January 10, 2023 Regular Meeting of the Lindsay City Council
STAFF REPORT
TO: Lindsay City Council
FROM: Joseph M. Tanner, City Manager
DEPARTMENT: City Manager
ITEM NO.: 10.5
MEETING DATE: January 10, 2023
ACTION & RECOMMENDATION
Consider the Approval of Resolution 23-02, Approving a Contract with Lew Edwards Group (LEG) to Provide Planning, Communication, and Engagement Services for Quality-of-Life Vision, and Approving a Contract with Fairbank, Maslin, Maullin, Metz & Associates (FM3) to Conduct a Quality of Life/Satisfaction Survey for the City of Lindsay, and Authorize City Manager to Execute Any Documents Thereto.
Staff recommends that the City Council approve Resolution 23-02, approving a contract with the Lew Edwards Group (LEG), to provide planning, communication, and engagement services in connection with the City’s strategic plan vision, as identified in “Task One” of the Scope of Services attached to the Professional Services Agreement. Resolution 23-02 also approves a contract with Fairbank, Maslin, Maullin, Metz & Associates (FM3) for the purposes of conducting a community survey.
BACKGROUND | ANALYSIS
Both City Staff and the City Council have expressed their clear intention to determine the community’s views on the current quality of life in the City of Lindsay, the community’s desires for improving that qualify of life and the potential means of achieving the community’s goals.
The first step in achieving this City Council goal is to determine the attitudes and beliefs of the community in a reliable and statistically sound survey. LEG will serve as the lead consultant on this effort and will, as an initial step, develop appropriate questions and consult with FM3 regarding producing the survey.
The City is interested in conducting an objective, statistically reliable survey of City of Lindsay voters to profile their needs, priorities, preferences, and satisfaction related to city services and facilities, measure community interest in additional funding for city services and facilities, and gather data on a variety of quality-of-life, issue, and policy-related matters. Following an assessment of the City’s updated opinion research, LEG will develop initial Strategic Recommendations as described in its proposal. LEG will assist the City in developing or adding value to selected copy for appropriate engagement and communications materials to deliver and saturate the eventual informational message, including guest January 10, 2023 Regular Meeting of the Lindsay City Council
STAFF REPORT
columns, copy for links on the City website, and focused Power Point Presentations for informational Speakers’ Bureau, Stakeholder, Key Influential and community presentations.
For items related specifically to our Quality-of-Life project, LEG will provide first drafts of selected materials for the review and approval of the City. The current proposal is for the first phase of the effort (described as “Task One” in the Scope of Services) but they have provided information on the entirety of the process as their extensive experience suggests will be appropriate. The City Council, after receiving the results of Task One, will determine whether to proceed with the subsequent tasks.
Staff has reviewed the marketplace for reliable firms that can perform these services, and determined that the nature of the service, the reputation of the service provider and the quality of the work vary widely in the available firms. For this reason, Staff is strongly recommending that Council award sole source contracts to LEG and FM3, rather than a lengthy and expensive request for proposals, which would result in various levels of cost but with no assurance of work quality or reliability. The California Government Code and the City’s Procurement Policy both permit sole source contracts for the performance of specialized professional services and staff believes that this is an instance when a sole source procedure is the preferred method.
Although LEG has not previously performed such services for the City, their reputation in the State is extremely strong.
FISCAL IMPACT
LEG would perform Task One for a flat fee of $15,000, provided that the term does not exceed the typical timing of 90 days to perform this work. Following Task One, when the City’s project parameters are better known, the parties can choose to extend our contract as appropriate, with the term and rate to be subject to discussion at that time.
The total estimated cost for the community research through FM3 is $26,850. This price is comprehensive and includes all costs for questionnaire design; sample acquisition and preparation; translation; programming; email, text, and postcard invitations; survey hosting; bilingual interviewing; data entry and analysis; and reporting.
These costs would be sourced from American Rescue Plan Act Funds.
ATTACHMENTS
• Draft LEG Proposal to Provide Planning, Communications & Engagement Services to Support the City of Lindsay’s Fiscal Sustainability Vision
• LEG Task One Assessment Services
January 10, 2023 Regular Meeting of the Lindsay City Council
STAFF REPORT
• FM3 Scope and Cost Memo
• Resolution No. 23-02
January 10, 2023 Regular Meeting of the Lindsay City Council
Proposal to Provide
Planning, Communications & Engagement
Services to Support the City of Lindsay’s
Fiscal Sustainability Vision
January 5, 2023
January 10, 2023 Regular Meeting of the Lindsay City Council
City Manager Joseph Tanner
City of Lindsay
251 E. Honolulu Street
Lindsay, CA 93247
Dear City Manager Tanner:
Thank you for reaching out to The Lew Edwards Group (LEG) to partner with the City on a fiscal sustainability and community engagement project. A collaboration with LEG will provide the City of Lindsay with the following:
✓ A California leader in fiscal sustainability approaches for local government. LEG has enacted over $42 Billion with a 95% enactment rate, closing out our most recent 2022 cycle with 66 enactments and wins.
✓ A firm offering nationally recognized, award-winning public outreach and communications approaches, including awards for culturally competent communications. ✓ A firm with extensive experience within Tulare County and your greater region. In addition to the Tulare Council of Governments, LEG has also successfully represented the cities of Dinuba, Exeter, Porterville, Tulare, and Visalia on their fiscal sustainability needs.
I so enjoyed seeing you again last year and meeting your amazing staff team. LEG would be so excited to help the City engage its residents as it plans for its fiscal sustainability vision! Warmly,
Co-Founder & Principal Consultant
510-594-0224 x 261
[email protected]
January 10, 2023 Regular Meeting of the Lindsay City Council
Refresher on The Lew Edwards Group
As you know, LEG is a California leader in providing strategic communications, long-term planning, and revenue generation services to local governments throughout California. Our firm is celebrating its 26
th year as a company. Local government or public agency representation constitutes more than two-thirds of our practice. LEG is proud to be a woman, Black-Native American, and AAPI-owned firm.
LEG functions as a Lead Consultant to our clients. Experts from LEG are frequently sought-after trainers and speakers for the League of California Cities, California Municipal Treasurers Association, California Society of Municipal Finance Officers, Local Government Commission, Institute for Local Government, and Municipal Management Association among others. LEG’s direct mail products have been recognized on multiple occasions in the prestigious national Pollie Awards.
For a comprehensive list of clients, visit www.lewedwardsgroup.com.
Typical Scope of Services/Project Approach
As you recall from our previously successful collaborations, LEG services can be summarized as follows:
1. Provide Lead Project Coordination
2. Assist in facilitating/designing the Community Survey to be conducted by the City’s research professional, independently evaluating the results, and utilizing identified public perspectives in designing a Project Plan
3. Developing the Project’s Strategic Plan, recommend ongoing Public Engagement and Communications throughout the process
4. Assist with Ballot Measure Development if viable to proceed and desired by a client.
Lead Project Services
LEG prides itself on a supportive, team building approach with consistent planning teleconferences with the City and your research professional. LEG recommends FM3 Research, a renowned California opinion research organization with whom you have also enjoyed previous collaboration and success. With the input of all participants, LEG will develop meeting agendas and facilitate sessions to support the timely deployment of key project activities.
LEG approaches its partnership with personal dedication, enthusiasm, and a commitment to excellent service, recognizing that our ultimate consumer is not only the City of Lindsay, but most importantly, the constituents the City represents.
January 10, 2023 Regular Meeting of the Lindsay City Council
Facilitate Efforts to Conduct a Community Survey
As we have discussed, LEG recommends that the City conduct a community survey as the first step in the process to gauge residents’ current attitudes towards fiscal issues and the City’s management; identify community priorities and the viability of potential 2023 Property Owner and/or 2024 revenue measure/s; and identify effective information in communicating with constituents about the City’s fiscal sustainability needs.
Following completion of the City’s community survey, LEG will independently evaluate survey results, provide strategic analysis, and develop a recommended Communications/Engagement Plan and timetable based on our firm’s review and interpretation of the data.
Community Engagement
Following our assessment of the City’s survey, LEG will develop initial Strategic Recommendations.
LEG will assist the City in developing copy for appropriate engagement and communications materials to deliver and deliver your informational message, copy for links on the City website, a City Newsletter, or a Power Point Presentation for informational (online) Speakers’ Bureau, Stakeholder, Key Influential and community presentations. LEG will provide first drafts of selected materials for the review and approval by the City. Remember also that due to FPPC restrictions, any mailed collateral cannot feature elected officials except in a limited manner.
Project Communication Goals
1. Develop messages to effectively engage, respond to questions from, and inform the public
2. Provide structure and effective communications outreach content to educate the public about the needs and the city services at stake
3. Use all available vehicles, including direct mail and social media/Internet-based communications platforms to inform and engage your public
4. Working with City staff, ensure that project communications are conducted in a culturally competent manner
Development of Informational Messages
Our project collaboration will have the goal of informing the public and raising awareness of the City’s quality of life vision and fiscal sustainability needs. “Message discipline” and a clear, concise focus are critical to our informational effort. LEG will draft and refine talking points for City staff use.
It is essential that the community be engaged, creating two-way and collaborative dialogue with your public. Otherwise, “government” is simply imposing its decisions on the community which is not effective.
January 10, 2023 Regular Meeting of the Lindsay City Council
Direct Mail/Social Media/Digital Media
LEG recommends a communications plan that will allow the City to raise awareness of city needs beyond already-active stakeholders and key influentials, to a broader public. LEG will draft text copy and provide samples for the City’s staff and vendors to design/print/mail for any materials specifically related to this project. Doing so is often less expensive for our clients and supports any existing local vendor relationships our clients have.
In consultation with City staff, LEG will also draft and/or refine informational handouts, press releases and website copy, with appropriate materials (charts, graphs, visual aids, etc.) to communicate messages and information. In addition, LEG will draft, review and/or refine supporting fact sheets, flyers, and other communications. Other communications vehicles include your City website, social media (such as Facebook, Twitter, Instagram, and other platforms) and a Speakers’ Bureau program.
LEG assists in drafting information or adding value for social media as part of our multi-disciplinary public outreach effort and advises our clients to augment or expand their digital media reach and communications in light of today’s multi-faceted communications.
Press Coverage
LEG will review earned (non-paid) media press opportunities with City staff. Balanced press coverage will build additional constituent engagement throughout the process, which is critical to engaging community stakeholders and informing your public about your needs. While LEG does not function as a spokesperson, we can support the City’s communications efforts by developing additional collaterals such as project-related press releases, media backgrounders, talking and rapid response needs, as necessary for dissemination to local media.
Ballot Measure Development
Should potential property owner and/or ballot measure/s be viable, LEG will collaborate with the City Attorney and City staff on measure structure/s and wording to address the public’s interests and priorities.
LEG will collaborate closely with your team to refine the ballot question and develop other ballot measure components so that they are understandable to the average person. This addresses specific documents such as the measure ordinance, ballot question, property owner balloting package, city resolution, and staff report to ensure that all property owner or voter handbook materials are understandable to the average person, not just lawyers.
January 10, 2023 Regular Meeting of the Lindsay City Council
PROFESSIONAL FEE
Without exception, LEG does not bill on an hourly or time and materials basis. Professional fees are the City’s costs to retain LEG’s strategic services and do not include hard project costs such as polling, graphics, or other project expenses such as legal and election costs. For example, mailing costs will need to be budgeted for separately as they are in addition to LEG’s fee.
LEG’s standard municipal rate currently is $6,500 per month. LEG suggests the following:
-Task One Assessment Phase to assist your opinion research professional in the design of an on-point, culturally competent community survey to assess public priorities and perspectives, including up to two fiscal sustainability approaches. LEG would perform Task One for a flat fee of $15,000, provided that the term does not exceed the typical timing of 90 days to perform this work.
Following Task One, when the City’s project parameters are better known the parties can choose to extend our contract as appropriate, with the term and rate to be subject to discussion at that time.
Of course, should the City need to terminate or suspend its planning because the project is not viable or for reasons external to the project, the parties would end the agreement with fees incurred through Task One. Thank you for considering LEG as your partner for this important work.
January 10, 2023 Regular Meeting of the Lindsay City Council
TASK ONE ASSESSMENT SERVICES
As of November 13, 2022
The Lew Edwards Group shall provide Lead Consulting Services for the City’s initial assessment phase that include the following:
• Review current City, budget, demographic, policy, and other pertinent service information
• Review City background materials
• Review and analyze current media clips about City
• Lead initial planning sessions
• Facilitate and add value to Opinion Research partner’s design and creation of a project-specific opinion research study
• Independently review opinion research results and provide Strategic Recommendations to City
• Provide additional strategic advice as needed, including recommended messaging and next steps
Legal advice is not within Consultant’s scope of services. The parties can agree to extend agreement for additional services –if so, additional professional fees shall apply.
