In 2012, the California legislature amended the remedies available to address violations of the Ralph M. Brown Act. The amendment added section 54960.2 to the Government Code to require that anyone seeking to challenge past actions of a legislative body in violation of the Brown Act must first submit a “cease and desist” letter. If the legislative body “unconditionally commits”—at an open and noticed regular or special meeting, and not on the consent agenda—“that it will cease, desist from, and not repeat the challenged past action,” then no judicial remedy is available. Thus, the amendment allows local agencies to avoid litigation by promising to end practices that cause accusations of Brown Act violations—without admitting that they are unlawful. The amendment also gives citizens the opportunity to demand and achieve such changes without having to file a lawsuit.

On May 31, 2016, in Center for Local Government Accountability v. City of San Diego, __ Cal.App.4th __ (2016) (Case No. D068432) the Court of Appeal for the Fourth Appellate District addressed the Brown Act’s cease and desist requirement in the context of San Diego’s adherence to an ordinance providing only for one non-agenda public comment period over the course of the City’s two-day regular weekly meetings. At issue was the Brown Act’s requirement for the agenda of every regular meeting of a local legislative body to include an opportunity for members of the public to address the legislative body on matters within its purview, but not otherwise on its agenda for action.

San Diego holds regular weekly City Council meetings on Mondays and Tuesdays. Consistent with an ordinance it adopted in 2001, the City’s regular weekly meeting agendas provided for one non-agenda public comment period on Tuesdays. The Center for Local Government Accountability sued, but without filing a cease and desist letter, to determine whether the City’s adherence to a long-standing ordinance providing for only one non-agenda public comment period over the course of its two-day regular weekly meetings violated the Brown Act. After the suit was filed, the City adopted an ordinance to allow non-agenda public comments on Mondays and Tuesdays.

The City demurred to the complaint, alleging that the Center failed to first file a cease and desist letter. The City also argued that the case was moot because its new ordinance allows non-agenda public comments on Mondays and Tuesdays. The trial court sustained the demurrer without leave to amend and dismissed the complaint.

The court of appeal reversed and remanded the matter and awarded the Center its costs.

The court first rejected the City’s argument that the cease and desist requirement applies both to litigation to determine the Brown Act’s applicability to “ongoing actions or threatened future actions” as well as to “past actions.” The legislative history plainly demonstrated that the relevant language, “which is peppered throughout section 54960.2, unambiguously limits the applicability of section 54960.2’s preconditions to litigation challenging past actions.”

The court then rejected the City’s argument that the Center was required to comply with the Brown Act’s cease and desist preconditions because the Center’s complaint challenged the City’s past action of adopting an ordinance providing for only one non-agenda public comment period over the course of its two-day regular weekly meetings. The court concluded that the adoption of the ordinance did not have a one-time effect but rather extended to every regular weekly meeting and would have continued extending to every regular weekly meeting but for the City’s post-litigation enactment of another ordinance changing the City’s practice. Thus, the Center was not required to file a cease and desist letter before filing suit.

Finally, the Court rejected the City’s argument that its post-litigation adoption of an ordinance providing for non-agenda public comment periods on both Mondays and Tuesdays necessarily moots the litigation. The City’s counsel acknowledged the change in the City’s practice for handling non-agenda public comment periods did not equate to a change in the City’s legal position because City stills consider its two-day regular weekly meetings to be one continuous meeting, rather than two separate meetings, for Brown Act purposes. The City also did not concede that its former practice of allowing only one non-agenda public comment period violated the Brown Act. Thus, the court concluded that the Center may be able to plead a viable claim for declaratory relief.

Center for Local Government Accountability highlights the benefits to local agencies of the safe harbor provided in Government Code section 54960.2. It also demonstrates the risks and consequences of litigating Brown Act cases given that courts may award costs and reasonable attorney fees to the plaintiff in an action where it is found that a legislative body of the local agency has violated the Brown Act.