Tuesday, August 30, 2011
A.G. Rejects Private Tour of Water Facility for City Officials
Harris Cites Brown Act, Says Visit Must Be Noticed and Open to Public for Council Members to Attend
By KENNETH OFGANG, Staff Writer
A majority of the members of a city council cannot take an invitation-only tour of a water-district facility outside the city, Attorney General Kamala Harris has opined.
The attorney general, in an opinion released late Friday, said such attendance would constitute a closed meeting of the council, in violation of the Ralph M. Brown Act. Council members may tour such facilities, even if outside the city, if the visit is open to the public and noticed as a meeting, Harris said.
The attorney general was responding to a request by Sen. Carol Liu, D-La Canada Flintridge, for the opinion. Liu explained that the council members, whose city is part of a Southern California water district, had been invited to tour the facility, located near the Sacramento Delta, but were concerned about the possibility of a Brown Act violation.
That concern was well-placed, Harris said in an opinion prepared by Deputy Attorney General Marc Nolan.
The Brown Act defines a “meeting” as “any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location . . . to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.”
Under that definition, Harris emphasized, a session that is part of the body’s deliberative process is a meeting even if no action is taken.
“For example, a session between a school board and a consortium of three real estate brokers in which the board garnered information about the brokers’ qualifications to perform future services constituted a ‘meeting’ for Brown Act purposes, even though the board did not commit to retain any of the brokers,” the attorney general explained, citing Rowen v. Santa Clara Unified Sch. Dist. (1981) 121 Cal. App. 3d 231.
The council could participate in the tour by giving meeting notice, Harris went on to say, under one of the exceptions to the general rule that a meeting must take place within the territory for which the body serves
Government Code Sec. 54954(b)(2) allows an extraterritorial meeting so that a local legislative body may “[i]nspect real or personal property which cannot be conveniently brought within the boundaries of the territory over which the local agency exercises jurisdiction provided that the topic of the meeting is limited to items directly related to the real or personal property.”
This exception, Harris wrote, is a limitation on public access and must be interpreted narrowly under Proposition 59. But the proposed tour appears to fit within a narrow construction of the statute, she said.
“We believe it is reasonable to assume that a tour of public facilities by a group of interested public officials amounts to an inspection of the facilities, as that term is commonly understood,” she wrote. “And, undoubtedly, the water facilities ‘cannot be conveniently brought’ from their Northern California location either to the city or to any of the other Southern California local agency members of the water district.”
She emphasized, however, that the event “would need to be conducted as a noticed and public meeting pertaining only to the facilities being inspected.”
The opinion is No. 10-702.
Copyright 2011, Metropolitan News Company