PAYMENT OF SERVICES
Consultant will invoice City for Task One Assessment Services at the flat rate of Fifteen Thousand Dollars ($15,000), due and payable in payment increments over two - three invoices. This Scope of Work is presumed by the parties to take no more than a 90-day period.
January 10, 2023 Regular Meeting of the Lindsay City Council
12100 Wilshire Boulevard, Suite 350 | Los Angeles, CA 90025 Phone: (310) 828-1183 | Fax: (310) 453-6562
1999 Harrison St., Suite 2020 | Oakland, CA 94612
Phone: (510) 451-9521 | Fax: (510) 451-0384
TO Joe Tanner, City Manager
FROM Richard Bernard, PhD
FM3 Research
RE: City of Lindsay Community Satisfaction and Budget Priority Survey - Scope and Cost Memo DATE November 18, 2022
Fairbank, Maslin, Maullin, Metz & Associates (FM3) is pleased to submit this short scope of work to conduct research assessing community satisfaction and budget priorities in the City of Lindsay. Below are the proposed research specifications and estimated costs.
Strategic
Considerations
In order to increase trust and participation in this survey, FM3 proposes to send a postcard to all households in the City of Lindsay (approximately 3,900) prior to fielding so that people are prepared when they receive their invitations to participate.
Methodology Dual-mode resident survey using a combination of online and telephone interviews Respondent
Contact Method
Telephone calls, email invitations, and text invitations Population &
Sample
FM3 would aim to receive approximately 100 responses from the overall adult population of the City, resulting in a margin of error of ±9.8% at the 95% confidence level (i.e., in 95 out of 100 cases).
Questionnaire 15 minutes
Language All surveys (telephone and online) will be available in both English and Spanish.
Deliverables Following the completion of the survey, we will provide:
• A final questionnaire for easy reference
• A complete analysis of key survey results in PowerPoint • A presentation of the survey results
FM3 will also be available for ongoing consultation and any further analysis of the research.
Cost The total estimated cost for this research is $26,850.
January 10, 2023 Regular Meeting of the Lindsay City Council
This price is comprehensive and includes all costs for questionnaire design; sample acquisition and preparation; translation; programming; email, text, and postcard invitations; survey hosting; bilingual interviewing; data entry and analysis; and reporting.
FM3 would welcome the opportunity to work with you on this research, and if you have any questions or if there is any further information I can provide, please do not hesitate to contact me.
Richard Bernard, PhD, FM3 Partner
Fairbank, Maslin, Maullin, Metz & Associates (FM3)
12100 Wilshire Boulevard, Suite 350
Los Angeles, CA 90025
(310) 428-1809 (cell)
[email protected]
January 10, 2023 Regular Meeting of the Lindsay City Council
A RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF LINDSAY
RESOLUTION NO. 23-02
NUMBER 23-02
TITLE
MEETING
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LINDSAY
APPROVING A CONTRACT WITH LEW EDWARDS GROUP (LEG) TO
PROVIDE PLANNING, COMMUNICATION, AND ENGAGEMENT
SERVICES FOR QUALITY-OF-LIFE VISION, AND APPROVING A
CONTRACT WITH FAIRBANK, MASLIN, MAULLIN, METZ &
ASSOCIATES (FM3) TO CONDUCT A QUALITY OF
LIFE/SATISFACTION SURVEY FOR THE CITY OF LINDSAY, AND
AUTHORIZE CITY MANAGER TO EXECUTE ANY DOCUMENTS
THERETO
At a regularly scheduled meeting of the City of Lindsay City Council held on January 10, 2023, at 6:00 PM at 251 E. Honolulu Street, Lindsay, CA 93247 WHEREAS, both City Staff and the City Council have expressed their clear intention to determine the community’s views on the current quality of life in the City of Lindsay, the community’s desires for improving that qualify of life and the potential means of achieving the community’s goals; and
WHEREAS, the first step in achieving this City Council goal is to determine the attitudes and beliefs of the community in a reliable and statistically sound survey; and WHEREAS, Staff has reviewed the marketplace for reliable firms that can perform these necessary services, and determined that the nature of the service, the reputation of the service provider and the quality of the work vary widely in the available firms; and WHEREAS, it is the desire of the City Council to award sole source contracts to LEG and FM3, rather than a lengthy and expensive request for proposals, which would result in various levels of cost but with no assurance of work quality or reliability; and WHEREAS, the California Government Code and the City’s Procurement Policy both permit sole source contracts for the performance of specialized professional services and staff believes that this is an instance when a sole source procedure is the preferred method; and WHEREAS, the City Council of the City of Lindsay hereby approves the sole source contracts with LEG and FM3, and grants authorization to the City Manager to execute any documents thereto.
January 10, 2023 Regular Meeting of the Lindsay City Council
A RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF LINDSAY
RESOLUTION NO. 23-02
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LINDSAY DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The recitals set forth above are true and correct and are incorporated into this Resolution by this reference together with any definitions and findings set forth therein.
SECTION 2. The City Council hereby affirms, based on the marketplace for reliable firms that can perform the necessary services, and determined that the nature of the service, the reputation of the service provider and the quality of the work vary widely in the available firms, and awards sole source contracts to LEG and FM3, and grants authorization to the City Manager to execute any documents thereto.
SECTION 3. This Resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED by the City Council of the City of Lindsay as follows:
MEETING DATE January 10, 2023
MOTION
SECOND MOTION
AYES
ABSENT
ABSTAIN
NAYS
CERTIFICATION OF THE FOREGOING RESOLUTION AS FULL, TRUE, PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF LINDSAY AS DETAILED.
FRANCESCA QUINTANA HIPOLITO A. CERROS
CITY CLERK MAYOR
January 10, 2023 Regular Meeting of the Lindsay City Council
Lindsay City Council
Goals, Strategies, and Action Plan
2023-2025
Mission Statement
The mission of the City of Lindsay is to deliver quality services in a financially sustainable, transparent manner while prioritizing safety, infrastructure, community, and quality of life.
City Council
Hipolito A. Cerros, Mayor
Yolanda Flores, Mayor Pro Tem
Rosaena Sanchez, Councilmember
Ramiro Serna, Councilmember
Ramona Caudillo, Councilmember
January 10, 2023 Regular Meeting of the Lindsay City Council
Mission Statement
The mission of the City of Lindsay is to deliver quality services in a financially sustainable, transparent manner while prioritizing safety, infrastructure, community, and quality of life.
Overview
In the fulfillment of the duties set above, the Council, in collaboration with City staff, is committed to the following set of five overarching goals:
Goal 1. Ensure the City is Fiscally Sustainable and Resilient.
Goal 2. Provide a Safe, Clean Community Environment for All.
Goal 3. Expand the Economic Base in Lindsay.
Goal 4. Invest in Critical Streets, Water, and Sewer Infrastructure.
Goal 5. Improve the Quality of Life for People that Live and Work in Lindsay.
Accomplishments
As the City of Lindsay moves forward, it is important to look back and recognize past accomplishments, as well as identify future potential for growth. Focusing on the City’s successes is important for maintaining and expanding upon the City’s momentum for positive change.
Goal 1. Ensure the City is Fiscally Sustainable and Resilient. • Hired 10 Interns
• Completed 32 recruitments City-wide
• Negotiated the sale and closed escrow on McDermont Field House • Developed a Long-Range Financial Plan
• Approved an American Rescue Plan Act Spending Plan
• New City Auditor Contract
• Hired Interim Director of Recreation
• Updated User Fees
• Established a 115 Trust
• Updated City’s Cash Handling Policy
• Improved financial stability
• Hired City Services Project Manager
• Awarded $400K by USDA
• Began the Report Writing Room remodel
• A balanced budget
• Clean City Audit
January 10, 2023 Regular Meeting of the Lindsay City Council
Goal 2. Provide a Safe, Clean Community Environment for All. • Establishment of Volunteer Fire Program
• Organize/Cleanup of Wellness Center
• Approved a Social Media Policy
• Installed cameras at City Hall
• Purchased two Public Safety vehicles
• Hired a Director of Public Safety
• Hosted the first Community Police Academy
• Developed a Designated Exchange Zone
• Established a Public Safety Chaplain
• Implemented Body Cameras
• Began a Neighborhood Watch Program
• Began a Business Watch Program
• Hired a Full time Community Service Officer (Formerly Animal Control) • Implemented Stop Sticks/Pursuit Termination devices in all on duty vehicles • Implemented Narcan in all units
• Hosted a successful Active Shooter Training for employees • All employees received level 1 National Incident Management System training • Implemented a Homeless Outreach Officer
• Hosted Emergency Operations Center Training
• Hired second School Resource Officer
Goal 3. Expand the Economic Base in Lindsay.
• Updated Mobile Vending Ordinance
• New contract with Friday Night Market operator approved • Team California membership
• Purchased 122 E. Honolulu St. & 190 S. Elmwood Ave.
• Approved Conditional Use Permit for second dispensary Goal 4. Invest in Critical Streets, Water, and Sewer Infrastructure. • Completed the Mariposa Basin Project
• Concept design for Lindsay Transit Center
• Agreement with Tulare County to repair Lindmore Street • Completed Slurry Seal construction on 21 streets for a total of 797,274 Square Feet • Completed Cape Seal construction on 15 streets for a total of 503,730 Square Feet Goal 5. Improve the Quality of Life for People that Live and Work in Lindsay. • $298,000 dollars given to Lindsay families in Mortgage, Rent, and Utility Assistance • $30,000 dollars expended in shower head distribution, toilet replacement rebates, and turf rebates
• Received additional $4.5M funding for Olive Bowl Park project.
January 10, 2023 Regular Meeting of the Lindsay City Council
• Gave away over 350 food kits for Thanksgiving to Lindsay Residents • Partnered with Healthy Start Family Resource Center on Winter Coat Drive for local kids
• Hosted many events including: Santa Night, Tree Lighting Festival, National Night Out, and Lindsay Camp Out
• Partnered with Rawhide baseball team and held fundraiser for Little League baseball • Installed historic bell at City Hall
• Employee Wellness Patio built
• Developed Patch Projects (Cancer Awareness/Autism Awareness) • Developed the Kiwanis Employee of the Quarter Award
• Developed and hosted the first Memorial Day Sunset Service 2023-2025 Goals, Strategies, and Action Plan
Goal 1. Ensure the City is Fiscally Sustainable and Resilient.
Plan for stable and consistent fiscal solvency through prudent management of general fund reserves, facility replacement reserves, pension obligations, and consistent evaluation for cost and operational efficiencies.
Maintain and update policies and procedures accordingly to meet current laws, regulations, and best practice standards.
Strategies
• Operate City government in a fiscally responsible and prudent manner to ensure that the City of Lindsay makes sound fiscal decisions.
• Develop, update, and maintain fiscal policies to ensure appropriate oversight and best practices.
• Review the City’s fees and rates schedule.
• Ensure that enterprise funds generate appropriate revenue and not a drag on the General Fund.
Action Items
1. Implement Corrective Action Plan in Response to State Auditor Report 2020-804.
Partial Completed. Waiting on final determination from the State Auditor.
2. Fund City’s Section 115 Trust.
Completed.
3. Adopt & Implement a Five-Year Financial Planning Policy.
Completed.
4. Create a rolling five-year financial forecast.
Finance will implement during the Budget Cycle.
January 10, 2023 Regular Meeting of the Lindsay City Council
5. Review all rates and fees for municipal services as needed or at least every 5 years.
Ongoing.
6. Review Water, Sewer & Refuse rates every five years.
Underway.
7. Continue property tax billing for sewer and refuse services.
Completed/Ongoing.
8. Update Personnel Rules and Regulations.
Goal 2. Provide a Safe, and Clean Community Environment for All.
Ensure an appropriate response to community needs including fire preparedness, public safety and crime prevention, and public health emergencies by prioritizing the pursuit of reliable funding sources, community-centered policing, and transparency.
Strategies
• Increase Fire Department personnel.
• Explore additional training opportunities.
• Identify funding sources other than the General Fund for public safety equipment. • Work with community partners and other governmental agencies on crime prevention. • Ensure that the City of Lindsay is prepared for emergencies. • Engage and effectively respond to the Community’s safety concerns.
Action Items
1. Analyze and evaluate the effectiveness of using a combined police and fire department.
Completed.
2. Consider the addition of two (2) full-time firefighter positions if the City’s budget permits.
Completed.
3. Identify public safety equipment needs and collaborate with Senator Melissa Hurtado’s office to identify potential funding sources.
Completed.
4. Continue the use of the Wellness Center as a community testing and vaccine site in response to COVID-19.
Completed.
