In Wolfe v. City of Fremont (2006 WL 3072602, Cal.App. 1 Dist., Oct. 31, 2006), a California Court of Appeal reviewed a case in which a majority of the city council members discussed a change in police department policy with the City Manager and Chief of Police prior to introduction of the issue at a public meeting.
The Court ruled that while the City Manager may meet with all council members, individually, serial meetings resulting in deliberations and a collective concurrence amongst a majority of the council in advance of a public meeting is prohibited. The Court concluded that council members may have violated the Ralph M. Brown Act (the “Brown Act”) by reaching a consensus through non-public discussion, and that the trial court therefore erred by dismissing a challenge to the council’s conduct. The Court sustained demurrers to a lawsuit against the City Manager and Chief of Police, however, holding that the Brown Act does not regulate the conduct of persons other than members of a legislative body and neither the City Manager nor the Chief of Police are members of the legislative body.
Facts
In November 2004, the City of Fremont Police Department (“Department”) devised a new policy regarding its response to home invasion alarms, which required a verified “acceptable reason” for the alarm to merit a response. The City Manager met with members of the City council (“Council”) individually to brief them on the new policy.
In February 2005, some Fremont residents announced that they would address the new policy during the “public oral communications” portion of the Council’s February 22 meeting. Learning of this, the Council arranged for the Chief of Police to speak first at that meeting to explain the reasons for the Department’s new policy.
The item was scheduled for another discussion at the Council’s March 8, 2005 meeting. At that meeting, Council member Dominic Dutra stated that the members had been briefed on the new policy and had “expressed their support” for it prior to the February 22, 2005 meeting. The Council then took no action to prevent its implementation at the March 8th meeting.
Fremont resident J. Dennis Wolfe filed a lawsuit to stop the new policy, alleging that council members, the City Manager, and the Chief of Police violated the Brown Act, the state’s open meeting law, by discussing the proposed policy and coming to an agreement among themselves prior to addressing the issue at a public meeting. The trial court granted a demurrer in favor of all the defendants, and Wolfe appealed.
Decision
Because the Brown Act specifically applies to “members of the legislative body,” Wolfe had no case against either the Chief of Police or the City Manager, who were not members of the legislative body. Consequently, the trial court was correct in throwing out the actions against them, the Court ruled.
Reviewing the language of the Brown Act and relevant case law, the Court held that the mere fact that the council members had been briefed on the new policy and reached the same conclusion about it does not in and of itself constitute a violation. Individual contacts between council members and any other person, including the City Manager, are permitted. The City Manager may not, however, convey the viewpoints from one council member to a majority of the others, because this would constitute deliberations through a serial meeting and the development of a “collective concurrence” by the Council.
In this case, the Court found that Dutra’s statement that all council members had “expressed their support” for the policy prior to the public meeting demonstrates that a majority of the members had reached a concurrence. If that shared view was reached collectively, the Court said, the Brown Act was violated.
The Court found evidence that council members had privately discussed the issue before the February 22 meeting, noting that Dutra claimed to be aware of the views of each of his fellow council members prior to that meeting. The Court noted, “These allegations lead directly to the inference that the council members had reached their consensus through the nonpublic discussions that occurred among them, thereby violating the act.” It did not matter that the City Manager may have acted as the intermediary for council members’ discussions because the act specifically prohibits discussions through the use of an intermediary if they are used to create a “collective concurrence” of the legislative body.
Therefore, Wolfe had stated a claim as to the members of the Council and the trial court’s ruling was reversed and remanded for further proceedings.
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