Tuesday, January 26, 2016
A.G. Opines on Brown Act Web Posting Requirement
Harris Says Web Glitch Will Not Prevent Meeting if 72-Hour Notice Mandate Has Been Substantially Complied With
By KENNETH OFGANG, Staff Writer
A public agency that has substantially complied with the Ralph M. Brown Act will not be deemed to have met illegally if third-party Internet problems result in its agenda becoming inaccessible during the 72-hour notice period mandated by the act, Attorney General Kamala Harris has opined.
The Brown Act, which establishes open meeting requirements for local legislative bodies throughout the state, requires those entities to, among other things, post their agendas in a place accessible to the public for a continuous 72 hours prior to the meeting. Local governments are not required to maintain web sites, but if they do, the agenda must be posted on the site for the 72-hour period.
That requirement prompted Assembly member Kevin Mullin, D-San Mateo, to ask the attorney general whether a meeting would have to be postponed if the agenda became unavailable online during a portion of that period for reasons beyond the control of the agency, such as a power failure or cyber attack.
Harris, in an opinion made public Friday, said a meeting could proceed as scheduled under those circumstances, as long as the agency has substantially complied with the act.
The attorney general acknowledged that there is no authority applying the substantial- compliance doctrine to the act’s online or traditional posting requirements. But the doctrine has been applied to analogous rules, and applying it to the situation postulated by Mullin would be consistent with the public interest, Harris said.
Harris cited North Pacifica LLC v. California Coastal Commission (2008) 166 Cal.App.4th 1416, a case brought under the Bagley-Keene Act, which is Brown Act’s counterpart applicable to meetings of state boards and commissions.
Neither act expressly recognizes the substantial compliance doctrine as applicable to its notice requirements. But the North Pacific court held that the commission did not violate the act by meeting as scheduled, in a case where all of the statutory requirements were met except for the fact that notice of the meeting was mailed to an interested party eight days before the meeting instead of the 10 days specified by the act.
The commission, the court said, had acted in good faith and “in a manner that was consistent with the open meeting objectives of the Bagley-Keene Act and thereby substantially complied with the Act’s notice requirements.”
Harris also cited a recent case applying the doctrine to the Brown Act’s requirements that the agenda explain the agency’s reasons for closing any portion of the meeting to the public. In Castaic Lake Water Agency v. Newhall County Water District (2015) 238 Cal.App.4th 1196, the court cited North Pacifica in holding that an agenda item that stated the district would be meeting in closed session with its legal counsel to discuss potential litigation, but cited the wrong subdivision of the Government Code section authorizing the closed session, substantially complied with the act.
Based on those cases, the attorney general said, “we believe the relevant inquiry is not whether there has been a technical violation of the Brown Act’s online-posting requirement, but rather whether the local legislative body substantially complied with that requirement.”
To hold otherwise, she said, would be contrary to the public interest because it would discourage local governments from maintaining web sites, or require that meetings be “rescheduled because of trivial website issues, resulting in significant practical problems for both the agencies and the public.”
In a footnote, however, Harris suggested that if a technical glitch creates actual confusion as to whether a meeting will be held or what actions might be taken, the better practice would be to postpone the session.
The opinion is No. 14-1203 and was prepared by Deputy Attorney General Anya M. Binsacca.
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