Metropolitan News-Enterprise


Monday, November 7, 2011


Page 1


C.A. Upholds Denial of Relief in Brown Act Suit Against Board

Justices Say There Is No Remedy When Allegedly Illegal Practice Has Been ‘Suspended’




A court cannot grant relief for a violation of the Ralph M. Brown Act if the defendant has ceased the allegedly illegal practice, the Fifth District Court of Appeal has ruled.

The court, in an unpublished opinion, last week affirmed Tulare Superior Court Judge Melinda M. Reed’s ruling denying a petition for writ of mandate and declaratory relief brought against the Tulare Board of Supervisors. The petitioners were open government advocate Richard P. McKee, now deceased, and the parent company of the Visalia Times-Delta newspaper.

The petition followed the newspaper’s discovery that over the first seven months of 2009, a majority of the five-member board had been present at 30 meals, paid for by the county, with 11 of those gatherings taking place the day before a regular board meeting and three on days that board meetings were scheduled, but cancelled.

‘To Build Collegiality’

The newspaper’s account included a quote from one supervisor indicating that the gatherings were “meetings” and were “important to build collegiality.” That led McKee, the founding president of Californians Aware and the plaintiff in numerous Brown Act suits over the years, to advise the board that it was in violation of the act and demand that the board discontinue discussing business outside of noticed meetings.

The Brown Act generally prohibits city councils, county boards, and other local government bodies from transacting or discussing government businesses outside of properly noticed meetings. Any gathering at which a majority of the members of such a body is present is generally subject to the act, as is a “serial meeting”—a series of discussions of an item of business among a majority of the body’s members, even if a majority is not present during any particular discussion.

The board chairman responded to McKee that the meals were “work-related” but did not violate the act, and reiterated that the meals were intended to foster “collegial relationships” among supervisors. The issues discussed, he said, might be “of common interest” while “outside the subject matter jurisdiction of the Board as a whole,” including “such matters as the official activities of individual supervisors, travel planning, and management of the individual Supervisors’ offices.”

Four days later, however, the board approved a resolution declaring that it would “suspend its practice of eating together as a group of three or more members” until a formal policy on the issue is adopted.

Board Demurs

The petitioners sought a declaration that the past luncheons violated the Brown Act, along with a writ of mandate directing the board to comply with the act in the future. The board demurred on the ground that the amended petition, which acknowledged the board resolution on its face, failed to state a cause of action.

The judge sustained the demurrer and dismissed the action, saying the meeting did not concern “items of importance concerning collective decision making related to the public’s business.”

In concluding that no cause of action was stated, Justice Donald Franson Jr., writing Wednesday for the Court of Appeal, cited Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, which construed the Bagley-Keene Open Meetings Act—which is analogous to the Brown Act, but applies to state, rather than local, bodies—as precluding a grant of relief with respect to prior acts.

No Comparable Amendment

In a footnote, Franson acknowledged that the Bagley-Keene Act was subsequently amended to permit declaratory relief pertaining to past actions of state bodies. But there has been no comparable amendment to the Brown Act, he noted.

Because they acknowledge that the lunches have been suspended, the justice said, the petitioners do not allege a “present” violation of the act and thus have no right to relief. Franson distinguished Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, in which the court held that the petitioners’ objections to past meeting practices of the city council were not moot.

The council in Shapiro, the justice noted, gave no indication it would change the objected-to practices, whereas the Tulare board had affirmatively suspended the lunches.

McKee was represented on appeal by his daughter, LaVerne attorney Kelly Aviles, and by Dennis Winston of Marina del Rey.

The case is McKee v. Tulare County Board of Supervisors, F061146.


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