Wolfe v. City of Fremont (Oct. 31, 2006, A112386) __ Cal.App.4th __ http://www.courtinfo.ca.gov/opinions/
By Julie Austin
This Court of Appeals’ decision under the Brown Act, which prohibits a majority of members of a local legislative body from reaching a “collective concurrence” outside a noticed public meeting, suggests that an improper consensus may be reached inadvertently during the course of individual conversations between members of a local legislative body. The court found that the plaintiff alleged sufficient facts to demonstrate that an improper “collective concurrence” had occurred through a series of one-on-one conversations among the legislative members. Specifically, the plaintiff alleged that all city council members expressed support for a policy before a formal public meeting and that at least one council member had been aware of the other members’ views. The court noted that the city council’s lack of intent to create a consensus was not fatal to the plaintiff’s case because the Brown Act prohibits even unintentional “collective concurrences.” This case suggests that in the future, while engaging in otherwise permissible one-on-one discussions with other members of a legislative body, local legislators must be careful not to reveal the views of any other members to avoid inadvertently creating an improper “collective concurrence.”
The City of Fremont police department devised a new “verified response policy” which would require police response to home invasion alarms only if the alarm were verified by a third party. The plaintiff alleged that the city manager, chief of police, City, and city council violated Government Code section 54950 et seq, the Brown Act, by reaching an agreement to support the policy prior to formal discussion at a public city council meeting. Specifically, the plaintiff alleged that the city manager met individually with a majority of the city council members to explain and garner support for the policy before it was presented to the public at a regular meeting. In addition, the plaintiff alleged that one city council member had admitted that before the meeting other council members had expressed support for the new policy and he had been aware of the other members’ views. The plaintiff also alleged that the city council had arranged for the police chief to speak at the public meeting to curb anticipated criticism of the policy.
Insufficient facts to demonstrate improper “serial meetings”
The Court of Appeals affirmed the trial court’s sustaining of the demurrer on the grounds that the plaintiff had not stated sufficient facts to demonstrate that the city manager’s “serial meetings” violated the Brown Act. The court noted that section 54952.2(b) of the Brown Act only prohibits non-public meetings with more than two persons, not one-on-one discussions or conversations about policy-related information between a member of the legislative body and another person. Specifically, the alleged “serial meetings” would violate the Brown Act only if the city manager had (1) acted as a “personal intermediary” between the city council members and (2) used those meetings to gain a “collective concurrence” in a majority of members.
The court found that neither requirement for “serial meetings” had been met with regard to the city manager’s meetings. First, the plaintiff had not alleged facts showing that the city manager acted as a “personal go-between” for the council members, which at a minimum would require an allegation that the city manager had made the council members aware of other members’ views. The plaintiff had not alleged that the city manager acted as a “go-between” but rather stated that the city manager had tried to persuade the council members about his own views. Second, the plaintiff had not alleged that a majority of members had developed a “collective concurrence” through or because of these serial meetings with the city manager.
Sufficient facts to demonstrate an improper “collective concurrence”
Nevertheless, the court reversed the trial court’s sustaining of the demurrer and found that the plaintiff alleged facts sufficient to demonstrate that the City and city council had reached an improper “collective concurrence” before the public meeting. The plaintiff alleged that the council members discussed the issue among themselves through one-on-one discussions prior to the meeting. In addition, the plaintiff alleged that one council member had stated that “all council members had ‘expressed their support’ for the verified response policy” before the public meeting. This same council member allegedly admitted that he had been aware of the other members’ views before the meeting. Finally, the plaintiff alleged that the city council arranged for the police chief to speak at the public meeting. Despite noting that the allegations were somewhat ambiguous, the court found that the allegations gave rise to the inference that the city council reached an improper “collective concurrence” and engaged in a “concerted effort” to garner public support for the new policy.
The court noted that the Brown Act does not prohibit separate, one-on-one meetings between local legislators, and in fact, appears to expressly authorize such conversations in section 54952.2(c). Nonetheless, subsection (c) must be read together with the prohibition in subsection (b), which prohibits the use of a personal intermediary for the purpose of forming of a “collective concurrence” among a majority of the legislative body. Thus, the court found that a “collective concurrence” could inadvertently arise based on a series of otherwise permissible one-on-one conversations between legislators.
Clarifying this point, the court rejected the City’s argument that no violation could have occurred because the City Council members did not intend to create a “collective concurrence.” The court noted that the Brown Act prohibits the development of a “collective concurrence” through the use of direct conversations, intermediaries, or technological means, even if the participants did not intend that result. The absence of an intent requirement in the Act is consistent with the purpose of preventing not only “conscious backroom deals” but also “ensur[ing] that collective deliberations, whatever their outcome, are conducted in public.”
The court’s reasoning raises a potential red flag for local legislators who wish to continue having one-on-one conversations with other legislative members prior to public meetings. Going forward, when engaging in private discussions with more than one legislative member, a local legislator, or presumably any other person with business before the legislative body, should be careful not to reveal other members’ views to avoid inadvertently creating a “collective concurrence” in violation of the Brown Act.
Joinder of the City Manager and Police Chief
Finally, the court affirmed the trial court’s sustaining of the demurrer as to the plaintiff’s joinder of the city manager and police chief as defendants in the suit against the City and city council. The court stated that the Brown Act is focused solely on regulating the conduct of members of legislative bodies of local agencies. Even though the Brown Act prohibits the use of intermediaries, such as a city manager acting as a “go-between” for members of a city council, the focus of the Act remains on the conduct of the legislators. Thus, joinder of any non?legislative member in a Brown Act challenge would be improper.
For more information please contact Julie Austin. Julie Austin is an associate in the Real Estate, Land Use, and Natural Resources Practice Group in San Francisco.