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presence on social media such as Facebook, Twitter, Instagram, etc. City staff are responsible for maintaining the City’s official social media accounts in accordance with City policy. Recommendations by Councilmembers on topics to be posted to the City’s social media sites should be directed to the City Manager for consideration. Such recommendations should be limited to topics/events with Citywide benefit, interest, or impact.
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Chapter 14
Council Compensation, Professional Development,
and Communications
Sections:
14.1 Council Compensation
14.2 Reimbursement of City-Related Expenses
14.3 Professional Development
14.4 Attendance at Local Meetings and Community Events
14.5 Council Communications
14.1 Council Compensation
All provisions of the Government Code relating to compensation, benefits and reimbursement of expenses applicable to members of a city council of a general law city are applicable to the Council. The current Councilmember stipend is $440 per month (pursuant to the Government Code), and some benefits applicable to City staff are also applicable to Councilmembers.
14.1.1 Budget
The annual City budget includes appropriations for the monthly Council stipend and for expenses necessary for Councilmembers to undertake official City business (refer to Department 401-City Council of the City budget).
14.2 Reimbursement of City-Related Expenses
Councilmembers are eligible to receive reimbursement for expenses directly related to their duties as Councilmembers. Mileage reimbursement is tied to the current IRS approved rate.
14.3 Professional Development
The Council has adopted a policy (see Appendix G) setting forth the procedures for reimbursement of approved travel expenses as defined in the policy. Such travel may be associated with attendance at conferences, meetings and training for purposes of improving understanding and proficiency in municipal affairs and/or legislative operations.
14.4 Attendance at Local Meetings and Community Events
During the course of a year, the Council as a whole or individual Councilmembers may receive multiple invitations to a host of local meetings and community events for which event registration fees are required for attendance. With that in mind, the Council has adopted a budget to accommodate such expenses as well as Professional Development activities discussed in Section 14.3 (City Budget Account No. 001-401-60710 – “Travel and Training”). Questions regarding the
14 - 2
current status of this budget may be directed to the Finance Director or the City Manager.
14.5 Council Communications
14.5.1 Processing of Mail
All incoming mail addressed to the Mayor and Councilmembers will be handled by Staff in the following manner.
14.5.2 Distribution of Mail
It is the practice of the staff to distribute correspondence to the Council in a timely manner. All paper mail initially received is date stamped and reviewed by staff to ensure that matters of an urgent nature are immediately brought to the attention of the City Manager for appropriate action. All mail is then appropriately sorted, reviewed by the City Manager and/or placed in the Council’s in-basket on the day it is received.
14.5.3 Paper and Electronic Mail, Public Record
Both paper and electronic mail addressed to Councilmembers and delivered to City Hall, or any other City facility, or via any City equipment, account, or network, is presumed to be a public record, subject to retention and disclosure requirements as set forth in the California Public Records Act, unless an express legal exemption or privilege applies. The California Public Records Act also potentially applies to City-related communications that are sent, received, or stored on private electronic devices used by a Councilmember or a City employee.
14.5.4 “Private, Personal, Confidential” Mail
Any paper mail addressed to an individual Councilmember and marked “private,” “personal” or “confidential” will be date stamped on the envelope or package and logged in by staff in a manner that records the date of receipt, method of delivery, sender (if reflected on the face of the envelope or package received), and recipient.
The original will then be placed in the addressee’s City mailbox unopened. If mail has not been retrieved from the Councilmember’s mailbox within two business days, the staff will contact the Councilmember alerting him/her of this mail.
Changes to this process may be amended, with the City Council’s consent, when safety concerns exist.
14.5.5 Access to Communications/Technology
It is the practice of the City to provide each Councilmember with equal and appropriate communications and technological devices to facilitate their public service. At the present time and as noted below, the City makes available laptop computers and City telephone system accounts for use by Councilmembers.
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However, as technology advances in the future, the City may make available other communication devices from time to time that are designed to enhance the Council’s effectiveness and responsiveness in their roles as elected officials.
14.5.6 Internet Access
Councilmembers are authorized to use the City internet connection, which includes a City e-mail account, for the purpose of conducting City business and communicating with the public. Councilmembers have access to the City e-mail system that allows e-mail communications internal to the City and with others via the Internet. E-mail correspondence sent and received by Councilmembers via the City website generally are public records and subject to disclosure.
14.5.7 IT Support Responsibilities
The City’s staff and consultants are available to assist Councilmembers regarding the use of cellular telephones, e-mail, syncing of electronic calendars, etc.
14.5.8 Responding to Citizen Complaints
From time to time, the Council as a whole receives communications, inquiries, and complaints in the form of letters and/or e-mails. In such situations, it is important that the City respond in a consistent and unified basis, and in such situations the City Manager will work with the Mayor to determine the most appropriate response.
In general, Councilmembers are discouraged from responding directly to inquiries or complaints sent to the Council as a whole without first coordinating with the City Manager’s office to ensure a unified response and to prevent dual efforts in the event the City Manager is already preparing a response.
If a Councilmember receives an inquiry or a complaint and desires that it be addressed by staff, it is recommended the Councilmember bring the matter to the attention of the City Manager to ensure that the matter is known and that appropriate action is taken by staff.
14.5.9 Correspondence from Councilmembers
Councilmembers are occasionally called upon to write letters to citizens, businesses, or other public agencies. Typically, the Mayor is charged with transmitting the City’s position on policy matters to outside agencies on behalf of the Council. However, from time to time individual Councilmembers will prepare letters for constituents in response to inquiries, or to provide requested information.
City letterhead is available for this purpose, and the City Manager will assist in the preparation of such correspondence, if desired.
On occasion, Councilmembers may wish to correspond on an issue on which the Council as a whole has yet to take a position, or about an issue for which the Council has taken no official position. In these circumstances, Councilmembers should clearly and carefully indicate that they are not speaking for the Council as
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a whole, but for themselves as one member of the Council. City letterhead may be utilized in such circumstances.
Appendix A
10 Tips for Creating a More Effective City
Council-City Attorney Relationship
WESTERN CITY MAGAZINE
10 Tips for Creating a More Effective City
Council-City Attorney Relationship
by Michele Beal Bagneris
City attorneys have a unique role in working with city councils, especially in light of the attorney’s ethical and other obligations. Unlike the city manager, the city attorney often does not have daily interaction with council members, and the council’s primary interaction with the city attorney is in city council meetings. The city council-city attorney relationship works best when there is open communication, mutual respect and trust. This article offers 10 tips to help council members create a more effective relationship with their city attorney.
1. Remember — the city is the client. The council majority gives direction on behalf of the city. The city attorney represents the city as a whole, and the city attorney’s ethical obligations to the city are set out in the State Bar of California’s Rules for Professional Conduct. If the council’s direction to the city attorney conflicts with the city attorney’s ethical obligations to the city, the city attorney must resolve this conflict in favor of the city. The city attorney’s duty of loyalty and confidentiality is owed to the city and the council as a whole, rather than to an individual. Keep in mind that information a council member shares with the city attorney is not confidential with respect to other council members, and the information may be disclosed to the entire council.
The council majority provides the primary means by which the city gives direction to the city attorney. Occasionally, when a council contains majority and minority factions, it may provide direction to the city attorney by a majority vote over the objection of the council members in the minority. Once the council has reached a policy decision, the city attorney is bound to respect that decision unless his or her ethical obligations to the city require otherwise. Regardless, the city attorney must provide balanced legal advice to both the majority and minority factions.
2. Everyone is on the same team. When the city attorney identifies potential legal problems, it is to protect the city. Because the city attorney represents the city as a whole, he or she may sometimes be in the difficult position of informing the city council that some action the council wishes to take may be contrary to the law. In these instances, the city attorney’s role and intent is not to pass judgment about the wisdom of the council’s action, but to exercise an ethical duty to ensure
that the council fully understands the legal ramifications of its actions. If the council proceeds with the action despite the city attorney’s warnings, the city attorney has an obligation to defend the council’s action to the extent that his or her ethical obligations allow.
3. Consult the city attorney at the earliest opportunity on issues so that input can be meaningful. If an agenda item raises a legal question for you, you should ask the city attorney as soon as possible so that he or she can fully research your question, and provide a complete and accurate answer. Sometimes it’s not possible to alert your city attorney that you have a legal question beforehand, in which case it is appropriate to seek an answer during the meeting. Often the city attorney will be able to answer the question but occasionally may need to do some research first.
Council members should understand that “I don’t know the answer to that question, but I’ll research it and get back to you” may be an appropriate response.
It’s also helpful to alert the city attorney beforehand when you think you may have a conflict of interest related to an agenda item. If you raise a conflict issue just prior to or during the meeting, the city attorney may be inclined to give an overly conservative answer, particularly when the situation is complex. It is in your best interest to identify potential conflicts as early as possible, and bring conflict questions to your city attorney to allow sufficient time for adequate research.
4. Be prepared when you speak with the city attorney so the time is well spent. When consulting the city attorney, it’s important for you to clearly understand what you want from the conversation. If you’re asking about a specific fact pattern, you should try to be fully informed about the facts and communicate them to the city attorney, who may be hesitant to give a legal opinion if incomplete information requires him or her to speculate.
5. Be clear about expectations and priorities. Although differences of opinion may exist on a city council, it’s important that the council clearly communicates what is expected from the city attorney and what its priorities are. This should be done on a case-by-case basis, as well as in the context of the city attorney’s overall performance. Annual evaluations are one method the council may use to communicate its expectations and priorities. Early and frequent communication also leads to effective preventive legal advice that can save money for the city and taxpayers.
6. Give the city attorney adequate time to research issues and answer questions. The law’s complexity requires adequate time to research and answer legal questions. The council may ask the city attorney how much time he anticipates is needed to provide an answer. Or the council can suggest a deadline,
such as by a specified council meeting, and ask the city attorney whether the deadline can be met.
7. Provide legal staff with the necessary tools to do the job. Numerous tools exist to help city attorneys in their job. These include online legal research services, written legal treatises, software, adequate staffing and educational seminars and conferences, such as those conducted by the League’s City Attorneys Department. Such tools help the city attorney to more effectively provide legal support and enhance the quality and timeliness of the work product.
8. Always disclose all pertinent facts and objectives. In order to provide correct legal advice, your city attorney needs to fully understand the facts that may affect the legal analysis. It may not always be clear to a council member which facts are relevant and which are not. Your city attorney is in a better position to sift through the facts and determine their relevancy. It’s also important for your city attorney to understand the council’s ultimate policy objectives. This can ensure that the city attorney is proposing appropriate legal options that the council may consider for reaching their objectives.
9. Recognize that a concrete answer is not always possible when the law is not clear cut. Your city attorney may not always be able to give you a yes or no answer. Given the law’s complexity, common answers you will receive from your city attorney include “It depends,” “The law is unsettled in this area,” or “There is a case before the courts right now that may provide some clarification.” City councils can become impatient with these types of answers, but they do not represent timidity on your city attorney’s part or an unwillingness to take a legal stand. Simply put, legal questions don’t always have clear answers. The city attorney has an obligation to bring this complexity to the city council’s attention so that its decisions are fully informed as to the legal context. While legal complexity may make decision-making more difficult, the decisions that result will be fully informed and made with complete consideration of any potential legal risks involved.
10. Understand that the city attorney is an independent and objective legal advisor. While the city attorney can and should be involved in the policy-making process, the city attorney alone does not make city policies. The city attorney must defer to the policy decisions of the council majority. This sometimes results in the city attorney being accused of tailoring his or her opinions to support the majority at the expense of the city. In California, with the exception of 11 cities, the city attorney is not an elected position — it is appointed, and the city attorney has an obligation to support the policy objectives of the council majority to the extent legally and ethically possible.
Council members will have a more effective relationship with the city attorney when they recognize the limitations and responsibilities placed on the city attorney both legally and ethically. Having a realistic expectation of what your city attorney can and can’t do will also help the relationship. Effective communication is important; so is understanding that your city attorney may have to deliver a message you don’t like. Maintaining a good relationship with your city attorney can assist in smoothing over the occasional rough patches to the benefit of the city council, city staff and the general public.
ABOUT LEGAL NOTES
This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.
This article appears in the July 2006 issue of Western City
Appendix B
The ABCs of Open Government Laws
Open & Public V
A GUIDE TO THE RALPH M. BROWN ACT
REVISED APRIL 2016
ii OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
ACKNOWLEDGEMENTS
ACKNOWLEDGEMENTS
The League thanks the following individuals for their work on this publication:
Brown Act Committee
Michael Jenkins, Committee Chair
City Attorney, Hermosa Beach, Rolling Hills and West Hollywood Michael W. Barrett
City Attorney, Napa
Damien Brower
City Attorney, Brentwood
Ariel Pierre Calonne
City Attorney, Santa Barbara
Veronica Ramirez
Assistant City Attorney, Redwood City
Malathy Subramanian
City Attorney, Clayton and Lafayette
Paul Zarefsky
Deputy City Attorney, San Francisco
Gregory W. Stepanicich
1st Vice President, City Attorneys’ Department
City Attorney Fairfield, Mill Valley, Town of Ross
League Staff
Patrick Whitnell, General Counsel
Koreen Kelleher, Assistant General Counsel
Corrie Manning, Senior Deputy General Counsel
Alison Leary, Deputy General Counsel
Janet Leonard, Legal Assistant
Appendix C
Open & Public V: A Guide to the Ralph M.
Brown Act
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 1
Open & PublicV
A GUIDE TO THE RALPH M. BROWN ACT
REVISED APRIL 2016
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS ....................................................5 CHAPTER 2: LEGISLATIVE BODIES.................................................................11 CHAPTER 3: MEETINGS.................................................................................17 CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION ...................29 CHAPTER 5: CLOSED SESSIONS....................................................................41 CHAPTER 6: REMEDIES .................................................................................55
2 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
TABLE OF CONTENTS
TABLE OF CONTENTS
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS ..........................................5 The right of access ...................................................................................................................6 Broad coverage ........................................................................................................................6 Narrow exemptions .................................................................................................................7 Public participation in meetings ..............................................................................................7 Controversy..............................................................................................................................8 Beyond the law — good business practices............................................................................8 Achieving balance ....................................................................................................................9 Historical note ..........................................................................................................................9 CHAPTER 2: LEGISLATIVE BODIES.......................................................11 What is a “legislative body” of a local agency? ......................................................................12 What is not a “legislative body” for purposes of the Brown Act? .........................................14 CHAPTER 3: MEETINGS........................................................................17 Brown Act meetings...............................................................................................................18 Six exceptions to the meeting definition...............................................................................18 Collective briefings.................................................................................................................21 Retreats or workshops of legislative bodies..........................................................................21 Serial meetings.......................................................................................................................21 Informal gatherings ................................................................................................................24 Technological conferencing ...................................................................................................24 Location of meetings..............................................................................................................25 CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION ......29 Agendas for regular meetings................................................................................................30 Mailed agenda upon written request.....................................................................................31 Notice requirements for special meetings ............................................................................32 Notices and agendas for adjourned and continued meetings and hearings ........................32 Notice requirements for emergency meetings .....................................................................32 Notice of compensation for simultaneous or serial meetings ..............................................33 Educational agency meetings ................................................................................................33 Notice requirements for tax or assessment meetings and hearings....................................33
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 3
Non-agenda items..................................................................................................................34 Responding to the public .......................................................................................................34 The right to attend and observe meetings ............................................................................35 Records and recordings .........................................................................................................36 The public’s place on the agenda ..........................................................................................37 CHAPTER 5: CLOSED SESSIONS ..........................................................41 Agendas and reports..............................................................................................................42 Litigation.................................................................................................................................43 Real estate negotiations ........................................................................................................45 Public employment ................................................................................................................46 Labor negotiations .................................................................................................................47 Labor negotiations — school and community college districts ............................................48 Other Education Code exceptions .........................................................................................48 Joint Powers Authorities ........................................................................................................48 License applicants with criminal records ..............................................................................49 Public security........................................................................................................................49 Multijurisdictional law enforcement agency .........................................................................49 Hospital peer review and trade secrets.................................................................................49 Other legislative bases for closed session.............................................................................50 Who may attend closed sessions ..........................................................................................50 The confidentiality of closed session discussions .................................................................50 CHAPTER 6: REMEDIES ........................................................................55 Invalidation .............................................................................................................................56 Applicability to Past Actions ..................................................................................................57 Civil action to prevent future violations.................................................................................57 Costs and attorney’s fees ......................................................................................................58 Criminal complaints ...............................................................................................................58 Voluntary resolution...............................................................................................................59
4 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 5 5
Chapter 1
IT IS THE PEOPLE’S BUSINESS
The right of access.............................................................................................................. 6 Broad coverage ................................................................................................................... 6 Narrow exemptions ............................................................................................................ 7 Public participation in meetings ......................................................................................... 7 Controversy......................................................................................................................... 8 Beyond the law — good business practices ...................................................................... 8 Achieving balance............................................................................................................... 9 Historical note..................................................................................................................... 9 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
6 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS
The right of access
Two key parts of the Brown Act have not changed since its adoption in 1953. One is the Brown Act’s initial section, declaring the Legislature’s intent:
“In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.” “The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”1
The people reconfirmed that intent 50 years later in the November 2004 election by adopting Proposition 59, amending the California Constitution to include a public right of access to government information:
“The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”2 The Brown Act’s other unchanged provision is a single sentence:
“All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.”3 That one sentence is by far the most important of the entire Brown Act. If the opening is the soul, that sentence is the heart of the Brown Act.
Broad coverage
The Brown Act covers members of virtually every type of local government body, elected or appointed, decision-making or advisory. Some types of private organizations are covered, as are newly-elected members of a legislative body, even before they take office.
Similarly, meetings subject to the Brown Act are not limited to face-to-face gatherings. They also include any communication medium or device through which a majority of a legislative body Chapter 1
IT IS THE PEOPLE’S BUSINESS
PRACTICE TIP: The key to the
Brown Act is a single sentence.
In summary, all meetings shall
be open and public except
when the Brown Act authorizes
otherwise.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 7
discusses, deliberates or takes action on an item of business outside of a noticed meeting. They include meetings held from remote locations by teleconference.
New communication technologies present new Brown Act challenges. For example, common email practices of forwarding or replying to messages can easily lead to a serial meeting prohibited by the Brown Act, as can participation by members of a legislative body in an internet chatroom or blog dialogue. Communicating during meetings using electronic technology (such as laptop computers, tablets, or smart phones) may create the perception that private communications are influencing the outcome of decisions; some state legislatures have banned the practice. On the other hand, widespread cablecasting and web streaming of meetings has greatly expanded public access to the decision-making process.
Narrow exemptions
The express purpose of the Brown Act is to assure that local government agencies conduct the public’s business openly and publicly. Courts and the California Attorney General usually broadly construe the Brown Act in favor of greater public access and narrowly construe exemptions to its general rules.4
Generally, public officials should think of themselves as living in glass houses, and that they may only draw the curtains when it is in the public interest to preserve confidentiality. Closed sessions may be held only as specifically authorized by the provisions of the Brown Act itself.
The Brown Act, however, is limited to meetings among a majority of the members of multimember government bodies when the subject relates to local agency business. It does not apply to independent conduct of individual decision-makers. It does not apply to social, ceremonial, educational, and other gatherings as long as a majority of the members of a body do not discuss issues related to their local agency’s business. Meetings of temporary advisory committees — as distinguished from standing committees — made up solely of less than a quorum of a legislative body are not subject to the Brown Act.
The law does not apply to local agency staff or employees, but they may facilitate a violation by acting as a conduit for discussion, deliberation, or action by the legislative body.5 The law, on the one hand, recognizes the need of individual local officials to meet and discuss matters with their constituents. On the other hand, it requires — with certain specific exceptions to protect the community and preserve individual rights — that the decision-making process be public. Sometimes the boundary between the two is not easy to draw.
Public participation in meetings
In addition to requiring the public’s business to be conducted in open, noticed meetings, the Brown Act also extends to the public the right to participate in meetings. Individuals, lobbyists, and members of the news media possess the right to attend, record, broadcast, and participate in public meetings. The public’s participation is further enhanced by the Brown Act’s requirement that a meaningful agenda be posted in advance of meetings, by limiting discussion and action to matters listed on the agenda, and by requiring that meeting materials be made available.
Legislative bodies may, however, adopt reasonable regulations on public testimony and the conduct of public meetings, including measures to address disruptive conduct and irrelevant speech.
PRACTICE TIP: Think of the
government’s house as being
made of glass. The curtains may
be drawn only to further the
public’s interest. A local policy
on the use of laptop computers,
tablets, and smart phones during
Brown Act meetings may help
avoid problems.
8 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS
Controversy
Not surprisingly, the Brown Act has been a source of confusion and controversy since its inception.
News media and government watchdogs often argue the law is toothless, pointing out that there has never been a single criminal conviction for a violation. They often suspect that closed sessions are being misused.
Public officials complain that the Brown Act makes it difficult to respond to constituents and requires public discussions of items better discussed privately — such as why a particular person should not be appointed to a board or commission. Many elected officials find the Brown Act inconsistent with their private business experiences. Closed meetings can be more efficient; they eliminate grandstanding and promote candor. The techniques that serve well in business — the working lunch, the sharing of information through a series of phone calls or emails, the backroom conversations and compromises — are often not possible under the Brown Act.
As a matter of public policy, California (along with many other states) has concluded that there is more to be gained than lost by conducting public business in the open. Government behind closed doors may well be efficient and business-like, but it may be perceived as unresponsive and untrustworthy.
Beyond the law — good business practices
Violations of the Brown Act can lead to invalidation of an agency’s action, payment of a challenger’s attorney fees, public embarrassment, even criminal prosecution. But the Brown Act is a floor, not a ceiling for conduct of public officials. This guide is focused not only on the Brown Act as a minimum standard, but also on meeting practices or activities that, legal or not, are likely to create controversy. Problems may crop up, for example, when agenda descriptions are too brief or vague, when an informal gettogether takes on the appearance of a meeting, when an agency conducts too much of its business in closed session or discusses matters in closed session that are beyond the authorized scope, or when controversial issues arise that are not on the agenda.
The Brown Act allows a legislative body to adopt practices and requirements for greater access to meetings for itself and its subordinate committees and bodies that are more stringent than the law itself requires.6
Rather than simply restate the basic
requirements of the Brown Act, local open meeting policies should strive to anticipate and prevent problems in areas where the Brown Act does not provide full guidance. As with the adoption of any other significant policy, public comment should be solicited.
A local policy could build on these basic Brown Act goals:
A legislative body’s need to get its business done smoothly; The public’s right to participate meaningfully in meetings, and to review documents used in decision-making at a relevant point in time;
A local agency’s right to confidentially address certain negotiations, personnel matters, claims and litigation; and
The right of the press to fully understand and communicate public agency decision-making.
PRACTICE TIP: Transparency
is a foundational value for
ethical government practices.
The Brown Act is a floor, not a
ceiling, for conduct.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 9
An explicit and comprehensive public meeting and information policy, especially if reviewed periodically, can be an important element in maintaining or improving public relations. Such a policy exceeds the absolute requirements of the law — but if the law were enough, this guide would be unnecessary. A narrow legalistic approach will not avoid or resolve potential controversies. An agency should consider going beyond the law, and look at its unique circumstances and determine if there is a better way to prevent potential problems and promote public trust. At the very least, local agencies need to think about how their agendas are structured in order to make Brown Act compliance easier. They need to plan carefully to make sure public participation fits smoothly into the process.
Achieving balance
The Brown Act should be neither an excuse for hiding the ball nor a mechanism for hindering efficient and orderly meetings. The Brown Act represents a balance among the interests of constituencies whose interests do not always coincide. It calls for openness in local government, yet should allow government to function responsively and productively.
There must be both adequate notice of what discussion and action is to occur during a meeting as well as a normal degree of spontaneity in the dialogue between elected officials and their constituents.
The ability of an elected official to confer with constituents or colleagues must be balanced against the important public policy prohibiting decision-making outside of public meetings.
In the end, implementation of the Brown Act must ensure full participation of the public and preserve the integrity of the decision-making process, yet not stifle government officials and impede the effective and natural operation of government.
Historical note
In late 1951, San Francisco Chronicle reporter Mike Harris spent six weeks looking into the way local agencies conducted meetings. State law had long required that business be done in public, but Harris discovered secret meetings or caucuses were common. He wrote a 10-part series on “Your Secret Government” that ran in May and June 1952.
Out of the series came a decision to push for a new state open meeting law. Harris and Richard (Bud) Carpenter, legal counsel for the League of California Cities, drafted such a bill and Assembly Member Ralph M. Brown agreed to carry it. The Legislature passed the bill and Governor Earl Warren signed it into law in 1953.
The Ralph M. Brown Act, known as the Brown Act, has evolved under a series of amendments and court decisions, and has been the model for other open meeting laws — such as the Bagley-Keene Act, enacted in 1967 to cover state agencies.
Assembly Member Brown is best known for the open meeting law that carries his name. He was elected to the Assembly in 1942 and served 19 years, including the last three years as Speaker. He then became an appellate court justice.
