INTRODUCTION. The Brown Act applies to meetings of local government elected and appointed bodies and is a complex statute governing how government officials behave.  Government Code section 54957.5 requires local governments to make materials distributed to members of a Brown Act body in the 72 hours before a meeting (i.e., after the agenda is typically posted) available to the public at the same time they are provided to the board members. For materials the agency’s staff distributes, this is not problematic.  In this day of ubiquitous electronic communication, any member of the public can distribute materials to Council and Board members, making compliance with this rule much harder.

A recent decision of the Court of Appeal in Sacramento makes this harder still.  This will likely draw discussion in proposals to update the Brown Act to address the reality of electronic communications and virtual meetings post-COVID.

DISCUSSION. Sierra Watch v. Placer County held that even when a writing is distributed outside business hours, local agencies must make it available to the public in hard copy at that time. The appellate court accepted that its holding would require local agencies to keep an office open to the public during evenings and/or weekends when a writing is distributed to a local agency’s legislative body during those times or to withhold late-breaking information (to the extent the agency can control this) from the Board until an office is open. Further, the court observed this rule could enable delaying tactics — a concern in CEQA cases like Sierra Watch — and may also “require counties [and cities] to delay when they distribute material to their board members.” The court’s interpretation will be unworkable for many government offices that are open for only limited hours due to COVID-19. For these reasons, we have asked on behalf of the League of California Cites that the Supreme Court depublish the case, making it final for the parties to it, but not precedent for others.

This case concerns as claim Placer County approved land use entitlements in violation of Section 54957.5. The statute provides in pertinent part:

(a) … [A]gendas of public meetings and any other writings, when distributed to all, or a majority of all, of the members of a local agency by any person in connection with a matter subject to discussion or consideration at an open meeting of the body, are disclosable public records under the California Public Records Act … and shall be made available upon request without delay. …

Under subdivision (b)(1),

If a writing that is a public record … and that relates to an agenda item for an open session of a regular meeting of the legislative body of a local agency, is distributed less than 72 hours prior to that meeting, the writing shall be made available for public inspection pursuant to paragraph (2) at the time the writing is distributed to all, or a majority of all, the members of the body.

The use of the passive voice applies the rule whether an agency’s staff provides information to a legislative body, or a member of the public does. Under paragraph (2) of subdivision (b),

A local agency shall make any writing described in paragraph (1) available for public inspection at a public office or location that the agency shall designate for this purpose. … The local agency also may post the writing on the local agency’s Internet Website in a position and manner that makes it clear that the writing relates to an agenda item for an upcoming meeting.

In Sierra Watch, the Placer County Board of Supervisors posted a meeting agenda in advance of a meeting, noting the Board would consider an ordinance to approve the development agreement for a controversial Tahoe-area resort. At 5:36 p.m. the day before the meeting, County Counsel emailed the County Clerk an updated draft of the agreement, and a memorandum explaining the change. The County Clerk emailed the documents to all board members and promptly made copies publicly available in her office. But that office had closed to the public at 5:00 p.m., to reopen the next morning at 8:00 a.m. The following day, the Board held its meeting, at which it approved the agreement.

Sierra Watch sued, alleging the County violated the Brown Act by failing to make County Counsel’s memorandum available for public inspection when it was distributed to the Board. Sierra Watch argued that placing a document in the clerk’s office after hours meant the writing was only “available for public inspection” when the office reopened. The trial court rejected this contention, finding the County made the memorandum available for public inspection the moment the County Clerk placed it in her office even though it was then closed. Sierra Watch appealed.

The Court of Appeal adopted Sierra Watch’s reading of Section 54957.5. The court also read the statute to disallow local governments to post writings to their websites as an alternative to making hard copy available at an office. Instead, the court held that agencies cannot satisfy Section 54957.5 “merely by posting materials online,” but are required to make hard copy available at a physical location. The court noted that committee analysis of the bill enacting Section 54957.5 interpreted it to allow agencies to alternatively post writings on the internet, but rejected that interpretation.

The court acknowledged its reading of Section 54957.5 could lead to two negative consequences. First, because “counties [cities and special districts] cannot satisfy section 54957.5’s subdivision (b) merely by posting materials online,” “accepting Sierra Watch’s position may at times require counties [and other Brown Act agencies] to delay when they distribute materials to their board members,” leaving boards less time to consider late submissions. Second, this reading could “allow opponents to perpetually delay project approval by submitting last minute comments outside of normal business hours.” For example, if a person emailed all board members comments concerning an item on the board’s agenda in the middle of the night before every meeting, “unless the county staffs its office around the clock” the County cannot assure that writing is made available to the public as Section 54957.5 requires without delaying the meeting.

The court found that the first concern was not “so absurd” as to justify overriding the plain meaning of the statute, and the second concern was not directly raised by the facts at hand. However, it will arise soon enough — the Brown Act applies to each of California’s thousands of local governments. Moreover, this reading has the tail wagging the dog. A statute aimed at public information is read to require Boardmembers be kept in the dark or meetings delayed. Experience teaches that most who engage with government do so electronically when possible, especially during the pandemic. Are we to believe Sierra Watch’s counsel was disadvantaged here because they could not drive from their San Francisco offices to Auburn to inspect a memorandum posted to the County’s website?

As Sierra Watch posits, “[s]uppose that in the middle of the night before every meeting, a member of the public e-mails all board members comments concerning an item on the board’s agenda”? Under this scenario, anyone could cause a local government to violate section 54957.5 by sending agenda material to board members after agency offices close for the day.

Local agencies may be forced to delay meetings when written materials are emailed to board members the night before meetings. Otherwise, a litigant may claim an agency violated Section 54957.5 by proceeding with the meeting. As many government offices have reduced hours of public access due to the pandemic, the problem will be especially acute until the virus relents.

A commonsense reading of Section 54957.5 allows a more sensible result, consonant with the legislative purposes of public access and avoiding needless delay. Section 54957.5 requires a local agency to make writings connected to agendas for upcoming open meetings “available for public inspection at a public office” without specifying the agency must do so outside business hours. The point of the deadline is to avoid government foot-dragging (which the Court of Appeal may have feared here), not to require offices to open overnight or to create a tactic for delay.

Under Sierra Watch, a local agency would comply with Section 54957.5 if it places a document in its clerk’s office a minute before closing on a Friday, but violate it by placing it there two minutes later. But meaningful public access will be the same either way — soft copy will be available when the document is posted to the web and hard copy will not be available until Monday morning. Reading Section 54957.5 to allow local agencies to “make records available at a physical location or alternatively post the records online” avoids this absurd result, as the legislative history suggests.

CONCLUSION. We should know whether the California Supreme Court will depublish Sierra Watch by early next year. But, until the Legislature clarifies that web posting is sufficient, this argument can arise again. When the stakes are high, local governments will be well advised to make sure materials distributed to Board members with respect to an item on a public agenda are made available to the public when provided to Boardmembers and when a public office is open to provide access to hard copy.