HomeMy WebLinkAbout1986-11-25; City Council; 8825; Amendments to comply with new Brown Act.
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MTG. 11/25/86
DEPT. CA
CIT OF CARLSBAD -AGEND BILL
TITLE: AMENDMENTS TO CITY COUNCIL PRO-
CEDURES TO COMPLY WITH NEW BROWN
ACT LEGISLATION
RECOMMENDED ACTION:
That the City Counci 1 introduce Ordinance No. Q C/i)..
ITEM EXPLANATION
DEPT. HD. -
CITYATTY~
CITY MGR_;lp-:
Assembly Bill #2674 (Connelly), Chapter 641 of the Statutes of 1986
dramatically changes the Brown Act open meetins requirements. This
new law takes effect January 1, 1987 and it is necessary that the
City Council revise Chatper 1.20 of the Carlsbad Municipal Code which
sets the procedures for City Council meetings to conply with the new
law. We are now subject to strict agenda requirements and must
physically post the Council agenda at least 72 hours before each
meeting of the City Council. An op?ortunity must be provided on
every agenda for the public to address the Council on matters of
public concern. Council in most cases is prohibited from discussing
or otherwise taking action on an item that is not listed on the
posted agenda. The most significant change authorizes legal action
against the City to void Council action taken in violation of these
requirements and, if a violation is found, the City Council can be
required to pay attorney fees .
Attached is a one page summary of AB #2674 prepared by the League of
California Cities. Also attached are the relevant portions of the
Statute. This new law raises numerous questions of interpretation.
A committee of the City Attorney's Department of the League of
California Ci ties has made :::ecomrnendations on these. questions. We
have reviewed all of these materials in prepc::..ring our recommendation
on how to bring Carlsbad's procedures into compliance with the new
law. In that regard, attached is Ordinance No. I-< 2 ~ and it is
recommended that the Council introduce and adopt the or inance.
This action only deals with City Council procedures. However, the
new law applies to all of the City's boards and commissions.
Compliance with the requirements involves considerable attention to
detail. We join in the recommendaton of the League 1 s Committee that
prior to January 1, 1987 the City Manager propagate internal written
administrative procedures to ensure compliance.
EXHIBITS
Summary from League of California Cities
Relevant portions of Statute
O:r.dinance No. lo< 9ol..,
Summary of AB 2674
Posting Agendas. AB 2671 requires a city to post an agenda in a location
which is freely accessible to the public at least 72 hours before each regular
meeting of the city council. The agenda must include a brief description of
each item of business to be transacted or discussed at the meeting togeth~r
with the time and location of the meeting. The council is prohibited from
taking action on any item not appearing on the posted agenda unless: (1) a
council majority determines that an "emergency situation," as defined, exists;
(2) the council determines by a two-thirds vote, or by a unanimous vote if
less than two-thirds of the council members are present, that the "need to
take action" on the item arose subsequent to the posting of the agenda; or (3)
the item was included in a properly posted agenda for a prior meeting
occurring not more than five days prior to the meeting at which the action is
taken and was continued to the meeting at which the action is taken. (Section
54954.2}.
Notice of each special meeting must be posted at least 24 hours prior to the
special meeting. (Section 54956).
Public Discussion. AB 2674 requires that every agenda for a regular
meeting provide an opportunity for members of the public to address the
legislative body on items of interest to the public within the body's subject
matter jurisdiction. If an item discussed by a member of the public did not
appear in the agenda, the same restrictions on council action discussed above
will apply. The council does not have to allow the public time to speak on an
item which was previously considered by a council committee if an opportunity
for public input was afforded at the committee meeting. (Section 54954.3}.
Violations. AB 2674 authorizes any interested person to seek a judicial
c!etermination that an action taken by the council in violation of the "Ublic
meeting or agenda posting requirements of the Brown Act is null and void.
Prior to filing a lawsuit and within 30 days of the action, the interested
person must make a demand of the council that it cure the challenged action.
!f the council takes no curative action within 30 days of the demand, the
1 n:erested person must file suit within the earlier of: (1) 15 days after the
~xp1~ation of the 30-day period; (2) 15 days after receipt of written notice
from the city council of its decision to cure, or not to cure, the challenged
action; or (3) 75 days from the date the challenged action was taken.
Notwithstanding the foregoing, an action of the council cannot be determined
to be null and void if: (1) the action was taken in substantial compliance
with the Brown Act; (2) the action was taken in connection with the issuance
of an evidence of indebtedness; (3) the action taken gave rise to a
contractual obligation upon which a party has, in good faith, detrimentally
relied; or (4) the action was taken in connection with the collection of any
tax. (Section 54960. 1) .
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Ch. 641 STATUTES OF 1986
violation of this subdivision or subdivision (b) of Section 72129 is null
and void. SEC. 4. Section 72129 of the Education Code is amended to read:
72129. (a) Special meetings may be held at the call of the
president of the board or upon a call issued in writing and signed by
a majority of the members of the board.
(b) A notice of the meeting shall be posted at least 24 hours prior
to the special meeting and shall specify the time and location of the
meeting and the business to be transacted and shall be posted in a
location that is freely accessible to members of the public and district
employees. SEC. 5. Section 54954.2 is added to the Government Code, to
read: 54954.2. ~ At least 72 hours before a regular meeting, the
legislafr!e body of the local agency, or its designee, shall post an
agenda containing a brief general description of each item of
business to be transacted or discussed at the meeting. The agenda
shall specify the time and location of the regular meeting and shall
be posted in a location that is freely accessible to members of the
public. :So action shall be taken on any item not appearing on the
posted agenda. {b) !\otwithstanding subdhision (a). the legislative body ma_y
take action on items of business not appearing on the posted agenda
under any of the following conditions:
(1) Upon a determination by a majority vote of the legislative
body that an emergency situation exists, as defined in Section
54956.5. (2) Upon a determination by a two-thirds vote of the legislative
body, or, if less than two-thirds of the members are present, a
unanimous vote of those members present, that the need to take
action arose subsequent to the agenda being posted as specified in
subdivision (a).