PRACTICE TIP: The Brown Act
should be viewed as a tool
to facilitate the business of
local government agencies.
Local policies that go beyond
the minimum requirements
of law may help instill public
confidence and avoid problems.
10 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS
ENDNOTES:
1 California Government Code section 54950
2 California Constitution, Art. 1, section 3(b)(1)
3 California Government Code section 54953(a)
4 This principle of broad construction when it furthers public access and narrow construction if a provision limits public access is also stated in the amendment to the State’s Constitution adopted by Proposition 59 in 2004. California Constitution, Art. 1, section 3(b)(2). 5 California Government Code section 54952.2(b)(2) and (c)(1); Wolfe v. City of Fremont (2006) 144 Cal.App.4th 533
6 California Government Code section 54953.7
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT11 11 Chapter 2
LEGISLATIVE BODIES
What is a “legislative body” of a local agency? ................................................................ 12 What is not a “legislative body” for purposes of the Brown Act? .................................... 14
12 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 2: LEGISLATIVE BODIES
The Brown Act applies to the legislative bodies of local agencies. It defines “legislative body” broadly to include just about every type of decision-making body of a local agency.1 What is a “legislative body” of a local agency?
A “legislative body” includes:
The “governing body of a local agency” and certain of its subsidiary bodies; “or any other local body created by state or federal statute.”2 This
includes city councils, boards of supervisors, school boards and boards of trustees of special districts. A “local agency” is any city, county, city and county, school district, municipal corporation, successor agency to a redevelopment agency, district, political subdivision or other local public agency.3
A housing authority is a local agency under the Brown Act even though it is created by and is an agent of the state.4 The California
Attorney General has opined that air pollution control districts and regional open space districts are also covered.5
Entities created pursuant
to joint powers agreements are also local agencies within the meaning of the Brown Act.6
Newly-elected members of a legislative body who have not yet assumed office must conform to the requirements of the Brown Act as if already in office.7 Thus, meetings
between incumbents and newly-elected members of a legislative body, such as a meeting between two outgoing members and a member-elect of a five-member body, could violate the Brown Act.
Q. On the morning following the election to a five-member legislative body of a local agency, two successful candidates, neither an incumbent, meet with an incumbent member of the legislative body for a celebratory breakfast. Does this violate the Brown Act?
A. It might, and absolutely would if the conversation turns to agency business. Even though the candidates-elect have not officially been sworn in, the Brown Act applies.
If purely a social event, there is no violation but it would be preferable if others were invited to attend to avoid the appearance of impropriety. Appointed bodies — whether permanent or temporary, decision-making or advisory — including planning commissions, civil service commissions and other subsidiary committees, boards, and bodies. Volunteer groups, executive search committees, task forces, and blue ribbon committees created by formal action of the governing body are legislative bodies. When the members of two or more legislative bodies are appointed to serve on an entirely separate advisory group, the resulting body may be subject to the Chapter 2
LEGISLATIVE BODIES
PRACTICE TIP: The prudent
presumption is that an advisory
committee or task force is
subject to the Brown Act. Even
if one clearly is not, it may want
to comply with the Brown Act.
Public meetings may reduce the
possibility of misunderstandings
and controversy.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 13
Brown Act. In one reported case, a city council created a committee of two members of the city council and two members of the city planning commission to review qualifications of prospective planning commissioners and make recommendations to the council. The court held that their joint mission made them a legislative body subject to the Brown Act.
Had the two committees remained separate; and met only to exchange information and report back to their respective boards, they would have been exempt from the Brown Act.8 Standing committees of a legislative body, irrespective of their composition, which have either: (1) a continuing subject matter jurisdiction; or (2) a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body.9 Even if it comprises
less than a quorum of the governing body, a standing committee is subject to the Brown Act. For example, if a governing body creates long-term committees on budget and finance or on public safety, those are standing committees subject to the Brown Act. Further, according to the California Attorney General, function over form controls. For example, a statement by the legislative body that the advisory committee “shall not exercise continuing subject matter jurisdiction” or the fact that the committee does not have a fixed meeting schedule is not determinative.10 “Formal action” by a legislative body includes authorization given to the agency’s executive officer to appoint an advisory committee pursuant to agency-adopted policy.11
The governing body of any private organization either: (1) created by the legislative body in order to exercise authority that may lawfully be delegated by such body to a private corporation, limited liability company or other entity; or (2) that receives agency funding and whose governing board includes a member of the legislative body of the local agency appointed by the legislative body as a full voting member of the private entity’s governing board.12 These include some nonprofit corporations created by local agencies.13 If a local agency contracts with a private firm for a service (for example, payroll, janitorial, or food services), the private firm is not covered by the Brown Act.14 When a member of a legislative body sits on a board of a private organization as a private person and is not appointed by the legislative body, the board will not be subject to the Brown Act. Similarly, when the legislative body appoints someone other than one of its own members to such boards, the Brown Act does not apply. Nor does it apply when a private organization merely receives agency funding.15
Q: The local chamber of commerce is funded in part by the city. The mayor sits on the chamber’s board of directors. Is the chamber board a legislative body subject to the Brown Act?
A: Maybe. If the chamber’s governing documents require the mayor to be on the board and the city council appoints the mayor to that position, the board is a legislative body. If, however, the chamber board independently appoints the mayor to its board, or the mayor attends chamber board meetings in a purely advisory capacity, it is not.
Q: If a community college district board creates an auxiliary organization to operate a campus bookstore or cafeteria, is the board of the organization a legislative body? A: Yes. But, if the district instead contracts with a private firm to operate the bookstore or cafeteria, the Brown Act would not apply to the private firm. Certain types of hospital operators. A lessee of a hospital (or portion of a hospital) PRACTICE TIP: It can be
difficult to determine whether
a subcommittee of a body falls
into the category of a standing
committee or an exempt
temporary committee. Suppose a
committee is created to explore
the renewal of a franchise or a
topic of similarly limited scope
and duration. Is it an exempt
temporary committee or a nonexempt standing committee? The answer may depend on factors
such as how meeting schedules
are determined, the scope of the
committee’s charge, or whether
the committee exists long enough
to have “continuing jurisdiction.”
14 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 2: LEGISLATIVE BODIES
first leased under Health and Safety Code subsection 32121(p) after January 1, 1994, which exercises “material authority” delegated to it by a local agency, whether or not such lessee is organized and operated by the agency or by a delegated authority.16 What is not a “legislative body” for purposes of the Brown Act? A temporary advisory committee composed solely of less than a quorum of the legislative body that serves a limited or single purpose, that is not perpetual, and that will be dissolved once its specific task is completed is not subject to the Brown Act.17 Temporary committees are sometimes called ad hoc committees, a term not used in the Brown Act. Examples include an advisory committee composed of less than a quorum created to interview candidates for a vacant position or to meet with representatives of other entities to exchange information on a matter of concern to the agency, such as traffic congestion.18
Groups advisory to a single decision-maker or appointed by staff are not covered. The Brown Act applies only to committees created by formal action of the legislative body and not to committees created by others. A committee advising a superintendent of schools would not be covered by the Brown Act. However, the same committee, if created by formal action of the school board, would be covered.19
Q. A member of the legislative body of a local agency informally establishes an advisory committee of five residents to advise her on issues as they arise. Does the Brown Act apply to this committee?
A. No, because the committee has not been established by formal action of the legislative body.
Q. During a meeting of the city council, the council directs the city manager to form an advisory committee of residents to develop recommendations for a new ordinance. The city manager forms the committee and appoints its members; the committee is instructed to direct its recommendations to the city manager. Does the Brown Act apply to this committee?
A. Possibly, because the direction from the city council might be regarded as a formal action of the body notwithstanding that the city manager controls the committee. Individual decision makers who are not elected or appointed members of a legislative body are not covered by the Brown Act. For example, a disciplinary hearing presided over by a department head or a meeting of agency department heads are not subject to the Brown Act since such assemblies are not those of a legislative body.20 Public employees, each acting individually and not engaging in collective deliberation on a specific issue, such as the drafting and review of an agreement, do not constitute a legislative body under the Brown Act, even if the drafting and review process was established by a legislative body.21
County central committees of political parties are also not Brown Act bodies.22 ENDNOTES:
1 Taxpayers for Livable Communities v. City of Malibu (2005) 126 Cal.App.4th 1123, 1127
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 15
2 California Government Code section 54952(a) and (b)
3 California Government Code section 54951; Health and Safety Code section 34173(g) (successor agencies to former redevelopment agencies subject to the Brown Act). But see Education Code section 35147, which exempts certain school councils and school site advisory committees from the Brown Act and imposes upon them a separate set of rules.
4 Torres v. Board of Commissioners of Housing Authority of Tulare County (1979) 89 Cal.App.3d 545, 549- 550
5 71 Ops.Cal.Atty.Gen. 96 (1988); 73 Ops.Cal.Atty.Gen. 1 (1990) 6 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal.
App.4th 354, 362
7 California Government Code section 54952.1
8 Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 804-805 9 California Government Code section 54952(b)
10 79 Ops.Cal.Atty.Gen. 69 (1996)
11 Frazer v. Dixon Unified School District (1993) 18 Cal.App.4th 781, 793 12 California Government Code section 54952(c)(1). Regarding private organizations that receive local agency funding, the same rule applies to a full voting member appointed prior to February 9, 1996 who, after that date, is made a non-voting board member by the legislative body. California Government Code section 54952(c)(2)
13 California Government Code section 54952(c)(1)(A); International Longshoremen’s and Warehousemen’s Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 300; Epstein v. Hollywood Entertainment Dist. II Business Improvement District (2001) 87 Cal.App.4th 862, 876; see also 85 Ops.Cal.Atty.Gen. 55 (2002)
14 International Longshoremen’s and Warehousemen’s Union v. Los Angeles Export Terminal (1999) 69 Cal.
App.4th 287, 300 fn. 5
15 “The Brown Act, Open Meetings for Local Legislative Bodies,” California Attorney General’s Office (2003), p. 7
16 California Government Code section 54952(d)
17 California Government Code section 54952(b); see also Freedom Newspapers, Inc. v. Orange County Employees Retirement System Board of Directors (1993) 6 Cal.4th 821, 832. 18 Taxpayers for Livable Communities v. City of Malibu (2005) 126 Cal.App.4th 1123, 1129 19 56 Ops.Cal.Atty.Gen. 14, 16-17 (1973)
20 Wilson v. San Francisco Municipal Railway (1973) 29 Cal.App.3d 870, 878-879 21 Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1513 22 59 Ops.Cal.Atty.Gen. 162, 164 (1976)
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
16 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT17 17 Chapter 3
MEETINGS
Brown Act meetings ......................................................................................................... 18 Six exceptions to the meeting definition.......................................................................... 18 Collective briefings............................................................................................................ 21 Retreats or workshops of legislative bodies..................................................................... 21 Serial meetings ................................................................................................................. 21 Informal gatherings........................................................................................................... 24 Technological conferencing .............................................................................................. 24 Location of meetings ........................................................................................................ 25
18 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
The Brown Act only applies to meetings of local legislative bodies. The Brown Act defines a meeting as: “… and any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location as permitted by Section 54953, to hear, discuss, deliberate, or take any action on any item that is within the subject matter jurisdiction of the legislative body.”1
The term “meeting” is not limited to
gatherings at which action is taken but includes deliberative gatherings as well. A hearing before an individual hearing officer is not a meeting under the Brown Act because it is not a hearing before a legislative body.2 Brown Act meetings
Brown Act meetings include a legislative body’s regular meetings, special meetings, emergency meetings, and adjourned meetings.
“Regular meetings” are meetings occurring at the dates, times, and location set by resolution, ordinance, or other formal action by the legislative body and are subject to 72- hour posting requirements.3
“Special meetings” are meetings called by the presiding officer or majority of the legislative body to discuss only discrete items on the agenda under the Brown Act’s notice requirements for special meetings and are subject to 24-hour posting requirements.4 “Emergency meetings” are a limited class of meetings held when prompt action is needed due to actual or threatened disruption of public facilities and are held on little notice.5 “Adjourned meetings” are regular or special meetings that have been adjourned or re-adjourned to a time and place specified in the order of adjournment, with no agenda required for regular meetings adjourned for less than five calendar days as long as no additional business is transacted.6
Six exceptions to the meeting definition
The Brown Act creates six exceptions to the meeting definition:7 Individual Contacts
The first exception involves individual contacts between a member of the legislative body and any other person. The Brown Act does not limit a legislative body member acting on his or her own. This exception recognizes the right to confer with constituents, advocates, consultants, news reporters, local agency staff, or a colleague.
Individual contacts, however, cannot be used to do in stages what would be prohibited in one step. For example, a series of individual contacts that leads to discussion, deliberation, or action among a majority of the members of a legislative body is prohibited. Such serial meetings are discussed below.
Chapter 3
MEETINGS
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 19
Conferences
The second exception allows a legislative body majority to attend a conference or similar gathering open to the public that addresses issues of general interest to the public or to public agencies of the type represented by the legislative body.
Among other things, this exception permits legislative body members to attend annual association conferences of city, county, school, community college, and other local agency officials, so long as those meetings are open to the public. However, a majority of members cannot discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within their local agency’s subject matter jurisdiction.
Community Meetings
The third exception allows a legislative body majority to attend an open and publicized meeting held by another organization to address a topic of local community concern. A majority cannot discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the legislative body’s subject matter jurisdiction. Under this exception, a legislative body majority may attend a local service club meeting or a local candidates’ night if the meetings are open to the public. “I see we have four distinguished members of the city council at our meeting tonight,” said the chair of the Environmental Action Coalition.“I wonder if they have anything to say about the controversy over enacting a slow growth ordinance?”
The Brown Act permits a majority of a legislative body to attend and speak at an open and publicized meeting conducted by another organization. The Brown Act may nevertheless be violated if a majority discusses, deliberates, or takes action on an item during the meeting of the other organization. There is a fine line between what is permitted and what is not; hence, members should exercise caution when participating in these types of events.
Q. The local chamber of commerce sponsors an open and public candidate debate during an election campaign. Three of the five agency members are up for re-election and all three participate. All of the candidates are asked their views of a controversial project scheduled for a meeting to occur just after the election. May the three incumbents answer the question?
A. Yes, because the Brown Act does not constrain the incumbents from expressing their views regarding important matters facing the local agency as part of the political process the same as any other candidates.
20 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
Other Legislative Bodies
The fourth exception allows a majority of a legislative body to attend an open and publicized meeting of: (1) another body of the local agency; and (2) a legislative body of another local agency.8
Again, the majority
cannot discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within their subject matter jurisdiction. This exception allows, for example, a city council or a majority of a board of supervisors to attend a controversial meeting of the planning commission.
Nothing in the Brown Act prevents the majority of a legislative body from sitting together at such a meeting. They may choose not to, however, to preclude any possibility of improperly discussing local agency business and to avoid the appearance of a Brown Act violation. Further, aside from the Brown Act, there may be other reasons, such as due process considerations, why the members should avoid giving public testimony or trying to influence the outcome of proceedings before a subordinate body.
Q. The entire legislative body intends to testify against a bill before the Senate Local Government Committee in Sacramento. Must this activity be noticed as a meeting of the body?
A. No, because the members are attending and participating in an open meeting of another governmental body which the public may attend.
Q. The members then proceed upstairs to the office of their local Assembly member to discuss issues of local interest. Must this session be noticed as a meeting and be open to the public?
A. Yes, because the entire body may not meet behind closed doors except for proper closed sessions. The same answer applies to a private lunch or dinner with the Assembly member.
Standing Committees
The fifth exception authorizes the attendance of a majority at an open and noticed meeting of a standing committee of the legislative body, provided that the legislative body members who are not members of the standing committee attend only as observers (meaning that they cannot speak or otherwise participate in the meeting).9
Q. The legislative body establishes a standing committee of two of its five members, which meets monthly. A third member of the legislative body wants to attend these meetings and participate. May she?
A. She may attend, but only as an observer; she may not participate.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 21
Social or Ceremonial Events
The final exception permits a majority of a legislative body to attend a purely social or ceremonial occasion. Once again, a majority cannot discuss business among themselves of a specific nature that is within the subject matter jurisdiction of the legislative body.
Nothing in the Brown Act prevents a majority of members from attending the same football game, party, wedding, funeral, reception, or farewell. The test is not whether a majority of a legislative body attends the function, but whether business of a specific nature within the subject matter jurisdiction of the body is discussed. So long as no such business is discussed, there is no violation of the Brown Act.
Grand Jury Testimony
In addition, members of a legislative body, either individually or collectively, may give testimony in private before a grand jury.10 This is the equivalent of a seventh exception to the Brown Act’s definition of a “meeting.”
Collective briefings
None of these exceptions permits a majority of a legislative body to meet together with staff in advance of a meeting for a collective briefing. Any such briefings that involve a majority of the body in the same place and time must be open to the public and satisfy Brown Act meeting notice and agenda requirements.
Retreats or workshops of legislative bodies
Gatherings by a majority of legislative body members at the legislative body’s retreats, study sessions, or workshops are covered under the Brown Act. This is the case whether the retreat, study session, or workshop focuses on long-range agency planning, discussion of critical local issues, or team building and group dynamics.11
Q. The legislative body wants to hold a team-building session to improve relations among its members. May such a session be conducted behind closed doors? A. No, this is not a proper subject for a closed session, and there is no other basis to exclude the public. Council relations are a matter of public business.
Serial meetings
One of the most frequently asked questions about the Brown Act involves serial meetings. At any one time, such meetings involve only a portion of a legislative body, but eventually involve a majority. The Brown Act provides that “[a] majority of the members of a legislative body shall not, outside a meeting … use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.”12 The problem with serial meetings is the process, which deprives the public of an opportunity for meaningful observation of and participation in legislative body decision-making.
22 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
The serial meeting may occur by either a “daisy chain” or a “hub and spoke” sequence. In the daisy chain scenario, Member A contacts Member B, Member B contacts Member C, Member C contacts Member D and so on, until a quorum has discussed, deliberated, or taken action on an item within the legislative body’s subject matter jurisdiction. The hub and spoke process involves at least two scenarios. In the first scenario, Member A (the hub) sequentially contacts Members B, C, and D and so on (the spokes), until a quorum has been contacted. In the second scenario, a staff member (the hub), functioning as an intermediary for the legislative body or one of its members, communicates with a majority of members (the spokes)
one-by-one for for discussion, deliberation, or a decision on a proposed action.13 Another example of a serial meeting is when a chief executive officer (the hub) briefs a majority of members (the spokes) prior to a formal meeting and, in the process, information about the members’ respective views is revealed. Each of these scenarios violates the Brown Act.
A legislative body member has the right, if not the duty, to meet with constituents to address their concerns. That member also has the right to confer with a colleague (but not with a majority of the body, counting the member) or appropriate staff about local agency business. An employee or official of a local agency may engage in separate
conversations or communications outside of an open and
noticed meeting “with members of a legislative body in
order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.”14 The Brown Act has been violated, however, if several one-on-one meetings or conferences leads to a discussion, deliberation, or action by a majority. In one case, a violation occurred when a quorum of a city council, by a letter that had been circulated among members outside of a formal meeting, directed staff to take action in an eminent domain proceeding.15 A unilateral written communication to the legislative body, such as an informational or advisory memorandum, does not violate the Brown Act.16 Such a memo, however, may be a public record.17 The phone call was from a lobbyist. “Say, I need your vote for that project in the south area. How about it?”
“Well, I don’t know,” replied Board Member Aletto. “That’s kind of a sticky proposition. You sure you need my vote?”
“Well, I’ve got Bradley and Cohen lined up and another vote leaning. With you I’d be over the top.”
Moments later, the phone rings again. “Hey, I’ve been hearing some rumbles on that south area project,” said the newspaper reporter. “I’m counting noses.
How are you voting on it?”
Neither the lobbyist nor the reporter has violated the Brown Act, but they are facilitating
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 23
a violation. The board member may have violated the Brown Act by hearing about the positions of other board members and indeed coaxing the lobbyist to reveal the other board members’ positions by asking “You sure you need my vote?” The prudent course is to avoid such leading conversations and to caution lobbyists, staff, and news media against revealing such positions of others.
The mayor sat down across from the city manager. “From now on,” he declared, “I want you to provide individual briefings on upcoming agenda items. Some of this material is very technical, and the council members don’t want to sound like idiots asking about it in public. Besides that, briefings will speed up the meeting.”
Agency employees or officials may have separate conversations or communications outside of an open and noticed meeting “with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.”18 Members should always be vigilant when discussing local agency business with anyone to avoid conversations that could lead to a discussion, deliberation or action taken among the majority of the legislative body. “Thanks for the information,” said Council Member Kim. “These zoning changes can be tricky, and now I think I’m better equipped to make the right decision.” “Glad to be of assistance,” replied the planning director. “I’m sure Council Member Jones is OK with these changes. How are you leaning?” “Well,” said Council Member Kim, “I’m leaning toward approval. I know that two of my colleagues definitely favor approval.”
The planning director should not disclose Jones’ prospective vote, and Kim should not disclose the prospective votes of two of her colleagues. Under these facts, there likely has been a serial meeting in violation of the Brown Act.
Q. The agency’s website includes a chat room where agency employees and officials participate anonymously and often discuss issues of local agency business. Members of the legislative body participate regularly. Does this scenario present a potential for violation of the Brown Act?
A. Yes, because it is a technological device that may serve to allow for a majority of members to discuss, deliberate, or take action on matters of agency business.
Q. A member of a legislative body contacts two other members on a five-member body relative to scheduling a special meeting. Is this an illegal serial meeting? A. No, the Brown Act expressly allows a majority of a body to call a special meeting, though the members should avoid discussing the merits of what is to be taken up at the meeting.
PRACTICE TIP: When briefing
legislative body members,
staff must exercise care not to
disclose other members’ views
and positions.
24 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
Particular care should be exercised when staff briefings of legislative body members occur by email because of the ease of using the “reply to all” button that may inadvertently result in a Brown Act violation.
Informal gatherings
Often members are tempted to mix business with pleasure — for example, by holding a postmeeting gathering. Informal gatherings at which local agency business is discussed or transacted violate the law if they are not conducted in conformance with the Brown Act.19 A luncheon gathering in a crowded dining room violates the Brown Act if the public does not have an opportunity to attend, hear, or participate in the deliberations of members.
Thursday at 11:30 a.m., as they did every week, the board of directors of the Dry Gulch Irrigation District trooped into Pop’s Donut Shoppe for an hour of talk and fellowship. They sat at the corner window, fronting on Main and Broadway, to show they had nothing to hide. Whenever he could, the managing editor of the weekly newspaper down the street hurried over to join the board.
A gathering like this would not violate the Brown Act if board members scrupulously avoided talking about irrigation district issues — which might be difficult. This kind of situation should be avoided. The public is unlikely to believe the board members could meet regularly without discussing public business. A newspaper executive’s presence in no way lessens the potential for a violation of the Brown Act.
Q. The agency has won a major victory in the Supreme Court on an issue of importance.
The presiding officer decides to hold an impromptu press conference in order to make a statement to the print and broadcast media. All the other members show up in order to make statements of their own and be seen by the media. Is this gathering illegal? A. Technically there is no exception for this sort of gathering, but as long as members do not state their intentions as to future action to be taken and the press conference is open to the public, it seems harmless.
Technological conferencing
Except for certain nonsubstantive purposes, such as scheduling a special meeting, a conference call including a majority of the members of a legislative body is an unlawful meeting. But, in an effort to keep up with information age technologies, the Brown Act specifically allows a legislative body to use any type of teleconferencing to meet, receive public comment and testimony, deliberate, or conduct a closed session.20 While the Brown Act contains specific requirements for conducting a teleconference, the decision to use teleconferencing is entirely discretionary with the body. No person has a right under the Brown Act to have a meeting by teleconference.
“Teleconference” is defined as “a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 25
audio or video, or both.”21 In addition to the specific requirements relating to teleconferencing, the meeting must comply with all provisions of the Brown Act otherwise applicable. The Brown Act contains the following teleconferencing requirements:22 Teleconferencing may be used for all purposes during any meeting; At least a quorum of the legislative body must participate from locations within the local agency’s jurisdiction;
Additional teleconference locations may be made available for the public; Each teleconference location must be specifically identified in the notice and agenda of the meeting, including a full address and room number, as may be applicable; Agendas must be posted at each teleconference location, even if a hotel room or a residence;
Each teleconference location, including a hotel room or residence, must be accessible to the public and have technology, such as a speakerphone, to enable the public to participate; The agenda must provide the opportunity for the public to address the legislative body directly at each teleconference location; and
All votes must be by roll call.
Q. A member on vacation wants to participate in a meeting of the legislative body and vote by cellular phone from her car while driving from Washington, D.C. to New York. May she? A. She may not participate or vote because she is not in a noticed and posted teleconference location.
The use of teleconferencing to conduct a legislative body meeting presents a variety of issues beyond the scope of this guide to discuss in detail. Therefore, before teleconferencing a meeting, legal counsel for the local agency should be consulted.