5. Ensure all City staff receive level 1 NIMS training.
Completed/Ongoing.
6. Bid and award contract for downtown fire damaged properties.
7. Expand the Volunteer Firefighter program.
8. Develop a priority list for the $2M State of California Direct allocation.
January 10, 2023 Regular Meeting of the Lindsay City Council
Goal 3. Expand the Economic Base in Lindsay.
Increase economic activity and job creation in the City to increase revenue and diversify the local economy.
Strategies
• Grow the number of employment opportunities in Lindsay. • Assist business growth for existing businesses.
• Recruit retail and other sales or excess tax generating businesses. • Focus on the redevelopment of Downtown Lindsay.
Action Items
1. Identify beautification and property rehabilitation projects in the Downtown Lindsay.
Ongoing.
2. Expand the City’s retail base by developing marketing plans to recruit retailers.
Ongoing.
3. Support the City’s existing small businesses and small business expansion. through the development of a small business grant program.
4. Develop relationships with property owners and potential cannabis growers to develop cannabis cultivation projects.
Ongoing.
5. Cultivate working relationship between City staff and business owners to gather information and assist when appropriate. Ongoing
6. Organize meetings with local developers/investors to promote key sites in Lindsay.
7. Review and update the City’s business sign ordinance.
8. Review Cannabis dispensaries Conditions of Approval and revenues.
9. Review Transit Occupancy Tax.
Goal 4. Invest in Critical Streets, Water, and Sewer Infrastructure.
Replace deteriorated streets, enhance infrastructure for water and sewer.
Strategies
• Continue to monitor drought conditions throughout the state and in the region. • Develop and maintain infrastructure resources to support sustainable growth. • Ensure funding is in place for long-term fiscal stability. • Make Community Faculties Districts part of all new projects. • Ensure City’s street fee is accurate and updated on a regular basis. • Work with and partner with Tulare County on funding street projects that our residents use.
January 10, 2023 Regular Meeting of the Lindsay City Council
Action Items
1. Implement American Rescue Plan Spending Plan and complete identified projects.
I.Infrastructure Projects (56% of Total ARPA Funds)
i.Water Projects: $1,549,350.00
ii.Sewer Projects: $242,500.00
II.Focus on repairing streets – Ongoing
III.Complete Linda Vista Project – Underway
2. Communicate and educate the public on water issues and costs.
3. Identify critical needs in the Water and Sewer Systems
4. Collaborate with Senator Melissa Hurtado’s office to identify potential funding sources.
Goal 5. Improve the Quality of Life for People that Live and Work in Lindsay.
Improve and enhance the condition of public amenities, parks, streetscapes, and transit system to bolster the quality of life for our community and impart a positive impression on City visitors.
Strategies
• Improve City’s water quality.
• Provide high quality recreation options for residents of all ages. • Fund Recreation activities without using General Fund. • Invest and redevelop parks.
• Continue to development important partnerships with Lindsay Unified School District and Lindsay.
• Bring much needed housing, employment, youth, and family services to the residents of Lindsay.
• Determine potential recreation sites.
• Create a work environment for City employees that promotes and supports employee development, growth, and community.
Action Items
1. Continue financial support Wellness Center and health and wellness activities in the City.
2. Complete renovation of Olive Bowl/Kaku Park.
Ongoing.
3. Review the long-term goals for McDermont Fieldhouse.
Completed.
4. Redevelop 284 E. Hermosa St. as a Resource Center for housing, employment, youth, and family services.
Ongoing.
5. Review Friday Night Market operations.
January 10, 2023 Regular Meeting of the Lindsay City Council
Completed.
6. Explore funding opportunities for improvements at Harvard Park.
7. Install improvements to Sierra Vista Landscape and Lighting Assessment district.
8. Explore funding opportunities & install additional murals within the City.
9. Conduct assessment of the City through a community survey.
10. Support Community Diversity.
11. Explore funding and design opportunities for additional park amenities such as pickle ball and Frisbee Golf.
12. Provide Customer Service training to employees on a regular basis.
13. Continue to explore additional funding opportunities for the Lindsay Transit Center.
January 10, 2023 Regular Meeting of the Lindsay City Council
STAFF REPORT
TO: Lindsay City Council
FROM: Francesca Quintana, City Clerk & Assistant to the City Manager DEPARTMENT: City Manager
ITEM NO.: 11.2
MEETING DATE: January 10, 2023
ACTION & RECOMMENDATION
Amendments to City Council Handbook and Review of City Charter.
This item is informational and presented only for the purpose of discussion. No City Council action is required at this time.
BACKGROUND | ANALYSIS
The purpose of the City Council Handbook (herein referred to as “Handbook”) is to promote communication, understanding, fairness, and trust among the members of the Lindsay City Council and staff concerning their roles, responsibilities, and expectations for management of the business of the City of Lindsay. The City Council adopted the Handbook via Resolution.
On January 11, 2022, the Council adopted the Handbook via Resolution which consisted of eleven (11) sections and two (2) appendices.
The Handbook shall be amended by a majority vote of the City Council and may be updated administratively by the City Clerk in order to remain current with federal, state, and local law. All conduct of the City Council shall be in full compliance with State law, including the Ralph M. Brown Act.
Since the adoption of the Handbook, members of the Council and Staff have identified the need for amendments. A redline copy of the Handbook with proposed amendments to notable sections such as travel, future items, and meeting decorum is attached to this report, as well as a copy of the Lindsay City Charter for reference.
Staff recommends that Council conduct a review of the Handbook and provide Staff with any additional recommendations.
FISCAL IMPACT
No fiscal impact associated with this action.
ATTACHMENTS
• Draft Amended City Council Handbook – Redline Copy
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City of Lindsay
City Council Handbook
Approved and Adopted:
01-11-2022 by Resolution 22-05
Amendeded:
MM-DD-YYY09-27-2022 by Resolution xx22-xx
Last Updated: January January 2022
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Table of Contents
SECTION 1. GENERAL........................................................................................................................................... 3 SECTION 2. MAYOR AND MAYOR PRO TEM APPOINTMENT PROCESS............................................................ 4 SECTION 3. COUNCIL ADMINISTRATIVE MATTERS .......................................................................................... 5 SECTION 4. COUNCIL INTERACTION WITH CITY MANAGER, STAFF, AND MEDIA ......................................... 9 SECTION 5. MEETINGS.......................................................................................................................................10 SECTION 6. POSTING NOTICE AND AGENDA ..................................................................................................12 SECTION 7. AGENDA CONTENTS......................................................................................................................13 SECTION 8. PROCEDURES FOR THE CONDUCT OF PUBLIC MEETINGS ...........................................................16 SECTION 9. CLOSED SESSIONS..........................................................................................................................21 SECTION 10. DECORUM.....................................................................................................................................23 SECTION 11. DISCLAIMER ................................................................................................................................. 24 APPENDIX A: OPEN & PUBLIC: A GUIDE TO THE RALPH M. BROWN ACT (LEAGUE OF CALIFORNIA CITIES) ................................................................................................................................................................25 APPENDIX B: ROSENBERG’S RULES OF ORDER (SIMPLE PARLIAMENTARY PROCEDURES FOR THE 21ST CENTURY) ...........................................................................................................................................................25 January 10, 2023 Regular Meeting of the Lindsay City Council
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SECTION 1. GENERAL
1.1 Purpose. The purpose of the City Council Handbook is to promote communication, understanding, fairness, and trust among the members of the Lindsay City Council and staff concerning their roles, responsibilities, and expectations for management of the business of the City of Lindsay.
1.1 1.2 ValuesValues. Council members shall represent the best interests of the City and community at large. Councilmembers shall treat fellow Councilmembers, members of the public, staff and consultants with respect, civility and courtesy.
Councilmembers shall respect each other’s individual points of view and right to disagree. When addressing the public in any way, Councilmembers shall make certain their opinions are expressed solely as their own, and do not necessarily reflect the opinions of any other Councilmember. Council members shall respect the decisions of the majority of the Council at all times.
1.3 Code of Conduct. Members of City Council shall abide by the following code of conduct.
Members shall:
Work for the common good of the people of the City of Lindsay and not for any private or personal interest.
Endeavor to treat all members of the public and issues before them in a fair and equitable manner.
Make impartial decisions, free of bribes, unlawful gifts, narrow political interests and financial or other personal interests that impair independence of judgment or action.
Decisions will be fair, objective, made in public (unless allowed or required to be made in closed session), and understandable.
Fully participate in their meetings and other public forums while demonstrating respect and courtesy to others, practicing civility and decorum in discussions and debate, listening courteously and attentively, and engaging in effective communication.
Act in an efficient manner, making decisions based upon research and facts in accordance with the Brown Act to allow full and equal participation in the public process.
Refrain from abusive conduct, personal charges or verbal attacks upon the character, motives, ethics or morals of other members, staff or members of January 10, 2023 Regular Meeting of the Lindsay City Council
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the public. Refrain from negative comments regarding any person or group based on their race, ethnicity, sex, gender, sexual orientation, national origin, immigration status, religion, disability, age, marital status, or membership in any other protected category.
Respect and preserve the confidentiality of information provided to them concerning confidential matters of the City, and refrain from disclosing any information received confidentially without proper legal authorization nor use such information to advance the personal, financial, or private interests of themselves or others.
Use their title only when conducting official City business, for informational purposes, or as an indication of background and expertise, carefully considering whether they are exceeding or appearing to exceed their authority.
Respect established channels of communication with City staff, treat staff members professionally, and not attempt to pressure or influence discussions, recommendations, workloads, schedules or department priorities without the approval of a majority of the City Council providing direction directly to the City Manager.
In unofficial settings, members of City Council shall be clear in representing to the public, other agencies, and the media whether their comments or statements represent the official position of the City or a personal viewpoint.
1.2 1.31.4 Review. The City Council Handbook shall be amended by a majority vote of the City Council and may be updated administratively by the City Clerk in order to remain current with federal, state, and local law. It is recommended that a new Council conduct a review of the document within thirty days of its first regular meeting.
1.41.5 Ralph M. Brown Act. All conduct of the City Council shall be in full compliance with State law, including the Ralph M. Brown Act.
SECTION 2. MAYOR AND MAYOR PRO TEM APPOINTMENT PROCESS
2.1 Appointment of Mayor. The Council shall appoint from among their members a Mayor. Nominations shall be recorded by the City Clerk. The City Clerk will confirm acceptance of each nomination and put each nominee’s name to a vote in the order of the nominations received. The Mayor shall serve a two-year term and serve as the Presiding Officer of the Council.
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2.2 Appointment of Mayor Pro Tem. The Council shall appoint from among their members a Mayor Pro Tem. Nominations shall be recorded by the City Clerk.
The City Clerk will confirm acceptance of each nomination and put each nominee’s name to a vote in the order of the nominations received. The Mayor Pro Tem shall serve a one-year term and fulfill the duties of the Mayor in their absence.
SECTION 3. COUNCIL ADMINISTRATIVE MATTERS
3.1 Oath of Office. The oath of office shall be administered to all Councilmembers prior to their assumption of office, at or before the first meeting in January following a general election, or within 30 days of a qualified person’s appointment to fill a Council vacancy.
3.2 Reorganization. The reorganization of the Council shall occur at the first meeting in December, or as soon thereafter.
3.3 Seating Order. Following the reorganization of Council, the City Clerk shall designate the seating order for the Council dais. The Mayor Pro Tem shall always be seated immediately to the right of the Mayor.
3.4 Attendance. City Councilmembers acknowledge that attendance at lawful meetings of the City Council is part of their official duty. Councilmembers shall make a good faith effort to attend all such meetings unless unable.
Councilmembers will notify the City Manager or the City Clerk if they will be absent from a meeting, or if they wish to participate via teleconference prior to the meeting. Should a member of the Council have two (2) absences without notice, a review of Council Committees will be prompted and added to the next Council meeting agenda.
3.5 Appointment of Vacancy. If a vacancy occurs less than 90 days prior to a regular election, no appointment shall be made and the vacancy will be filled through the regular election process. Should a vacancy occur more than 90 days prior to the next regular election at which council members are to be elected, the vacancy shall be filled by a majority vote of the remaining members of the City Council.
The Council shall determine the process for appointment prior to the application process and in full accordance with State law.
3.6 Boards, Commissions, and Committees. The Council shall appoint representatives to committees, commissions, and boards as required by the governing bodies.
No later than the second regular meeting of January of each year, Council shall review all the appointments as provided in a list prepared by the City Clerk. The January 10, 2023 Regular Meeting of the Lindsay City Council
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annual review will be conducted to fill vacancies or an expired term of office, and to consider removal of any appointee for cause, such as for failure to keep Council informed of the Committee’s activities, or for excessive absenteeism without good cause.
