ANITA M.NOONE
LESLIE E. DEVANEY
LESLIE J. GIRARD
SUSAN M. HEATH
GAEL B. STRACK
ASSISTANT CITY ATTORNEYS
RICHARD A. DUVERNAY
DEPUTY CITY ATTORNEY
MEMORANDUM OF LAW
DATE:
March 7, 2000
TO:
Betsy McCullough, Long Range Community
Planning Director
FROM:
City Attorney
SUBJECT:
Application of Brown Act to Community
Planning Groups
QUESTION PRESENTED
You have asked me to update and expand a
legal opinion issued by our Office in 1982 on the issue of whether Community Planning
Groups are subject to the Brown Act.
SHORT ANSWER
The Brown Act only applies to the
legislative bodies of local agencies. Local Planning Groups do not fit the statutory definition
of a “legislative body.” They are considered private organizations because membership is not
under the control of the City and they are not delegated legal authority by the City Council to take
actions on behalf of the City.
ANALYSIS
The Brown Act was enacted to ensure public
access to local government. Cal. Gov’t Code §§ 54950 - 54952. It provides that “[a]ll
meetings of the legislative body of the 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.” Cal. Gov’t Code § 54953. The Brown Act is directed toward the conduct of
public officials and seeks to ensure that their actions be taken openly and that their deliberations
be conducted openly. Farron v. City and County of San Francisco,
216 Cal. App. 3d 1071, 1074 (1989).
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.
Cal. Gov’t Code § 54950.
Betsy McCullough -2- March 7, 2000
Although the Brown Act has a broad purpose,
it only applies to those entities which it defines as “legislative bodies of local
agencies.” Cal. Gov’t Code § 54953. For example, the Council of The City of San Diego is a
legislative body subject to the Brown Act. Cal. Gov’t Code § 54951, see also San Diego Union v. City
Council, 146 Cal. App. 3d 947 (1983) (City of San Diego is a local agency). Legislative bodies
are also defined in relevant part as “[a] commission, committee, board or other body of a local
agency, whether permanent or temporary, decision making or advisory, created by charter,
ordinance, resolution or other formal action of a legislative body.” Cal. Gov’t Code § 54953
(b). For example, where a school board created an advisory committee in order to investigate,
review, and deliberate on parental complaints, the advisory committee was deemed a legislative
body and was thus subject to the Brown Act. Frazer
v. Dixon Unified School District,
18 Cal. App. 4th 781 (1993). The school board was the local agency. Id. at 793. The school board
created the advisory committee pursuant to school board policy 7138. Id. The school board
appointed all of the members of the committee. Id. at 792. The committee exercised the investigatory and
review authority delegated to it by the school board.
In contrast, the court held that if a
private organization operating a coal exporting facility
was a pre-existing organization which simply
entered into a contractual arrangement with the City
to develop a coal facility, the organization
did not meet the statutory definition of a legislative
body and was not subject to the Brown Act.
International Longshoremen’s and Warehousemen’s
Union v. Los Angeles Export Terminal,
69 Cal. App. 4th 287 (1999). The city would not have
created the coal export organization, it
would have merely chosen to do business with it. Id.
Similarly, although the City “officially
recognizes” Community Planning Groups [CPGs],
it does not create, maintain, or manage
them. They are voluntarily created and perpetuated by
interested members of the local communities.
The appointment of members is not subject to
review or approval by the City Council or
any other City agency. Article III, Section 2 of Council
Policy 600-24 provides that “[t]he members
of this committee shall consist of the members as of
the date of recognition by the City Council,
and of such additional members as shall thereafter be
elected by eligible community members in the
manner prescribed by these Operating Procedures.”
Section 3 goes on to provide that:
“Community planning committee members shall be elected by
and from eligible members of the community.”
It is also important to note that no
authority of the City is delegated to CPGs. Under City
Council Policy 600-24 “[t]he City merely
‘recognizes’ one group of individuals over others for
purposes of receiving input on certain land
use matters.” 1992 Op. City Att’y 366, 367. There is
no agency relationship established between
the City and a particular CPG by the City’s mere
recognition of a group. Id. at 367.
Thus, because the City does not appoint or control membership
of CPGs and does not delegate authority to
act on behalf of the City to the CPGs, CPGs are not
legislative bodies. Because they are not
legislative bodies they are not subject to the Brown Act.
It must be understood, however, that in
exchange for official recognition from the City,
CPGs are encouraged to follow the spirit of
the Brown Act. Council Policy 600-24 establishes
procedures to be incorporated into the
bylaws of each CPG in order to qualify for official
recognition. Although these procedures are
not as expansive as those in the Brown Act, they do
Betsy McCullough -3- March 7, 2000
serve the same general purpose of keeping
the meetings open to the public. For instance, “[a]ll
meetings of committees and subcommittees
shall be open to the public . . . except as otherwise
provided in this Council Policy and/or
committee bylaws.” Council Policy 600-24, art. VI, § 2.
In addition, Administrative Guidelines for
Council Policy 600-24 further elaborates on
encouragement of community participation.
Section 1 provides:
[CPGs are required to] periodically seek
community-wide
understanding of, and participation in, the
planning and
implementation process. [They] must provide
participation during
review of specific development proposals to
property owners,
residents, and business establishments
affected by the proposed
project. Any interested member of the public
should be allowed to
address the proposal, though [the CPGs can
define] time limits and
. . . method[s] of participation . . . . [CPGs
must also make] a good
faith effort . . . to advertise regularly
scheduled meetings and annual
elections . . . .
Administrative Guidelines for Council Policy
600-24, § (1) Encouraging Community Participation
(1991).
CONCLUSION
Community Planning Groups are not subject to
the Brown Act because they do not meet
the statutory definition of a legislative
body. The local agency, the City, would have to create and
annually appoint the membership of Community
Planning Groups in order for them to qualify as
legislative bodies. The City does not create
Community Planning Groups, it merely recognizes
them. Although Community Planning Groups are
not subject to the Brown Act, they are required
by Council Policy 600-24 to establish
procedures which encourage community participation.
Thus, they comply with the spirit of the
Brown Act by striving to be open and public in the
conduct of their business.
CASEY GWINN, City Attorney
By
Richard A. Duvernay
Deputy City Attorney
RAD:lc:623(x043.2)
ML-2000-5
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