Location of meetings
The Brown Act generally requires all regular and special meetings of a legislative body, including retreats and workshops, to be held within the boundaries of the territory over which the local agency exercises jurisdiction.23
An open and publicized meeting of a legislative body may be held outside of agency boundaries if the purpose of the meeting is one of the following:24
Comply with state or federal law or a court order, or attend a judicial conference or administrative proceeding in which the local agency is a party; Inspect real or personal property that cannot be conveniently brought into the local agency’s territory, provided the meeting is limited to items relating to that real or personal property; Q. The agency is considering approving a major retail mall. The developer has built other similar malls, and invites the entire legislative body to visit a mall outside the jurisdiction. May the entire body go?
A. Yes, the Brown Act permits meetings outside the boundaries of the agency for specified reasons and inspection of property is one such reason. The field trip must be treated as a meeting and the public must be allowed to attend.
26 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 3: MEETINGS
Participate in multiagency meetings or discussions; however, such meetings must be held within the boundaries of one of the participating agencies, and all of those agencies must give proper notice;
Meet in the closest meeting facility if the local agency has no meeting facility within its boundaries, or meet at its principal office if that office is located outside the territory over which the agency has jurisdiction;
Meet with elected or appointed federal or California officials when a local meeting would be impractical, solely to discuss a legislative or regulatory issue affecting the local agency and over which the federal or state officials have jurisdiction; Meet in or nearby a facility owned by the agency, provided that the topic of the meeting is limited to items directly related to the facility; or
Visit the office of its legal counsel for a closed session on pending litigation, when to do so would reduce legal fees or costs.25
In addition, the governing board of a school or community college district may hold meetings outside of its boundaries to attend a conference on nonadversarial collective bargaining techniques, interview candidates for school district superintendent, or interview a potential employee from another district.26 A school board may also interview members of the public residing in another district if the board is considering employing that district’s superintendent.
Similarly, meetings of a joint powers authority can occur within the territory of at least one of its member agencies, and a joint powers authority with members throughout the state may meet anywhere in the state.27
Finally, if a fire, flood, earthquake, or other emergency makes the usual meeting place unsafe, the presiding officer can designate another meeting place for the duration of the emergency. News media that have requested notice of meetings must be notified of the designation by the most rapid means of communication available.28
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 27
Endnotes:
1 California Government Code section 54952.2(a)
2 Wilson v. San Francisco Municipal Railway (1973) 29 Cal.App.3d 870 3 California Government Code section 54954(a)
4 California Government Code section 54956
5 California Government Code section 54956.5
6 California Government Code section 54955
7 California Government Code section 54952.2(c)
8 California Government Code section 54952.2(c)(4)
9 California Government Code section 54952.2(c)(6)
10 California Government Code section 54953.1
11 “The Brown Act,” California Attorney General (2003), p. 10 12 California Government Code section 54952.2(b)(1)
13 Stockton Newspaper Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95 14 California Government Code section 54952.2(b)(2)
15 Common Cause v. Stirling (1983) 147 Cal.App.3d 518
16 Roberts v. City of Palmdale (1993) 5 Cal.4th 363
17 California Government Code section 54957.5(a)
18 California Government Code section 54952.2(b)(2)
19 California Government Code section 54952.2; 43 Ops.Cal.Atty.Gen. 36 (1964) 20 California Government Code section 54953(b)(1)
21 California Government Code section 54953(b)(4)
22 California Government Code section 54953
23 California Government Code section 54954(b)
24 California Government Code section 54954(b)(1)-(7)
25 94 Ops.Cal.Atty.Gen. 15 (2011)
26 California Government Code section 54954(c)
27 California Government Code section 54954(d)
28 California Government Code section 54954(e)
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
28 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT29 29 Chapter 4
AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Agendas for regular meetings .......................................................................................... 30 Mailed agenda upon written request ............................................................................... 31 Notice requirements for special meetings ....................................................................... 32 Notices and agendas for adjourned and continued meetings and hearings ................... 32 Notice requirements for emergency meetings ................................................................ 32 Notice of compensation for simultaneous or serial meetings ......................................... 33 Educational agency meetings........................................................................................... 33 Notice requirements for tax or assessment meetings and hearings............................... 33 Non-agenda items............................................................................................................. 34 Responding to the public .................................................................................................. 34 The right to attend and observe meetings ....................................................................... 35 Records and recordings .................................................................................................... 36 The public’s place on the agenda ..................................................................................... 37
30 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Chapter 4
AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Effective notice is essential for an open and public meeting.
Whether a meeting is open or how the public may participate in that meeting is academic if nobody knows about the meeting.
Agendas for regular meetings
Every regular meeting of a legislative body of a local agency — including advisory committees, commissions, or boards, as well as standing committees of legislative bodies — must be preceded by a posted agenda that advises the public of the meeting and the matters to be transacted or discussed.
The agenda must be posted at least 72 hours before the regular meeting in a location “freely accessible to members of the public.”1 The courts have not definitively interpreted the “freely accessible” requirement. The California Attorney General has interpreted this provision to require posting in a location accessible to the public 24 hours a day during the 72-hour period, but any of the 72 hours may fall on a weekend.2 This provision may be satisfied by posting
on a touch screen electronic kiosk accessible without charge to the public 24 hours a day during the 72-hour period.3
While posting an agenda on an agency’s Internet website will not, by itself, satisfy the “freely accessible” requirement since there is no universal access to the internet, an agency has a supplemental obligation to post the agenda on its website if: (1) the local agency has a website; and (2) the legislative body whose meeting is the subject of the agenda is either (a) a governing body, or (b) has members that are compensated, with one or more members that are also members of a governing body.4
Q. May the meeting of a governing body go forward if its agenda was either inadvertently not posted on the city’s website or if the website was not operational during part or all of the 72-hour period preceding the meeting?
A. At a minimum, the Brown Act calls for “substantial compliance” with all agenda posting requirements, including posting to the agency website.5 Should website technical
difficulties arise, seek a legal opinion from your agency attorney. The California Attorney General has opined that technical difficulties which cause the website agenda to become inaccessible for a portion of the 72 hours preceding a meeting do not automatically or inevitably lead to a Brown Act violation, provided the agency can demonstrate substantial compliance.6
This inquiry requires a fact-specific examination of whether the agency or its legislative body made “reasonably effective efforts to notify interested persons of a public meeting” through online posting and other available means.7 The Attorney General’s
opinion suggests that this examination would include an evaluation of how long a technical problem persisted, the efforts made to correct the problem or otherwise ensure that the public was informed, and the actual effect the problem had on public
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 31
awareness, among other factors.8 The City Attorneys’ Department has taken the position that obvious website technical difficulties do not require cancellation of a meeting, provided that the agency meets all other Brown Act posting requirements and the agenda is available on the website once the technical difficulties are resolved.
The agenda must state the meeting time and place and must contain “a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.”9
Special care should be taken to describe on the agenda each distinct action to be taken by the legislative body, and avoid overbroad descriptions of a “project” if the “project” is actually a set of distinct actions that must each be separately listed on the agenda.10
Q. The agenda for a regular meeting contains the following items of business:
• Consideration of a report regarding traffic on Eighth Street; and • Consideration of contract with ABC Consulting.
Are these descriptions adequate?
A. If the first is, it is barely adequate. A better description would provide the reader with some idea of what the report is about and what is being recommended. The second is not adequate. A better description might read “consideration of a contract with ABC Consulting in the amount of $50,000 for traffic engineering services regarding traffic on Eighth Street.”
Q. The agenda includes an item entitled City Manager’s Report, during which time the city manager provides a brief report on notable topics of interest, none of which are listed on the agenda.
Is this permissible?
A. Yes, so long as it does not result in extended discussion or action by the body.
A brief general description may not be sufficient for closed session agenda items. The Brown Act provides safe harbor language for the various types of permissible closed sessions. Substantial compliance with the safe harbor language is recommended to protect legislative bodies and elected officials from legal challenges.
Mailed agenda upon written request
The legislative body, or its designee, must mail a copy of the agenda or, if requested, the entire agenda packet, to any person who has filed a written request for such materials. These copies shall be mailed at the time the agenda is posted. If requested, these materials must be made available in appropriate alternative formats to persons with disabilities.
A request for notice is valid for one calendar year and renewal requests must be filed following January 1 of each year. The legislative body may establish a fee to recover the cost of providing the service. Failure of the requesting person to receive the agenda does not constitute grounds for invalidation of actions taken at the meeting.11 PRACTICE TIP: Putting together
a meeting agenda requires
careful thought.
32 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Notice requirements for special meetings
There is no express agenda requirement for special meetings, but the notice of the special meeting effectively serves as the agenda and limits the business that may be transacted or discussed.
Written notice must be sent to each member of the legislative body (unless waived in writing by that member) and to each local newspaper of general circulation, and radio or television station that has requested such notice in writing. This notice must be delivered by personal delivery or any other means that ensures receipt, at least 24 hours before the time of the meeting.
The notice must state the time and place of the meeting, as well as all business to be transacted or discussed. It is recommended that the business to be transacted or discussed be described in the same manner that an item for a regular meeting would be described on the agenda — with a brief general description. As noted above, closed session items should be described in accordance with the Brown Act’s safe harbor provisions to protect legislative bodies and elected officials from challenges of noncompliance with notice requirements.
The special meeting notice must also be posted at least 24 hours prior to the special meeting using the same methods as posting an agenda for a regular meeting: (1) at a site that is freely accessible to the public, and (2) on the agency’s website if: (1) the local agency has a website; and (2) the legislative body whose meeting is the subject of the agenda is either (a) a governing body, or (b) has members that are compensated, with one or more members that are also members of a governing body.12 Notices and agendas for adjourned and continued meetings and hearings
A regular or special meeting can be adjourned and re-adjourned to a time and place specified in the order of adjournment.13 If no time is stated, the meeting is continued to the hour for regular meetings. Whoever is present (even if they are less than a quorum) may so adjourn a meeting; if no member of the legislative body is present, the clerk or secretary may adjourn the meeting. If a meeting is adjourned for less than five calendar days, no new agenda need be posted so long as a new item of business is not introduced.14 A copy of the order of adjournment must be posted within 24 hours after the adjournment, at or near the door of the place where the meeting was held.
A hearing can be continued to a subsequent meeting. The process is the same as for continuing adjourned meetings, except that if the hearing is continued to a time less than 24 hours away, a copy of the order or notice of continuance must be posted immediately following the meeting.15 Notice requirements for emergency meetings
The special meeting notice provisions apply to emergency meetings, except for the 24-hour notice.16 News media that have requested written notice of special meetings must be notified by telephone at least one hour in advance of an emergency meeting, and all telephone numbers provided in that written request must be tried. If telephones are not working, the notice requirements are deemed waived. However, the news media must be notified as soon as possible of the meeting and any action taken.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 33
News media may make a practice of having written requests on file for notification of special or emergency meetings. Absent such a request, a local agency has no legal obligation to notify news media of special or emergency meetings — although notification may be advisable in any event to avoid controversy.
Notice of compensation for simultaneous or serial meetings A legislative body that has convened a meeting and whose membership constitutes a quorum of another legislative body, may convene a simultaneous or serial meeting of the other legislative body only after a clerk or member of the convened legislative body orally announces: (1) the amount of compensation or stipend, if any, that each member will be entitled to receive as a result of convening the meeting of the other legislative body; and (2) that the compensation or stipend is provided as a result of convening the meeting of that body.17 No oral disclosure of the amount of the compensation is required if the entire amount of such compensation is prescribed by statute and no additional compensation has been authorized by the local agency. Further, no disclosure is required with respect to reimbursements for actual and necessary expenses incurred in the performance of the member’s official duties, such as for travel, meals, and lodging.
Educational agency meetings
The Education Code contains some special agenda and special meeting provisions.18 However, they are generally consistent with the Brown Act. An item is probably void if not posted.19 A school district board must also adopt regulations to make sure the public can place matters affecting the district’s business on meeting agendas and to address the board on those items.20 Notice requirements for tax or assessment meetings and hearings The Brown Act prescribes specific procedures for adoption by a city, county, special district, or joint powers authority of any new or increased tax or assessment imposed on businesses.21 Though written broadly, these Brown Act provisions do not apply to new or increased real property taxes or assessments as those are governed by the California Constitution, Article XIIIC or XIIID, enacted by Proposition 218. At least one public meeting must be held to allow public testimony on the tax or assessment. In addition, there must also be at least 45 days notice of a public hearing at which the legislative body proposes to enact or increase the tax or assessment. Notice of the public meeting and public hearing must be provided at the same time and in the same document. The public notice relating to general taxes must be provided by newspaper publication. The public notice relating to new or increased business assessments must be provided through a mailing to all business owners proposed to be subject to the new or increased assessment. The agency may recover the reasonable costs of the public meetings, hearings, and notice.
The Brown Act exempts certain fees, standby or availability charges, recurring assessments, and new or increased assessments that are subject to the notice and hearing requirements of the Constitution.22 As a practical matter, the Constitution’s notice requirements have preempted this section of the Brown Act.
34 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Non-agenda items
The Brown Act generally prohibits any action or discussion of items not on the posted agenda.
However, there are three specific situations in which a legislative body can act on an item not on the agenda:23
When a majority decides there is an “emergency situation” (as defined for emergency meetings);
When two-thirds of the members present (or all members if less than two-thirds are present) determine there is a need for immediate action and the need to take action “came to the attention of the local agency subsequent to the agenda being posted.” This exception requires a degree of urgency. Further, an item cannot be considered under this provision if the legislative body or the staff knew about the need to take immediate action before the agenda was posted. A new need does not arise because staff forgot to put an item on the agenda or because an applicant missed a deadline; or When an item appeared on the agenda of, and was continued from, a meeting held not more than five days earlier.
The exceptions are narrow, as indicated by this list. The first two require a specific determination by the legislative body. That determination can be challenged in court and, if unsubstantiated, can lead to invalidation of an action.
“I’d like a two-thirds vote of the board, so we can go ahead and authorize commencement of phase two of the East Area Project,” said Chair Lopez. “It’s not on the agenda. But we learned two days ago that we finished phase one ahead of schedule — believe it or not — and I’d like to keep it that way. Do I hear a motion?”
The desire to stay ahead of schedule generally would not satisfy “a need for immediate action.” Too casual an action could invite a court challenge by a disgruntled resident.
The prudent course is to place an item on the agenda for the next meeting and not risk invalidation.
“We learned this morning of an opportunity for a state grant,” said the chief engineer at the regular board meeting, “but our application has to be submitted in two days. We’d like the board to give us the go ahead tonight, even though it’s not on the agenda.”
A legitimate immediate need can be acted upon even though not on the posted agenda by following a two-step process:
First, make two determinations: 1) that there is an immediate need to take action, and 2) that the need arose after the posting of the agenda. The matter is then placed on the agenda.
Second, discuss and act on the added agenda item.
Responding to the public
The public can talk about anything within the jurisdiction of the legislative body, but the legislative body generally cannot act on or discuss an item not on the agenda. What happens when a member of the public raises a subject not on the agenda?
PRACTICE TIP: Subject to very
limited exceptions, the Brown
Act prohibits any action or
discussion of an item not on the
posted agenda.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 35
While the Brown Act does not allow discussion or action on items not on the agenda, it does allow members of the legislative body, or its staff, to “briefly respond” to comments or questions from members of the public, provide a reference to staff or other resources for factual information, or direct staff to place the issue on a future agenda. In addition, even without a comment from the public, a legislative body member or a staff member may ask for information, request a report back, request to place a matter on the agenda for a subsequent meeting (subject to the body’s rules or procedures), ask a question for clarification, make a brief announcement, or briefly report on his or her own activities.24 However, caution should be used to avoid any discussion or action on such items.
Council Member Jefferson: I would like staff to respond to Resident Joe’s complaints during public comment about the repaving project on Elm Street — are there problems with this project?
City Manager Frank: The public works director has prepared a 45-minute power point presentation for you on the status of this project and will give it right now.
Council Member Brown: Take all the time you need; we need to get to the bottom of this. Our residents are unhappy.
It is clear from this dialogue that the Elm Street project was not on the council’s agenda, but was raised during the public comment period for items not on the agenda. Council Member A properly asked staff to respond; the city manager should have given at most a brief response. If a lengthy report from the public works director was warranted, the city manager should have stated that it would be placed on the agenda for the next meeting.
Otherwise, both the long report and the likely discussion afterward will improperly embroil the council in a matter that is not listed on the agenda.
The right to attend and observe meetings
A number of Brown Act provisions protect the public’s right to attend, observe, and participate in meetings.
Members of the public cannot be required to register their names, provide other information, complete a questionnaire, or otherwise “fulfill any condition precedent” to attending a meeting.
Any attendance list, questionnaire, or similar document posted at or near the entrance to the meeting room or circulated at a meeting must clearly state that its completion is voluntary and that all persons may attend whether or not they fill it out.25 No meeting can be held in a facility that prohibits attendance based on race, religion, color, national origin, ethnic group identification, age, sex, sexual orientation, or disability, or that is inaccessible to the disabled. Nor can a meeting be held where the public must make a payment or purchase in order to be present.26 This does not mean, however, that the public is entitled to free entry to a conference attended by a majority of the legislative body.27 While a legislative body may use teleconferencing in connection with a meeting, the public must be given notice of and access to the teleconference location. Members of the public must be able to address the legislative body from the teleconference location.28
36 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Action by secret ballot, whether preliminary or final, is flatly prohibited.29 All actions taken by the legislative body in open session, and the vote of each member thereon, must be disclosed to the public at the time the action is taken.30 Q: The agenda calls for election of the legislative body’s officers. Members of the legislative body want to cast unsigned written ballots that would be tallied by the clerk, who would announce the results. Is this voting process permissible? A: No. The possibility that a public vote might cause hurt feelings among members of the legislative body or might be awkward — or even counterproductive — does not justify a secret ballot.
The legislative body may remove persons from a meeting who willfully interrupt proceedings.31 Ejection is justified only when audience members actually disrupt the proceedings.32 If order cannot be restored after ejecting disruptive persons, the meeting room may be cleared. Members of the news media who have not participated in the disturbance must be allowed to continue to attend the meeting. The legislative body may establish a procedure to re-admit an individual or individuals not responsible for the disturbance.33
Records and recordings
The public has the right to review agendas and other writings distributed by any person to a majority of the legislative body in connection with a matter subject to discussion or consideration at a meeting. Except for privileged documents, those materials are public records and must be made available upon request without delay.34 A fee or deposit as permitted by the California Public Records Act may be charged for a copy of a public record.35 Q: In connection with an upcoming hearing on a discretionary use permit, counsel for the legislative body transmits a memorandum to all members of the body outlining the litigation risks in granting or denying the permit. Must this memorandum be included in the packet of agenda materials available to the public? A: No. The memorandum is a privileged attorney-client communication.
Q: In connection with an agenda item calling for the legislative body to approve a contract, staff submits to all members of the body a financial analysis explaining why the terms of the contract favor the local agency. Must this memorandum be included in the packet of agenda materials available to the public?
A. Yes. The memorandum has been distributed to the majority of the legislative body, relates to the subject matter of a meeting, and is not a privileged communication.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 37
A legislative body may discuss or act on some matters without considering written materials. But if writings are distributed to a majority of a legislative body in connection with an agenda item, they must also be available to the public. A non-exempt or otherwise privileged writing distributed to a majority of the legislative body less than 72 hours before the meeting must be made available for inspection at the time of distribution at a public office or location designated for that purpose; and the agendas for all meetings of the legislative body must include the address of this office or location.36 A writing distributed during a meeting must be made public:
At the meeting if prepared by the local agency or a member of its legislative body; or
After the meeting if prepared by some other person.37 Any tape or film record of an open and public meeting made for whatever purpose by or at the direction of the local agency is subject to the California Public Records Act; however, it may be erased or destroyed 30 days after the taping or recording. Any inspection of a video or tape recording is to be provided without charge on a video or tape player made available by the local agency.38 The agency may impose its ordinary charge for copies that is consistent with the California Public Records Act.39
In addition, the public is specifically allowed to use audio or video tape recorders or still or motion picture cameras at a meeting to record the proceedings, absent a reasonable finding by the legislative body that noise, illumination, or obstruction of view caused by recorders or cameras would persistently disrupt the proceedings.40
Similarly, a legislative body cannot prohibit or restrict the public broadcast of its open and public meetings without making a reasonable finding that the noise, illumination, or obstruction of view would persistently disrupt the proceedings.41
The public’s place on the agenda
Every agenda for a regular meeting must allow members of the public to speak on any item of interest, so long as the item is within the subject matter jurisdiction of the legislative body. Further, the public must be allowed to speak on a specific item of business before or during the legislative body’s consideration of it.42
Q. Must the legislative body allow members of the public to show videos or make a power point presentation during the public comment part of the agenda, as long as the subject matter is relevant to the agency and is within the established time limit? A. Probably, although the agency is under no obligation to provide equipment.
Moreover, the legislative body cannot prohibit public criticism of policies, procedures, programs, or services of the agency or the acts or omissions of the legislative body itself. But the Brown Act provides no immunity for defamatory statements.43
PRACTICE TIP: Public speakers
cannot be compelled to give
their name or address as a
condition of speaking. The clerk
or presiding officer may request
speakers to complete a speaker
card or identify themselves for
the record, but must respect a
speaker’s desire for anonymity.
38 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Q. May the presiding officer prohibit a member of the audience from publicly criticizing an agency employee by name during public comments?
A. No, as long as the criticism pertains to job performance.
Q. During the public comment period of a regular meeting of the legislative body, a resident urges the public to support and vote for a candidate vying for election to the body. May the presiding officer gavel the speaker out of order for engaging in political campaign speech?
A. There is no case law on this subject. Some would argue that campaign issues are outside the subject matter jurisdiction of the body within the meaning of Section 54954.3(a).
Others take the view that the speech must be allowed under paragraph (c) of that section because it is relevant to the governing of the agency and an implicit criticism of the incumbents.
The legislative body may adopt reasonable regulations, including time limits, on public comments. Such regulations should be enforced fairly and without regard to speakers’ viewpoints. The legislative body has discretion to modify its regulations regarding time limits on public comment if necessary. For example, the time limit could be shortened to accommodate a lengthy agenda or lengthened to allow additional time for discussion on a complicated matter.44 The public does not need to be given an opportunity to speak on an item that has already been considered by a committee made up exclusively of members of the legislative body at a public meeting, if all interested members of the public had the opportunity to speak on the item before or during its consideration, and if the item has not been substantially changed.45
Notices and agendas for special meetings must also give members of the public the opportunity to speak before or during consideration of an item on the agenda but need not allow members of the public an opportunity to speak on other matters within the jurisdiction of the legislative body.46
Endnotes:
1 California Government Code section 54954.2(a)(1)
2 78 Ops.Cal.Atty.Gen. 327 (1995)
3 88 Ops.Cal.Atty.Gen. 218 (2005)
4 California Government Code sections 54954.2(a)(1) and 54954.2(d) 5 California Government Code section 54960.1(d)(1)
6 ___ Ops.Cal.Atty.Gen.___, No. 14-1204 (January 19, 2016) 16 Cal. Daily Op. Serv. 937 (Cal.A.G.), 2016 WL 375262
7 North Pacifica LLC v. California Coastal Commission (2008) 166 Cal.App.4th 1416, 1432 8 ___ Ops.Cal.Atty.Gen.___, No. 14-1204 (January 19, 2016) 16 Cal. Daily Op. Serv. 937 (Cal.A.G.), 2016 WL 375262, Slip Op. at p. 8
9 California Government Code section 54954.2(a)(1)
10 San Joaquin Raptor Rescue v. County of Merced (2013) 216 Cal.App.4th 1167 (legislative body’s approval of CEQA action (mitigated negative declaration) without specifically listing it on the agenda violates Brown Act, even if the agenda generally describes the development project that is the subject of the CEQA analysis.)