Each Councilmember shall commit themselves to serving as a representative on a minimum of one committee, commission, and/or board.
Councilmembers shall make a good faith effort to attend all meetings that require a quorum of the appointed members to convene a meeting.
If a Councilmember is unable to attend, they should notify their alternate and the City Clerk as far in advance of the meeting as possible.
Council representatives to such committees, commissions, or boards shall keep the Council informed of ongoing business through brief oral or written reports to the Council.
The City Clerk will maintain and keep on file a list of Standing Committees, Ad Hoc Committees, regional agencies and organizations, and boards to which Councilmembers are appointed.
3.7 Reimbursement. The Council shall establish in the budget funding for conferences, meetings, training, and representation at ceremonial functions for the benefit of the City. Councilmembers shall attend these functions for purposes of improving comprehension of and proficiency in municipal affairs and/or legislative operations. Councilmembers shall be subject to the City’s Administrative Policy and Procedures for travel and expenses reimbursement.
Councilmembers shall not exceed travel expenses in the amount of $2,500 per fiscal year. Should a Councilmember wish to exceed the $2,500 amount allotted for travel per fiscal year, the request shall be placed on a regular meeting agenda and subject to approval by a majority of the Council.
3.73.8 Requests for City-Sanctioned Events or Use/Rental of City Facilities Outside of Normal Operation Hours. Any request for a City-sanctioned event to the City Council will be submitted as an agenda item and follow the timelines for submittal of agenda reports. Any request for a City-sanctioned event should include general information regarding the purpose and content of the event; anticipated event cost; information on the presenters; contact information; expected staff resources, and its overall benefit to the City. The request must be made during the ‘Request for Future Items’ portion of the regular City Council meeting. The request will be placed on the next meeting agenda and be subject to approval by a majority of the Council.
3.83.9 Trainings.
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Ethics: Members of the City Council and commissions shall receive at least two hours of ethics training in general ethics principles and ethics laws relevant to their public service every two years. New members must receive this training within their first year of service. Members shall attend training sessions that are offered locally in the immediate vicinity of Tulare County or by completing online a state-approved public service ethics education program. An individual who serves on multiple legislative bodies needs only receive two hours of ethics training every two years to satisfy this requirement for all applicable public service positions.
Brown Act: Members of the City Council and commissions shall receive training in the Ralph M. Brown Act as it relates to public service every two years. New members must receive this training within their first year of service. Members shall attend training sessions that are offered locally in the immediate vicinity of Tulare County or by completing an online education component. Additionally, each Councilmember shall be provided with a digital copy of the a guide to the Ralph M. Brown Act prior to their assumption of office.
Sexual Harassment Prevention: In addition, Council members shall receive two hours of sexual harassment prevention training every two years, per State law.
New members must receive this training within their first six months of service.
3.93.10Use of Electronic Devices During Council Meetings. Councilmembers shall not use electronic devices to send or receive communications regarding agenda items or to access information which other Councilmembers do not have equal access to during a meeting of the City Council at which they are in attendance. This does not apply to receipt of telephone calls or text messages from family members in the event of an urgent family matter.
3.103.11 Public Records. Councilmembers shall strive to use only their official City email account to conduct City business. The City shall provide Councilmembers with separate publicly owned devices such as tablets or cell phones for the conduct of City business.
If a request for records is received, a search that is reasonably calculated to locate responsive records will be conducted. Privacy concerns can and should be addressed on a case-by-case basis.
Social Media, AB 992, and the Brown Act. The City Council recognizes social media as a powerful tool for distributing important information and connecting with constituents. However, it is important to be mindful of how the regulations set forth in the Brown Act and, more recently, AB 992 impact Councilmembers’ use of social media.
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3.11 Under AB 992, a public official may communicate on social media platforms to answer questions, provide information to the public or to solicit information from the public regarding a matter within the legislative body’s subject matter jurisdiction. However, these communications are only permissible so long as a majority of the members of the legislative body do not use any social media platform to “discuss among themselves” official business. Importantly, “discuss among themselves” has been broadly defined and arguably includes making posts, commenting, replying, sharing, reacting (e.g. “liking” a post) or using digital icons that express reactions, i.e., emojis.
The City council should abide by the provisions found within the City of Lindsay Social Media Policy.1
Best practices include the following:
a. Create a separate “business-only” account rather than using a personal account to distribute official information.
b. Limit online interactions with other Councilmembers to avoid the perception of a “serial meeting” under the Brown Act.
c. Avoid posting, responding, or interacting with posts that concern substantive agenda items or issues within subject matter jurisdiction. d. Do not block, unfriend, delete, or otherwise remove any social media user OR consider disabling the comment function altogether.
3.12 Conflict of Interest. The Political Reform Act states that public officials shall perform their duties in an impartial manner, free from bias caused by their own financial interests or the financial interests of persons who have supported them.
The Political Reform Act establishes regulations regarding conflicts of interests and campaign receipts and expenditures.
A public official who holds an office specified in Government Code Section 87200, and who has a disqualifying financial interest in a decision, shall identify the conflict of interest or potential conflict of interest, and immediately prior to the consideration of the matter, do all of the following:
a. Publicly identify the financial interest that gives rise to the conflict of interest or potential conflict of interest in enough detail to be understood by the public. Residential street addresses do not have to be disclosed. 1 Attached as Appendix C
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b. Recuse themselves from discussing and voting on the matter, or otherwise acting in violation of Government Code Section 87100.
c. Leave the room until after the discussion, vote, and any other disposition of the matter is concluded, unless the matter has been placed on the Consent Calendar and is not pulled for extended discussion.
In the event, that multiple Councilmembers disclose a disqualifying Conflict of Interest for the same matter and a quorum is not reached with the remaining Councilmembers, the City Attorney shall provide guidance as to the selection method for achieving quorum.
It is critical to note that compliance with the State’s conflict of interest laws is each public official’s personal responsibility. While the City Attorney can render advice on the interpretation of State laws and regulations on conflict matters, such advice is solely an interpretation of the law. Further, the City Attorney represents the City and City Council as a whole and not individual Councilmembers. The only authority that can provide binding interpretations and possible immunity from civil or criminal liability on such matters is the Fair Political Practices Commission (FPPC).
SECTION 4. COUNCIL INTERACTION WITH CITY MANAGER, STAFF, AND MEDIA
4.1 City Manager. Councilmembers are free to go to the City Manager to discuss any subject. Issues concerning the performance of a Department or any employee must be directed to the City Manager. Councilmembers shall not meet with groups of management employees for the purpose of discussing terms of employment or establishing employee policy. Direction to City employees, other than the City Manager or City Attorney, is the sole prerogative of the City Manager.
4.2 Staff. The Council shall not abuse staff nor embarrass staff during open session, or at any other time. If a Councilmember has a question on a subject on the agenda, the Councilmember is encouraged to contact the City Manager, City Clerk, or Department Head prior to any meeting at which the subject may be discussed. This does not restrict Councilmembers from asking additional questions during a Council meeting. The Council shall treat staff members professionally, and not attempt to pressure or influence discussions, recommendations, workloads, schedules or department priorities without the approval of a majority of the City Council providing direction directly to the City Manager.
4.3 Media. Typically, the Mayor is the designated representative of the Council to speak on official City positions; however, the Mayor may at any time decline to January 10, 2023 Regular Meeting of the Lindsay City Council
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make a public statement and/or designate a speaker on their behalf. Any Councilmember may choose to comment to the media but should clearly distinguish between personal viewpoints and any official City position.
Generally, press releases shall be prepared by City staff and routed to the City Manager for approval before release to the media. No member of the City Council shall issue any press release on behalf of the City without the express approval of the City Manager. The Councilmember appointed to the role of Mayor shall be clear in making oral or written public statements that they represent their personal viewpoint as the Mayor, or upon approval of a majority of the City Council, represent the viewpoint of the full City Council.
SECTION 5. MEETINGS
5.1 Open to the Public. All meetings of the City Council whether regular, special, or study sessions, shall be open to the public, unless a closed session is held as authorized by law. All meetings shall be noticed as required to allow action to be taken by the Council.
5.2 Quorum. Three members of the City Council shall constitute a quorum and shall be sufficient to transact business. A quorum must be present to begin a Council meeting, for any vote to be taken, and during any portion of a noticed public hearing. If less than three Councilmembers appear at a regular meeting, the Mayor, Mayor Pro Tem in the absence of the Mayor, any Councilmember in the absence of both the Mayor and Mayor Pro Tem, or in the absence of all Council Members, the City Clerk, shall adjourn the meeting to a stated day and hour or cancel the meeting due to the lack of a quorum.
5.3 Broadcasting of City Council Meetings. All regular City Council meetings shall be video-recorded and broadcast over an online video teleconferencing platform of the City’s choice, unless the City is unable to do so due to unforeseen circumstances or circumstances beyond the City’s control.
5.4 Teleconferencing. If circumstances prevent a Councilmember from being physically present during a City Council meeting, the member may choose to participate via teleconference. Participation via teleconference shall be considered sufficient to attain Council quorum.
At the start of any Council meeting during which a Councilmember participates via teleconference, the City Clerk must announce the name of the Councilmember who is participating remotely and record that information in the meeting minutes. No Councilmember shall be authorized to participate in a meeting via teleconference unless:
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a. The member notifies the City Manager and the City Clerk prior to the start of the meeting.
b. The remote connection is established prior to the start of the meeting and continuous for the duration of the meeting.
c. All persons present at the place of the meeting (including members of the public) can hear and speak to the person(s) participating remotely, and the person(s) participating remotely can hear and speak to all persons present at the place of the meeting, and to any other individual participating in the meeting via teleconference.
If a remote participant is disconnected from the meeting, the minutes must note that fact and the time at which the disconnection occurred.
A member who participates remotely retains their right to speak when recognized by the Presiding Officer, make or second any motion and cast votes.
5.5 Regular Meetings. As a matter of general principle, the City Council shall conduct its regular meetings at 6:00 p.m. on the second and fourth Tuesdays of each month in the City Council Chambers located at City Hall. The time, date, or place of a regular meeting may be altered as published in the Council agenda.
5.6 Adjournment. It shall be the policy of the City Council to adjourn meetings, including executive closed sessions, by 9:00 p.m. unless the Council elects to continue past the adjournment hour by unanimous consent of all Councilmembers in attendance, including any Councilmembers participating via teleconference. If at the hour of 9:00 p.m. the City Council has not concluded its business, the Council will review the balance of the agenda and determine by vote whether to continue any remaining items to the next regularly scheduled meeting or adjourn the meeting to another date and time pursuant to the procedures set forth in the Brown Act.
5.7 Successor Agency Meetings. The City Council also sits as Board Members of the Successor Agency to the dissolved Lindsay Redevelopment Agency and shall meet on an as-needed basis. The Mayor shall serve as Chairperson and the Mayor Pro Tem shall serve as the Vice Chairperson.
5.8 Special Meetings. Pursuant to Government Code Section 54956, a special meeting may only be called by the Mayor or a majority of the Council. Written notice must be given to the City Council and to the media 24 hours prior to a special meeting. Notice requirements of the Brown Act shall be complied with for all meetings. A special meeting may be called at any time in accordance with the Brown Act. Written notice of any such meeting must specify the purpose of the meeting. Notice of the meeting must be given in accordance with law. Public January 10, 2023 Regular Meeting of the Lindsay City Council
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comments at special meetings shall be limited to only those items described on the special meeting notice/agenda.
5.9 Study Sessions. The City Council may choose to hold study sessions or joint meetings with other boards, commissions, committees, or agencies as deemed necessary to attend to City business. Study sessions are scheduled to provide Councilmembers the opportunity to better understand a particular item.
5.10 Closed Sessions. The City Council may hold closed sessions at any time authorized by law (and in consultation with the City Attorney), to consider or hear any matter, which is authorized by law. Requests for a closed session should be made to the City Manager.
SECTION 6. POSTING NOTICE AND AGENDA
6.1 Posting of Notice and Agenda. For every regular, special, or study session meeting, the City Clerk or other authorized person shall post a notice of the meeting, specifying the time and place at which the meeting will be held, and an agenda containing a brief description of all items of business to be discussed at the meeting. This notice and agenda may be combined in a single document. The City Clerk shall post each agenda for a City Council regular meeting no less than 72 hours in advance of the meeting and shall post each agenda for a special meeting no less than 24 hours in advance of the meeting online and in the official bulletin board. The City Clerk shall maintain an affidavit indicating the location, date and time of posting for each agenda. The City Clerk shall also post agenda packets, minutes and all legal notices for City Council meetings on the City's website. Copies shall also be available free of charge in the City Clerk's Office.
