Pictured: The Brown Act, sometimes called the “sunshine” act is aimed at ensuing the public’s business occurs in view of the public. The act was authored by Assemblymember Ralph M. Brown and became law in 1953. Provisions also guarantee the public’s right to attend and participate in meetings of local legislative bodies. The Brown Act applies to all elected bodies, as well as those bodies – such as commissions and committees – of individuals appointed by elected officials.
by Kimberly Rivers
Californians Aware, a statewide nonprofit organization specializing in open government law and enforcement, claims that the city of Ventura is acting improperly by failing to report the vote tally on a closed-session city council vote regarding a recent legal action.
“The Brown Act specifically provides that they must release the vote to initiate litigation, even if they don’t have to report details,” said Kelly Aviles, vice president of open government compliance with Californians Aware (CalAware), which is headquartered in Carmichael, Calif. Aviles is an attorney who specializes in the California Public Records Act, the Ralph M. Brown Act and the Bagley-Keene Act, and serves as litigation counsel for CalAware. She was citing part of the Brown Act, California Government Code Section 54957.1(a)(2): “If it has been formally commenced, information about the action, including the details about who voted in favor and who did not, should be released.”
On Jan. 12, 2020, Matt LaVere, mayor of the city of Ventura, was speaking at a meeting of the Democratic Club of Ventura, and was asked by the Ojai Valley News how he voted when the city council decided to file a cross complaint involving 10,500 property owners in the Ventura River Watershed in an adjudication process to determine water rights. (“Watershed moment: Petrochem sold as a water war looms in the Ventura River Watershed,” Kimberly Rivers, VCReporter, Jan. 16, 2020.) As reported in the Ojai Valley News on Jan. 13, LaVere responded, “I can’t talk about the votes in closed session.” He went on to say that if it is supposed to be public then it should be released but that he would “defer to our city attorney on that.”
Following that meeting, the VCReporter submitted a request to the Ventura city attorney, city manager, city clerk and all city council members for the tally of the vote wherein the city decided to file the cross complaint and commence with adjudication.
In response to that request, Ventura City Attorney Gregory Diaz provided a letter addressed to Laura Rearwin-Ward, publisher of the Ojai Valley News, dated Jan. 14, 2020, which states: “Because the Ventura River Litigation was already filed, this report out obligation did not exist because the city was not ‘initiating’ litigation. If the city had been initiating litigation, the report out obligation would have existed. Because the Ventura River litigation was existing litigation, adding parties was not ‘initiating’ litigation pursuant to the requirements of the Brown Act.”
“Filing a cross-complaint is an initiation of litigation, and hence, a new action,” said Aviles, after reviewing Diaz’s letter. “For example, if the other party [Santa Barbara Channelkeeper] dismissed the complaint, the cross-complaint would remain as its own case.”
“Moreover, the California Constitution must be interpreted broadly in favor of public access,” emphasized Aviles. “The city’s position improperly narrowly construes the public’s rights and broadly construes the agency’s right to keep information secret.”
Aviles went on, “Finally, the city’s position only considers the closed session reporting language, but ignores the mandate from Government Code section 54953(c).” Aviles was referring to the section that states, “No legislative body shall take action by secret ballot, whether preliminary or final” and “the legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.”
Californians Aware: https://www.calaware.org/
The Brown Act can be read HERE.
A 2017 presentation by the Institute for Local Government on the Brown Act, including reporting out requirements, can be read HERE.