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 39
11 California Government Code section 54954.1
12 California Government Code sections 54956(a) and (c) 13 California Government Code section 54955
14 California Government Code section 54954.2(b)(3)
15 California Government Code section 54955.1
16 California Government Code section 54956.5
17 California Government Code section 54952.3
18 Education Code sections 35144, 35145 and 72129
19 Carlson v. Paradise Unified School District (1971) 18 Cal.App.3d 196 20 California Education Code section 35145.5
21 California Government Code section 54954.6
22 See Cal.Const.Art.XIIIC, XIIID and California Government Code section 54954.6(h) 23 California Government Code section 54954.2(b)
24 California Government Code section 54954.2(a)(2)
25 California Government Code section 54953.3
26 California Government Code section 54961(a); California Government Code section 11135(a) 27 California Government Code section 54952.2(c)(2)
28 California Government Code section 54953(b)
29 California Government Code section 54953(c)
30 California Government Code section 54953(c)(2)
31 California Government Code section 54957.9.
32 Norse v. City of Santa Cruz (9th Cir. 2010) 629 F.3d 966 (silent and momentary Nazi salute directed towards mayor is not a disruption); Acosta v. City of Costa Mesa (9th Cir. 2013) 718 F.3d 800 (city council may not prohibit “insolent” remarks by members of the public absent actual disruption). 33 California Government Code section 54957.9
34 California Government Code section 54957.5
35 California Government Code section 54957.5(d)
36 California Government Code section 54957.5(b)
37 California Government Code section 54957.5(c)
38 California Government Code section 54953.5(b)
39 California Government Code section 54957.5(d)
40 California Government Code section 54953.5(a)
41 California Government Code section 54953.6
42 California Government Code section 54954.3(a)
43 California Government Code section 54954.3(c)
44 California Government Code section 54954.3(b); Chaffee v. San Francisco Public Library Com. (2005) 134 Cal.App.4th 109; 75 Ops.Cal.Atty.Gen. 89 (1992)
45 California Government Code section 54954.3(a)
46 California Government Code section 54954.3(a)
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
40 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT41 41 Chapter 5
CLOSED SESSIONS
Agendas and reports......................................................................................................... 42 Litigation............................................................................................................................ 43 Real estate negotiations ................................................................................................... 45 Public employment........................................................................................................... 46 Labor negotiations ............................................................................................................ 47 Labor negotiations — school and community college districts ....................................... 48 Other Education Code exceptions.................................................................................... 48 Joint Powers Authorities ................................................................................................... 48 License applicants with criminal records ......................................................................... 49 Public security................................................................................................................... 49 Multijurisdictional law enforcement agency .................................................................... 49 Hospital peer review and trade secrets ........................................................................... 49 Other legislative bases for closed session ....................................................................... 50 Who may attend closed sessions ..................................................................................... 50 The confidentiality of closed session discussions............................................................ 50
42 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
A closed session is a meeting of a legislative body conducted in private without the attendance of the public or press. A legislative body is authorized to meet in closed session only to the extent expressly authorized by the Brown Act.1
As summarized in Chapter 1 of this Guide, it is clear that the Brown Act must be interpreted liberally in favor of open meetings, and exceptions that limit public access (including the exceptions for closed session meetings) must be narrowly construed.2
The most common purposes of the closed
session provisions in the Brown Act are to avoid revealing confidential information (e.g., prejudicing the city’s position in litigation or compromising the privacy interests of employees).
Closed sessions should be conducted keeping those narrow purposes in mind. It is not enough that a subject is sensitive, embarrassing, or controversial. Without specific authority in the Brown Act for a closed session, a matter to be considered by a legislative body must be discussed in public. As an example, a board of police commissioners cannot meet in closed session to provide general policy guidance to a police chief, even though some matters are sensitive and the commission considers their disclosure contrary to the public interest.3
In this chapter, the grounds for convening a closed session are called “exceptions” because they are exceptions to the general rule that meetings must be conducted openly. In some circumstances, none of the closed session exceptions apply to an issue or information the legislative body wishes to discuss privately. In these cases, it is not proper to convene a closed session, even to protect confidential information. For example, although the Brown Act does authorize closed sessions related to specified types of contracts (e.g., specified provisions of real property agreements, employee labor agreements, and litigation settlement agreements),4 the
Brown Act does not authorize closed sessions for other contract negotiations.
Agendas and reports
Closed session items must be briefly described on the posted agenda and the description must state the specific statutory exemption.5
An item that appears on the open meeting portion of the agenda may not be taken into closed session until it has been properly agendized as a closed session item or unless it is properly added as a closed session item by a two-thirds vote of the body after making the appropriate urgency findings.6
The Brown Act supplies a series of fill in the blank sample agenda descriptions for various types of authorized closed sessions, which provide a “safe harbor” from legal attacks. These sample Chapter 5
CLOSED SESSIONS
PRACTICE TIP: Some problems
over closed sessions arise
because secrecy itself breeds
distrust. The Brown Act does
not require closed sessions and
legislative bodies may do well
to resist the tendency to call a
closed session simply because
it may be permitted. A better
practice is to go into closed
session only when necessary.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 43
agenda descriptions cover license and permit determinations, real property negotiations, existing or anticipated litigation, liability claims, threats to security, public employee appointments, evaluations and discipline, labor negotiations, multi-jurisdictional law enforcement cases, hospital boards of directors, medical quality assurance committees, joint powers agencies, and audits by the California State Auditor’s Office.7
If the legislative body intends to convene in closed session, it must include the section of the Brown Act authorizing the closed session in advance on the agenda and it must make a public announcement prior to the closed session discussion. In most cases, the announcement may simply be a reference to the agenda item.8
Following a closed session, the legislative body must provide an oral or written report on certain actions taken and the vote of every elected member present. The timing and content of the report varies according to the reason for the closed session and the action taken.9 The announcements
may be made at the site of the closed session, so long as the public is allowed to be present to hear them.
If there is a standing or written request for documentation, any copies of contracts, settlement agreements, or other documents finally approved or adopted in closed session must be provided to the requestor(s) after the closed session, if final approval of such documents does not rest with any other party to the contract or settlement. If substantive amendments to a contract or settlement agreement approved by all parties requires retyping, such documents may be held until retyping is completed during normal business hours, but the substance of the changes must be summarized for any person inquiring about them.10
The Brown Act does not require minutes, including minutes of closed sessions. However, a legislative body may adopt an ordinance or resolution to authorize a confidential “minute book” be kept to record actions taken at closed sessions.11 If one is kept, it must be made available to members of the legislative body, provided that the member asking to review minutes of a particular meeting was not disqualified from attending the meeting due to a conflict of interest.12 A court may order the disclosure of minute books for the court’s review if a lawsuit makes sufficient claims of an open meeting violation.
Litigation
There is an attorney/client relationship, and legal counsel may use it to protect the confidentiality of privileged written and oral communications to members of the legislative body — outside of meetings. But protection of the attorney/client privilege cannot by itself be the reason for a closed session.13
The Brown Act expressly authorizes closed sessions to discuss what is considered pending litigation. The rules that apply to holding a litigation closed session involve complex, technical definitions and procedures. The essential thing to know is that a closed session can be held by the body to confer with, or receive advice from, its legal counsel when open discussion would prejudice the position of the local agency in litigation in which the agency is, or could become, a party.14 The litigation exception under the Brown Act is narrowly construed and does not permit activities beyond a legislative body’s conferring with its own legal counsel and required support staff.15 For example, it is not permissible to hold a closed session in which settlement negotiations take place between a legislative body, a representative of an adverse party, and a mediator.16 PRACTICE TIP: Pay close
attention to closed session
agenda descriptions. Using
the wrong label can lead
to invalidation of an action
taken in closed session if not
substantially compliant.
44 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
The California Attorney General has opined that if the agency’s attorney is not a participant, a litigation closed session cannot be held.17 In any event, local agency officials should always consult the agency’s attorney before placing this type of closed session on the agenda in order to be certain that it is being done properly.
Before holding a closed session under the pending litigation exception, the legislative body must publicly state the basis for the closed session by identifying one of the following three types of matters: existing litigation, anticipated exposure to litigation, or anticipated initiation of litigation.18 Existing litigation
Q. May the legislative body agree to settle a lawsuit in a properly-noticed closed session, without placing the settlement agreement on an open session agenda for public approval? A. Yes, but the settlement agreement is a public document and must be disclosed on request. Furthermore, a settlement agreement cannot commit the agency to matters that are required to have public hearings.
Existing litigation includes any adjudicatory proceedings before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator. The clearest situation in which a closed session is authorized is when the local agency meets with its legal counsel to discuss a pending matter that has been filed in a court or with an administrative agency and names the local agency as a party. The legislative body may meet under these circumstances to receive updates on the case from attorneys, participate in developing strategy as the case develops, or consider alternatives for resolution of the case. Generally, an agreement to settle litigation may be approved in closed session. However, an agreement to settle litigation cannot be approved in closed session if it commits the city to take an action that is required to have a public hearing.19
Anticipated exposure to litigation against the
local agency
Closed sessions are authorized for legal counsel to inform the legislative body of a significant exposure to litigation against the local agency, but only if based on “existing facts and circumstances” as defined by the Brown Act.20 The legislative body may also meet under this exception to determine whether a closed session is authorized based on information provided by legal counsel or staff. In general, the “existing facts and circumstances” must be publicly disclosed unless they are privileged written communications or not yet known to a potential plaintiff.
Anticipated initiation of litigation by the local agency A closed session may be held under the exception for the anticipated initiation of litigation when the legislative body seeks legal advice on whether to protect the agency’s rights and interests by initiating litigation.
Certain actions must be reported in open session at the same meeting following the closed
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 45
session. Other actions, as where final approval rests with another party or the court, may be announced when they become final and upon inquiry of any person.21 Each agency attorney should be aware of and make the disclosures that are required by the particular circumstances.
Real estate negotiations
A legislative body may meet in closed session with its negotiator to discuss the purchase, sale, exchange, or lease of real property by or for the local agency. A “lease” includes a lease renewal or renegotiation. The purpose is to grant authority to the legislative body’s negotiator on price and terms of payment.22 Caution should be exercised to limit discussion to price and terms of payment without straying to other related issues such as site design, architecture, or other aspects of the project for which the transaction is contemplated.23
Q. May other terms of a real estate transaction, aside from price and terms of payment, be addressed in closed session?
A. No. However, there are differing opinions over the scope of the phrase “price and terms of payment” in connection with real estate closed sessions. Many agency attorneys argue that any term that directly affects the economic value of the transaction falls within the ambit of “price and terms of payment.” Others take a narrower, more literal view of the phrase.
The agency’s negotiator may be a member of the legislative body itself. Prior to the closed session, or on the agenda, the legislative body must identify its negotiators, the real property that the negotiations may concern24 and the names of the parties with whom its negotiator may negotiate.25 After real estate negotiations are concluded, the approval and substance of the agreement must be publicly reported. If its own approval makes the agreement final, the body must report in open session at the public meeting during which the closed session is held. If final approval rests with another party, the local agency must report the approval and the substance of the agreement upon inquiry by any person, as soon as the agency is informed of it.26 “Our population is exploding, and we have to think about new school sites,” said Board Member Jefferson.
“Not only that,” interjected Board Member Tanaka, “we need to get rid of a couple of our older facilities.”
“Well, obviously the place to do that is in a closed session,” said Board Member O’Reilly. “Otherwise we’re going to set off land speculation. And if we even mention closing a school, parents are going to be in an uproar.” A closed session to discuss potential sites is not authorized by the Brown Act. The exception is limited to meeting with its negotiator over specific sites — which must be identified at an open and public meeting.
46 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
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Public employment
The Brown Act authorizes a closed session “to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee.”27 The purpose of this exception — commonly referred to as the “personnel exception” — is to avoid undue publicity or embarrassment for an employee or applicant for employment and to allow full and candid discussion by the legislative body; thus, it is restricted to discussing individuals, not general personnel policies.28 The body must possess the power to appoint, evaluate, or dismiss the employee to hold a closed session under this exception.29 That authority may be delegated to a subsidiary appointed body.30 An employee must be given at least 24 hours notice of any closed session convened to hear specific complaints or charges against him or her. This occurs when the legislative body is reviewing evidence, which could include live testimony, and adjudicating conflicting testimony offered as evidence. A legislative body may examine (or exclude) witnesses,31 and the California Attorney General has opined that, when an affected employee and advocate have an official or essential role to play, they may be permitted to participate in the closed session.32 The employee has the right to have the specific complaints and charges discussed in a public session rather than closed session.33 If the employee is not given the 24-hour prior notice, any disciplinary action is null and void.34
However, an employee is not entitled to notice and a hearing where the purpose of the closed session is to consider a performance evaluation. The Attorney General and the courts have determined that personnel performance evaluations do not constitute complaints and charges, which are more akin to accusations made against a person.35 Q. Must 24 hours notice be given to an employee whose negative performance evaluation is to be considered by the legislative body in closed session? A. No, the notice is reserved for situations where the body is to hear complaints and charges from witnesses.
Correct labeling of the closed session on the agenda is critical. A closed session agenda that identified discussion of an employment contract was not sufficient to allow dismissal of an employee.36 An incorrect agenda description can result in invalidation of an action and much embarrassment.
For purposes of the personnel exception, “employee” specifically includes an officer or an independent contractor who functions as an officer or an employee. Examples of the former include a city manager, district general manager or superintendent. Examples of the latter Include a legal counsel or engineer hired on contract to act as local agency attorney or chief engineer.
Elected officials, appointees to the governing body or subsidiary bodies, and independent contractors other than those discussed above are not employees for purposes of the personnel exception.37 Action on individuals who are not “employees” must also be public — including discussing and voting on appointees to committees, or debating the merits of independent contractors, or considering a complaint against a member of the legislative body itself.
PRACTICE TIP: Discussions of
who to appoint to an advisory
body and whether or not to
censure a fellow member of
the legislative body must be
held in the open.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 47
The personnel exception specifically prohibits discussion or action on proposed compensation in closed session, except for a disciplinary reduction in pay. Among other things, that means there can be no personnel closed sessions on a salary change (other than a disciplinary reduction) between any unrepresented individual and the legislative body. However, a legislative body may address the compensation of an unrepresented individual, such as a city manager, in a closed session as part of a labor negotiation (discussed later in this chapter), yet another example of the importance of using correct agenda descriptions.
Reclassification of a job must be public, but an employee’s ability to fill that job may be considered in closed session.
Any closed session action to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee must be reported at the public meeting during which the closed session is held. That report must identify the title of the position, but not the names of all persons considered for an employment position.38 However, a report on a dismissal or non-renewal of an employment contract must be deferred until administrative remedies, if any, are exhausted.39
“I have some important news to announce,” said Mayor Garcia. “We’ve decided to terminate the contract of the city manager, effective immediately.
The council has met in closed session and we’ve negotiated six months severance pay.”
“Unfortunately, that has some serious budget consequences, so we’ve had to delay phase two of the East Area Project.”
This may be an improper use of the personnel closed session if the council agenda described the item as the city manager’s evaluation. In addition, other than labor negotiations, any action on individual compensation must be taken in open session.
Caution should be exercised to not discuss in closed session issues, such as budget impacts in this hypothetical, beyond the scope of the posted closed session notice.
Labor negotiations
The Brown Act allows closed sessions for some aspects of labor negotiations. Different provisions (discussed below) apply to school and community college districts.
A legislative body may meet in closed session to instruct its bargaining representatives, which may be one or more of its members,40 on employee salaries and fringe benefits for both represented (“union”) and non-represented employees. For represented employees, it may also consider working conditions that by law require negotiation. For the purpose of labor negotiation closed sessions, an “employee” includes an officer or an independent contractor who functions as an officer or an employee, but independent contractors who do not serve in the capacity of an officer or employee are not covered by this closed session exception.41 These closed sessions may take place before or during negotiations with employee representatives. Prior to the closed session, the legislative body must hold an open and public session in which it identifies its designated representatives.
PRACTICE TIP: The personnel
exception specifically prohibits
discussion or action on
proposed compensation in
closed session except for a
disciplinary reduction in pay.
48 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
During its discussions with representatives on salaries and fringe benefits, the legislative body may also discuss available funds and funding priorities, but only to instruct its representative. The body may also meet in closed session with a conciliator who has intervened in negotiations. 42 The approval of an agreement concluding labor negotiations with represented employees must be reported after the agreement is final and has been accepted or ratified by the other party. The report must identify the item approved and the other party or parties to the negotiation.43 The labor closed sessions specifically cannot include final action on proposed compensation of one or more unrepresented employees.
Labor negotiations — school and community college districts Employee relations for school districts and community college districts are governed by the Rodda Act, where different meeting and special notice provisions apply. The entire board, for example, may negotiate in closed sessions.
Four types of meetings are exempted from compliance with the Rodda Act:
1. A negotiating session with a recognized or certified employee organization;
2. A meeting of a mediator with either side;
3. A hearing or meeting held by a fact finder or arbitrator; and
4. A session between the board and its bargaining agent, or the board alone, to discuss its position regarding employee working conditions and instruct its agent.44 Public participation under the Rodda Act also takes another form.45 All initial proposals of both sides must be presented at public meetings and are public records. The public must be given reasonable time to inform itself and to express its views before the district may adopt its initial proposal. In addition, new topics of negotiations must be made public within 24 hours. Any votes on such a topic must be followed within 24 hours by public disclosure of the vote of each member.46 The final vote must be in public.
Other Education Code exceptions
The Education Code governs student disciplinary meetings by boards of school districts and community college districts. District boards may hold a closed session to consider the suspension or discipline of a student, if a public hearing would reveal personal, disciplinary, or academic information about the student contrary to state and federal pupil privacy law. The student’s parent or guardian may request an open meeting.47
Community college districts may also hold closed sessions to discuss some student disciplinary matters, awarding of honorary degrees, or gifts from donors who prefer to remain anonymous.48 Kindergarten through 12th grade districts may also meet in closed session to review the contents of the statewide assessment instrument.49
Joint Powers Authorities
The legislative body of a joint powers authority may adopt a policy regarding limitations on disclosure of confidential information obtained in closed session, and may meet in closed session to discuss information that is subject to the policy.50 PRACTICE TIP: Prior to the
closed session, the legislative
body must hold an open
and public session in which
it identifies its designated
representatives.
PRACTICE TIP: Attendance
by the entire legislative body
before a grand jury would not
constitute a closed session
meeting under the Brown Act.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 49
License applicants with criminal records
A closed session is permitted when an applicant, who has a criminal record, applies for a license or license renewal and the legislative body wishes to discuss whether the applicant is sufficiently rehabilitated to receive the license. The applicant and the applicant’s attorney are authorized to attend the closed session meeting. If the body decides to deny the license, the applicant may withdraw the application. If the applicant does not withdraw, the body must deny the license in public, immediately or at its next meeting. No information from the closed session can be revealed without consent of the applicant, unless the applicant takes action to challenge the denial.51 Public security
Legislative bodies may meet in closed session to discuss matters posing a threat to the security of public buildings, essential public services, including water, sewer, gas, or electric service, or to the public’s right of access to public services or facilities over which the legislative body has jurisdiction. Closed session meetings for these purposes must be held with designated security or law enforcement officials including the Governor, Attorney General, district attorney, agency attorney, sheriff or chief of police, or their deputies or agency security consultant or security operations manager.52 Action taken in closed session with respect to such public security issues is not reportable action.
Multijurisdictional law enforcement agency
A joint powers agency formed to provide law enforcement services (involving drugs; gangs; sex crimes; firearms trafficking; felony possession of a firearm; high technology, computer, or identity theft; human trafficking; or vehicle theft) to multiple jurisdictions may hold closed sessions to discuss case records of an on-going criminal investigation, to hear testimony from persons involved in the investigation, and to discuss courses of action in particular cases.53 The exception applies to the legislative body of the joint powers agency and to any body advisory to it. The purpose is to prevent impairment of investigations, to protect witnesses and informants, and to permit discussion of effective courses of action.54 Hospital peer review and trade secrets
Two specific kinds of closed sessions are allowed for district hospitals and municipal hospitals, under other provisions of law.55
1. A meeting to hear reports of hospital medical audit or quality assurance committees, or for related deliberations. However, an applicant or medical staff member whose staff privileges are the direct subject of a hearing may request a public hearing.
2. A meeting to discuss “reports involving trade secrets” — provided no action is taken.
A “trade secret” is defined as information which is not generally known to the public or competitors and which: 1) “derives independent economic value, actual or potential” by virtue of its restricted knowledge; 2) is necessary to initiate a new hospital service or program or facility; and 3) would, if prematurely disclosed, create a substantial probability of depriving the hospital of a substantial economic benefit.
The provision prohibits use of closed sessions to discuss transitions in ownership or management, or the district’s dissolution.56
50 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
Other legislative bases for closed session
Since any closed session meeting of a legislative body must be authorized by the Legislature, it is important to carefully review the Brown Act to determine if there is a provision that authorizes a closed session for a particular subject matter. There are some less frequently encountered topics that are authorized to be discussed by a legislative body in closed session under the Brown Act, including: a response to a confidential final draft audit report from the Bureau of State Audits,57 consideration of the purchase or sale of particular pension fund investments by a legislative body of a local agency that invests pension funds,58 hearing a charge or complaint from a member enrolled in a health plan by a legislative body of a local agency that provides Medi-Cal services,59 discussions by a county board of supervisors that governs a health plan licensed pursuant to the Knox-Keene Health Care Services Plan Act related to trade secrets or contract negotiations concerning rates of payment,60 and discussions by an insurance pooling joint powers agency related to a claim filed against, or liability of, the agency or a member of the agency.61 Who may attend closed sessions
Meetings of a legislative body are either fully open or fully closed; there is nothing in between.
Therefore, local agency officials and employees must pay particular attention to the authorized attendees for the particular type of closed session. As summarized above, the authorized attendees may differ based on the topic of the closed session. Closed sessions may involve only the members of the legislative body and only agency counsel, management and support staff, and consultants necessary for consideration of the matter that is the subject of closed session, with very limited exceptions for adversaries or witnesses with official roles in particular types of hearings (e.g., personnel disciplinary hearings and license hearings). In any case, individuals who do not have an official role in the closed session subject matters must be excluded from closed sessions.63
Q. May the lawyer for someone suing the agency attend a closed session in order to explain to the legislative body why it should accept a settlement offer? A. No, attendance in closed sessions is reserved exclusively for the agency’s advisors.
The confidentiality of closed session discussions
The Brown Act explicitly prohibits the unauthorized disclosure of confidential information acquired in a closed session by any person present, and offers various remedies to address breaches of confidentiality.64 It is incumbent upon all those attending lawful closed sessions to protect the confidentiality of those discussions. One court has held that members of a legislative body cannot be compelled to divulge the content of closed session discussions through the discovery process.65 Only the legislative body acting as a body may agree to divulge confidential closed session information; regarding attorney/client privileged communications, the entire body is the holder of the privilege and only the entire body can decide to waive the privilege.66 PRACTICE TIP: Meetings are
either open or closed. There is
nothing “in between.”62
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 51
Before adoption of the Brown Act provision specifically prohibiting disclosure of closed session communications, agency attorneys and the Attorney General long opined that officials have a fiduciary duty to protect the confidentiality of closed session discussions. The Attorney General issued an opinion that it is “improper” for officials to disclose information received during a closed session regarding pending litigation,67 though the Attorney General has also concluded that a local agency is preempted from adopting an ordinance criminalizing public disclosure of closed session discussions.68 In any event, in 2002, the Brown Act was amended to prescribe particular remedies for breaches of confidentiality. These remedies include injunctive relief; and, if the breach is a willful disclosure of confidential information, the remedies include disciplinary action against an employee, and referral of a member of the legislative body to the grand jury.69 The duty of maintaining confidentiality, of course, must give way to the responsibility to disclose improper matters or discussions that may come up in closed sessions. In recognition of this public policy, under the Brown Act, a local agency may not penalize a disclosure of information learned during a closed session if the disclosure: 1) is made in confidence to the district attorney or the grand jury due to a perceived violation of law; 2) is an expression of opinion concerning the propriety or legality of actions taken in closed session, including disclosure of the nature and extent of the illegal action; or 3) is information that is not confidential.70 The interplay between these possible sanctions and an official’s first amendment rights is complex and beyond the scope of this guide. Suffice it to say that this is a matter of great sensitivity and controversy.
“I want the press to know that I voted in closed session against filing the eminent domain action,” said Council Member Chang.
“Don’t settle too soon,” reveals Council Member Watson to the property owner, over coffee. “The city’s offer coming your way is not our bottom line.” The first comment to the press may be appropriate if it is a part of an action taken by the City Council in closed session that must be reported publicly.71 The second comment to the property owner is not — disclosure of confidential information acquired in closed session is expressly prohibited and harmful to the agency.
PRACTICE TIP: There is a
strong interest in protecting the
confidentiality of proper and
lawful closed sessions.
52 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
ENDNOTES:
1 California Government Code section 54962
2 California Constitution, Art. 1, section 3
3 61 Ops.Cal.Atty.Gen. 220 (1978); but see California Government Code section 54957.8 (multijurisdictional law enforcement agencies are authorized to meet in closed session to discuss the case records of ongoing criminal investigations, and other related matters). 4 California Government Code section 54957.1
5 California Government Code section 54954.5
6 California Government Code section 54954.2
7 California Government Code section 54954.5
8 California Government Code sections 54956.9 and 54957.7 9 California Government Code section 54957.1(a)
10 California Government Code section 54957.1(b)
11 California Government Code section 54957.2
12 Hamilton v. Town of Los Gatos (1989) 213 Cal.App.3d 1050; 2 Cal.Code Regs. section 18707 13 Roberts v. City of Palmdale (1993) 5 Cal.4th 363
14 California Government Code section 54956.9; Shapiro v. Board of Directors of Center City Development Corp. (2005) 134 Cal.App.4th 170 (agency must be a party to the litigation). 15 82 Ops.Cal.Atty.Gen. 29 (1999)
16 Page v. Miracosta Community College District (2009) 180 Cal.App.4th 471 17 “The Brown Act,” California Attorney General (2003), p. 40 18 California Government Code section 54956.9(g)
19 Trancas Property Owners Association v. City of Malibu (2006) 138 Cal.App.4th 172 20 Government Code section 54956.9(e)
21 California Government Code section 54957.1
22 California Government Code section 54956.8
23 Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904; see also 93 Ops.Cal.Atty.Gen. 51 (2010) (redevelopment agency may not convene a closed session to discuss rehabilitation loan for a property already subleased to a loan recipient, even if the loan Incorporates some of the sublease terms and includes an operating covenant governing the property); 94 Ops.Cal.Atty.Gen. 82 (2011) (real estate closed session may address form, manner and timing of consideration and other items that cannot be disclosed without revealing price and terms).