Not later than the third day prior to said meeting, the City Clerk shall distribute the packet to each member of the City Council and place a packet for public review at the City Hall Bulletin Board. The agenda packet will also be made available to members of the press upon request and will be posted on the City's website. Any supplemental materials distributed to members of the City Council after the posting of the agenda will be available for public review in the City Clerk's Office and at the City Council meeting. If supplemental materials are made available to the members of the City Council at the meeting, a copy will be available for public review in the City Council Chambers. All supplemental materials shall be posted online after the meeting. The City Clerk shall not accept any agenda item or revised agenda item after established deadlines unless authorized by the City Manager.
6.2 Description of Matters. All items of business to be discussed at a meeting of the City Council shall be briefly described on the agenda. Matters not included on the published agenda may not be discussed and acted upon unless otherwise January 10, 2023 Regular Meeting of the Lindsay City Council
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authorized by State law or providing the City Council finds one of the following conditions is met: a) Four-fifths of the City Council determines that the subject meets the criteria of "Emergency" as defined in Section M. b) Four-fifths of the City Council determines that there is a need to take immediate action and that the need for action came to the attention of the City subsequent to the posting of the agenda as required by law.
6.3 Location of Posting. The notice and agenda shall be posted on a bulletin board, publicly accessible, at City Hall, 251 E. Honolulu Street, Lindsay, California, and on the City website.
SECTION 7. AGENDA CONTENTS
7.2 Agenda Packets. Councilmembers are expected to review the agenda and all agenda packet materials, participate in discussions, and make an informed decision on the merits of the issues before them. The complete agenda packet for any regular, special, or study session meeting shall be made available to the public as required by law.
7.1a. Packet Preparation. No later than the Friday prior to the City Council Meeting, the City Clerk shall prepare the agenda packet, which shall include the agenda plus all of its corresponding agenda reports and attachments. No item shall be considered if not included in the packet, except that a correction or supplement to an item already included in the packet may be considered. Reports carried over as Old Business shall be reproduced again at the City Manager's discretion.
7.3 Limitation to Act Only on Items on the Agenda. No action shall be taken on any matter not on the posted agenda, subject only to the exception whereupon a majority of the Council determines the existence of an “emergency situation” as defined by state law.
7.27.4 “Emergency Matter". In accordance with State Law, an emergency matter arises when prompt action is necessary due to the disruption or threatened disruption of public facilities and a majority of the City Council determines that: 1) a work stoppage or other activity which severely impairs public health, safety, or both; 2) a crippling disaster which severely impairs public health, safety or both.
Notice of the Council’s proposed consideration of any such emergency matter shall be given in the manner required by law for such an emergency pursuant to Government Code Section 54956.5.
7.37.5 "Timing" of Agenda. The City Clerk will “time” each agenda item as a way for the Council to maintain a sense of how much time can be committed to any one January 10, 2023 Regular Meeting of the Lindsay City Council
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item without going past an established ending time for the meeting. This includes a suggested maximum of 10 minutes for any presentations to Council.
7.47.6 Consent Calendar. The Consent Calendar may include routine and noncontroversial items. Items on the Consent Calendar are treated as one agenda item and shall be acted upon by a single vote of Council. A Councilmember may request an item be removed from the Consent Calendar. Councilmembers shall be given the opportunity to ask a clarifying question about a consent item or make a brief comment about an item without having to remove the item from the Consent Calendar.
7.7 Council Requests for Future Agenda Items. Council requests for future agenda a items, can be called for by any Councilmember during the ‘Request for Future Items’ section of a regular meeting. Immediately following the request of an item, a vote will be taken on the item. Iincluding all supporting documents if applicable, shall be submitted to the City Manager or City Clerk by 5:00 p.m. of the Wednesday preceding a Tuesday Regular Meeting.If a majority of the City Council supports further study of the item, then a full staff analysis will be prepared within a reasonable time as determined by the City Manager unless otherwise directed by a majority of the City Council. Discussion shall be limited to whether an item should be added to an agenda, not the merit of the item.
7.8 Procedure for Bringing Matters before City Council. a. Requesting Matters for Placement on the Agenda. Matters requested by City staff are approved by the City Manager. Agenda reports shall be reviewed by the City Manager. The City Manager can recommend that the matter be referred to the City Council or back to the originating department for adherence to required form, additional analysis, or suggest other appropriate action including scheduling the matter for a later meeting to allow for appropriate revisions. The City Manager determines the placement and timing of items on the Agenda. b. Emergency and Non-Agendized Items. Emergency and non-agendized items may be added to an agenda only in accordance with state law.
Emergency items are only those matters affecting public health or safety such as work stoppages, disasters and other severe emergencies that severely impair the public health and/or safety qualify for emergency meetings. Adding an emergency item requires a four-fifths vote of the Council. Emergency items are very rare. More likely, after the agenda is posted, an item arises that the City Council would like to act on.
Nonagendized items may be added to the agenda only if the City Council makes findings that 1) the need to consider the item arose after the posting January 10, 2023 Regular Meeting of the Lindsay City Council
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of the agenda; and 2) there is a need to take immediate action at this meeting of the City Council. These findings must be approved by a fourfifths vote; if less than five members of City Council are present, the findings require a unanimous vote of those present.
c. Scheduling Public Hearings Mandated by State, Federal, or Local Statute.
The City Clerk may schedule a public hearing at an available time and date in those cases where State, Federal or local statute mandates the City Council hold a public hearing.
d. Submission of Agenda Items. Except for Old Business, as a condition to placing an item on the agenda, agenda items from departments, shall be furnished to the City Clerk at a time established by the City Manager. The City Manager has set a deadline of 12:00 p.m. on Monday eight days prior to the regular City Council Meeting at which the item is to be presented. If Monday falls on a holiday, the agenda item shall be submitted to the City Clerk on the preceding Thursday, twelve days before a meeting. e. Proclamations. Ceremonial proclamations are often requested of the City in recognition of an event or individual. Certificates and Proclamations may be sent directly to the requestor or presented at a City Council meeting as arranged with the requesting body and at the Council’s discretion. Proclamations may be approved by the Mayor, Two (2) Members of the City Council, or the City Manager (for routine items).
Proclamations or certificates of recognition will not be issued for: Political Campaigns or Endorsements of Political Candidates, individuals with no direct relationship to the City of Lindsay, or individuals contrary to City policies or any applicable law or regulation. City Council Members will have the opportunity for rebuttal of a proclamation immediately following its reading.
f. Formal City Council Positions. Formal support or opposition by the City Council for any form of a legislative platform, specific legislation or other matters shall be approved by a majority of the City Council. Any individual Councilmember may request the Mayor for approval to add an item to the agenda for consideration. The Mayor shall report out at a City Council Meeting, any statements made representing the viewpoint of the full City Council. The City Council shall not take action on any matter that has no direct effect on the local affairs of the City of Lindsay and over which the City, as a California municipal corporation, has no jurisdiction.
The requesting Councilmember shall furnish with the request, proposed January 10, 2023 Regular Meeting of the Lindsay City Council
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language in the form of a letter, resolution, or other documentation that provides a direct connection or effect on the City of Lindsay. g. Scheduling a Presentation. Any requests for a presentation, can be called for by any Councilmember during the ‘Request for Future Items’ section of a regular meeting. Immediately following the request of a presentation, a vote will be taken on the item. If a majority of the City Council supports the presentation, then the presentation will be scheduled within a reasonable time as determined by the City Manager unless otherwise directed by a majority of the City Council. Discussion shall be limited to whether a presentation should be added to an agenda, not the merit of the item. Members of the public may also request a presentation in writing to the City Clerk of City Manager. Staff shall present the written request to the Council at the meeting following the written request. A vote will be taken on the item.
7.4 7.4 Proclamations. Council requests for proclamations shall include either a sample proclamation to be used as a guide or shall provide sufficient information to enable the City Clerk in preparing the proclamation. Proclamations or certificates of recognition will not be issued for:
. Political Campaigns or Endorsements of Political Candidates. . Events, organizations, or individuals with no direct relationship to the City of Lindsay.
. Events, organizations, or individuals contrary to City policies or any applicable law or regulation.
SECTION 8. PROCEDURES FOR THE CONDUCT OF PUBLIC MEETINGS
8.1 Sergeant-at-Arms. The Chief of Police their designee shall serve as the Sergeantat-Arms of the Council meetings, and shall be in attendance when requested by the Presiding Officer. The Sergeant-at-Arms shall carry out all orders and instructions given by the Presiding Officer for the purpose of maintaining order and decorum at council meetings. The Mayor may call a recess if a speaker or group of speakers become unruly and/or interferes with the orderly conduct of the meeting. The Sergeant-at-Arms shall carry out all orders and instructions given by the Mayor for the purpose of maintaining order and decorum at the City Council meetings. Upon instructions of the Mayor or a majority of the City Council, it shall be the duty of the Sergeant-of-Arms, or any officer present, to escort outside or place under arrest any person who violates the order and January 10, 2023 Regular Meeting of the Lindsay City Council
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decorum of the meeting, and cause them as necessary, to be prosecuted under the provisions of applicable law. Effective January 1, 2022, Senate Bill (SB) 1100 Section 54957.95 pertaining to orderly conduct of open meetings will be in effect.
8.2 Parliamentarian. The City Clerk shall be designated as Parliamentarian for the City Council proceedings to advise the Presiding Officer, within the limitations imposed by Rosenberg’s Rules of Order and in consultation with the City Attorney.
8.3 Presiding Officer. The Mayor shall serve as the Presiding Officer of the Council.
As Presiding Officer, the Mayor is responsible for running a timely and orderly meeting. If the Mayor is unavailable, the Mayor Pro Tem shall run the meeting.
In the absence of both the Mayor and the Mayor Pro Tem, the City Clerk shall call the Council to order, whereupon a temporary Presiding Officer shall be selected by the Councilmembers present for the duration of one meeting only.
8.4 Responsibilities of the Presiding Officer.
a. The Presiding Officer shall be responsible for maintaining the order and decorum of meetings. It shall be the duty and responsibility of the Presiding Officer to ensure that the rules of operation and decorum contained herein are observed. The Presiding Officer shall maintain control of communication between Councilmembers and among Council, staff and public.
b. Communication with Councilmembers
i. Councilmembers shall request the floor from the Presiding Officer before speaking.
ii. When one member of the Council has the floor and is speaking, other Councilmembers shall not interrupt or otherwise disturb the speaker.
c. Communication with Members of the Public Addressing the Council i. The Presiding Officer shall open the floor for public comment as appropriate.
ii. Any staff member with an item on the agenda will be available to the City Council to answer questions arising during discussions between Councilmembers and among Councilmembers and
members of the public.
iii. Members of the public shall direct their questions and comments to the Council, not to staff.
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8.5 Rules of Order. The City Council adopts no specific rules of order except those listed herein. The City Council shall refer to Rosenberg’s Rules of Order, as a guide for the conduct of meetings, with the following modifications:
a. A motion is not required prior to a general discussion on an agenda item.
A pre-motion discussion allows the members to share their thoughts so that a motion can more easily be made that considers what appears to be the majority position.
b. All motions except nominations require a second.
c. A motion may be amended at the request of the maker and the consent of the person who seconded the motion. Such a procedure is often used to accommodate concerns expressed by other members.
d. A motion to amend may still be used.
8.6 Public Hearing Procedures. Generally, public hearings are to be conducted in the following order:
a. Presentation of Staff Report.
b. Questions by Council and/or Staff.
c. Presiding Officer Opens Hearing.
d. Public Testimony.
i. Public Hearings shall be conducted with such time necessary for a fair and reasonable oral testimony; it is the City’s policy not to institute time limits for public testimony under Public Hearing matters.
e. Presiding Officer Closes Hearing.
i. Once the hearing has been closed, no additional public testimony will be taken without a majority vote of the Council to reopen the hearing.
ii. No main motions may be made by a Councilmember until after a hearing is closed for public comment.
f. Discussion by Council.
g. Action by Council.
8.7 Public Comment.
a. During Regular City Council meetings, comments may be offered on items not on the agenda under that portion of the agenda identified for January 10, 2023 Regular Meeting of the Lindsay City Council
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Public Comment. Comments shall be limited to three (3) minutes per person, with thirty (30) minutes for the total comment period, unless otherwise indicated by the Presiding Officer.
b. Upon addressing the Council, each speaker is requested, but not required, to state their name.
c. Councilmembers shall be respectful of the speakers and shall not enter into a debate with any member of the public. Cross-exchange, including follow-up questions, between the Council and the public should be limited to the extent possible during Public Comment.
d. The public may also choose to submit a written comment. Public comments received via email, postal mail, or hand-delivered to the City Clerk will be distributed to the Council and incorporated into the official minutes; however, they will not be read aloud in open session. e. A group of speakers may designate a single speaker to represent the group. The designated speaker would be given the time which would have been allocated to others (to a maximum of 10 minutes) to speak.
