A San Mateo County Civil Grand Jury 2000-2001 investigation has determined that the Burlingame Planning Commission violated the Brown Act Open Meeting Law in October 1999, when its members participated in a specially prohibited "serial meeting." One commissioner drafted a letter of endorsement for another commissioner running for city council and then had four separate individual meetings with four other commissioners to obtain signatures on that letter. In an attempt to remedy the situation, the Burlingame city attorney requested the letter be placed on the December 1999, Planning Commission agenda for discussion and disposition. Although put on the agenda, the letter was not discussed by the commission, and no remedial action was taken.
The grand jury recommends
The San Mateo County Civil Grand Jury 2000-2001 received a complaint alleging a possible violation of the Brown Act by the Burlingame Planning Commission occurring in October 1999. The research and interviews by the grand jury ascertained that, at a time when the Burlingame Planning Commission was not in session, a commissioner drafted a letter supporting a fellow commissioner who was running for the city council in the November 2, 1999, election. The author of the letter made personal contact with four other commissioners, one at a time, for his or her approval and signature.
The letter was finalized in time to be read into the public record at the October 18, 1999, Burlingame City council meeting. A copy of the letter was submitted to and published in The Independent newspaper on October 23, 1999. On December 3, 1999, the Burlingame city attorney requested the letter that was signed and submitted to The Independent be placed on the Planning Commission agenda for their December 13, 1999, meeting for discussion and disposition. There was no discussion by the commission, and no remedial action was taken. Additionally, documents received from the city attorney indicate that the commissioners had been advised earlier regarding serial meetings being a violation of the Brown Act.
The grand jury finds under the express language of the Brown Act that the commissioners' conduct is described as a "serial meeting" and violated section §54952.2(b) of the Government Code.
We find that the city attorney is providing instruction on the Brown Act; however, the instruction is either not being heard or is being ignored.
The Planning Commission should again place the misuse of serial meetings on its agenda and publicly acknowledge to the citizens of Burlingame that the actions of the five participating commissioners violated the Brown Act.
The Burlingame city attorney should meet with the Burlingame Planning Commission to make a specific presentation relating to the full significance of the Brown Act as it pertains to the conduct of the commissioners both in and out of convened meetings
The district attorney
should review the above findings for possible prosecution.
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Planning Commission Brown Act Violation
This office is in receipt of the San Mateo County Civil Grand Jury's Interim Report entitled "Burlingame Planning Commission Brown Act Violation." The civil grand jury has issued therein three recommendations, the last of which is that the District Attorney's Office review the incident to see if criminal prosecution for a Brown Act violation would be appropriate. After reviewing the relevant documents and statutory authority, this office concludes that no jurisdiction exists to prosecute any suspected violation, due to the lapse of the applicable statute of limitations. Further, this office finds that no violation of the Brown Act has occurred, making the question of prosecution moot on those grounds, too.
First, the statute of limitations issue. Government Code §54959 states that any member of a legislative body who attends a meeting where action is taken in violation of the Brown Act, and who intends to deprive the public of information that member knows or has reason to know the public is entitled to, is in violation of this section. Such a violation is stated as being a "misdemeanor." Penal Code §19 defines a misdemeanor as being punishable by up to six months in the county jail, unless otherwise specified. Penal Code §802 states that for an offense not punishable by imprisonment in the state prison (i.e. a misdemeanor), the statute of limitations is one year. The Brown Act itself defines when this time period begins to run-i.e. when the offending meeting occurs.
The complaint by the Civil Grand Jury focuses on allegations of a serial meeting, though one cannot ascertain exactly when such an ongoing meeting took place, other than that it must have pre-dated the publication of the offending letter in the newspaper. That letter was published in the October 13, 1999 Independent Newspaper. However, even if one were to use this date of publication as the starting point of the violation (under a theory that the statute of limitations did not begin to run until discovery of the offense, pursuant to Penal Code §803(c) due to breach of a fiduciary obligation), the statute of limitations ran prior to the October 18, 2000 report by the Grand Jury.
Secondly, and more importantly, the main issue to be addressed is whether or not members of the Planning Commission took "action" as it is defined in the Brown Act by sending the letter to a local newspaper. Unless there is an "action taken" no Brown Act violation can occur. Government Code §54952.6 defines "action taken" to include "...a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or negative decision, or an actual vote by a majority of members...upon a motion, proposal, resolution, order or ordinance."
