Wednesday, June 1, 2016
Alleged Brown Act-Violations Case Is Reinstated
By a MetNews Staff Writer
The Fourth District Court of Appeal has revived an action against the City of San Diego over alleged violations by the City Council of the Ralph M. Brown Act, rejecting the contention that the matter is moot because the city has changed its practice.
Yet, the opinion by Justice Judith McConnell points out, without a judicial determination, the city could reinstate its prior practice.
The action was brought by the Center for Local Government Accountability which contends the city breached the provision of the Brown Act which requires a public comment period during which matters may be raised that are not on the agenda. The City Council meets on Mondays and Tuesdays, and only permitted public comment on Tuesday, at the end of what it denominated a single two-day meeting.
San Diego Superior Court Judge Gregory W. Pollack sustained a demurrer without leave to amend, and the center appealed from the ensuing judgment of dismissal.
Addressing the matter of mootness, McConnell said:
“At oral argument, the Center’s counsel was unable to articulate facts suggesting a reasonable expectation the City would pass another ordinance resuming its former practice. Nonetheless, the City’s counsel acknowledged the change in the City’s practice for handling nonagenda public comment periods did not equate to a change in the City’s legal position. The City stills [sic] consider its two-day regular weekly meetings to be one continuous meeting, rather than two separate meetings, for Brown Act purposes. The City also has not conceded its former practice of allowing only one nonagenda public comment period violated the Brown Act. Thus, the Center may be able to at least plead a viable claim for declaratory relief.”
At issue in the case was an interpretation of a provision of the Brown Act that says “any interested person may commence an action by mandamus, injunction, or declaratory relief…to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body, or to determine the applicability of this chapter to past actions of the legislative body, subject to Section 54960.2.”
Sec. 54960.2 requires that a party present a “cease and desist letter” prior to bringing an action. It was uncontested that the center had not served such a letter.
The city contended that the action was barred in light of that omission. The center countered that the words “subject to Section 54960.2” apply only to the words immediately preceding, “past actions of the legislative body,” and that its complaint focused on “ongoing actions or threatened future actions.”
McConnell declared that the words “past actions” are “peppered throughout section 54960.2, unambiguously limits the applicability of section 54960.2’s preconditions to litigation challenging past actions.”
“This limitation and our obligation to harmonize the various parts of a statutory enactment effectively precludes the interpretation of the qualifying phrase the City advocates. Rather, it compels an interpretation mandating compliance with the preconditions in section 54960.2 only for litigation to determine the Brown Act’s applicability to past actions of a legislative body.”
The jurist added that the city’s “continued adherence to a long-standing ordinance providing for one nonagenda public comment period over the course of its two-day regular weekly meetings constitutes an ongoing or threatened future action, not a past action.”
The case is Center for Local Government Accountability v. City of San Diego, D068432.
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