24 73 Ops.Cal.Atty.Gen. 1 (1990)
25 California Government Code sections 54956.8 and 54954.5(b) 26 California Government Code section 54957.1(a)(1)
27 California Government Code section 54957(b)
28 63 Ops.Cal.Atty.Gen. 153 (1980); but see Duvall v. Board of Trustees (2000) 93 Cal.App.4th 902 (board may discuss personnel evaluation criteria, process and other preliminary matters in closed session but only if related to the evaluation of a particular employee). 29 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165; 85 Ops.Cal.Atty.Gen. 77 (2002)
30 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165; 80 Ops.Cal.Atty.
Gen. 308 (1997). Interviews of candidates to fill a vacant staff position conducted by a temporary committee appointed by the governing body may be done in closed session.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 53
31 California Government Code section 54957(b)(3)
32 88 Ops.Cal.Atty.Gen. 16 (2005)
33 Morrison v. Housing Authority of the City of Los Angeles (2003) 107 Cal.App.4th 860 34 California Government Code section 54957(b); but see Bollinger v. San Diego Civil Service Commission (1999) 71 Cal.App.4th 568 (notice not required for closed session deliberations regarding complaints or charges, when there was a public evidentiary hearing prior to closed session). 35 78 Ops.Cal.Atty.Gen. 218 (1995); Bell v. Vista Unified School District (2000) 82 Cal.App.4th 672; Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876; Fischer v. Los Angeles Unified School District (1999) 70 Cal.App.4th 87
36 Moreno v. City of King (2005) 127 Cal.App.4th 17
37 California Government Code section 54957
38 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165 39 California Government Code section 54957.1(a)(5)
40 California Government Code section 54957.6
41 California Government Code section 54957.6(b); see also 98 Ops.Cal.Atty.Gen. 41 (2015) (a project labor agreement between a community college district and workers hired by contractors or subcontractors is not a proper subject of closed session for labor negotiations because the workers are not “employees” of the district).
42 California Government Code section 54957.6; and 51 Ops.Cal.Atty.Gen. 201 (1968) 43 California Government Code section 54957.1(a)(6)
44 California Government Code section 3549.1
45 California Government Code section 3540
46 California Government Code section 3547
47 California Education Code section 48918; but see Rim of the World Unified School District v. Superior Court (2003) 104 Cal.App.4th 1393 (Section 48918 preempted by the Federal Family Educational Right and Privacy Act in regard to expulsion proceedings). 48 California Education Code section 72122
49 California Education Code section 60617
50 California Government Code section 54956.96
51 California Government Code section 54956.7
52 California Government Code section 54957
53 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal.
App.4th 354
54 California Government Code section 54957.8
55 California Government Code section 54962
56 California Health and Safety Code section 32106
57 California Government Code section 54956.75
58 California Government Code section 54956.81
59 California Government Code section 54956.86
60 California Government Code section 54956.87
61 California Government Code section 54956.95
62 46 Ops.Cal.Atty.Gen. 34 (1965)
63 82 Ops.Cal.Atty.Gen. 29 (1999)
54 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
64 Government Code section 54963
65 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 327; see also California Government Code section 54963.
66 Roberts v. City of Palmdale (1993) 5 Cal.4th 363
67 80 Ops.Cal.Atty.Gen. 231 (1997)
68 76 Ops.Cal.Atty.Gen. 289 (1993)
69 California Government Code section 54963
70 California Government Code section 54963
71 California Government Code section 54957.1
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT55 55 Chapter 6
REMEDIES
Invalidation........................................................................................................................ 56 Applicability to Past Actions ............................................................................................. 57 Civil action to prevent future violations ........................................................................... 57 Costs and attorney’s fees ................................................................................................. 58 Criminal complaints .......................................................................................................... 58 Voluntary resolution.......................................................................................................... 59
56 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 6: REMEDIES
Certain violations of the Brown Act are designated as misdemeanors, although by far the most commonly used enforcement provisions are those that authorize civil actions to invalidate specified actions taken in violation of the Brown Act and to stop or prevent future violations. Still, despite all the safeguards and remedies to enforce them, it is ultimately impossible for the public to monitor every aspect of public officials’ interactions. Compliance ultimately results from regular training and a good measure of self-regulation on the part of public officials. This chapter discusses the remedies available to the public when that self-regulation is ineffective.
Invalidation
Any interested person, including the district attorney, may seek to invalidate certain actions of a legislative body on the ground that they violate the Brown Act.1 Violations of the Brown Act, however, cannot be invalidated if they involve the following types of actions:
Those taken in substantial compliance with the law. No Brown Act violation is found when the given notice substantially complies with the Brown Act, even when the notice erroneously cites to the wrong Brown Act section, but adequately advises the public that the Board will meet with legal counsel to discuss potential litigation in closed session;2 Those involving the sale or issuance of notes, bonds or other indebtedness, or any related contracts or agreements;
Those creating a contractual obligation, including a contract awarded by competitive bid for other than compensation for professional services, upon which a party has in good faith relied to its detriment;
Those connected with the collection of any tax; or
Those in which the complaining party had actual notice at least 72 hours prior to the regular meeting or 24 hours prior to the special meeting, as the case may be, at which the action is taken.
Before filing a court action seeking invalidation, a person who believes that a violation has occurred must send a written “cure or correct” demand to the legislative body. This demand must clearly describe the challenged action and the nature of the claimed violation. This demand must be sent within 90 days of the alleged violation or 30 days if the action was taken in open session but in violation of Section 54954.2, which requires (subject to specific exceptions) that only properly agendized items are acted on by the governing body during a meeting.3 The legislative
body then has up to 30 days to cure and correct its action. If it does not act, any lawsuit must be filed within the next 15 days. The purpose of this requirement is to offer the body an opportunity to consider whether a violation has occurred and to weigh its options before litigation is filed.
Chapter 6
REMEDIES
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 57
Although just about anyone has standing to bring an action for invalidation,4 the challenger must show prejudice as a result of the alleged violation.5
An action to invalidate fails to state a cause of
action against the agency if the body deliberated but did not take an action.6 Applicability to Past Actions
Any interested person, including the district attorney, may file a civil action to determine whether past actions of a legislative body occurring on or after January 1, 2013 constitute violations of the Brown Act and are subject to a mandamus, injunction, or declaratory relief action.7 Before filing
an action, the interested person must, within nine months of the alleged violation of the Brown Act, submit a “cease and desist” letter to the legislative body, clearly describing the past action and the nature of the alleged violation.8
The legislative body has 30 days after receipt of the letter to provide an unconditional commitment to cease and desist from the past action.9 If the body
fails to take any action within the 30-day period or takes an action other than an unconditional commitment, a lawsuit may be filed within 60 days.10
The legislative body’s unconditional commitment must be approved at a regular or special meeting as a separate item of business and not on the consent calendar.11 The unconditional commitment must be substantially in the form set forth in the Brown Act.12 No legal action may thereafter be commenced regarding the past action.13 However, an action of the legislative body in violation of its unconditional commitment constitutes an independent violation of the Brown Act and a legal action consequently may be commenced without following the procedural requirements for challenging past actions.14
The legislative body may rescind its prior unconditional commitment by a majority vote of its membership at a regular meeting as a separate item of business not on the consent calendar. At least 30 days written notice of the intended rescission must be given to each person to whom the unconditional commitment was made and to the district attorney. Upon rescission, any interested person may commence a legal action regarding the past actions without following the procedural requirements for challenging past actions.15
Civil action to prevent future violations
The district attorney or any interested person can file a civil action asking the court to:
Stop or prevent violations or threatened violations of the Brown Act by members of the legislative body of a local agency;
Determine the applicability of the Brown Act to actions or threatened future action of the legislative body;
Determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid under state or federal law; or
Compel the legislative body to tape record its closed sessions.
PRACTICE TIP: A lawsuit to
invalidate must be preceded by
a demand to cure and correct
the challenged action in order
to give the legislative body
an opportunity to consider its
options. The Brown Act does not
specify how to cure or correct
a violation; the best method
is to rescind the action being
complained of and start over, or
reaffirm the action if the local
agency relied on the action and
rescinding the action would
prejudice the local agency.
58 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 6: REMEDIES
It is not necessary for a challenger to prove a past pattern or practice of violations by the local agency in order to obtain injunctive relief. A court may presume when issuing an injunction that a single violation will continue in the future where the public agency refuses to admit to the alleged violation or to renounce or curtail the practice.16 Note, however, that a court may not compel elected officials to disclose their recollections of what transpired in a closed session.17 Upon finding a violation of the Brown Act pertaining to closed sessions, a court may compel the legislative body to tape record its future closed sessions. In a subsequent lawsuit to enforce the Brown Act alleging a violation occurring in closed session, a court may upon motion of the plaintiff review the tapes if there is good cause to think the Brown Act has been violated, and make public the relevant portion of the closed session recording.
Costs and attorney’s fees
Someone who successfully invalidates an action taken in violation of the Brown Act or who successfully enforces one of the Brown Act’s civil remedies may seek court costs and reasonable attorney’s fees. Courts have held that attorney’s fees must be awarded to a successful plaintiff unless special circumstances exist that would make a fee award against the public agency unjust.18 When evaluating how to respond to assertions that the Brown Act has been violated, elected officials and their lawyers should assume that attorney’s fees will be awarded against the agency if a violation of the Act is proven.
An attorney’s fee award may only be directed against the local agency and not the individual members of the legislative body. If the local agency prevails, it may be awarded court costs and attorney’s fees if the court finds the lawsuit was clearly frivolous and lacking in merit.19 Criminal complaints
A violation of the Brown Act by a member of the legislative body who acts with the improper intent described below is punishable as a misdemeanor.20 A criminal violation has two components. The first is that there must be an overt act — a member of a legislative body must attend a meeting at which action is taken in violation of the Brown Act.21 “Action taken” is not only an actual vote, but also a collective decision, commitment or promise by a majority of the legislative body to make a positive or negative decision.22 If the meeting involves mere deliberation without the taking of action, there can be no misdemeanor penalty.
A violation occurs for a tentative as well as final decision.23 In fact, criminal liability is triggered by a member’s participation in a meeting in violation of the Brown Act — not whether that member has voted with the majority or minority, or has voted at all.
The second component of a criminal violation is that action is taken with the intent of a member “to deprive the public of information to which the member knows or has reason to know the public is entitled” by the Brown Act.24
PRACTICE TIP: Attorney’s
fees will likely be awarded if
a violation of the Brown Act is
proven.
OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 59
As with other misdemeanors, the filing of a complaint is up to the district attorney. Although criminal prosecutions of the Brown Act are uncommon, district attorneys in some counties aggressively monitor public agencies’ adherence to the requirements of the law.
Some attorneys and district attorneys take the position that a Brown Act violation may be pursued criminally under Government Code section 1222.25 There is no case law to support this view; if anything, the existence of an express criminal remedy within the Brown Act would suggest otherwise.26
Voluntary resolution
Arguments over Brown Act issues often become emotional on all sides. Newspapers trumpet relatively minor violations, unhappy residents fume over an action, and legislative bodies clam up about information better discussed in public. Hard lines are drawn and rational discussion breaks down. The district attorney or even the grand jury occasionally becomes involved. Publicity surrounding alleged violations of the Brown Act can result in a loss of confidence by constituents in the legislative body. There are times when it may be preferable to consider re-noticing and rehearing, rather than litigating, an item of significant public interest, particularly when there is any doubt about whether the open meeting requirements were satisfied.
At bottom, agencies that regularly train their officials and pay close attention to the requirements of the
Brown Act will have little reason to worry about
enforcement.
ENDNOTES:
1 California Government Code section 54960.1.
Invalidation is limited to actions that violate the
following sections of the Brown Act: section 54953 (the basic open meeting provision); sections 54954.2 and
54954.5 (notice and agenda requirements for regular
meetings and closed sessions); 54954.6 (tax hearings);
54956 (special meetings); and 54596.5 (emergency
situations). Violations of sections not listed above
cannot give rise to invalidation actions, but are subject to the other remedies listed in section 54960.1.
2 Castaic Lake Water Agency v. Newhall County Water
District (2015) 238 Cal.App.4th 1196, 1198
3 California Government Code section 54960.1 (b) and
(c)(1)
4 McKee v. Orange Unified School District (2003) 110 Cal.
App.4th 1310, 1318-1319
5 Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 556, 561 6 Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1116-17, 1118 7 Government Code Section 54960.2(a); Senate Bill No. 1003, Section 4 (2011-2012 Session) 8 Government Code Sections 54960.2(a)(1), (2)
9 Government Code Section 54960.2(b)
60 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 6: REMEDIES
10 Government Code Section 54960.2(a)(4)
11 Government Code Section 54960.2(c)(2)
12 Government Code Section 54960.2(c)(1)
13 Government Code Section 54960.2(c)(3)
14 Government Code Section 54960.2(d)
15 Government Code Section 54960.2(e)
16 California Alliance for Utility Safety and Education (CAUSE) v. City of San Diego (1997) 56 Cal.App.4th 1024; Common Cause v. Stirling (1983) 147 Cal.App.3d 518, 524; Accord Shapiro v. San Diego City Council (2002) 96 Cal. App. 4th 904, 916 & fn.6
17 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 334-36 18 Los Angeles Times Communications, LLC v. Los Angeles County Board of Supervisors (2003) 112 Cal.
App.4th 1313, 1327-29 and cases cited therein
19 California Government Code section 54960.5
20 California Government Code section 54959. A misdemeanor is punishable by a fine of up to $1,000 or up to six months in county jail, or both. California Penal Code section 19. Employees of the agency who participate in violations of the Brown Act cannot be punished criminally under section 54959.
However, at least one district attorney instituted criminal action against employees based on the theory that they criminally conspired with the members of the legislative body to commit a crime under section 54949.
21 California Government Code section 54959
22 California Government Code section 54952.6
23 61 Ops.Cal.Atty.Gen.283 (1978)
24 California Government Code section 54959
25 California Government Code section 1222 provides that “[e]very wilful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision is made for the punishment of such delinquency, is punishable as a misdemeanor.” 26 The principle of statutory construction known as expressio unius est exclusio alterius supports the view that section 54959 is the exclusive basis for criminal liability under the Brown Act.
Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov.
1400 K Street, Suite 400, Sacramento, CA 95814
Phone: (916) 658-8200 | Fax: (916) 658-8240
www.cacities.org | www.cacities.org/events | www.westerncity.com
Appendix D
City of Buellton Code of Ethics
Appendix E
ICMA Code of Ethics
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ICMA Code of Ethics with Guidelines
The ICMA Code of Ethics was adopted by the ICMA membership in 1924, and most recently amended by the membership in June 2020. The Guidelines for the Code were adopted by the ICMA Executive Board in 1972, and most recently revised in June 2020.
The mission of ICMA is to advance professional local government through leadership, management, innovation, and ethics. To further this mission, certain principles, as enforced by the Rules of Procedure, shall govern the conduct of every member of ICMA, who shall:
Tenet 1. We believe professional management is essential to efficient and democratic local government by elected officials.
Tenet 2. Affirm the dignity and worth of local government services and maintain a deep sense of social responsibility as a trusted public servant.
GUIDELINE
Advice to Officials of Other Local Governments. When members advise and respond to inquiries from elected or appointed officials of other local governments, they should inform the administrators of those communities in order to uphold local government professionalism.
Tenet 3. Demonstrate by word and action the highest standards of ethical conduct and integrity in all public, professional, and personal relationships in order that the member may merit the trust and respect of the elected and appointed officials, employees, and the public.
GUIDELINES
Public Confidence. Members should conduct themselves so as to maintain public confidence in their position and profession, the integrity of their local government, and in their responsibility to uphold the public trust.
Length of Service. For chief administrative/executive officers appointed by a governing body or elected official, a minimum of two years is considered necessary to render a professional service to the local government. In limited circumstances, it may be in the best interests of the local government and the member to separate before serving two years. Some examples include refusal of the appointing authority to honor commitments concerning conditions of employment, a vote of no confidence in the member, or significant personal issues. It is the responsibility of an applicant for a position to understand conditions of employment, including expectations of service. Not understanding the terms of employment prior to accepting does not justify
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premature separation. For all members a short tenure should be the exception rather than a recurring experience, and members are expected to honor all conditions of employment with the organization.
Appointment Commitment. Members who accept an appointment to a position should report to that position. This does not preclude the possibility of a member considering several offers or seeking several positions at the same time. However, once a member has accepted a formal offer of employment, that commitment is considered binding unless the employer makes fundamental changes in the negotiated terms of employment.
Credentials. A member’s resume for employment or application for ICMA’s Voluntary Credentialing Program shall completely and accurately reflect the member’s education, work experience, and personal history. Omissions and inaccuracies must be avoided.
Professional Respect. Members seeking a position should show professional respect for persons formerly holding the position, successors holding the position, or for others who might be applying for the same position. Professional respect does not preclude honest differences of opinion; it does preclude attacking a person's motives or integrity.
Reporting Ethics Violations. When becoming aware of a possible violation of the ICMA Code of Ethics, members are encouraged to report possible violations to ICMA. In reporting the possible violation, members may choose to go on record as the complainant or report the matter on a confidential basis.
Confidentiality. Members shall not discuss or divulge information with anyone about pending or completed ethics cases, except as specifically authorized by the Rules of Procedure for Enforcement of the Code of Ethics.
Seeking Employment. Members should not seek employment for a position that has an incumbent who has not announced his or her separation or been officially informed by the appointive entity that his or her services are to be terminated. Members should not initiate contact with representatives of the appointive entity. Members contacted by representatives of the appointive entity body regarding prospective interest in the position should decline to have a conversation until the incumbent's separation from employment is publicly known.
Relationships in the Workplace. Members should not engage in an intimate or romantic relationship with any elected official or board appointee, employee they report to, one they appoint and/or supervise, either directly or indirectly, within the organization.
This guideline does not restrict personal friendships, professional mentoring, or social interactions with employees, elected officials and Board appointees.
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Influence. Members should conduct their professional and personal affairs in a manner that demonstrates that they cannot be improperly influenced in the performance of their official duties.
Conflicting Roles. Members who serve multiple roles – either within the local government organization or externally – should avoid participating in matters that create either a conflict of interest or the perception of one. They should disclose any potential conflict to the governing body so that it can be managed appropriately.
Conduct Unbecoming. Members should treat people fairly, with dignity and respect and should not engage in, or condone bullying behavior, harassment, sexual harassment or discrimination on the basis of race, religion, national origin, age, disability, gender, gender identity, or sexual orientation.
Tenet 4. Serve the best interests of the people.
GUIDELINES
Impacts of Decisions. Members should inform their governing body of the anticipated effects of a decision on people in their jurisdictions, especially if specific groups may be disproportionately harmed or helped.
Inclusion. To ensure that all the people within their jurisdiction have the ability to actively engage with their local government, members should strive to eliminate barriers to public involvement in decisions, programs, and services.
Tenet 5. Submit policy proposals to elected officials; provide them with facts, and technical and professional advice about policy options; and collaborate with them in setting goals for the community and organization.
Tenet 6. Recognize that elected representatives are accountable to their community for the decisions they make; members are responsible for implementing those decisions.
Tenet 7. Refrain from all political activities which undermine public confidence in professional administrators. Refrain from participation in the election of the members of the employing legislative body.
GUIDELINES
Elections of the Governing Body. Members should maintain a reputation for serving equally and impartially all members of the governing body of the local government they serve, regardless of party. To this end, they should not participate in an election campaign on behalf of or in opposition to candidates for the governing body.
Elections of Elected Executives. Members shall not participate in the election campaign of any candidate for mayor or elected county executive.
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Running for Office. Members shall not run for elected office or become involved in political activities related to running for elected office, or accept appointment to an elected office. They shall not seek political endorsements, financial contributions or engage in other campaign activities.
Elections. Members share with their fellow citizens the right and responsibility to vote. However, in order not to impair their effectiveness on behalf of the local governments they serve, they shall not participate in political activities to support the candidacy of individuals running for any city, county, special district, school, state or federal offices. Specifically, they shall not endorse candidates, make financial contributions, sign or circulate petitions, or participate in fund-raising activities for individuals seeking or holding elected office.
Elections relating to the Form of Government. Members may assist in preparing and presenting materials that explain the form of government to the public prior to a form of government election. If assistance is required by another community, members may respond.
Presentation of Issues. Members may assist their governing body in the presentation of issues involved in referenda such as bond issues, annexations, and other matters that affect the government entity’s operations and/or fiscal capacity.
Personal Advocacy of Issues. Members share with their fellow citizens the right and responsibility to voice their opinion on public issues. Members may advocate for issues of personal interest only when doing so does not conflict with the performance of their official duties.
Tenet 8. Make it a duty continually to improve the member’s professional ability and to develop the competence of associates in the use of management techniques.
GUIDELINES
Self-Assessment. Each member should assess his or her professional skills and abilities on a periodic basis.
Professional Development. Each member should commit at least 40 hours per year to professional development activities that are based on the practices identified by the members of ICMA.
Tenet 9. Keep the community informed on local government affairs; encourage communication between the citizens and all local government officers; emphasize friendly and courteous service to the public; and seek to improve the quality and image of public service.
Tenet 10. Resist any encroachment on professional responsibilities, believing the member should be free to carry out official policies without interference, and handle each problem without discrimination on the basis of principle and justice.
COPYRIGHT © 2020 BY THE INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION. ALL RIGHTS RESERVED.
GUIDELINE
Information Sharing. The member should openly share information with the governing body while diligently carrying out the member’s responsibilities as set forth in the charter or enabling legislation.
Tenet 11. Handle all matters of personnel on the basis of merit so that fairness and impartiality govern a member’s decisions, pertaining to appointments, pay adjustments, promotions, and discipline.
GUIDELINE
Equal Opportunity. All decisions pertaining to appointments, pay adjustments, promotions, and discipline should prohibit discrimination because of race, color, religion, sex, national origin, sexual orientation, political affiliation, disability, age, or marital status.
It should be the members’ personal and professional responsibility to actively recruit and hire a diverse staff throughout their organizations.
Tenet 12. Public office is a public trust. A member shall not leverage his or her position for personal gain or benefit.
GUIDELINES
Gifts. Members shall not directly or indirectly solicit, accept or receive any gift if it could reasonably be perceived or inferred that the gift was intended to influence them in the performance of their official duties; or if the gift was intended to serve as a reward for any official action on their part.
The term “Gift” includes but is not limited to services, travel, meals, gift cards, tickets, or other entertainment or hospitality. Gifts of money or loans from persons other than the local government jurisdiction pursuant to normal employment practices are not acceptable.
Members should not accept any gift that could undermine public confidence. De minimus gifts may be accepted in circumstances that support the execution of the member’s official duties or serve a legitimate public purpose. In those cases, the member should determine a modest maximum dollar value based on guidance from the governing body or any applicable state or local law.
The guideline is not intended to apply to normal social practices, not associated with the member’s official duties, where gifts are exchanged among friends, associates and relatives.
Investments in Conflict with Official Duties. Members should refrain from any investment activity which would compromise the impartial and objective performance of their duties. Members should not invest or hold any investment, directly or indirectly, in any financial business, commercial, or other private transaction that creates a conflict of interest, in fact or appearance, with their official duties.
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In the case of real estate, the use of confidential information and knowledge to further a member’s personal interest is not permitted. Purchases and sales which might be interpreted as speculation for quick profit should be avoided (see the guideline on “Confidential Information”).
Because personal investments may appear to influence official actions and decisions, or create the appearance of impropriety, members should disclose or dispose of such investments prior to accepting a position in a local government. Should the conflict of interest arise during employment, the member should make full disclosure and/or recuse themselves prior to any official action by the governing body that may affect such investments.
This guideline is not intended to prohibit a member from having or acquiring an interest in or deriving a benefit from any investment when the interest or benefit is due to ownership by the member or the member’s family of a de minimus percentage of a corporation traded on a recognized stock exchange even though the corporation or its subsidiaries may do business with the local government.
Personal Relationships. In any instance where there is a conflict of interest, appearance of a conflict of interest, or personal financial gain of a member by virtue of a relationship with any individual, spouse/partner, group, agency, vendor or other entity, the member shall disclose the relationship to the organization. For example, if the member has a relative that works for a developer doing business with the local government, that fact should be disclosed.
Confidential Information. Members shall not disclose to others, or use to advance their personal interest, intellectual property, confidential information, or information that is not yet public knowledge, that has been acquired by them in the course of their official duties.
Information that may be in the public domain or accessible by means of an open records request, is not confidential.
