SUMMARY

On February 22, 2019, the California Second District Court of Appeal, in Preven v. City of L.A.,1 held that while the Brown Act allows for restricting public comment under certain conditions at regular meetings, the Act does not permit limiting comment at special city council meetings based on public comments at prior, distinct committee meetings.

DISCUSSION

Background

The Los Angeles City Council’s Planning and Land Use Management Committee (“PLUM”) held an open meeting on December 15, 2015. PLUM consists of five members of the fifteen-member Los Angeles City Council. One of the members of the public who addressed the meeting was plaintiff Eric Preven, who spoke on an agenda item involving a recommendation to the full city council on a proposed real estate development near Preven’s residence. After listening to the public comments on the proposal, the committee voted unanimously to make a report and recommendation of approval to the full city council.

The next day, December 16, 2015, a special meeting of the entire city council was held to discuss, among other things, whether to approve the PLUM committee’s recommendation on the real estate development. Preven attended this meeting also, and asked to address the city council, including the ten council members who were not part of PLUM. However, Preven’s request was denied on the grounds that he had commented on the real estate development agenda item at the previous day’s PLUM committee meeting.

In September 2016, Preven sent a cease and desist demand letter to the City. The letter asserted that the City had violated the Brown Act by denying Preven the chance to speak at the December 16, 2015 meeting, and that the City had behaved similarly at subsequent special city council meetings in May and June 2016. The City never responded to Preven’s letter.

Preven filed a petition for a writ of mandate and complaint for declaratory relief to enforce the Brown Act. The City demurred, arguing that the Brown Act requires only the opportunity to address a special meeting of a legislative body before it takes action, and that Preven’s comments at the PLUM meeting the day before fulfilled this requirement. Therefore, the City asserted, it could bar Preven from speaking on the same development topic to the full city council at the special city council meeting on December 16, 2015.

The trial court sustained the City’s demurrer without leave to amend and entered a judgment of dismissal. The trial court held that that the Brown Act does not establish different public participation rules for special meetings and regular meetings, especially where an individual already had an opportunity to address a committee on the item in question. The Court reasoned that because Preven had addressed the development agenda item at the PLUM meeting “before” the next day’s full city council special meeting, he did not have a right to be heard again on the item at the special meeting. Preven appealed to the California Second District Court of Appeal for review.

Discussion

In reaching its decision, the Second District explained that the Brown Act is intended “to facilitate public participation in local government decisions and to curb misuse of the democratic process by secret legislation.”2 Courts construe the Act liberally to achieve this purpose. The Court explained that the Brown Act distinguishes between regular and special meetings of a legislative body in certain respects. For example, a regular meeting must be preceded by notice of at least 72 hours (Gov. Code Section 54954.2.), whereas the notice requirement for special meetings is just 24 hours (Gov. Code Section 54956 (a).).

Gov. Code Section 54954.3(a) describes additional distinctions between the two types of meetings:

“Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2.

“However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body.

“Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item.”

The section’s first sentence describes the conditions for public comments at regular meetings, including that a member of the public’s opportunity to address the legislative body on an agenda item must take place “before or during the legislative body’s consideration” of that agenda item. In regular meetings, the scope of permissible comment encompasses “any item of interest to the public … within the subject matter jurisdiction of the legislative body.” This scope is broader than that for special meetings, described in the third sentence as permitting only those items “described in the notice” for the meeting.

The section’s second sentence, the Court explained, describes what was referred to as the “committee exception” to the general rule permitting public comments at public meetings. The sentence declares that the legislative body does not need to provide an opportunity for members of the public to comment “on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item.”

The trial court held that Section 54954.3(a)’s committee exception applied both to regular meetings and special meetings. As a consequence of this holding, the trial court reasoned that because Preven spoke to the PLUM committee “before” the following day’s special city council meeting, he therefore did not have the right to be heard again about the same item at the special meeting.

The Second District Court of Appeal disagreed with the trial court’s statutory interpretation, explaining that the plain language of Section 54954.3(a) makes clear that the committee exception only applies to regular meetings, not special meetings. The Court observed that the “sentence setting forth the committee exception comes after the first sentence discussing regular meetings, and begins with ‘However … .’ This indicates the second sentence is modifying the first sentence…. The sentence setting forth the committee exception also comes before the third sentence discussing special meetings, and the third sentence does not refer to the second sentence or any committee exception.” The Court thus concluded that the committee exception does not apply to special meetings.

The City did not argue that Section 54954.3(a)’s committee exception applied to special meetings. Instead, the City contended it complied with the Brown Act because the third sentence of Section 54954.3(a) requires the opportunity for public comment “before … consideration” of the special meeting agenda item, and Preven had that opportunity “before” the special city council meeting at the PLUM committee meeting the preceding day. In other words, the City contended the term “before” applied to the prior day’s separate PLUM meeting when Preven had the chance to address the PLUM committee.

Rejecting the City’s argument, the Court of Appeal held that the requirement to provide an opportunity for public comment before or during consideration of a special meeting agenda item was not satisfied by comments at prior, distinct committee meetings. Noting that “[a] fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect and not be treated as meaningless unless absolutely necessary,3 the Court found the City’s construction focusing on the “before” part of the third sentence when referring to special meetings would render the committee exception language in the second sentence redundant. The Court added that the special meeting was not simply an extension of the prior day’s PLUM meeting, but was a separate and distinct meeting, with an additional ten city council members on the special meeting’s committee, i.e., the full city council. These were two distinct meetings on two different days; the third sentence’s use of the term “before … consideration” refers to public comment made earlier in a special meeting only, not distinct, prior meetings like the PLUM meeting. The Court further determined that the legislative history indicated that Section 54954.3(a)’s “before or during” language concerned the timing of comments within a particular meeting, and “was not designed to limit comment based on speech at a separate prior meeting.” The Second District thus concluded that, considering both the plain language of the statute and its legislative history, the Brown Act does not permit limiting comment at special city council meetings based on comments at prior, distinct committee meetings.

Here, the Court found that Preven adequately alleged a claim that he was wrongly denied the opportunity to comment on the agenda item at a special meeting, and also found that Preven adequately alleged a pattern of conduct by the City at special city council meetings in violation of the Brown Act. The Court found that Preven therefore stated a claim in his amended petition for a writ of mandate and complaint for declaratory relief under the Brown Act. Accordingly, the Second District Court of Appeal reversed the trial court’s dismissal on the Brown Act count and remanded for additional proceedings.

CONCLUSION

Public comments are an integral part of city council meetings, and can be time consuming. While the Brown Act does authorize cities to impose certain limitations on public comments, speakers should not be prohibited from addressing the body at special meetings based on their prior comments at separate and distinct meetings, or at regular meetings where the “committee” exception does not apply.

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12019 Cal. App. LEXIS 180 (2nd Dist. Feb. 22, 2019).
2Boyle v. City of Redondo Beach, 70 Cal.App.4th 1109, 1116 (2nd Dist. 1999).
3“‘[A] construction that renders a word surplusage should be avoided.’” People v. Arias, 45 Cal.4th 169, 180 (2008).