The City Attorney's memo to the Planning Commission, dated November 3, 1999, addressed this issue by stating that some parts of the letter alluded to Commission policy on dealing with citizens outside the public meeting process. The memo states that mentioning the Commission's policy in the letter implicates ongoing issues in front of the Commission and thus might be seen as within the Commission's jurisdiction. The city attorney appears to have been referring to allegations in the letter that a Commission member was contacting citizens outside of the public meetings. Such contact between the member of a legislative body and a non-member citizen is not regulated by the Brown Act, and we do not view simply mentioning it in the letter to be an "action taken." That also means the contact these Commission members had with one another in drafting such a letter would not constitute a serial meeting, since their collaboration was not about some action to be taken by the legislative body of which they were members.
Finally, the letter sent to the newspaper by Commission members was not a motion, proposal, resolution, order, or ordinance. It was not a collective commitment or promise by a majority of members to make a positive or negative decision in regards to items under the Commission's jurisdiction. Its tone is certainly partisan, but the Brown Act does not prohibit partisan activity by legislative body members, only that official actions taken by them in their capacity as members of that body be done openly and publicly. Members of a legislative body are individual citizens, too, and as such they can choose to endorse candidates for office, irrespective of the Brown Act. Legislative body members do not lose their first amendment rights, so long as their activities do not conflict with their official duties and they do not use public resources to advance their views.
We thank the Civil Grand Jury for the referral of this matter to our office. The Brown Act is a law designed to ensure open, fair, and accessible government at all times, and we are all benefited by its mandates and protections. Your concern about this conduct is understandable, but the Brown Act itself does not prohibit that which the Commission members did in exercising their First Amendment rights. Please do not hesitate to contact this office if you wish to discuss this matter further.
The City Council wants to bring this matter to a close. It appears that there is disagreement between our district attorney, Jim Fox, and yourselves as to whether a violation actually exists. The District Attorney has determined that the signing of the October 1999 letter by five members of the Burlingame Planning Commission did not violate the Brown Act (Government Code §§ 54950 and following) [the District Attorney's letter is attached for the Grand Jury's convenience].
We do not want to get in the middle of a legal conflict where experts believe that there was or was not a violation. We as a council, along with our City Attorney, have treated this matter very seriously.
On December 13, 1999, the Commission agendized the letter and allowed full public comment and discussion on the contents of the letter. On January 8, 2001, the Commission again agendized the issue, including the Grand Jury report, and allowed full public comment and discussion.
The Commission understands the concerns expressed by the Grand Jury, understands the meanings of "meeting" under the Brown Act, and has assured the Council that serial meetings of the Commission on Commission business will not occur.
The Grand Jury response of December 19, 2000, indicates that the endorsement of candidates for election to office by a quorum or more of a legislative body does not constitute a violation of the Brown Act.
The Council believes
that the concerns expressed by the Grand Jury have been well-considered
and have provided an educational process to local agencies and the Grand
Jury. But we are not satisfied that the education process in reference
to the Brown Act goes far enough. We would like you to consider having
the Attorney General give the community some guidance as to candidate
endorsements by elected officials and their commissions under the Brown
The City Council
agrees with the recommendation, and notes that this has already occurred.
On April 18, 2000, the City Attorney presented a background paper on
the Brown Act to the Planning Commission, and staff and the Planning
Commission held a public discussion for over an hour regarding the various
aspects of the Brown Act. The City Attorney and the Planning
The general counsel of the California First Amendment Coalition has agreed with the grand jury's finding in its October 18, 2000, report that the Burlingame Planning Commission violated the Brown Act Open Meeting Law.
Prior to the November 1999 election, Burlingame planning commissioners made a "collective decision" by way of serial meetings not open to the public "to send a single message to the public represented as their joint position on a public issue, in their official capacities as planning commissioners." As one of its three recommendations, the grand jury in its report asked that the district attorney review this matter. On December 18, 2000, District Attorney James P. Fox responded by stating that the criminal statute of limitations has expired, that no violation of the Brown Act had occurred, and that planning commissioners had exercised their First Amendment rights.
In response, the grand jury asked for comments on this matter from the California First Amendment Coalition, a non-profit organization in Sacramento, whose purpose is the defense of First Amendment rights and which acted as a legislative sponsor of the most recent revisions of the Brown Act. In a well reasoned letter, General Counsel Terry Francke disagrees with District Attorney Fox's opinion and supports the grand jury's conclusion that the Brown Act was violated by the actions of the planning commissioners.
As a last statement
on this matter, the grand jury reaffirms its findings and its support
of the Brown Act's intent that actions of public commissions, boards,
and councils be taken openly and that their deliberations be conducted
openly. It views with disappointment the failure of
Despite its critics,
the grand jury will continue to bring to the attention of the public
violations of the Brown Act. The public's business should be conducted