Private Employment. Members should not engage in, solicit, negotiate for, or promise to accept private employment, nor should they render services for private interests or conduct a private business when such employment, service, or business creates a conflict with or impairs the proper discharge of their official duties.
Teaching, lecturing, writing, or consulting are typical activities that may not involve conflict of interest, or impair the proper discharge of their official duties. Prior notification of the appointing authority is appropriate in all cases of outside employment.
Representation. Members should not represent any outside interest before any agency, whether public or private, except with the authorization of or at the direction of the appointing authority they serve.
Endorsements. Members should not endorse commercial products or services by agreeing to use their photograph, endorsement, or quotation in paid or other commercial advertisements,
COPYRIGHT © 2020 BY THE INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION. ALL RIGHTS RESERVED.
marketing materials, social media, or other documents, whether the member is compensated or not for the member’s support. Members may, however, provide verbal professional references as part of the due diligence phase of competitive process or in response to a direct inquiry.
Members may agree to endorse the following, provided they do not receive any compensation:
(1) books or other publications; (2) professional development or educational services provided by nonprofit membership organizations or recognized educational institutions; (3) products and/or services in which the local government has a direct economic interest.
Members’ observations, opinions, and analyses of commercial products used or tested by their local governments are appropriate and useful to the profession when included as part of professional articles and reports.
Appendix F
CEQA and Environmental Issues
CEQA and
Environmental Issues
The Planning Commissioner Handbook
Chapter 7
ILGPlanningHandbook.org
CEQA and Environmental Issues
Introduction 159
Background 159
Environmental Issues in Long-Range Planning 160
How an Environmental Analysis is Conducted 162
Determining the Required Level of Review 162
The Environmental Impact Report 162
Certifying the CEQA Document 165
Tiering, Master EIRs and Program EIRs 165
Types of Environmental Compliance 166
CEQA Environmental Topics 167
1. Aesthetics 167
2. Agriculture and Forestry Resources 167
3. Air Quality 168
4. Biological Resources 170
5. Cultural Resources 171
6. Energy 171
7. Geology and Soils 173
8. Greenhouse Gas Emissions 173
9. Hazards and Hazardous Materials 174
10. Hydrology and Water Quality 174
TABLE OF CONTENTS
CEQA and Environmental Issues
11. Land Use and Planning 176
12. Mineral Resources 177
13. Noise and Vibration 177
14. Population, Housing and Employment 180
15. Public Services 180
16. Recreation 180
17. Transportation (VMT) 181
18. Tribal Cultural Resources 181
19. Utilities and Service Systems 181
20. Wildfire 182
21. Mandatory Findings of Significance 182
CEQA and Environmental Issues 159
Introduction
Environmental issues in planning can be addressed during the formation and implementation of long-range plans (e.g., general plans, community plans, specific plans, or other specific forms of environmental planning such as open space or conservation planning), the design of specific projects, and during the environmental review process for proposed plans or projects as governed by the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA).
This section of this Handbook focuses primarily on CEQA, however as noted in other sections of the Handbook, long-range plans and how projects are designed also play important roles in addressing environmental issues and the long-term health and sustainability of a community.
The California Environmental Quality Act (CEQA) is a formal process to publicly report on the possible environmental impacts of a proposed agency decision. While the results of technical studies used for CEQA compliance can be used to inform land planning, CEQA compliance is limited in its usefulness as a planning tool. The following addresses key CEQA terms, procedures and topics, but is far from a comprehensive study of the CEQA process. Instead, the following is provided from a commissioner’s perspective of the information needed to understand the often-lengthy CEQA document that accompanies a development request on the agenda.
Background
CEQA was signed by Governor Ronald Regan in 1970 and is based on the National Environmental Policy Act (NEPA). While there are similarities between the two, CEQA is typically more comprehensive in scope. While the CEQA guidelines are the most often used procedures for environmental compliance, the guidelines recommend that each agency adopt their own procedures and many agencies have done so. Your agency may have adopted their own guidelines and may have the same topics, different topics or fewer topics. Be sure to check with your agency to understand which CEQA guidelines apply.
CEQA and Environmental Issues 160
Environmental Issues in Long-Range Planning
All land planning has an environmental component. It is impractical to separate physical impacts on the environment from the land planning process. To be effective, land plans are intended to change circumstances, and CEQA is specifically intended to evaluate the potential impacts of that change. There are several emerging planning issues that are not part of the CEQA guidelines or supporting laws but nevertheless are part of the broader planning discussion and warrant mentioning here. Growth Guidance. Knowledge of the potential environmental impacts can affect the conversation about the direction, intensity and timing of future growth. The environmental aspect can include historic buildings and cultural resources, services and utilities, equity and environmental justice. These are issues that each community will address and may have policies in their general plan or other guidance documents that would affect the environmental analysis. Environmental Justice and Equity. California Government Code Section 65040.12(e)(1) defines environmental justice as “the fair treatment and meaningful involvement of people of all races, cultures, incomes, and national origins, with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies. Environmental justice includes, but is not limited to, all of the following:
• The availability of a healthy environment for all people. • The deterrence, reduction and elimination of pollution burdens for populations and communities experiencing the adverse effects of that pollution, so that the effects of the pollution are not disproportionately borne by those populations and communities.
• Governmental entities engaging and providing technical assistance to populations and communities most impacted by pollution to promote their meaningful participation in all phases of the environmental and land use decisionmaking process. • At a minimum, the meaningful consideration of recommendations from populations and communities most impacted by pollution into environmental and land use decisions.”1 The federal Environmental Protection Agency (EPA) defines environmental justice as “…the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations and policies. This goal will be achieved when everyone enjoys:
• The same degree of protection from environmental and health hazards, and • Equal access to the decision-making process to have a healthy environment in which to live, learn and work.”2 The first bullet speaks to the unequal impact from industrial, and transportation hazards that affect lower income and disadvantaged communities. The second is addressed in the public participation section of the handbook. While NEPA has always included a requirement to consider environmental justice, CEQA currently does not. However, as the general plan is now required to consider environmental justice lead agencies may address environmental justice concerns in CEQA, although it is not explicitly required by law. The impacts of projects are quantified in the environmental analysis but there is often cursory analysis of indirect impacts that occur to communities along transportation routes, for example. Many communities are using the development agreement process to establish community benefit programs intended to offset direct and indirect 1 Government Code 65040.12
2 https://www.epa.gov/environmentaljustice
CEQA and Environmental Issues 161
impacts associated with industrial or other large-scale projects. Green Building, LEED, etc., Green buildings focus on the sustainability of the materials, use of the land and consumption of energy and water through all phases of a project. While “green building” is often a generic term for this type of building, and some green building projects are certified through a voluntary green building rating system known as the Leadership in Energy and Environmental Design (LEED), there are several methods of improving the sustainability of a project. The California Building Code (CBC) regulates all building in California and is adopted by each agency. It is the CBC that requires solar panels and other energy saving features of new construction. The CBC also includes the California Green Building Standards Code (CALGreen), which includes both mandatory and voluntary measures related to water efficiency, waste reduction, low-VOC materials, EV charging and other measures. CALGreen is similar to but not equivalent to LEED. LEED certifications are often only possible after completion of a project and the certifications are not made by the agency; however, compliance with CALGreen is enforced by the permitting agency. As such, it may be difficult to require a LEED certification and follow through with the requirement. In these instances, it is common to see “…or equivalent” used as part of the condition. Compliance with the CBC and CALGreen is required and can be determined by the agency.
Community Benefit Plans. A community benefit plan (also sometimes referred to as a community benefits agreement) or similar program is often part of a development agreement or condition of approval for a large project that will have direct or indirect impacts to the community, and in particular disadvantaged communities. The plans can require on or off-site improvements such as noise walls, air filtration, tree planting, trails, sidewalks, or other physical improvements intended to offset the impact(s) of the project. Until recently, development was considered its own reward, however some communities experience more impact from some types of development than others. A community benefit plan is one way an agency can help offset those impacts. If the community benefit plan will result in physical impacts those impacts must be part of the environmental analysis.
Wildfire/Evacuations/Rebuilding California. The California weather pattern can deliver drought, high winds and wildfire danger. Over the past decade, the wildfire season has largely become a year-round concern. As a commissioner it can be difficult to address wildfire and safety issues with communities as part of the environmental process. There are often no easy answers. Fuel management can only do so much to reduce risk in areas where wildfires are prevalent because steep terrain, limited access and topography all factor into the ability to fight wildfire. It is also important to note that fuel modification must be repeated as underbrush and trees grow back. Wildfire has always been a CEQA topic, and fire safe plans and more collaborative approaches with fire planning through state and federal agencies will provide more tools for communities to use in addressing this issue.
CEQA and Environmental Issues 162
How an Environmental Analysis is Conducted
It often takes a year or more to complete an environmental analysis and many project features are evaluated in the process.
The reason it takes this long is that many studies can only be conducted at certain times, such as when school is session, or during the growing season for biological resources.
Determining the Required Level of Review
The CEQA process involves four possible levels of environmental review: an exemption, a “negative declaration,” a “mitigated negative declaration” and an “environmental impact report” (EIR). The following is a summary of the main steps in determining the required level of inquiry:
Is the Action a “Project?” Only “projects” are subject to environmental review. A project is any discretionary governmental action that could directly or indirectly result in a physical change in the environment. Examples include the adoption and amendment of general plans, specific plans, zoning ordinances and development agreements; public works projects; building improvements; and many permits for development. Does an Exemption Apply? A project may be exempt from CEQA under state law or regulations for policy reasons.
For example, infill housing projects meeting certain conditions do not require environmental review. Usually, staff will determine whether an exemption applies.
Initial Review. For projects that are not exempt, an initial study is prepared to determine whether the project may have a significant effect on the environment.
Negative Declaration. If the initial study shows that the project will not have a significant effect on the environment, a negative declaration is prepared. A negative declaration briefly describes why a project will not have a significant impact. Mitigated Negative Declaration. If the initial study shows an environmental effect, a mitigated negative declaration may be prepared if revisions in project plans made or agreed to by the applicant before the proposed mitigated negative declaration is released for public review would clearly avoid or mitigate the effects. Environmental Impact Report. If the initial study identifies potential significant environmental effects that cannot be eliminated through redesign, then the lead agency (the agency that has ultimate approval over the project) must prepare an environmental impact report.
In many cases, it will be a close call whether a mitigated negative declaration or a full EIR is required. If there is “fair argument” that a project will have a significant environmental effect, the safest course is to prepare an EIR (even when there is an equal amount of evidence suggesting that an EIR is not necessary). This is called the fair argument standard. This approach will maximize public involvement and ensure that all possible impacts have been analyzed. It will also minimize the delays and expense associated with litigation over whether an EIR should have been prepared.
The Environmental Impact Report
After deciding to do an EIR, the lead agency must solicit the views of responsible agencies (other agencies with some level of authority over the project) regarding the scope of the environmental analysis.3 The lead agency should also consult with
3 14 Cal. Code Regs. §§ 15082, 15083.
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individuals and organizations that have an interest in the project. This early consultation is called scoping.
The lead agency then drafts an EIR based on this information and other data it has collected in connection with the report.
When the draft EIR is completed, the lead agency files a notice of completion with the State Clearinghouse at the Office of Planning and Research. The draft EIR is then noticed for a 30- to 45-day public review and comment period.4 The lead
agency must evaluate and respond in writing to all comments it receives during this time. If the lead agency adds significant new information to the draft EIR after it has been released for public review, the draft EIR must be re-noticed and circulated again for public review.
Public hearings on a draft EIR are not required. If the lead agency chooses to hold hearings, they can either be conducted in conjunction with other proceedings or in a separate proceeding. Once the public review period ends, the lead agency prepares a final EIR, usually consisting of the draft EIR together with responses to public comments received during the review period. The lead agency then reviews the project in light of the EIR and other applicable standards.5 There are several basic elements to the environmental impact report:6 Table of Contents & Summary. Required elements that assist in making EIRs—which are sometimes hundreds of pages long—more accessible to the public.
Project Description. An accurate description of the project, including any reasonably foreseeable future phases of the project.7
Environmental Setting. A description of the environment on the project site and in the vicinity of the project. Evaluation of Impacts. An identification and analysis of each significant impact expected to result from the project. Any potential significant effect—such as incompatible land uses, air pollution, water quality, traffic congestion, etc.—will have its own discussion.
Mitigation Measures. A detailed description of all feasible measures that could minimize significant adverse impacts.
Any potential environmental consequences of the mitigation measures must also be addressed. Cumulative Impacts. An evaluation of the incremental effects of the proposed project in connection with other past, current and probable future projects.
Alternatives. A proposed range of reasonable project alternatives that could reduce or avoid significant impacts, including a “no project” alternative. This often involves reviewing the location or the intensity of the development, or both. The alternatives need not be exhaustive and should not be speculative. Growth-Inducing Impacts. A description of the relationship of the project to the region’s growth and whether the project removes obstacles to growth.
Organizations and Persons Consulted. A list of groups and individuals contacted during the process, including during the scoping and public hearing phases.
Inconsistencies. A discussion of any inconsistencies between the proposed project and applicable general plans and regional plans.
Remember that one of the fundamental goals of CEQA is information-sharing. It also works to make sure that you are making the most informed decisions possible regarding environmental impacts. Thus, the adequacy of an EIR is usually not judged on perfection, but rather on completeness and a good-faith effort at disclosure. The EIR must provide enough information to 4 Cal. Pub. Res. Code § 21091.
5 14 Cal. Code Regs. § 15132; Cal. Pub. Res. Code § 21092.5. 6 See 14 Cal. Code Regs. §§ 15022-15029.
7 Laurel Heights Improvement Association of San Francisco v. Regents of the University of California, 47 Cal. 3d 376 (1988).
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allow decision-makers to analyze the environmental consequences of a project.
While timing of the technical analysis may differ, every environmental analysis follows a similar process. First the entirety of the project is explained, then the conditions as they exist at the time the analysis is started. Anticipated project impacts are compared against existing conditions to determine if the result exceeds the adopted threshold of significance. The reports and analysis are used to form the substantial evidence that is the foundation of the environmental document. Key sections or terms in the impact discussion are project specific, and most follow a similar pattern:
Existing Condition or Baseline. At the basic level the existing condition is the baseline against which the proposed project is evaluated. Most of the time this existing condition is what exists on the ground at the project site such as building(s), or natural features like wetlands and trees. A baseline can also be historic such as a previously active use, or future such as in after a project or improvement is completed. Note that the use of a baseline other than current conditions is rare and while allowed by the CEQA Guidelines, the lead agency must support the use of alternative baselines with substantial evidence in the record. The important part of the baseline is that it sets one edge of the measurement against which the impacts are evaluated. The other edge is set by the adopted threshold of significance adopted by the agency. Generally, an impact that is greater than the baseline but below the threshold of significance is considered less than significant and not subject to mitigation. Baselines and thresholds are agency-dependent and apply to all projects considered by the agency, while environmental impacts are unique to each project. Project Description. This is the whole of the action that is requested by the agency, regardless of whether it is a staff, commission or council level of approval. The project often extends beyond the property line of the application and includes any work that is essential to support of the project. This might include water or sewer line extensions, storm drainage improvements, widened roadways or intersections and even new buildings, such as a school or fire station. Thresholds of Significance. CEQA recommends that each agency adopt their own threshold of significance or identify the threshold as part of the environmental analysis. The threshold of significance is the point at which the agency considers a project impact significant enough to warrant mitigation to change the project and reduce the impact or make special findings if the decision is to proceed even if the impacts cannot be reduced below the threshold. Even though the CEQA Guidelines specifically state that the Appendix G checklist questions should not be considered thresholds, many agencies default to the questions in the checklist. Be sure to check to see if your agency has adopted thresholds of significance.
Impact Discussion. This is where the document shows the work of comparing the results of any technical studies and overall analysis and discussion of the impacts in relationship to the adopted threshold. Ideally the impact discussion is clear and focused on addressing any impact that exceeds the threshold of significance. If an impact does not exceed the threshold, there is no authority to require mitigation to change the project. The impact discussion can have one of the following outcomes: No Impact, Less than Significant Impact, Less than Significant Impact with Mitigation Measures Incorporated, Significant and Unavoidable Impact. Only Significant Impact with Mitigation Measures Incorporated and Significant and Unavoidable Impact provide the agency with the authority to mitigate under CEQA. Mitigation Measures. Mitigation measures are agency-required changes to the project that are in direct relation to the impact discussion finding that some portion of the project will exceed the threshold of significance. While the mitigation measure is a condition of approval, it can only be applied to a project in response to a finding of significance. It is important to note that mitigation measures must be specific to the impact, implementable by the applicant or the agency, and objectively measurable to be effective. The impact analysis may also indicate a timing for when the measure must be complete. Usually, timing falls into one of the following periods: prior to ground disturbance, during construction and during operation. In rare circumstances a mitigation measure may extend past completion of the project, but these are difficult to enforce and should be accompanied by methods of ensuring compliance.
While others may assist with the mitigation, ultimately the lead agency is responsible for ensuring the mitigation is completed and must prepare a mitigation monitoring report, which is part of the record and available to the public.
Ensure that the measure(s) adopted for the project are within the authority of your agency to implement. Measures that require improvements outside your jurisdiction (i.e. Caltrans, adjacent agency) that cannot be guaranteed should
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be reviewed carefully as many consider these measures infeasible. There may be regional measures that ensure the improvement will be completed, but without assurances the mitigation may not be adequate.
Finally, CEQA does not give the lead agency any powers that they do not already possess. This means that the ability to mitigate can be limited.
Conclusion. This section closes the impact discussion by explaining the level of significance after application of the mitigation measures. The conclusion is either less than significant with application of mitigation measure(s) or significant and unavoidable.
Impacts to services are not generally a CEQA issue even though this may be a planning concern. For example, the number of police officers needed to serve a project is not a CEQA issue, however if a new police station is needed for additional officers, the physical impacts of the new station would need to be evaluated in the CEQA document.
Certifying the CEQA Document
The first step in approving a project that has undergone environmental review is to certify the negative declaration or the EIR. The project may then be approved in a manner that acknowledges any environmental consequences. The local agency can also change the project, select an alternative project, impose conditions or take other actions (often called “mitigation measures”) to avoid or minimize the environmental impacts of the project. When mitigation measures are adopted, the agency must also adopt a program to monitor the implementation of those measures.8 In many cases, the environmental impacts of a project cannot be avoided. For example, a community that is surrounded by prime farmland will probably need to use some of that land for housing at some point. In these cases, the agency can make a finding that explains why changes to the project are not feasible or why social or economic considerations override environmental concerns.9
While these findings may seem contrary to environmental protection, they are consistent with CEQA’s fundamental purpose of publicly acknowledging and considering possible environmental effects.
Tiering, Master EIRs and Program EIRs
CEQA includes a number of provisions intended to streamline environmental review. These include tiering, program EIRs and master EIRs. Generally, all of these provisions are designed to allow public agencies to consider planning-level environmental concerns in a single EIR that may be adopted for a general plan or other planning or policy action. Subsequent environmental documents on specific projects—such as focused EIRs or negative declarations—are then used to focus on project-specific impacts.
8 Cal. Pub. Res. Code § 21081.6.
9 Cal. Pub. Res. Code § 21081; 14 Cal. Code Regs. § 15093.
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Types of Environmental Compliance
The CEQA guidelines contain may different methods of compliance ranging from an exemption to an EIR. The process is different for each, however, all compliance methods have the same fundamental requirements:
1. All conclusions are based on fact, which constitutes “substantial evidence.”
2. The information used to consider a project such as the technical studies, staff report, model runs, etc., are part of the record, and must be available to the public for review. CEQA does not require a public hearing in most cases, however if a hearing is required for the project, the environmental determination must be presented.
3. The environmental determination must be made before action can be taken to approve a project. (No environmental compliance is necessary for denial.)
The timelines and level of analysis vary by project, agency and topic, however for all discretionary projects brought before the commission there should be an environmental determination.
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CEQA Environmental Topics
This section includes general information about specific environmental issues or topics that must be covered in environmental documents. They are organized alphabetically here, similar to the Appendix G Initial Study Checklist in the CEQA Guidelines. This is not a discussion of how to complete an environmental analysis in CEQA, or when something may be considered significant, but rather a quick reference guide to the topic matter and when possible, a link to where more information can be found.
1. Aesthetics
The appearance of a development is an important consideration in the planning process. Aesthetics are essential to a neighborhood and helps to define communities. From an environmental perspective, whether a building is attractive usually fails to be a significant impact. Whether the building or development would degrade the surrounding community can be an environmental impact, however the basis for this would need to be set in the general plan or other documents that provide a means of comparing the existing characteristics to those of the proposed project. Usually, this portion of the environmental analysis focuses on blocking view of some sort (mountains, canyons, ocean, lake, etc.) or removal of a significant geological (hill, rock) or biological (lake, tree) feature.
2. Agriculture and Forestry Resources
CEQA requires that a commission consider the conversion of agricultural land to non-agricultural uses. Conservation of farmland is a policy of the state. There are several methods used to consider conservation including:
Agricultural Element in the General Plan. Some communities have adopted an agricultural element in their general plan to provide support for local agriculture. By doing so they require the other elements of the plan to be consistent with local agricultural policies. The agricultural element may also establish a threshold of significance or perhaps place a cap on the conversion of agricultural land.
Agricultural Zoning. Some communities use large-lot zoning to protect agriculture. When using this strategy, it is important to assure that the minimum lot size is sufficient to sustain a viable agricultural operation. The ideal lot size will vary depending on soil type, climate and farming practice. In many areas of the state, minimum parcel size may need to be 50 to 80 acres. In ranching communities, the required acreage might be much higher. If the minimum lot size is set too low, commercial agriculture may become infeasible leading to requests for urban development. Buffers & Right-to-Farm Ordinances. Residential and agricultural uses of property are often incompatible. Agriculture is noisy and smelly and more akin to industrial uses than residential or park land uses. In addition, farms near urban areas suffer increased trespassing, theft and vandalism. Keeping large buffers—sometimes 1,000 to 2,000 feet— between farms and residential areas can limit conflicts but may also lead to other issues such as maintenance costs.
Many counties and several cities have adopted “right-to-farm” ordinances that either attempt to limit the extent that residents can seek to stop typical farm activities that they might perceive as nuisances or provide notice and complaint procedures when such activities occur.
Conservation Easements. In a conservation easement, a farmer sells the right to develop the land to a conservation group, or other entity that guarantees that the land will not be developed (and presumably will stay in agriculture). While a conservation easement is a form of mitigation, it may not mitigate to less than significant because existing farmland is still being taken out of production.
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Williamson Act and Farm Security Zones. The state’s Williamson Act and Farm Security Zone programs provide farmers tax breaks for keeping their land in productive agriculture for periods of 10 and 20 years. In return, the land is valued for tax purposes at its agricultural value instead of its market value. An active Williamson Act contract prevents most types of development for a period of ten years, with a contract that renews annually. The Act establishes a payment plan to allow a property to exit the act early, otherwise it is ten years from the point of notice of non-renewal until development can occur. Most, but not all, Williamson Act lands are in unincorporated areas of the state. Timberland Production Zones (TPZ). Similar to the Williamson Act, a county board of supervisors may designate areas of timberland as timberland preserves. The zoning designation is known as a Timberland Production Zone (TPZ). Land in a TPZ is restricted in use to the production of timber for an initial 10-year term and is considered “enforceably restricted,” which can lower land value and consequently property taxes.
3. Air Quality
Although vehicles run much more cleanly today than they did in the past, their sheer number, coupled with increases in miles driven, make cleaning the air a difficult challenge. Air quality is regulated through a complex system of federal, state and local laws. The federal Clean Air Act requires the U.S. Environmental Protection Agency to set minimum air quality standards that all state and local programs must meet (called National Ambient Air Quality Standards or “NAAQS”) for carbon monoxide, ozone, fine particulate matter (PM10), nitrogen dioxide, sulfur dioxide and lead, among others.10 At the state level, responsibility for regulating air pollution is divided between the California Air Resources Board (ARB), local and regional air pollution control districts (APCDs) and air quality management districts (AQMDs). The ARB prepares the State Implementation Plan (SIP) that describes the control measures the state will use to attain national standards. The state plan consists of emission standards for motor vehicles and consumer products. In addition, the ARB is responsible for oversight of state and local air pollution control programs, which are developed and implemented by 35 local air districts throughout the state. In metropolitan areas, the district board is usually made up of appointed local officials from around the region. In smaller areas, the county board of supervisors often serves as the air quality district board.
One of the primary responsibilities of local air districts is to adopt a local air quality plan, which forms the blueprint for how national air quality standards will be attained in the area. The goal of each plan is to achieve a five percent annual reduction in pollutants over each three-year attainment period. In addition, the local district must prepare attainment plans for each pollutant in the area that exceeds federal standards. Failure to meet these goals may result in loss of federal transportation funding.
