
Under the new “verified response” policy, Wolfe alleged, the police would not respond to activated home alarms unless an “acceptable reason” for the alarm was verified by a third party. The plaintiff claimed that the city manager “met individually and privately with a majority of the members of the City Council” in order to enlist support for the new policy, which was apparently implemented without intervention by the council.
Wolfe also alleged that after word of the policy became public, the council scheduled the item for discussion at a regular meeting, at which the city manager allegedly acknowledged the individual meetings with council members and one council member allegedly said that the members had expressed their support for the policy before the meeting.
Wolfe further claimed that the city manager makes it a general practice to meet “serially and individually with a majority of the members of the City Council” to discuss matters that will, or may, be considered at subsequent meetings.
Alameda Superior Court Judge James Richman—later elevated to the Court of Appeal—ruled that none of the alleged conduct violated the Brown Act and sustained a demurrer.
But Justice Sandra Margulies, writing for the Court of Appeal, said the complaint sufficiently alleged that the defendants had used an “evasive device” to avoid the requirement that council business be conducted in public in the absence of a statutory exception.
The justice cited Stockton Newspapers, Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95, in which the court held that the complaint, alleging that a series of phone calls by a local agency’s counsel to individual board members were intended to result in a commitment to take certain action on a pending matter, stated a cause of action for violation of the Brown Act.
The substance of that holding, Margulies noted, was incorporated into the act by a 1993 amendment providing in part that members of a local legislative body may not use “direct communication, personal intermediaries, or technological devices” as a means for “a majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the members of the legislative body.”
Based on that language, the justice reasoned, meetings between the city manager and individual council members to discuss the policy did not violate the Brown Act if they were “mere policy-related informational exchanges.” Because Wolfe did not allege that the city manager was acting as a go-between, communicating members’ views to each other, or that he was seeking to forge a secret consensus among the members, that portion of the suit was properly dismissed, Margulies said.
The justice also concluded, however, that the statements allegedly made by council members when the issue was taken up publicly created an inference that a decision not to interfere with the new policy had been taken in advance.
“While we are unwilling to infer that [City Manager Fred] Diaz was sharing views among the council members in the absence of an affirmative allegation of such conduct, we have no similar reluctance when council members hold discussions among themselves,” the justice wrote. “These allegations lead directly to the inference that the council members had reached their consensus through the nonpublic discussions that occurred among them, thereby violating the act. Supporting this inference is the council members’ decision to have [Police Chief Craig] Steckler address them at the February meeting in advance of the public comment period, an action that creates the impression of a concerted effort to shape public perceptions of the new policy.”
The justice added a caveat that the court had not considered Wolfe’s allegations of a general practice of conducting “serial meetings.” Brown Act violations must be alleged with specificity, she wrote.
The case is Wolfe v. City of Fremont, 00 S.O.S. 5799.
Copyright 2006, Metropolitan News Company