Opinion Says Non-Privileged Documents Generated by Local Officials May Not Be Transmitted to Lawmakers at Any Hour When the Office at Which Members of the Public May View Such Documents Is Closed
By a MetNews Staff Writer
A Brown Act requirement that last-minute documents provided to members of a local legislative body in connection with an agenda item be made “available” contemporaneously to the public was violated, the Third District Court of Appeal has declared, when a memo was emailed to a county clerk, whose office furnishes documents to the public, at a time when that office was closed, yet was immediately forwarded to supervisors.
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.
Justice Coleman Blease authored the majority opinion, joined in by Justice Elana Duarte. Presiding Justice Vance W. Raye concurred in the proposition that the document in a question—a memo from Placer County Counsel Karin Schwab announcing an agreement among county officials, developers and the Office of Attorney General in connection with a project—was not made public by merely providing it to the Clerk’s Office, but disagreed with another aspect of Blease’s opinion.
The 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.
In a separate opinion Tuesday, the Third District reversed a judgment denying a petition for a writ of mandate, ordering that the county comply with the California Environmental Quality Act (“CEQA”) by conducting a more extensive review than it has of the environmental impact of the project, including the effects on nearby Lake Tahoe.
Primarily in issue in the case was the meaning of Government Code §54957.5(b), a part of the Ralph M. Brown Act, which contains “open meetings” requirements for local government agencies. The provision says:
“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.”
That section 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.”
The agenda item was a call by the county’s Planning Commission for approval of a development agreement, opposed by conservationists, entailing construction of high-rise hotels and condominiums and a 90,000 square-foot recreation center. Schwab’s memo told of an accord that had just been reached entailing terms different from those approved by the commission.
On Nov. 14, 2016, at 5:36 p.m., Schwab emailed her memo and an updated agreement to Ryan Ronco, then the appointed interim county clerk (elected to the post by voters in 2018); Ronco relayed the documents to the members of the county’s Board of Supervisors at 5:42 p.m. that day; the county lawmakers approved the revised at the next day’s meeting.
When the county declined a request by Sierra Watch, a non-profit pro-conservation group, to set aside its approval in light of asserted Brown Act violations, the organization sought a writ of mandate in the Placer Superior Court seeking a writ of mandate and declaratory relief.
Judge Michael Jones on July 6, 2018 awarded judgment to the county, following a bench trial. He reasoned that documents are “available” to the public when they are placed in the office where the public may view documents, even though the office is closed at that moment.
In Tuesday’s majority opinion, reversing the judgment, 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.”
Blease spelled out:
“[T]he Schwab Memorandum was not available for public inspection at the County clerk’s office around 5:40 p.m. on November 14, 2016—the time the memorandum was distributed to the Board. It instead was first available for public inspection at the clerk’s office a day later, when the clerk’s office reopened. The County violated section 54957.5 as a result.”
The county protested that such a view would lead to “absurd results.” One such result, it contended was that if materials became ready for distribution, they could not be provided to members of the Board of Supervisors until the next business day, meaning that a report that was completed at 6 p.m. on a Friday could not be shared with county lawmakers until Monday morning.
That could be easily solved, Sierra Watch suggested, by the county merely posting the materials on its website as they became available.
“But we are not so sure,” Blease said of that proposed solution.
“Section 54957.5 does not say agencies may make records available at a physical location or alternatively post the records online….The statute instead says agencies ‘shall’ make records available at a physical location and ‘also may’ post the records online.”
This does mean that distribution to supervisors must be delayed, the jurist acknowledged, adding:
“But even so, 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.”
Another absurdity alleged by the county was that opponents of a proposed measure could force delay of a consideration of it by emailing supervisors after hours. Blease commented:
“Suppose that in the middle of the night before every meeting, a member of the public e-mails all board members comments concerning an item on the board’s agenda. Strictly construing section 54957.5, those e-mails arguably would need to ‘be made available for public inspection’ at the county’s office ‘at the time’ they were sent to the board members. But it of course would be absurd to expect the county to remain open and staff its office to allow public inspection of documents in the middle of the night.”
That, the county argued, renders its interpretation of the statute the more reasonable one.
Blease said that a quandary was presented, but declared:
“We need not decide this issue today, which unlike our case, concerns the conduct of those outside a county’s control.”
Sierra Watch alleged that the county also violated Government Code §54954.2(a)(1), which provides:
“At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting….”
Jones found no violation; Blease and Duarte did.
Blease said the supervisors “only considered a version of the agreement that the Planning Commission had never considered, even though the agenda indicated that the Board would consider the agreement that the commission had actually considered,” concluding that “the Board’s agenda was, as a result of this change, rendered inaccurate and misleading.”
Nonetheless, he said, premature submission of materials to the supervisors did not warrant an invalidation of the project approval, and the misleading nature of the agenda item description did not prejudice Sierra Watch to such an extent as to warrant invalidation. Invalidation did come, however, in a separate opinion, based on inadequacy of the environmental impact report.
Presiding Justice Vance W. Raye concurred in the result reached in the Brown Act case but, in a separate opinion, indicated that he disagreed that the agenda provided inadequate notice, explaining:
“Even with the amendment the development agreement fit the ‘general description’ set forth in the agenda. Perhaps if we treated agendas like pleadings we could assert there was a material variance but agendas are not that. If the public was misled, it was not because of the agenda but because the materials made available to them in advance of the meeting were incomplete and did not accurately describe the plan.”
That case is Sierra Watch v. Placer County, C087892.
In Sierra Watch v. Placer County, C088130, the Third District, in an opinion by Blease, directed the Placer Superior Court to grant a writ of mandate “specifying those actions the County must take to comply with CEQA.”
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