Local air districts also implement plans to reduce emissions from a variety of mobile, stationary and area-wide sources in a region. For mobile sources, this may include the number of vehicle trips and vehicle miles traveled (VMT). Examples of programs or mitigation measures can include ridesharing and parking buy-back programs. Attainment plans for areas designated as moderate, serious, severe or extreme non-attainment areas must make provisions for the regulation of emissions from “indirect sources.”11 These include any facility or road that attracts or may attract vehicles.12 Each district’s attainment plan, once adopted by the governing board, is transmitted to the Air Resources Board for approval and then included in the State Implementation Plan.
The air quality analysis will likely be based on outputs from the California Emissions Estimator Model (CALEEMOD). The model quantifies direct emissions from construction and operation activities (including vehicle use), as well as indirect emissions, such as GHG emissions from energy use, solid waste disposal, vegetation planting and/or removal and water use.
Further, the model identifies mitigation measures to reduce criteria pollutant and GHG emissions along with calculating the benefits achieved from measures chosen by the agency.
10 See 42 U.S.C. §§ 7401 and following.
11 Cal. Health & Safety Code §§ 40716(a), 40918-40920.5. 12 42 U.S.C. § 7410(a)(5)(c).
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Both federal government (National Ambient Air Quality Standards13) and California (California Ambient Air Quality Standards)14 have established health-based AAQS for seven air pollutants. These pollutants are ozone (O3), nitrogen dioxide (NO2), carbon monoxide (CO), sulfur dioxide (SO2), coarse inhalable particulate matter (PM10), fine inhalable particulate matter (PM2.5) and lead (Pb). In addition, the state has set standards for sulfates, hydrogen sulfide, vinyl chloride and visibility-reducing particles.
Criteria Air Pollutants
The pollutants emitted into the ambient air by stationary and mobile sources are categorized as primary and/or secondary pollutants. Primary air pollutants are emitted directly from sources. Carbon monoxide (CO), volatile organic compounds (VOC), nitrogen oxides (NOx), sulfur dioxide (SO2), coarse inhalable particulate matter (PM10), fine inhalable particulate matter (PM2.5) and lead (Pb) are primary air pollutants. Of these, CO, SO2, NO2, PM10 and PM2.5 are “criteria air pollutants,” which means that AAQS have been established for them. VOC and NO are criteria pollutant precursors that form secondary criteria air pollutants through chemical and photochemical reactions in the atmosphere. Ozone (O3) and nitrogen dioxide (NO2) are the principal secondary pollutants. Each of the primary and secondary criteria air pollutants and its known health effects are described in the following table.
Pollutant Health Effects Example of Sources
Carbon Monoxide (CO) Chest pain in heart patients
Headaches, nausea
Reduced mental alertness
Death at very high levels
Any source that burns fuel such as
cars, trucks, construction and farming
equipment and residential heaters and
stoves
Ozone (O3
) Cough, chest tightness
Difficulty taking a deep breath
Worsened asthma symptoms
Lung inflammation
Atmospheric reaction of organic gases
with nitrogen oxides in sunlight
Nitrogen Dioxide (NO2
) Increased response to allergens
Aggravation of respiratory illness
Same as carbon monoxide sources
Particulate Matter (PM10 & PM2.5) Hospitalizations for worsened heart diseases
Emergency room visits for asthma
Premature death
Cars and trucks (particularly
diesels)
Fireplaces and woodstoves
Windblown dust from overlays,
agriculture and construction
Sulfur Dioxide (SO2
) Aggravation of respiratory disease
(e.g., asthma and emphysema)
Reduced lung function
Combustion of sulfur-containing fossil
fuels, smelting of sulfur-bearing metal
ores and industrial processes
13 https://www.epa.gov/criteria-air-pollutants/naaqs-table 14 https://ww2.arb.ca.gov/resources/california-ambient-air-quality-standards
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Pollutant Health Effects Example of Sources
Lead (Pb) Behavioral and learning disabilities
in children
Nervous system impairment
Contaminated soil
Source: CARB 2009, South Coast AQMD 2005
Because many of the criteria pollutants are related to transportation, busy roads near homes can result in health impacts for people who may be far from an industrial project. The health hazards associated with air quality impacts are a driving force behind the consideration of environmental justice in the general plan and may be brought up during planning meetings. Many communities are looking to offset air quality and health impacts through use of community benefit plans.
4. Biological Resources
Two laws govern the protection of endangered species, one federal (the federal Endangered Species Act, or “ESA”) and one state (the California Endangered Species Act, or “CESA”)15 The two laws are not necessarily congruous. A species protected under state law may or may not be protected under federal law.
The key element of both the state and federal laws is the listing of species as either protected or endangered. Once listed, a species is entitled to certain protections, the most significant of which is the prohibition against any “take” (killing) or “harm” (injuring animals or disturbing habitat) without a permit from either the National Fish and Wildlife Service (federally-listed species) or the state Department of Fish and Game (state-listed species). In the case of salmon or other ocean-dwelling fish that spawn in rivers, permission is necessary from the National Oceanic and Atmospheric Administration (NOAA). “Take” permits may be issued subject to a habitat conservation plan (HCP) under federal law or a Section 2081 permit under state law. Since the habitats of many species overlap, it has become standard practice to develop Multiple Species Habitat Plans (MSHCP)—also called Natural Communities Conservation Plans (NCCP) under state law—that address multiple species at once.
Local agencies play a key role in the development of habitat conservation plans. Without local agency involvement, individual landowners seeking to develop their land would have to file individual protection plans. This would require each landowner to hire a biologist and undergo the scrutiny of government regulators. Local agency involvement streamlines this process by developing plans covering a large area or region. Large-scale plans are better able to preserve sensitive habitat and channel development to less-sensitive areas.
The HCP will have a listing of species that it covers, areas that are prohibited from development – typically called criteria cells – and a development review process. Most all of this will either be complete, or nearly complete, by the time the environmental document is circulated for review. Note that species not covered by the HCP will need to be evaluated individually, and that most HCPs still require some form of biological resource assessment to accompany a development proposal. Finally, all HCPs have a fee paid at building permitting to implement the HCP, purchase property in criteria cells and maintain the property.
Wetlands
The Clean Water Act prohibits the filling and dredging of wetlands without a permit issued by the Army Corps of Engineers.16 15 See 16 U.S.C. §§ 1531 and following (federal Endangered Species Act), Cal. Fish & Game Code §§ 2050 and following (California Endangered Species Act).
16 33 U.S.C. § 1344, 33 C.F.R. 323.4(c).
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The filling of a wetland is a common issue encountered by many planning commissioners. Fill comprises any material used to replace an aquatic area with dry land or raise the bottom elevation of a water body. This means that the scope of wetland protections extends to mechanized land-clearing activities—like grading—that result in a redeposit of soil in wetland areas.
The Clean Water Act grants the U.S. Environmental Protection Agency (EPA) authority over wetlands that are designated as “special aquatic sites.” The EPA has developed a set of special standards that must be applied by the Corps of Engineers before it can approve a permit. The most significant of these is that the project cannot be approved when a practical and less environmentally adverse alternative exists (like changing the location of the project or the type of fill material). To the extent that damage cannot be avoided, the applicant must compensate for lost wetlands (often by restoring or upgrading degraded wetlands onsite or elsewhere).
Whether the Corps of Engineers grants such a permit will not be a direct concern of yours as a planning commissioner. To the extent that an individual project seeks to fill or dredge a wetland area, local agencies usually require the developer to obtain all the necessary permits from the Corps of Engineers (which may even involve compliance with the National Environmental Policy Act) before the application can be deemed complete. However, you do not have to approve a project just because a landowner has received such a permit.
5. Cultural Resources
Cultural resources address impacts to the buildings, landscape or places in a community that were important to local, national or worldwide events. While tribal consultation has its own checklist section, not all agencies separate tribal and cultural resources. CEQA does not mandate a specific format for the analysis and, provided all the environmental issues are addressed, this is an acceptable combination. Paleontology is the study of fossils and fossilized remains and is in the geology and soils portion of the analysis.
6. Energy
How far people have to travel between home, work and daily errands, how homes are sited, and how buildings are designed have a tremendous impact on the consumption of electricity, natural gas and motor fuels. Lowering a community’s energy consumption can save money, protect the environment and improve air quality. Two areas where these issues arise during your service as a planning commissioner are transportation and community design:
Transportation. Transportation is responsible for approximately 46 percent of all energy used in California, much higher than the national average. Strategies aimed at lowering automobile usage can thus be extremely effective at reducing a community’s energy consumption. Policies that are bicycle- and pedestrian-friendly and that support mixed-use development, transit-oriented development and more compact development will all have energy payoffs. Community Design. Community design is another area in which there are numerous opportunities for energy conservation. The Solar Rights Act of 1978 already requires that new subdivisions provide, to the extent feasible, future opportunities for natural heating and cooling and directs local agencies to deny permits to applicants that do not meet this requirement.17 Local agencies can take advantage of natural heating and cooling by considering solar access issues early during subdivision review. Staff should review existing regulations, like setback or height limits, to ensure that they do not interfere with solar access opportunities. In addition, the amount of pavement, the number and types of trees, street widths and numerous other design features also impact overall community energy consumption. Small changes in these areas can have tremendous energy payoffs.
17 Cal. Civ. Code § 714.
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Connecting Land Use Planning and Energy Conservation
Encourage Efficient Building Construction. How homes, offices and other buildings are constructed can have a major impact on energy use. California already has minimum energy performance standards for new residential and commercial construction. Local planners and building inspectors enforce these standards at the local level. However, local agencies may choose to impose stricter standards than the state minimums.
Point Out Alternatives During the Design Review Process. Communities can help developers comply with and exceed local and state requirements by providing assistance during various phases of the development process. For example, staff can suggest simple techniques to increase solar access, like moving garages, modifying street or home orientation and staggering building placement on lots. Or, they may suggest the use of daylight as a means to reduce electricity use in new commercial buildings.
Adopt an Energy Policy or an Energy Element in the General Plan. To promote energy efficiency, some agencies have adopted an energy element in their general plan. Individual ordinances implement the policies. An energy element ensures conformity between energy issues and other plan elements. Another option is to adopt a local energy policy to direct each agency department to implement in-house energy management programs or to evaluate the potential of alternative energy sources.
Promote Conservation. Communities may wish to adopt regulations promoting energy conservation. Before passing a new regulation, however, it is important to evaluate the cost effectiveness and to renew existing ordinances and building codes to make them consistent with energy objectives. For example, requiring solar heating for all new swimming pools is not always the most cost-effective approach since in some areas swimming pool covers are equally effective.
Provide Incentives. Voluntary incentives designed to encourage energy conservation can be effective. For example, some jurisdictions waive or reduce building permit fees or give density bonuses for exceeding state building standards.
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7. Geology and Soils
Often there is a geotechnical report that accompanies the CEQA document and makes recommendation based on the soil type. Some soils shrink or swell when wet, which can damage foundations and improvements. If these exist, there will be recommendations by the soils engineer in the report to address the impacts. Recommendations that require over excavation or import of new material can often lead to additional truck trips for construction that will need to be addressed in the air quality, greenhouse gas and possibly noise sections. Soils can also be too sandy to support on-site sewer treatment which can lead to engineered systems or similar specialized design. The soils report may also indicate a depth to groundwater that is a factor in subsidence (sinking of the ground) or liquefaction (seismically-induced sinking) Finally, because fossils are considered part of the geologic history of a property, this section of the analysis will also address paleontology. Mitigation for an area that may uncover paleontological resources will include monitoring during construction and often a plan for the repository of any resources uncovered.
8. Greenhouse Gas Emissions
The environmental analysis will focus on the reduction of greenhouse gases attributed to the project. Greenhouse gases (GHG) are gases that trap heat in the atmosphere and include the following:
Carbon dioxide (CO2): Carbon dioxide enters the atmosphere through burning fossil fuels (gasoline, coal, natural gas and oil), solid waste, trees and other biological materials, and because of certain chemical reactions (e.g., manufacture of cement). Carbon dioxide is removed from the atmosphere (or “sequestered”) when it is absorbed by plants as part of the biological carbon cycle.
Methane (CH4): Methane is emitted during the production and transport of coal, natural gas and oil. Methane emissions also result from livestock and other agricultural practices, land use and by the decay of organic waste, such as in solid waste landfills.
Nitrous oxide (N2O): Nitrous oxide is emitted during agricultural, land use, industrial activities, combustion of fossil fuels and solid waste, as well as during treatment of wastewater. Fluorinated gases: Hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and nitrogen trifluoride are synthetic, powerful greenhouse gases that are emitted from a variety of industrial processes. Fluorinated gases are sometimes used as substitutes for stratospheric ozone-depleting substances (e.g., chlorofluorocarbons, hydrochlorofluorocarbons and halons). These gases are typically emitted in smaller quantities, but because they are potent greenhouse gases, they are sometimes referred to as high global warming potential gases (“High GWP gases”).
Not all greenhouse gases have the same effect on the environment. As shown in the following table, carbon dioxide C02 is considered the base with all other gases considered as a multiple of C02.
Greenhouse gas
Chemical
Formula
Global Warming Potential,
100-year Time Horizon
Atmospheric
Lifetime (years)
Carbon Dioxide CO2 1 100*
Methane CH4 25 12
Nitrous Oxide N2O 265 121
Chlorofluorocarbon-12 CCl2F2 10,200 100
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Greenhouse gas
Chemical
Formula
Global Warming Potential,
100-year Time Horizon
Atmospheric
Lifetime (years)
Hydrofluorocarbon-23 (HFC-23) CHF3 12,400 222
Sulfur Hexafluoride SF6 23,500 3,200
Nitrogen Trifluoride NF3 16,100 500
*No single lifetime can be given for carbon dioxide because it moves throughout the earth system at differing rates. Some carbon dioxide will be absorbed very quickly, while some will remain in the atmosphere for thousands of years.
The passage of Assembly Bill (AB) 32, the California Global Warming Solutions Act of 2006, set the stage for California’s long-term approach to addressing climate change, and does so in a way that aims to improve the environment, protect public health and safety and conserve natural resources while maintaining a robust economy. Since the adoption of AB 32 in 2006, the state has expanded its GHG reduction goals, regulations, programs and policies, some of which apply directly to local governments while others apply directly to state agencies. In 2016, the state passed Senate Bill (SB) 32, which sets a statewide goal of reducing emissions 40 percent below 1990 emission levels by the year 2030. The state has also set long-term goals for an 80 percent reduction by the year 2050, and recently, Executive Order B-55-18 set a steeper goal for the state to achieve economy-wide carbon neutrality by 2045. The goal of carbon neutrality by 2045 is in addition to other statewide goals, meaning not only should emissions be reduced to 80 percent below 1990 levels by 2050, but that, by no later than 2045, the remaining emissions should be offset by equivalent net removals of CO2e (carbon dioxide equivalent) from the atmosphere, including through sequestration in forests, soils and other natural landscapes.
9. Hazards and Hazardous Materials
The use and transportation of hazardous materials can raise safety concerns. Many commercial, agricultural and industrial operations engage in the transportation, storage, generation or disposal of hazardous materials. Some facilities may have the potential for leaking hazardous materials into the local groundwater. Others may impact a local wastewater treatment system or the capacity of local law enforcement and fire departments to respond to hazardous materials spills or incidents. What qualifies as a hazardous material is defined by various state and federal agencies and should be explained in the analysis. As a rough guideline, a material is hazardous if it is corrosive, explosive, oxidic, flammable or poisonous. Careful planning can reduce the risk these materials pose to the community.
The California Environmental Protection Agency (CalEPA) maintains a list of hazardous materials sites known as the Cortese List. The list shows properties that either have current hazardous materials issues or have had a clean up plan to address hazardous materials on the property. The list is specific to parcel number and agency. If property is on this list, it must be disclosed in both the analysis and in the public notice(s) for the project.
Hazards may also include physical or natural hazards such as wildfire, or landslide. These issues are usually discussed at length in other sections of the analysis specific to those issues.
10. Hydrology and Water Quality
Water quality regulations protect local wetlands, streams, rivers, drinking water and the overall health of the community. The most basic goal of these regulations is to prevent runoff—such as from rain—from picking up silt, oils, toxic metals, road grime, animal waste, lawn fertilizers, farm chemicals and other pollutants before draining into natural watercourses.
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As a planning commissioner, you will be considering water quality issues in terms of whether a specific project includes all possible actions to minimize polluted runoff. For example, since construction sites are a major source of water sediments that upset stream and river environments, developers are often required to place sod barriers around storm drains to limit sediment discharge.
The federal Clean Water Act prohibits the discharge of any pollutant—anything that alters natural water quality—into any surface water without a permit.18 The Act establishes two strategies to this end. The first requires the use of “best available technologies” (BATs) and “best management practices” (BMPs) to minimize the amount of pollution that flows away from any one site. These approaches can be used to either prevent the discharge of a pollutant into a water system or require treatment of a pollutant before it reaches the system.
Prevention is usually preferred because it costs less than treatment. The second strategy relies on determining the amount of pollution that can be released into surface waters without adversely affecting their beneficial uses.
The Clean Water Act also distinguishes “point sources” and “nonpoint sources” of pollution. A point source is a confined or discrete conveyance, like a drainage pipe. A nonpoint source is anything else that discharges into surface water. Examples include runoff from agricultural operations or roads. As you might suspect, it is generally easier to identify and regulate point sources of pollution than nonpoint sources—and the law has recognized that fact by setting separate planning standards for each.
In California, the Clean Water Act is enforced by the State Water Resources Control Board (SWRCB), which in turn divides the state into nine geographic areas governed by Regional Water Quality Control Boards (RWQCBs). Each regional board serves a specific watershed and must develop a Basin Plan and a Watershed Management Initiative to guide regional watershed priorities. There are several mechanisms that these agencies use to control the discharge of pollutants:
National Pollutant Discharge Elimination System (NPDES). The NPDES system prohibits all point source discharges into any body of water (which in California includes groundwater) without a permit.19 The permit system allows for the imposition of best practices to minimize pollution discharge and assure that the discharge will not violate state water quality standards. These standards may change to reflect improvements in technology and management practices. Stormwater Drainage Systems. Storm runoff usually begins as a nonpoint source, but flows into point sources as storm drainage systems collect it. Accordingly, storm systems (except those in very rural areas) require NPDES permits.
To obtain a permit, local agencies must reduce pollutants to the maximum extent practicable20 by implementing a stormwater management plan. The management plan must specify what best management practices (BMPs) will be used to address certain program areas. The program areas include public education and outreach, illicit discharge detection and elimination, construction and post-construction and good housekeeping for municipal operations.
In general, municipalities with a population over 100,000 are required to conduct chemical monitoring, but smaller municipalities are not.
Publicly Owned Treatment Works (POTWs). There is a separate set of standards for publicly owned water treatment works. One of the reasons for the separate standards is to assure that direct discharge requirements are not compromised by industry’s use of a publicly owned sewage treatment works. Often, contaminants must be pretreated by businesses before they can enter a public water treatment system. Nonpoint Source Management Plans. The state must develop a nonpoint source management plan, which serves a particularly important role in many coastal areas where nonpoint sources have been identified as a major source of degradation in coastal waters. The State Water Resources Control Board and the Coastal Commission have identified approximately 60 nonpoint source pollution management measures, many of which address nonpoint source pollution resulting from development.
18 33 U.S.C. §§ 1342, 1344.
19 33 U.S.C. § 1344.
20 This is the performance standard specified in Section 402(p) of the Clean Water Act, 33 U.S.C. 1342(p).
CEQA and Environmental Issues 176
In addition, the state sets a total maximum daily load (TMDL) pollutant standard for certain bodies of water. The state first identifies how each body of water will be used—such as for drinking water, recreation or supporting aquatic life—and sets appropriate quality standards. Lakes, rivers and streams that are too polluted to serve their designated use even with technology-based effluent limitations21 are defined as “impaired.” For each of these water bodies, the state calculates a TMDL, which is the total amount of pollutant the water body can tolerate, plus a margin of safety, and still meet water quality standards.22
The TMDL accounts for all sources of pollutant (point and nonpoint) and sets numeric targets that will ensure recovery of the impaired body. Once TMDLs are set, the state must allocate the TMDL among all the sources contributing that pollutant to the watershed, including municipal wastewater, stormwater discharges, industrial sources and nonpoint sources like agricultural runoff. The TMDL strategy in California relies on an adaptive process that matches management capabilities with scientific understanding. It also relies heavily on engaging the public and cultivating an understanding of watershed issues.
Once established, TMDLs must be incorporated into the water quality plans (basin plans) formulated by the regional boards and the NPDES permits issued in the watershed.
Balancing Growth and Water Supply
Local agencies must take into account the extent to which long term water supplies can keep pace with new growth. State law requires agencies to conduct a water assessment when certain types of developments are proposed, including:
500 new housing units,
500,000 square feet of retail,
250,000 square feet of office space and/or
650,000 square feet of business park use or a mixed-use project with any combination equal to the scale noted above.
This assessment should be included in the environmental review (CEQA) process. If there is not adequate water to reliably supply the project (meaning that water will be available even during multiple dry years after accounting for all future demands), new water sources need to be identified. In some instances (such as subdivisions of 500 or more units or where total connections increase by at least 10 percent), local agencies must obtain written verification from a water provider that a reliable water supply is available. There are some exceptions for certain infill and affordable housing projects.
11. Land Use and Planning
For CEQA, the land use and planning analysis is based on two factors: division of an existing community; and potential conflict with a land use plan, policy or regulation adopted for the purpose of avoiding or mitigating an environmental impact.
A new rail line, or large project, that would physically separate an existing neighborhood would likely be an issue needing to be discussed in the analysis. The courts have determined that compliance with a general plan is not an environmental impact unless the project conflicts with policy as mentioned. Determination of whether a project is consistent with the general plan and/or ordinances is important and considered in the Planning Framework chapter of this handbook but is usually not an environmental impact.
21 33 U.S.C. § 1313(d).
22 33 U.S.C. § 1313(d)(1)(c).
CEQA and Environmental Issues 177
12. Mineral Resources
The California Department of Conservation maintains maps of mineral resources23 and also provides oversight for reclamation of mines and quarries as part of the Surface Mining and Reclamation Act (SMARA). While all minerals are studied and reviewed in the state, primary focus is often on essential construction materials such as sand and aggregate. These materials are heavy and expensive to move making local sources better from a cost and environmental impact perspective. From a CEQA perspective, the focus is on whether a project will reduce the availability of a local, regional or even statewide important mineral. Placing homes on top of a significant aggregate site for example, would likely preclude mining of the materials at a future date. The general plan will also include a map of important mineral resources that must be considered as part of the environmental analysis.
13. Noise and Vibration
Noise is most often defined as unwanted sound - whether it is loud, unpleasant, unexpected or otherwise undesirable.
Although sound can be easily measured, the perception of noise and the physical response to sound complicate the analysis of its impact on people. People judge the relative magnitude of sound sensation in subjective terms such as “noisiness” or “loudness.”
Noise Descriptors. The following are brief definitions of terminology used in analysis:
Sound. A disturbance created by a vibrating object, which, when transmitted by pressure waves through a medium such as air, is capable of being detected by a receiving mechanism, such as the human ear or a microphone. Noise. Sound that is loud, unpleasant, unexpected or otherwise undesirable. Decibel (dB). A unitless measure of sound, expressed on a logarithmic scale and with respect to a defined reference sound pressure. The standard reference pressure is 20 micropascals (20 µPa). Vibration Decibel (VdB). A unitless measure of vibration, expressed on a logarithmic scale and with respect to a defined reference vibration velocity. In the U.S., the standard reference velocity is 1 micro-inch per second (1x10-6 in/sec). A-Weighted Decibel (dBA). An overall frequency-weighted sound level in decibels that approximates the frequency response of the human ear.
Equivalent Continuous Noise Level (Leq); also called the Energy-Equivalent Noise Level. The value of an equivalent, steady sound level which, in a stated time period (often over an hour) and at a stated location, has the same A-weighted sound energy as the time-varying sound. Thus, the Leq metric is a single numerical value that represents the equivalent amount of variable sound energy received by a receptor over the specified duration. Statistical Sound Level (Ln). The sound level that is exceeded “n” percent of time during a given sample period. For example, the L50 level is the statistical indicator of the time-varying noise signal that is exceeded 50 percent of the time (during each sampling period); that is, half of the sampling time, the changing noise levels are above this value and half of the time they are below it. This is called the “median sound level.” The L10 level, likewise, is the value that is exceeded 10 percent of the time (i.e., near the maximum) and this is often known as the “intrusive sound level.” The L90 is the sound level exceeded 90 percent of the time and is often considered the “effective background level” or “residual noise level.”
Maximum Sound Level (Lmax). The highest RMS sound level measured during the measurement period. Root Mean Square Sound Level (RMS). The square root of the average of the square of the sound pressure over the measurement period.
23 www.conservation.ca.gov/cgs/mrp
CEQA and Environmental Issues 178
Day-Night Sound Level (Ldn or DNL). The energy-average of the A-weighted sound levels occurring during a 24-hour period, with 10 dB added to the sound levels occurring during the period from 10:00 PM to 7:00 AM. Community Noise Equivalent Level (CNEL). The energy average of the A-weighted sound levels occurring during a 24-hour period, with 5 dB added from 7:00 PM to 10:00 PM and 10 dB from 10:00 PM to 7:00 AM. NOTE: For general community/environmental noise, CNEL and Ldn values rarely differ by more than 1 dB (with the CNEL being only slightly more restrictive – that is, higher than the Ldn value). As a matter of practice, Ldn and CNEL values are interchangeable and are treated as equivalent in this assessment.