Individuals wanting to delegate time to another must be present at the meeting and must indicate their desire to cede time to a single individual by notifying the City Clerk.
f. The Presiding Officer or Parliamentarian have the right to ask a member of the public to step down if over the allotted time or if comments are not germane.
g. Unless prior arrangements have been made by a member of the public with the City Clerk by the Friday preceding the Tuesday council meeting at 5:00 P.M., audiovisual materials of any kind will not be permitted during Public Comment.
h. Alternative methods of addressing the Council shall be allowed for persons who do not speak English or those who require other accommodations. Requests for accommodation should be made with the City Clerk.
i. State law provides that Council can take action only on such matters that have been noticed at least 72 hours in advance of the meeting, unless special circumstances are found to exist. As a result, substantive discussion or formal action by the Council on non-agendized items is not allowed under Public Comment.
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8.8 Voting and Motions. Councilmembers will have the opportunity to ask questions of staff, comment on, and discuss any agendized item in order to help form a consensus before a motion is offered. After such discussion, any Councilmember may make a motion. Before the motion can be considered or discussed, it must be seconded; a motion that does not receive a second is considered a “dead” motion.
Unless any Councilmember calls for separate votes in advance, any item on the Agenda with related sub-parts shall be treated as one agenda item and voted on in one motion.
8.9 Abstaining from a Vote. Any council member who abstains from voting without a valid reason shall be deemed to have voted with the majority on that particular issue. Any council member who publicly announces that they are abstaining from voting on a particular matter for specified and valid reasons shall not subsequently be allowed to withdraw that abstention.
8.10 Tie Votes. If a tie vote results at a time when less than all members of the Council who may legally participate in the matter are present, the matter may be automatically continued to the agenda of the next regular meeting of the Council, unless otherwise ordered by the Council. Otherwise, tie votes shall be lost motions.
8.11 Discussion.
a. Speaking More Than Once. To encourage the full participation of all members of the Council, no member or members shall be permitted to monopolize the discussion of the question. If a Councilmember has already spoken, other Councilmembers wishing to speak shall then be recognized. It is not necessary for all City Councilmembers to speak or give their viewpoints if another Councilmember has already addressed their concerns.
b. Relevancy of Discussion. All discussion must be relevant to the issue before the City Council. A Councilmember is given the floor only for the purpose of discussing the pending question; discussion which departs is out of order. Councilmembers shall avoid repetition and strive to move the discussion along. Arguments, for or against a measure, should be stated as concisely as possible.
A motion, its nature, or consequences, may be debated vigorously. It is never permissible to attack the motives, character, or personality of a Councilmember either directly or by innuendo or implication. It is the January 10, 2023 Regular Meeting of the Lindsay City Council
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duty of the Presiding Officer to instantly rule out of order any Councilmember who engages in personal attacks.
It is the responsibility of each Councilmember to maintain an open mind on all issues during discussion and deliberation.
c. Duties of Councilmembers. Promptly at the time and the date of each regular meeting, members of the City Council shall take their regular stations in the Council Chambers and the business of the City Council shall be taken up for consideration and disposition.
d. Presiding Officer’s Duties During Discussion. The Presiding Officer has the responsibility of controlling and expediting the discussion. A Councilmember who has been recognized to speak on a question has a right to the undivided attention of the Council. It is the duty of the Presiding Officer to keep the subject clearly before the members, to rule out irrelevant discussion, and to restate the question whenever necessary. c.
d.e. After the Vote. Once a majority of the Council has approved a motion, no further discussion shall be made.
8.12 Councilmember Respect. Councilmembers shall abide by the majority decision of the Council, even if in the minority. All members of the Council, including those serving as Mayor and Mayor Pro Tem, have equal votes. No Councilmember has more power than any other, and all shall be treated with equal respect.
SECTION 9. CLOSED SESSIONS
9.1 Purpose. It is the policy of the City Council to conduct its business in public to the greatest extent possible. However, state law recognizes that, in certain circumstances, public discussion could potentially jeopardize the public interest, compromise the City’s position, and could cost the taxpayers of Lindsay financially. Therefore, closed sessions shall be held from time to time in accordance with the law. The procedures for the conduct of these meetings shall be the same as for public meetings, except that the public will be excluded.
9.2 Rule of Confidentiality. The City Council recognizes that breaches in confidentiality can severely prejudice the City’s position in litigation, labor relations and real estate negotiations. Further, breaches of confidentiality can create a climate of distrust among Councilmembers and can harm the Council’s ability to communicate openly in closed sessions, thereby impairing the Council’s ability to perform its official duties.
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The City Council further recognizes that confidentiality of discussions and documents are at the core of a closed session. Confidentiality is essential if the closed session is to serve its purpose. Therefore, the City Council will adhere to a strict policy of confidentiality for closed sessions.
9.3 Breach of Rule of Confidentiality. No person who attends a closed session may disclose any statements, discussions, or documents used in a closed session except where specifically authorized by State law. Any authorized disclosure shall be in strict compliance with these rules and the Ralph M. Brown Act.
Violation of this rule shall be considered a breach of this rule of confidentiality and grounds for censure.
9.4 Agenda. The agenda for a closed session will contain that information required to be disclosed pursuant to the Ralph M. Brown Act.
9.5 Permissible Topics. All closed sessions will be held in strict compliance with the Ralph M. Brown Act. The City Attorney and/or City Clerk will advise in advance on topics that may be discussed in a closed session.
9.6 Rules of Decorum.
a. The same high standard of respect and decorum as apply to public meetings shall apply to closed sessions. There shall be courtesy, respect and tolerance for all viewpoints and for the right of Councilmembers to disagree. Councilmembers shall strive to make each other feel comfortable and safe to express their points of view. All Councilmembers have the right to insist upon strict adherence to this rule.
b. Prior to a vote, the Presiding Officer shall ensure that the motion is clearly stated and clearly understood by all Councilmembers.
b.c.Decorum by Councilmembers. While the City Council is in session, Councilmembers must respect the Presiding Officer’s authority to conduct each meeting and preserve order and decorum. A member shall not, by conversation or otherwise, delay or interrupt the proceedings or the peace of the City Council nor disturb any member while speaking, nor refuse to obey the orders of the Council, or the Mayor, except as otherwise herein provided. Members shall make the public feel welcome, value each other's time and respect each other's opportunity to speak while attempting to build consensus on an item through an opportunity for dialogue; but when this is not possible, the majority vote shall prevail and the majority shall show respect for the opinion of the minority.
9.7 Conduct of Meeting.
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a. The Presiding Officer will call the closed session to order. b. The Presiding Officer will keep discussion focused on the permissible topics.
c. The use of handouts and visual aids such as charts is encouraged to focus debate and promote understanding of the topic. All such materials are strictly confidential.
d. If the City Council in closed session has provided direction to City staff on proposed terms and conditions for any type of negotiations, whether it be related to property acquisitions or disposal, a proposed or pending claim or litigation, or employee negotiations, all contact with the other party will be through the designated City person(s) representing the City in the handling of the matter. A Councilmember, not so designated by the Council, will not under any circumstances have any contact or discussion with the other party or its representative concerning the matter which was discussed in the closed session, and will not communicate any discussions conducted in closed session to such party.
9.8 Public Disclosure After Final Action.
a. The Ralph M. Brown Act requires that, as a body, the City Council make certain public disclosure of closed session decisions when those actions have become final. Accordingly, the City Council shall publicly report any final action taken in closed session, and the vote, including abstentions, as directed by the Ralph M. Brown Act. B. The report will state only the action taken and the vote. Unless authorized by the majority of the City Council, the report will not make representations as to the debate or discussion that occurred. Except for the action taken and the vote, all closed session discussions will remain confidential.
SECTION 10. DECORUM
10.1 Councilmembers. Members of the City Council value and recognize the importance of the trust invested in them by the public to accomplish the business of the City. Councilmembers shall accord the utmost courtesy to each other, City employees, and the public. When speaking, a Councilmember’s tone should remain neutral and non-verbal communication aspects should be considerate and polite.
10.2 City Employees. Members of the City staff shall observe the same rules of order and decorum applicable to the City Council.
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10.3 Public. Members of the public attending City Council meetings shall observe the same rules of order and decorum applicable to the City Council.
10.4 Noise in the Chambers. Noise emanating from the audience, whether expressing opposition or support within the City Hall Chambers which disrupts City Council meetings, shall not be permitted. All cellular phones and other consumer electronic devices shall be muted while in the chambers.
SECTION 11. DISCLAIMER
To the extent a matter is not covered by the Handbook, the Presiding Officer in consultation with the City Clerk and/or City Attorney may make a ruling. Any such ruling may not violate the Charter of the City of Lindsay, the Lindsay Municipal Code, or statutory provisions that may govern a particular matter.
If any rule, guideline, or policy contained herein is in conflict with the provisions of the Charter or the Lindsay Municipal Code, such rule shall be deemed invalid or modified to conform to the Charter or Lindsay Municipal Code. Such invalidity shall not affect other rules, guidelines, or policies contained herein which can be given effect without the invalid rule, guideline, or policy, and to this end these rules, guidelines, and policies are severable. Any deviation from the City Council Handbook shall not, alone, invalidate the approval of any matter.
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APPENDIX A: OPEN & PUBLIC: A GUIDE TO THE RALPH M. BROWN ACT (LEAGUE OF CALIFORNIA CITIES)
APPENDIX B: ROSENBERG’S RULES OF ORDER (SIMPLE PARLIAMENTARY PROCEDURES FOR THE 21ST CENTURY)
APPENDIX C: CITY OF LINDSAY SOCIAL MEDIA POLICY
January 10, 2023 Regular Meeting of the Lindsay City Council
Open & Public V
A GUIDE TO THE RALPH M. BROWN ACT
REVISED APRIL 2016
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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
January 10, 2023 Regular Meeting of the Lindsay City Council
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 January 10, 2023 Regular Meeting of the Lindsay City Council
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 January 10, 2023 Regular Meeting of the Lindsay City Council
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 January 10, 2023 Regular Meeting of the Lindsay City Council
4 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
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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
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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.
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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.
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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.
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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.
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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.
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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 January 10, 2023 Regular Meeting of the Lindsay City Council
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.
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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.”
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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 January 10, 2023 Regular Meeting of the Lindsay City Council
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.
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16 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
January 10, 2023 Regular Meeting of the Lindsay City Council
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 January 10, 2023 Regular Meeting of the Lindsay City Council
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
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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.
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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.
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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.
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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 January 10, 2023 Regular Meeting of the Lindsay City Council
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.
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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 January 10, 2023 Regular Meeting of the Lindsay City Council
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.
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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
January 10, 2023 Regular Meeting of the Lindsay City Council
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.
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28 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
January 10, 2023 Regular Meeting of the Lindsay City Council
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 January 10, 2023 Regular Meeting of the Lindsay City Council
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 January 10, 2023 Regular Meeting of the Lindsay City Council
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.
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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.
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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.
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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.
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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 January 10, 2023 Regular Meeting of the Lindsay City Council
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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.
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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.
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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.)
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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.
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40 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
January 10, 2023 Regular Meeting of the Lindsay City Council
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 January 10, 2023 Regular Meeting of the Lindsay City Council
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.
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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.
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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 January 10, 2023 Regular Meeting of the Lindsay City Council
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.
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46 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 5: CLOSED SESSIONS
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.
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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.
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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.
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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
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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
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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.
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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.
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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)
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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.
January 10, 2023 Regular Meeting of the Lindsay City Council
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 January 10, 2023 Regular Meeting of the Lindsay City Council
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
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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.
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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.
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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)
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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.
January 10, 2023 Regular Meeting of the Lindsay City Council
January 10, 2023 Regular Meeting of the Lindsay City Council
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 January 10, 2023 Regular Meeting of the Lindsay City Council
Rosenberg’s Rules of Order
REVISED 2011
Simple Rules of Parliamentary Procedure for the 21st Century By Judge Dave Rosenberg
January 10, 2023 Regular Meeting of the Lindsay City Council
ii
MISSION and CORE BELIEFS
To expand and protect local control for cities through education and advocacy to enhance the quality of life for all Californians.
VISION
To be recognized and respected as the leading advocate for the common interests of California’s cities.
About the League of California Cities
Established in 1898, the League of California Cities is a member organization that represents California’s incorporated cities.
The League strives to protect the local authority and automony of city government and help California’s cities effectively serve their residents. In addition to advocating on cities’ behalf at the state capitol, the League provides its members with professional development programs and information resources, conducts education conferences and research, and publishes Western City magazine.
© 2011 League of California Cities. All rights reserved.
