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C.A. Orders Publication of Decision on Access by Public to Late-Filed Board Documents
By a MetNews Staff Writer
The Third District Court of Appeal yesterday ordered publication of the portion of its Aug. 24 decision in which it held that merely emailing a late document to the county clerk—whose office provides public access to written materials pertaining to the Board of Supervisors’ agenda items—did not meet a requirement of the Brown Act where the transmission took place at a time when the office was closed.
Remaining unpublished as section of the opinion in which the majority said that the agenda for the meeting in question did not adequately describe the matter to be discussed, but that reversal of a judgment denying a petition for a writ of mandate sought by Sierra Watch, a pro-conservation group, was not necessary based on that defect. Also not certified for publication is the concurring opinion by Presiding Justice Vance W. Raye in which he expressed disagreement that the description was faulty.
The major issue was whether there was compliance with Government Code §54957.5(b), a part of the Ralph M. Brown Act, which provides:
“If a writing that is a public record…that relates to an agenda item for an open session of a regular meeting of the legislative body of a local agency, is distributed less than 72 hours prior to that meeting, the writing shall be made available for public inspection…at the time the writing is distributed to all, or a majority of all, of the members of the body.”
It specifies that the writing is to be made “available for public inspection at a public office or location that the agency shall designate for this purpose.”
After-Hours Emailing
The Clerk’s Office was so designated, but was closed for the day when a memo from Placer County Counsel Karin Schwab was received. It related to a proposed 94-acre resort is planned for a previously developed area of what was known as “Squaw Valley” when it was the site of the Olympic Games in 1960, and is now denominated Olympic Valley.
The matter was on the next morning’s board agenda,
Writing for the majority, Justice Coleman Blease said:
“Section 54957.5 is not, as respondents believe, merely concerned with the time a record is placed in a location allowing for public inspection; it is instead principally concerned with the time a record is actually available for public inspection. That is plain from the statutory text. Per section 54957.5, subdivision (b)(1), ‘the writing shall be made available for public inspection...at the time the writing is distributed to all, or a majority of all, of the members of the [board].’ (Italics added.) In this case, the County distributed the Schwab Memorandum to the Board around 5:40 p.m. on November 14, 2016. The question for us, then, is whether the memorandum was ‘available for public inspection . . . at th[at] time.’ It was not.”
Not ‘Absurd’
While the county insisted such a holding would be absurd, Blease declared “we do not find that result so absurd that we must override the plain meaning of the statutory language requiring records to be ‘available for public inspection...at the time’ they are distributed to the board.”
An Aug. 26 METNEWS report on the opinion observed:
“Although the opinion was apparently one of first impression and could affect procedures of cities, counties, and districts throughout the state if accorded precedential value, it was not certified for publication when filed on Tuesday.”
Publication was requested on Sept. 13 by Sierra Watch and by Richard Hopp.
The case is Sierra Watch v. Placer County (Squaw Valley Real Estate), 2021 S.O.S. 5282.
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