Peak Particle Velocity (PPV). The peak rate of speed at which soil particles move (e.g., inches per second) due to ground vibration.
Sensitive Receptor. Noise- and vibration-sensitive receptors include land uses where quiet environments are necessary for enjoyment and public health and safety. Residences, schools, motels and hotels, libraries, religious institutions, hospitals and nursing homes are examples.
Amplitude
Unlike linear units such as inches or pounds, decibels are measured on a logarithmic scale. Because of the physical characteristics of noise transmission and perception, the relative loudness of sound does not closely match the actual amounts of sound energy. The table presents the subjective effect of changes in sound pressure levels. Ambient sounds generally range from 30 dBA (very quiet) to 100 dBA (very loud). Changes of 1 to 3 dB are detectable by most people under quiet, controlled conditions, and changes of less than 1 dB are usually not discernible (even under ideal conditions). A 3 dB change in noise levels is considered the minimum change that is detectable with human hearing in outside environments.
A change of 5 dB is readily discernible to most people in an exterior environment, and a 10 dB change is perceived as a doubling (or halving) of the sound.
Noise Perceptibility
Change in dB Noise Level
± 3 dB Barely perceptible increase
± 5 dB Readily perceptible increase
± 10 dB Twice or half as loud
± 20 dB Four times or one-quarter as loud
Source: California Department of Transportation (Caltrans). 2013, September. Technical Noise Supplement (“TeNS”).
Because people are more sensitive to unwanted noise intrusion during the evening and at night, state law and many local jurisdictions use an adjusted 24-hour noise descriptor called the Community Noise Equivalent Level (CNEL) or Day-Night Noise Level (Ldn). The CNEL descriptor requires that an artificial increment (or “penalty”) of 5 dBA be added to the actual noise level for the hours from 7:00 PM to 10:00 PM and 10 dBA for the hours from 10:00 PM to 7:00 AM. The Ldn descriptor uses the same methodology except that there is no artificial increment added to the hours between 7:00 PM and 10:00 PM.
Both descriptors give roughly the same 24-hour level, with the CNEL being only slightly more restrictive (i.e., higher). The CNEL or Ldn metrics are commonly applied to the assessment of roadway and airport-related noise sources.
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Vibration Fundamentals
Vibration is an oscillatory motion through a solid medium in which the motion’s amplitude can be described in terms of displacement, velocity or acceleration. Vibration is normally associated with activities stemming from operations of railroads or vibration-intensive stationary sources but can also be associated with construction equipment such as jackhammers, pile drivers and hydraulic hammers. As with noise, vibration can be described by both its amplitude and frequency.
Vibration displacement is the distance that a point on a surface moves away from its original static position; velocity is the instantaneous speed that a point on a surface moves; and acceleration is the rate of change of the speed. Each of these descriptors can be used to correlate vibration to human response, building damage and acceptable equipment vibration levels. During construction, the operation of construction equipment can cause groundborne vibration. During the operational phase of a project, receptors may be subject to levels of vibration that can cause annoyance due to noise generated from vibration of a structure or items within a structure.
Vibration amplitudes are usually described in terms of either the peak particle velocity (PPV) or the root mean square (RMS) velocity. PPV is the maximum instantaneous peak of the vibration signal and RMS is the square root of the average of the squared amplitude of the signal. PPV is more appropriate for evaluating potential building damage and RMS is typically more suitable for evaluating human response.
As with airborne sound, annoyance with vibrational energy is a subjective measure, depending on the level of activity and the sensitivity of the individual. To sensitive individuals, vibrations approaching the threshold of perception can be annoying.
Persons accustomed to elevated ambient vibration levels, such as in an urban environment, may tolerate higher vibration levels. The table below displays the human response and the effects on buildings resulting from continuous vibration (in terms of various levels of PPV).
Human Reaction to Typical Vibration Levels
Vibration Level, PPV (in/sec) Human Reaction Effect on Buildings
0.006–0.019 Threshold of perception, possibility of
intrusion
Vibrations unlikely to cause damage of any type
0.08 Vibrations readily perceptible Recommended upper level of vibration to which ruins and ancient monuments should be
subjected
0.10 Level at which continuous vibration
begins to annoy people
Virtually no risk of “architectural” (i.e. not
structural) damage to normal buildings
0.20 Vibrations annoying to people in
buildings
Threshold at which there is a risk to
“architectural” damage to normal dwelling –
houses with plastered walls and ceilings
0.4–0.6 Vibrations considered unpleasant
by people subjected to continuous
vibrations and unacceptable to some
people walking on bridges
Vibrations at a greater level than normally
expected from traffic, but would cause
“architectural” damage and possibly minor
structural damage
Source: California Department of Transportation (Caltrans). 2013, September. Transportation and Construction Vibration Guidance Manual.
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14. Population, Housing and Employment
Most agencies monitor whether a project will increase the number of residents or jobs within their jurisdiction. From a CEQA perspective, the primary issue is whether the population or employment increase would lead to a need for more homes, or businesses to serve the increase. Usually, if a project is consistent with the agency general plan, the analysis need only demonstrate that the anticipated population and/or employment is consistent with the general plan assumptions. The population estimates contained in the analysis are usually from the California Department of Finance Demographic Research Unit reports that are used by the state for subventions and become the official population of the agency. Other information can come from the Economic Development Department (EDD), or the U.S. Census American Community Survey (ACD) data. Most important in the analysis is whether the assumed persons per unit or jobs per square foot are consistent with the assumptions made in the traffic analysis.
Many state and local agencies estimate population and provide job statistics for a variety of reasons. From a CEQA perspective, the emphasis will be on verifying consistency with projections made for regional planning, and possibly the agency general plan. If the estimates are outside of the regional projections, the analysis should both explain why the projections are different, and what the environmental impacts might be.
15. Public Services
Police, fire, library, city hall and schools are all part of public services. The environmental analysis focuses on the physical needs of any service expansion. This means that the need to add police or fire services to keep within a response time or meet a specified ratio is likely not an environmental issue (though it certainly may be a planning issue). If the expansion of personnel requires new construction such as a fire station or substation, then the impact of those improvements must be addressed.
Schools are independent public agencies and are often exempt from local regulations. As independent agencies, schools are also required to comply with CEQA. From an agency perspective, school impacts are fully addressed through payment of impact fees24 and an agency may not deny approval of a project based on the adequacies of school facilities25. Agencies must, however, evaluate the indirect impacts associated with needing a school such as traffic, air quality, noise, etc.
16. Recreation
Impacts to recreation used to be limited to an increase in population from a project. Now, recreation can include trails used to connect homes to parks, schools, employment and shopping. Further, many communities require parks in their office and heavy employment areas to improve aesthetics and improve opportunities for health. The amount of park land is often set in the general plan as a ratio of population to acreage. Large projects can be expected to include public or private opportunities for recreation consistent with the general plan, while smaller projects often pay an in-lieu fee to meet their park obligation.
The environmental analysis should identify parks that would serve a project site, and whether any improvements would be needed. If improvements are necessary, then the impact of those improvements must be included in the analysis. Many agencies have adopted fees to allow smaller projects to meet their obligation. Occasionally, the fees refer to the Quimby Act26 that is part of the Subdivision Map Act. Under the Quimby Act, an agency may require dedication of parkland for subdivisions above a certain size. As the Quimby Act only applies to subdivisions, agencies may adopt park fees as part of their overall developer impact fee program.
24 Government Code Section 65996
25 Government Code Section 65997
26 Government Code Section 66477
CEQA and Environmental Issues 181
17. Transportation (VMT)
Transportation evaluates the various methods of mobility available to a community. The initial evaluation is usually personal vehicle travel, however the environmental analysis may also include walking, bicycling, busses and rail. Level of service (LOS) is a metric that measures automobile delay. As of July 1, 2020, pursuant to the requirements of SB 743, LOS can no longer serve as a basis for a significant transportation impact in CEQA. By focusing on how much vehicle miles travelled (VMT) is generated by a proposed project, this shift in CEQA aligns transportation impact analysis with the reduction of greenhouse gas emissions from projects, reductions in air pollution, and other adverse environmental and health impacts associated with ongoing use of LOS.
Land use and project siting decisions, along with the presence of transportation infrastructure or services to support the use of other modes such as transit, walking, biking, ridesharing, etc., will affect how much VMT is generated by a proposed project. There are various methods of reducing individual vehicle miles travelled and the analysis may include several examples such as connecting trails, mixed use, new transit connections, etc. Note too that existing roadway(s) may be narrowed to accommodate other forms of mobility such as bicycle lanes, dedicated transit and trails consistent with the complete streets provisions of an agency’s adopted circulation element. While the physical improvements associated with the road change may not constitute an environmental impact for purposes of CEQA, any reduction in LOS is generally not considered an impact under CEQA.
Many general plans still contain LOS standards as a policy. From an environmental analysis perspective, if complying with the LOS standard of the general plan requires a roadway expansion or other physical change to the circulation system, the impacts of the improvements must be evaluated. Note that an inconsistency with an LOS policy in a general plan is not an impact under CEQA, as auto delay is not an environmental impact and CEQA only requires analysis of planning inconsistencies that lead to environmental impacts.
The analysis of a project’s impact on transportation in CEQA may be completed using a local or regional transportation or travel demand model. In some cases, these models may be based on the adopted general plan. The model may also be used to generate a list of improvements that could be used to support a development impact fee to help reduce VMT or address specific transportation improvements required by local plans. The environmental analysis will often demonstrate whether a project is consistent with the model assumptions, or if different, whether new improvements will be needed to support the project. It is common for a project to be responsible for property edge (frontage) roadway or other transportation improvements that support other modes, but pay fees for larger local or regional improvements.
18. Tribal Cultural Resources
Tribal consultation is a government-to-government process and is required for all general plan amendments (SB-18) and most environmental documents. For general plan amendments, the consultation must be completed before the amendment can be approved. Tribal consultation as part of the CEQA process is similar but involves contacting tribes who have previously requested consultation. The tribal consultation process is usually a meeting that can result in project specific mitigation concerning issues such as construction monitoring and the disposition of any resources discovered. The consultation process may also identify previously unknown resources that may require modification of the project and/or additional study. Unlike other technical studies that support the environmental analysis, the studies for this issue are kept confidential by the agency per state law to protect the resources.27
19. Utilities and Service Systems
Water, sewer, storm drainage, power and more recently, internet access are all examples of utilities and service systems.
The environmental analysis will focus on whether the project will require the expansion of one or more services. If expansion 27 Public Resources Code Section 21082.3(c)(1) (ref OPR Technical Advisory AB52 and SB18 June 2017)
CEQA and Environmental Issues 182
is required then the impacts of the expansion must be evaluated. Most agencies have a series of master plans that specify capacities and increment(s) of expansion linked to growth. The master plans are often used as the basis for the development impact fee used to fund the incremental expansion. The environmental analysis will identify whether the proposed project is within the planned services as shown in the master plan, or if there is no master plan within the design capabilities of the service system. The environmental impacts of any service extension to serve a site must also be part of the analysis.
20. Wildfire
The California Department of Forestry and Fire Protection (CAL FIRE) maps areas of significant fire hazards based on fuels, terrain, weather and other relevant factors. These zones, referred to as Fire Hazard Severity Zones (FHSZ)28, influence how people construct buildings and protect property to reduce risk associated with wildland fires. The environmental analysis will evaluate the consistency with the provisions of the safety element, and whether the project falls into one or more of the following wildfire zones.
21. Mandatory Findings of Significance
The mandatory findings of significance bring the analysis in the preceding checklist to a conclusion. Often the section is used to specifically address the cumulative impact of the project or summarize the impacts in the previous analysis to help support the conclusion. From the mandatory findings of significance, an agency can determine whether a negative declaration, mitigated negative declaration or environmental impact report is warranted.
Note that the checklist is often a convenient method of supporting an addendum or an exemption even though it may not be required in either instance. Like most checklists, the point is to not forget some part of the analysis before acting. Agencies are welcome to devise their own checklist provided all the environmental issues are covered. Many agencies eliminate some of the questions in the Appendix G checklist that simply don’t apply to their agency. 28 CALFIRE Maps
CEQA and Environmental Issues 183
Appendix G
Glossary of Land Use and Planning Terms
Understanding the Basics of
USE AND
LAND
PLANNING
Glossary of Land Use and Planning Terms
Generous support for this publication provided by:
Special thanks to the following individuals whose time and effort contributed to this publication:
Teri Duarte, Health Program Director, Sacramento County Department of Health and Human Services
Michael Stepner, Professor, New School of Architecture
Julia J. Roberts, Chief Deputy County Counsel, Tulare County Charlotte Dickson, Director of Local Policy, California Center for Public Health Advocacy Cathy Creswell, Deputy Director, California Department of Housing & Community Development Jeffrey Rosenhall, Project Coordinator, California Center for Physical Activity Prepared by Steve Sanders, Lianne Dillon, Ken Loman and Charles Summerell, Institute Staff Thanks also to Bill Higgins, Senior Staff Counsel for the League of California Cities and former Director of the ILG Land Use Program, for compiling the 2004 edition of the glossary.
The terms in this glossary are adapted from previous editions of the Planning Commissioner’s Handbook (2000 and 2004), the Planner’s Pocket Guide (1992), and the Municipal Revenue Sources Handbook (2001), all published by the League of California Cities. Other sources include the California Planning Guide and the General Plan Guidelines (both published by the Governor’s Office of Planning and Research), and the Glossary of Climate Change Terms (published by the U.S. Environmental Protection Agency.) Any errors or omissions are the responsibility of the Institute for Local Government.
Additional support provided by The California Endowment through a grant to the Institute’s Healthy Neighborhoods Project.
Understanding the Basics of LAND USE AND PLANNING: Glossary of Land Use and Planning Terms © 2010 by The Institute for Local Government
1400 K Street, Suite 205
Sacramento, CA 95814
(916) 658-8208 • FAX (916) 444-7535 • www.ca-ilg.org
Understanding the basics of
LAND USE AND PLANNING
Glossary of Land Use and Planning Terms
About This Glossary ..............................................................................1 A...............................................................................................................2 B...............................................................................................................5 C...............................................................................................................9 D.............................................................................................................16 E.............................................................................................................19 F .............................................................................................................22 G.............................................................................................................25 H.............................................................................................................28 I...............................................................................................................30 J..............................................................................................................31 L .............................................................................................................32 M.............................................................................................................35 N.............................................................................................................39 O.............................................................................................................42 P.............................................................................................................43 Q.............................................................................................................47 R.............................................................................................................47 S.............................................................................................................50 T .............................................................................................................58 U.............................................................................................................61 V.............................................................................................................63 W ............................................................................................................64 X.............................................................................................................65 Y.............................................................................................................65 Z .............................................................................................................65
Institute for Local Government
Land use refers to the relationship
between people and the land – more
specifically, how the physical world
is adapted, modified, or put to use
for human purposes. This includes
even the “non-use” of lands reserved
as wilderness or protected from
human impacts.
Decisions about land use are made
by people from many walks of life.
Examples from the private sector
include residents choosing where to live,
business owners opening or expanding
a business, and farmers and ranchers
raising crops and livestock.
The public sector also makes important
decisions about land use. Legislatures
and chief executives make policy and
funding decisions that have myriad
effects on land use. Courts interpret
how laws and policies apply in practice.
Local, state and federal agencies then
administer the laws and policies that
govern the use and development of land,
both public and private.
About This Glossary
While many parties play a role, local
agencies are at the center of decisions
regarding land use. In California, city
and county officials elected by local
voters have broad authority to regulate
the development and use of land to
advance the health, safety and welfare
of the public.
The Glossary of Land Use and Planning
Terms is primarily intended to help
local officials and the public understand
the terms that are commonly used in
the process of making local land use
and planning decisions. As in other
professional disciplines, many of the
terms used in planning and land use are
technical. It is our hope that the Glossary
will be a handy reference that will make
the topic of land use and planning less
mysterious and more accessible to local
officials and community residents alike.
Understanding the Basics of Land Use and Planning: Glossary of Land Use and Planning Terms 1
2 Institute for Local Government
A
AB 32. California’s Global Warming Solutions Act of 2006. The Act requires that California’s greenhouse gas (GHG) emissions be reduced to 1990 levels by 2020. This is a reduction of about 30 percent from projected “business as usual” levels. The Act gives the California Air Resources Board (CARB) authority to identify and regulate sources of greenhouse gas emissions. The CARB’s “Scoping Plan” for implementing AB 32 includes a wide range of strategies including reducing GHG emissions from cars and light trucks through transportation planning relating to land use. Other measures include implementing green building standards that increase energy efficiency, water conservation, waste reduction, and recycling.
Abandonment. A cessation of the use of the property by the owner without intent to transfer the property to another or resume the use of the property.
Abatement. Reducing or eliminating the degree or intensity of a nuisance or other property-related problem, usually used in connection with zoning code or environmental program enforcement.
Abutting. Having property or zone district boundaries in common; for example, two lots are abutting if they have property lines in common.
Acceptable Risk. A hazard that is deemed to be a tolerable exposure to danger given the expected benefits to be obtained. Different levels of acceptable risk may be assigned according to the potential danger and how critical the threatened structure or area is deemed. For example, the level of acceptable risk from seismic activity may range from “near zero” for nuclear power plants and natural gas transmission lines to “moderate” for open space, ranches and low intensity warehouse uses.
Access. A way of approaching or entering a property. Access includes ingress, the right to enter, and egress, the right to leave. In zoning and subdivision regulations, recorded lots are required to have direct access to a public street or highway or to a private street meeting public standards. This guarantees entry by owners and emergency vehicles.
Accessibility/Accessible. A term that describes the usability of a facility, product or service by people with disabilities.
Accessory Building or Use. An activity or structure on a property that is incidental and subordinate to the main use of a site. For example, a small business office within a store might be considered an accessory use, and might not be counted in the calculation of the size of the store for zoning purposes.
Acre-Foot. A volume of water one foot deep covering one acre; approximately 326,000 gallons. One acrefoot of water is enough to meet the needs of two typical families for a year.
Acres, Gross. The entire acreage of a site. Most communities calculate gross acreage to the centerline of proposed bounding streets and to the edge of the right-of-way of existing or dedicated streets.
Acres, Net. The portion of a site that can actually be built upon. The following generally are not included in the net acreage of a site: public or private road rights-of-way, public open space, and flood ways.
A
Understanding the Basics of Land Use and Planning: Glossary of Land Use and Planning Terms 3 Active Living Community. A community designed to provide opportunities for people of all ages and abilities to incorporate physical activity into their daily routines. By encouraging people to be more active, active living communities may improve health by lowering people’s risk for health conditions such as obesity, diabetes, heart disease, osteoporosis, and depression.
Ad Valorem Tax. A tax assessed based on the dollar value of an item or activity. Typical examples are property and sales taxes. Ad valorem taxes contrast with per-unit taxes, such as alcoholic beverage and cigarette taxes, which are assessed at a fixed dollar amount per unit purchased.
ADA. Americans with Disabilities Act. For purposes of planning and land use, federal law that generally requires that businesses and public facilities and conveyances be accessible to individuals with disabilities.
Adaptation. Adjustment in natural or human systems to a new or changing environment. For example, adaptation to climate change refers to adjustment in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities.
Adaptive Reuse. Converting obsolete or historic buildings from their original or most recent use to a new use. For example, an old manufacturing site could be converted into apartments or retail space.
Administrative Decision. See Ministerial Decision.
Adverse impact. A negative consequence for the physical, social, or economic environment resulting from an action or project.
Aerosol. Particulate matter, solid or liquid, larger than a molecule but small enough to remain suspended in the atmosphere. Natural sources include salt particles from sea spray, dust and clay particles as a result of weathering of rocks, both of which are carried upward by the wind. Aerosols can also originate from human activities and are often considered pollutants.
Afforestation. Planting of new forests on lands that historically have not contained forests, or have not been recently forested.
Affordable Housing. Housing capable of being purchased or rented by persons whose income level is categorized as very low, low, or moderate within standards set by the California Department of Housing and Community Development or the U.S. Department of Housing and Urban Development.
Agenda. A document that specifies what will be discussed at a local agency meeting. Agendas contain a brief, general description of each item the governing body will be addressing. Local agencies generally cannot discuss and make decisions on items that are not on the agenda. See California Government Code section 54950.
Aging in Place. The ability to live in one’s own home and community safely, independently, and comfortably, regardless of age, income, or ability level.
Agricultural Preserve. Land designated for agricultural use.
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4 Institute for Local Government
Agricultural Urbanism. An approach to integrating growth and development with preserving agricultural resources and enhancing elements of the food system.
Agriculture. Use of land for the production of food and fiber, including the growing of crops and/or the grazing of animals on natural prime or improved pasture land.
Air Pollution. One or more chemicals or substances in the air in concentrations sufficient to harm humans, other animals, vegetation, or materials.
Air Rights. The right granted by a property owner to a buyer to use space above an existing right-of-way or other site, usually for development.
Airport-Related Use. A use that supports airport operations including, but not limited to, aircraft repair and maintenance, flight instruction, and aircraft chartering.
Albedo. The fraction of solar radiation reflected by a surface or object, often expressed as a percentage.
Snow covered surfaces have a high albedo; the albedo of soils ranges from high to low; vegetation covered surfaces and oceans have a low albedo.
Alternative Planning Strategy (APS). A regional growth strategy required under SB 375 for regions where the Sustainable Communities Strategy (SCS) will not achieve the greenhouse gas (GHG) reduction target set by the California Air Resources Board (CARB). Unlike the SCS, an APS is a separate document from the Regional Transportation Plan, and must, if implemented, meet the regional GHG reduction target set by the CARB. Residential development and transportation projects consistent with the APS are eligible for SB 375’s CEQA streamlining incentives, if cities or counties choose to offer them. See California Environmental Quality Act, SB 375, Sustainable Communities Strategy.
Ambient. Surrounding on all sides; used to describe measurements of existing conditions with respect to traffic, noise, air and other environments.
Amortization. The process by which nonconforming uses and structures must be discontinued or made to conform to requirements of the current zoning ordinance at the end of a specified period of time.
Anchor Tenant. The major store or stores within a shopping center.
Ancillary Benefits. Complementary benefits of a given policy. For example, ancillary benefits of a climate policy could include improvements in local air quality and reduced reliance of imported fossil fuels.
Annex/annexation. To incorporate a land area into an existing district or municipality, with a resulting change in the boundaries of the annexing jurisdiction.
Anthropogenic. Made by people or resulting from human activities. Usually used in the context of emissions produced by human activities.
Appeal. When a person believes a decision was made in error, an appeal may be filed so that a higher decision-making body can review the case.
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Understanding the Basics of Land Use and Planning: Glossary of Land Use and Planning Terms 5 Approach Zone. The air space at each end of a landing strip that defines the glide path or approach path of aircraft as they land. The approach zone should be free from obstruction.
Appropriation. A legal authorization granted by the governing body to expend monies, and incur obligations for specific purposes.
Aquifer. An underground, water-bearing layer of earth, porous rock, sand, or gravel, through which water can seep or be held in natural storage. Aquifers generally hold sufficient water to be used as a water supply.
Arable. Land capable of being cultivated for farming.
Architectural Control; Architectural Review. Regulations and procedures requiring the exterior design of structures to be suitable, harmonious, and in keeping with the general appearance, historic character, and/or style of surrounding areas. A process used to exercise control over the design of buildings and their settings.
Arterial. A roadway that provides intra-community travel and access to the countywide highway system, characterized by medium-speed (30-40 mph) and medium-capacity (10,000-35,000 average daily trips).
Access to community arterials should be provided at collector roads and local streets, but direct access from parcels to existing arterials is common.
Articulation. Variation in the depth of the building plane, roof line, or height of a structure that breaks up plain, monotonous areas and creates patterns of light and shadow.
As-of-right Use. A use of land that is permitted as a principal use in a zoning district.
Assessed Valuation. The value at which property is appraised for tax purposes.
Assisted Housing. Generally multifamily rental housing, but sometimes single-family ownership units, whose construction, financing, sales prices, or rents have been subsidized by federal, state, or local housing programs.
Automobile-intensive Use. A use of a retail area that depends on exposure to continuous auto traffic.
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BANANA. Acronym for the term Build Absolutely Nothing Anywhere Near Anything.
Base Flood. In any given year, a 100-year flood that has a one percent likelihood of occurring, and is recognized as a standard for acceptable risk.
Below-market rate (BMR). (1) Any housing unit specifically priced to be sold or rented to low-or moderate-income households for an amount less than the fair-market value of the unit. Both the State of California and the U.S. Department of Housing and Urban Development set standards for determining which households qualify as “low-income” or “moderate-income.” (2) The financing of housing at less than prevailing interest rates.
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