About the Author
Dave Rosenberg is a Superior Court Judge in Yolo County. He has served as presiding judge of his court, and as presiding judge of the Superior Court Appellate Division. He also has served as chair of the Trial Court Presiding Judges Advisory Committee (the committee composed of all 58 California presiding judges) and as an advisory member of the California Judicial Council. Prior to his appointment to the bench, Rosenberg was member of the Yolo County Board of Supervisors, where he served two terms as chair. Rosenberg also served on the Davis City Council, including two terms as mayor. He has served on the senior staff of two governors, and worked for 19 years in private law practice. Rosenberg has served as a member and chair of numerous state, regional and local boards. Rosenberg chaired the California State Lottery Commission, the California Victim Compensation and Government Claims Board, the Yolo-Solano Air Quality Management District, the Yolo County Economic Development Commission, and the Yolo County Criminal Justice Cabinet. For many years, he has taught classes on parliamentary procedure and has served as parliamentarian for large and small bodies.
January 10, 2023 Regular Meeting of the Lindsay City Council
1 Table of Contents
About the Author............................................................................................................ii Introduction....................................................................................................................2 Establishing a Quorum...................................................................................................2 The Role of the Chair......................................................................................................2 The Basic Format for an Agenda Item Discussion........................................................2 Motions in General.........................................................................................................3 The Three Basic Motions................................................................................................3 Multiple Motions Before the Body.................................................................................4 To Debate or Not to Debate............................................................................................4 Majority and Super-Majority Votes ...............................................................................5 Counting Votes................................................................................................................5 The Motion to Reconsider..............................................................................................6 Courtesy and Decorum ..................................................................................................7 Special Notes About Public Input..................................................................................7 January 10, 2023 Regular Meeting of the Lindsay City Council
2 Establishing a Quorum
The starting point for a meeting is the establishment of a quorum.
A quorum is defined as the minimum number of members of the body who must be present at a meeting for business to be legally transacted. The default rule is that a quorum is one more than half the body. For example, in a five-member body a quorum is three.
When the body has three members present, it can legally transact business. If the body has less than a quorum of members present, it cannot legally transact business. And even if the body has a quorum to begin the meeting, the body can lose the quorum during the meeting when a member departs (or even when a member leaves the dais). When that occurs the body loses its ability to transact business until and unless a quorum is reestablished.
The default rule, identified above, however, gives way to a specific rule of the body that establishes a quorum. For example, the rules of a particular five-member body may indicate that a quorum is four members for that particular body. The body must follow the rules it has established for its quorum. In the absence of such a specific rule, the quorum is one more than half the members of the body.
The Role of the Chair
While all members of the body should know and understand the rules of parliamentary procedure, it is the chair of the body who is charged with applying the rules of conduct of the meeting. The chair should be well versed in those rules. For all intents and purposes, the chair makes the final ruling on the rules every time the chair states an action. In fact, all decisions by the chair are final unless overruled by the body itself.
Since the chair runs the conduct of the meeting, it is usual courtesy for the chair to play a less active role in the debate and discussion than other members of the body. This does not mean that the chair should not participate in the debate or discussion. To the contrary, as a member of the body, the chair has the full right to participate in the debate, discussion and decision-making of the body. What the chair should do, however, is strive to be the last to speak at the discussion and debate stage. The chair should not make or second a motion unless the chair is convinced that no other member of the body will do so at that point in time.
The Basic Format for an Agenda Item Discussion
Formal meetings normally have a written, often published agenda.
Informal meetings may have only an oral or understood agenda. In either case, the meeting is governed by the agenda and the agenda constitutes the body’s agreed-upon roadmap for the meeting. Each agenda item can be handled by the chair in the following basic format:
Introduction
The rules of procedure at meetings should be simple enough for most people to understand. Unfortunately, that has not always been the case. Virtually all clubs, associations, boards, councils and bodies follow a set of rules — Robert’s Rules of Order — which are embodied in a small, but complex, book. Virtually no one I know has actually read this book cover to cover. Worse yet, the book was written for another time and for another purpose. If one is chairing or running a parliament, then Robert’s Rules of Order is a dandy and quite useful handbook for procedure in that complex setting. On the other hand, if one is running a meeting of say, a five-member body with a few members of the public in attendance, a simplified version of the rules of parliamentary procedure is in order.
Hence, the birth of Rosenberg’s Rules of Order.
What follows is my version of the rules of parliamentary procedure, based on my decades of experience chairing meetings in state and local government. These rules have been simplified for the smaller bodies we chair or in which we participate, slimmed down for the 21st Century, yet retaining the basic tenets of order to which we have grown accustomed. Interestingly enough, Rosenberg’s Rules has found a welcoming audience. Hundreds of cities, counties, special districts, committees, boards, commissions, neighborhood associations and private corporations and companies have adopted Rosenberg’s Rules in lieu of Robert’s Rules because they have found them practical, logical, simple, easy to learn and user friendly.
This treatise on modern parliamentary procedure is built on a foundation supported by the following four pillars:
1. Rules should establish order. The first purpose of rules of parliamentary procedure is to establish a framework for the orderly conduct of meetings.
2. Rules should be clear. Simple rules lead to wider understanding and participation. Complex rules create two classes: those who understand and participate; and those who do not fully understand and do not fully participate.
3. Rules should be user friendly. That is, the rules must be simple enough that the public is invited into the body and feels that it has participated in the process.
4. Rules should enforce the will of the majority while protecting the rights of the minority. The ultimate purpose of rules of procedure is to encourage discussion and to facilitate decision making by the body. In a democracy, majority rules. The rules must enable the majority to express itself and fashion a result, while permitting the minority to also express itself, but not dominate, while fully participating in the process.
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3 Ninth, the chair takes a vote. Simply asking for the “ayes” and then asking for the “nays” normally does this. If members of the body do not vote, then they “abstain.” Unless the rules of the body provide otherwise (or unless a super majority is required as delineated later in these rules), then a simple majority (as defined in law or the rules of the body as delineated later in these rules) determines whether the motion passes or is defeated.
Tenth, the chair should announce the result of the vote and what action (if any) the body has taken. In announcing the result, the chair should indicate the names of the members of the body, if any, who voted in the minority on the motion. This announcement might take the following form: “The motion passes by a vote of 3-2, with Smith and Jones dissenting. We have passed the motion requiring a 10-day notice for all future meetings of this body.”
Motions in General
Motions are the vehicles for decision making by a body. It is usually best to have a motion before the body prior to commencing discussion of an agenda item. This helps the body focus.
Motions are made in a simple two-step process. First, the chair should recognize the member of the body. Second, the member of the body makes a motion by preceding the member’s desired approach with the words “I move … ”
A typical motion might be: “I move that we give a 10-day notice in the future for all our meetings.”
The chair usually initiates the motion in one of three ways:
1. Inviting the members of the body to make a motion, for example, “A motion at this time would be in order.”
2. Suggesting a motion to the members of the body, “A motion would be in order that we give a 10-day notice in the future for all our meetings.”
3. Making the motion. As noted, the chair has every right as a member of the body to make a motion, but should normally do so only if the chair wishes to make a motion on an item but is convinced that no other member of the body is willing to step forward to do so at a particular time.
The Three Basic Motions
There are three motions that are the most common and recur often at meetings:
The basic motion. The basic motion is the one that puts forward a decision for the body’s consideration. A basic motion might be: “I move that we create a five-member committee to plan and put on our annual fundraiser.”
First, the chair should clearly announce the agenda item number and should clearly state what the agenda item subject is. The chair should then announce the format (which follows) that will be followed in considering the agenda item.
Second, following that agenda format, the chair should invite the appropriate person or persons to report on the item, including any recommendation that they might have. The appropriate person or persons may be the chair, a member of the body, a staff person, or a committee chair charged with providing input on the agenda item.
Third, the chair should ask members of the body if they have any technical questions of clarification. At this point, members of the body may ask clarifying questions to the person or persons who reported on the item, and that person or persons should be given time to respond.
Fourth, the chair should invite public comments, or if appropriate at a formal meeting, should open the public meeting for public input.
If numerous members of the public indicate a desire to speak to the subject, the chair may limit the time of public speakers. At the conclusion of the public comments, the chair should announce that public input has concluded (or the public hearing, as the case may be, is closed).
Fifth, the chair should invite a motion. The chair should announce the name of the member of the body who makes the motion.
Sixth, the chair should determine if any member of the body wishes to second the motion. The chair should announce the name of the member of the body who seconds the motion. It is normally good practice for a motion to require a second before proceeding to ensure that it is not just one member of the body who is interested in a particular approach. However, a second is not an absolute requirement, and the chair can proceed with consideration and vote on a motion even when there is no second. This is a matter left to the discretion of the chair.
Seventh, if the motion is made and seconded, the chair should make sure everyone understands the motion.
This is done in one of three ways:
1. The chair can ask the maker of the motion to repeat it;
2. The chair can repeat the motion; or
3. The chair can ask the secretary or the clerk of the body to repeat the motion.
Eighth, the chair should now invite discussion of the motion by the body. If there is no desired discussion, or after the discussion has ended, the chair should announce that the body will vote on the motion. If there has been no discussion or very brief discussion, then the vote on the motion should proceed immediately and there is no need to repeat the motion. If there has been substantial discussion, then it is normally best to make sure everyone understands the motion by repeating it.
January 10, 2023 Regular Meeting of the Lindsay City Council
4 First, the chair would deal with the third (the last) motion on the floor, the substitute motion. After discussion and debate, a vote would be taken first on the third motion. If the substitute motion passed, it would be a substitute for the basic motion and would eliminate it. The first motion would be moot, as would the second motion (which sought to amend the first motion), and the action on the agenda item would be completed on the passage by the body of the third motion (the substitute motion). No vote would be taken on the first or second motions.
Second, if the substitute motion failed, the chair would then deal with the second (now the last) motion on the floor, the motion to amend. The discussion and debate would focus strictly on the amendment (should the committee be five or 10 members). If the motion to amend passed, the chair would then move to consider the main motion (the first motion) as amended. If the motion to amend failed, the chair would then move to consider the main motion (the first motion) in its original format, not amended.
Third, the chair would now deal with the first motion that was placed on the floor. The original motion would either be in its original format (five-member committee), or if amended, would be in its amended format (10-member committee). The question on the floor for discussion and decision would be whether a committee should plan and put on the annual fundraiser.
To Debate or Not to Debate
The basic rule of motions is that they are subject to discussion and debate. Accordingly, basic motions, motions to amend, and substitute motions are all eligible, each in their turn, for full discussion before and by the body. The debate can continue as long as members of the body wish to discuss an item, subject to the decision of the chair that it is time to move on and take action.
There are exceptions to the general rule of free and open debate on motions. The exceptions all apply when there is a desire of the body to move on. The following motions are not debatable (that is, when the following motions are made and seconded, the chair must immediately call for a vote of the body without debate on the motion):
Motion to adjourn. This motion, if passed, requires the body to immediately adjourn to its next regularly scheduled meeting. It requires a simple majority vote.
Motion to recess. This motion, if passed, requires the body to immediately take a recess. Normally, the chair determines the length of the recess which may be a few minutes or an hour. It requires a simple majority vote.
Motion to fix the time to adjourn. This motion, if passed, requires the body to adjourn the meeting at the specific time set in the motion. For example, the motion might be: “I move we adjourn this meeting at midnight.” It requires a simple majority vote.
The motion to amend. If a member wants to change a basic motion that is before the body, they would move to amend it. A motion to amend might be: “I move that we amend the motion to have a 10-member committee.” A motion to amend takes the basic motion that is before the body and seeks to change it in some way.
The substitute motion. If a member wants to completely do away with the basic motion that is before the body, and put a new motion before the body, they would move a substitute motion. A substitute motion might be: “I move a substitute motion that we cancel the annual fundraiser this year.”
“Motions to amend” and “substitute motions” are often confused, but they are quite different, and their effect (if passed) is quite different.
A motion to amend seeks to retain the basic motion on the floor, but modify it in some way. A substitute motion seeks to throw out the basic motion on the floor, and substitute a new and different motion for it. The decision as to whether a motion is really a “motion to amend” or a “substitute motion” is left to the chair. So if a member makes what that member calls a “motion to amend,” but the chair determines that it is really a “substitute motion,” then the chair’s designation governs.
A “friendly amendment” is a practical parliamentary tool that is simple, informal, saves time and avoids bogging a meeting down with numerous formal motions. It works in the following way: In the discussion on a pending motion, it may appear that a change to the motion is desirable or may win support for the motion from some members. When that happens, a member who has the floor may simply say, “I want to suggest a friendly amendment to the motion.” The member suggests the friendly amendment, and if the maker and the person who seconded the motion pending on the floor accepts the friendly amendment, that now becomes the pending motion on the floor. If either the maker or the person who seconded rejects the proposed friendly amendment, then the proposer can formally move to amend.
Multiple Motions Before the Body
There can be up to three motions on the floor at the same time.
The chair can reject a fourth motion until the chair has dealt with the three that are on the floor and has resolved them. This rule has practical value. More than three motions on the floor at any given time is confusing and unwieldy for almost everyone, including the chair.
When there are two or three motions on the floor (after motions and seconds) at the same time, the vote should proceed first on the last motion that is made. For example, assume the first motion is a basic “motion to have a five-member committee to plan and put on our annual fundraiser.” During the discussion of this motion, a member might make a second motion to “amend the main motion to have a 10-member committee, not a five-member committee to plan and put on our annual fundraiser.” And perhaps, during that discussion, a member makes yet a third motion as a “substitute motion that we not have an annual fundraiser this year.” The proper procedure would be as follows:
January 10, 2023 Regular Meeting of the Lindsay City Council
5 Motion to close nominations. When choosing officers of the body (such as the chair), nominations are in order either from a nominating committee or from the floor of the body. A motion to close nominations effectively cuts off the right of the minority to nominate officers and it requires a two-thirds vote to pass.
Motion to object to the consideration of a question. Normally, such a motion is unnecessary since the objectionable item can be tabled or defeated straight up. However, when members of a body do not even want an item on the agenda to be considered, then such a motion is in order. It is not debatable, and it requires a two-thirds vote to pass.
Motion to suspend the rules. This motion is debatable, but requires a two-thirds vote to pass. If the body has its own rules of order, conduct or procedure, this motion allows the body to suspend the rules for a particular purpose. For example, the body (a private club) might have a rule prohibiting the attendance at meetings by non-club members. A motion to suspend the rules would be in order to allow a non-club member to attend a meeting of the club on a particular date or on a particular agenda item.
Counting Votes
The matter of counting votes starts simple, but can become complicated.
Usually, it’s pretty easy to determine whether a particular motion passed or whether it was defeated. If a simple majority vote is needed to pass a motion, then one vote more than 50 percent of the body is required. For example, in a five-member body, if the vote is three in favor and two opposed, the motion passes. If it is two in favor and three opposed, the motion is defeated.
If a two-thirds majority vote is needed to pass a motion, then how many affirmative votes are required? The simple rule of thumb is to count the “no” votes and double that count to determine how many “yes” votes are needed to pass a particular motion. For example, in a seven-member body, if two members vote “no” then the “yes” vote of at least four members is required to achieve a two-thirds majority vote to pass the motion.
What about tie votes? In the event of a tie, the motion always fails since an affirmative vote is required to pass any motion. For example, in a five-member body, if the vote is two in favor and two opposed, with one member absent, the motion is defeated.
Vote counting starts to become complicated when members vote “abstain” or in the case of a written ballot, cast a blank (or unreadable) ballot. Do these votes count, and if so, how does one count them? The starting point is always to check the statutes.
In California, for example, for an action of a board of supervisors to be valid and binding, the action must be approved by a majority of the board. (California Government Code Section 25005.) Typically, this means three of the five members of the board must vote affirmatively in favor of the action. A vote of 2-1 would not be sufficient. A vote of 3-0 with two abstentions would be sufficient. In general law cities in Motion to table. This motion, if passed, requires discussion of the agenda item to be halted and the agenda item to be placed on “hold.” The motion can contain a specific time in which the item can come back to the body. “I move we table this item until our regular meeting in October.” Or the motion can contain no specific time for the return of the item, in which case a motion to take the item off the table and bring it back to the body will have to be taken at a future meeting. A motion to table an item (or to bring it back to the body) requires a simple majority vote.
Motion to limit debate. The most common form of this motion is to say, “I move the previous question” or “I move the question” or “I call the question” or sometimes someone simply shouts out “question.” As a practical matter, when a member calls out one of these phrases, the chair can expedite matters by treating it as a “request” rather than as a formal motion. The chair can simply inquire of the body, “any further discussion?” If no one wishes to have further discussion, then the chair can go right to the pending motion that is on the floor.
However, if even one person wishes to discuss the pending motion further, then at that point, the chair should treat the call for the “question” as a formal motion, and proceed to it.
When a member of the body makes such a motion (“I move the previous question”), the member is really saying: “I’ve had enough debate. Let’s get on with the vote.” When such a motion is made, the chair should ask for a second, stop debate, and vote on the motion to limit debate. The motion to limit debate requires a two-thirds vote of the body.
Note: A motion to limit debate could include a time limit. For example: “I move we limit debate on this agenda item to 15 minutes.” Even in this format, the motion to limit debate requires a twothirds vote of the body. A similar motion is a motion to object to consideration of an item. This motion is not debatable, and if passed, precludes the body from even considering an item on the agenda. It also requires a two-thirds vote.
Majority and Super Majority Votes
In a democracy, a simple majority vote determines a question. A tie vote means the motion fails. So in a seven-member body, a vote of 4-3 passes the motion. A vote of 3-3 with one abstention means the motion fails. If one member is absent and the vote is 3-3, the motion still fails.
All motions require a simple majority, but there are a few exceptions.
The exceptions come up when the body is taking an action which effectively cuts off the ability of a minority of the body to take an action or discuss an item. These extraordinary motions require a two-thirds majority (a super majority) to pass:
Motion to limit debate. Whether a member says, “I move the previous question,” or “I move the question,” or “I call the question,” or “I move to limit debate,” it all amounts to an attempt to cut off the ability of the minority to discuss an item, and it requires a two-thirds vote to pass.
January 10, 2023 Regular Meeting of the Lindsay City Council
6 Now, exactly how does a member cast an “abstention” vote? Any time a member votes “abstain” or says, “I abstain,” that is an abstention. However, if a member votes “present” that is also treated as an abstention (the member is essentially saying, “Count me for purposes of a quorum, but my vote on the issue is abstain.”) In fact, any manifestation of intention not to vote either “yes” or “no” on the pending motion may be treated by the chair as an abstention. If written ballots are cast, a blank or unreadable ballot is counted as an abstention as well.
Can a member vote “absent” or “count me as absent?” Interesting question. The ruling on this is up to the chair. The better approach is for the chair to count this as if the member had left his/her chair and is actually “absent.” That, of course, affects the quorum. However, the chair may also treat this as a vote to abstain, particularly if the person does not actually leave the dais.
The Motion to Reconsider
There is a special and unique motion that requires a bit of explanation all by itself; the motion to reconsider. A tenet of parliamentary procedure is finality. After vigorous discussion, debate and a vote, there must be some closure to the issue. And so, after a vote is taken, the matter is deemed closed, subject only to reopening if a proper motion to consider is made and passed.
A motion to reconsider requires a majority vote to pass like other garden-variety motions, but there are two special rules that apply only to the motion to reconsider.
First, is the matter of timing. A motion to reconsider must be made at the meeting where the item was first voted upon. A motion to reconsider made at a later time is untimely. (The body, however, can always vote to suspend the rules and, by a two-thirds majority, allow a motion to reconsider to be made at another time.)
Second, a motion to reconsider may be made only by certain members of the body. Accordingly, a motion to reconsider may be made only by a member who voted in the majority on the original motion. If such a member has a change of heart, he or she may make the motion to reconsider (any other member of the body — including a member who voted in the minority on the original motion — may second the motion). If a member who voted in the minority seeks to make the motion to reconsider, it must be ruled out of order. The purpose of this rule is finality. If a member of minority could make a motion to reconsider, then the item could be brought back to the body again and again, which would defeat the purpose of finality.
If the motion to reconsider passes, then the original matter is back before the body, and a new original motion is in order. The matter may be discussed and debated as if it were on the floor for the first time.
California, as another example, resolutions or orders for the payment of money and all ordinances require a recorded vote of the total members of the city council. (California Government Code Section 36936.) Cities with charters may prescribe their own vote requirements. Local elected officials are always well-advised to consult with their local agency counsel on how state law may affect the vote count.
After consulting state statutes, step number two is to check the rules of the body. If the rules of the body say that you count votes of “those present” then you treat abstentions one way. However, if the rules of the body say that you count the votes of those “present and voting,” then you treat abstentions a different way. And if the rules of the body are silent on the subject, then the general rule of thumb (and default rule) is that you count all votes that are “present and voting.” Accordingly, under the “present and voting” system, you would NOT count abstention votes on the motion. Members who abstain are counted for purposes of determining quorum (they are “present”), but you treat the abstention votes on the motion as if they did not exist (they are not “voting”). On the other hand, if the rules of the body specifically say that you count votes of those “present” then you DO count abstention votes both in establishing the quorum and on the motion. In this event, the abstention votes act just like “no” votes.
How does this work in practice?
Here are a few examples.
Assume that a five-member city council is voting on a motion that requires a simple majority vote to pass, and assume further that the body has no specific rule on counting votes. Accordingly, the default rule kicks in and we count all votes of members that are “present and voting.” If the vote on the motion is 3-2, the motion passes. If the motion is 2-2 with one abstention, the motion fails.
Assume a five-member city council voting on a motion that requires a two-thirds majority vote to pass, and further assume that the body has no specific rule on counting votes. Again, the default rule applies.
If the vote is 3-2, the motion fails for lack of a two-thirds majority. If the vote is 4-1, the motion passes with a clear two-thirds majority. A vote of three “yes,” one “no” and one “abstain” also results in passage of the motion. Once again, the abstention is counted only for the purpose of determining quorum, but on the actual vote on the motion, it is as if the abstention vote never existed — so an effective 3-1 vote is clearly a two-thirds majority vote.
Now, change the scenario slightly. Assume the same five-member city council voting on a motion that requires a two-thirds majority vote to pass, but now assume that the body DOES have a specific rule requiring a two-thirds vote of members “present.” Under this specific rule, we must count the members present not only for quorum but also for the motion. In this scenario, any abstention has the same force and effect as if it were a “no” vote. Accordingly, if the votes were three “yes,” one “no” and one “abstain,” then the motion fails. The abstention in this case is treated like a “no” vote and effective vote of 3-2 is not enough to pass two-thirds majority muster.
January 10, 2023 Regular Meeting of the Lindsay City Council
7 Appeal. If the chair makes a ruling that a member of the body disagrees with, that member may appeal the ruling of the chair. If the motion is seconded, and after debate, if it passes by a simple majority vote, then the ruling of the chair is deemed reversed.
Call for orders of the day. This is simply another way of saying, “return to the agenda.” If a member believes that the body has drifted from the agreed-upon agenda, such a call may be made. It does not require a vote, and when the chair discovers that the agenda has not been followed, the chair simply reminds the body to return to the agenda item properly before them. If the chair fails to do so, the chair’s determination may be appealed.
Withdraw a motion. During debate and discussion of a motion, the maker of the motion on the floor, at any time, may interrupt a speaker to withdraw his or her motion from the floor. The motion is immediately deemed withdrawn, although the chair may ask the person who seconded the motion if he or she wishes to make the motion, and any other member may make the motion if properly recognized.
Special Notes About Public Input
The rules outlined above will help make meetings very publicfriendly. But in addition, and particularly for the chair, it is wise to remember three special rules that apply to each agenda item:
Rule One: Tell the public what the body will be doing.
Rule Two: Keep the public informed while the body is doing it.
Rule Three: When the body has acted, tell the public what the body did.
Courtesy and Decorum
The rules of order are meant to create an atmosphere where the members of the body and the members of the public can attend to business efficiently, fairly and with full participation. At the same time, it is up to the chair and the members of the body to maintain common courtesy and decorum. Unless the setting is very informal, it is always best for only one person at a time to have the floor, and it is always best for every speaker to be first recognized by the chair before proceeding to speak.
The chair should always ensure that debate and discussion of an agenda item focuses on the item and the policy in question, not the personalities of the members of the body. Debate on policy is healthy, debate on personalities is not. The chair has the right to cut off discussion that is too personal, is too loud, or is too crude.
Debate and discussion should be focused, but free and open. In the interest of time, the chair may, however, limit the time allotted to speakers, including members of the body.
Can a member of the body interrupt the speaker? The general rule is “no.” There are, however, exceptions. A speaker may be interrupted for the following reasons:
Privilege. The proper interruption would be, “point of privilege.” The chair would then ask the interrupter to “state your point.” Appropriate points of privilege relate to anything that would interfere with the normal comfort of the meeting. For example, the room may be too hot or too cold, or a blowing fan might interfere with a person’s ability to hear.
Order. The proper interruption would be, “point of order.” Again, the chair would ask the interrupter to “state your point.” Appropriate points of order relate to anything that would not be considered appropriate conduct of the meeting. For example, if the chair moved on to a vote on a motion that permits debate without allowing that discussion or debate.
January 10, 2023 Regular Meeting of the Lindsay City Council