(3) The item was posted pursuant to subdivision (a) for a prior
meeting of the legislative body occurring no't more than five
calendar days prior to the date action is taken on the item, and at the
prior meeting the item was continued to the meeting at which action
is being taken. SEC. 6. Section 54954.3 is added to the Governm~nt Code, to
read: 54954.3. (a) Every agenda for regular meetings shall provide an
opportunity for members of the public to directly address the
legislative body on items of interest to the public that are within the
subject matter jurisdiction of the legislative body, prm,;ded 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, in the case of a meeting of a city council in a city
or a board of supervisors in a city and cow1ty, the agenda need not
rrovide an opportunity for members of the public to address the
council or board on any item that has already been considered by a
committee, composed exclusively of members of the council or
board, at a public meeting wherein all interested members of the
324 Changes or additions In text are indicated by underline
public \Vere:•
item, unles~
committee h
(b) The le
regulations tc
including, bu
time allocate,
individual sp,
SEC. 7. S,
read:
54956. A
presiding off
majority of t
personally o·
legislative bo
radio or tele,
shall be deliv,
24 hours befc
The call and
meeting and •
considered al
notice may b,
the time the r
legislative ho,
by telegram. •
member wh;
convenes. No
of whether a1
The call an
special meeti
the public.
SEC. 8. Se
read:
54956.5. Ir
upon which
threatened di
an emergenc·
notice requir;
54956 or both
For purpos
the following
(a) Work~
health, safety
of the legislat
(b) Crippl
safety, or boti
legislative boc
However,e
television stat
pursuant to Sf
the legislativ1
aymbol 'r lndlcatt
m 72129 is null
ended to read:
1e call of the
; and signed by
t 24 hours prior
location of the
be posted in a
blic and district
,ment Code, to
r meeting, the
e, shall post an
f each item of
ng. The agenda
eeting and shall
members of the
ppearing on the
ative body may
,e posted agenda
)f the legislative
ilned in Section
of the legislative
·s are present, a
lhe need to take
~d as specified in
m (a) for a prior
more than five
,e item, and at the
ng at which action
mment Code, to
; shall provide an
ctly address the
1at are within the
pro"ided that no
the agenda unless
on (b) of Section
ty council in a city
e agenda need not
olic to address the
en considered by a
of the council or
~d members of the
e indicated by underline
1985-1986 REGULAR SESSION Ch. 641
public were afforded the oportunity to address the committee on the
item, unless the item has been substantially changed l>ince the
committee heard the item, as determined by the council or board.
(b) The legislative body of a local agency may adopt reasonable
regulations to ensure that the intent of subdivision (a) is carried out,
including, but not limited to, regulations limiting the total amount of
time allocated for public testimony on particular issues and for each
individual speaker.
SEC. 7. Section 54956 of the Government Code is amended to
read:
54956. A fpecial meeting may be called at any time by the
presiding officer of the legislative body of a local agency, or by a
majority of the members of the legislative body, by delivering
personally or by mail written notice to each member of the
legislative body and to each local newspaper of general circulation,
radio or television station requesting notice in writing. The notice
shall be delivered personally or by mail and shall be received at least
24 hours before the time of the meeting as specified in the notice.
The call and notice shall specify the time and place of the special
meeting and the business to be transacted. No other business shall be
considered at these meetings by the legislative body. The written
notice may be dispensed \Vith as to any member who at or prior to
the time the meeting convenes files with the clerk or secretary of the
legislative body a written waiver of notice. The waiver may be given
by telegram. The written notice may also be dispeased with as to any
member who is actually present at the meeting at the time it
convenes. Notice shall be required pursuant to this section regardless
of whether any action is taken at the special meeting.
The call and notice shall be posted at least 24 hours prior to the
special meeting in a location that is freely accessible to members of
the public.
SEC. 8. Section 54956.5 of the Government Code is amended to
read:
54956.5. In the case of an emergency situation involving matters
upon which prompt action is necessary due to the disruption or
threatened disruption of public facilities, a legislative body may hold
an emergency meeting without complying with either the 24-hour
notice requirement or the 24-hour posting requirement of Section
54956 or both of the notice and posting requirements.
For purposes of this section, "emergency situation" means any of
the following:
(a) Work stoppage or other activity which severely impairs public
health, safety, or both, as determined by a majority of the members
of the legislative body.
(b) Crippling disaster which severely impairs public health,
safety, or both. as determined by a majority of the members of the
legislative body.
However, each local newspaper of general circulation and radio or
television station which has requested notice of special meetings
pursuant to Section 54956 shall be notified by the presiding officer of
the legislative body, or designee thereof, one hour prior to the
symbol ~ indicates text deletion 325
Ch. 641 STATUTES OF 1986
emergency meeting by telephone and'f'a!l telephone numbers
provided in the most recent request of such newspaper or station for
notification of special meetings shall be exhausted. In the event that
telephone senices are not functioning.z. the notice requirements of
this section shall be deemed waived, and the legislative body, or
designee of the legislative body, shall notify those newspapers, radio
stations, or television stations of the fact of the holding of the
emergency meeting, the purpose of the meeting, and any action
taken at the meeting as soon after the meeting as possible.
Notwithstandingl'section 54957, the legislative body shall not meet
in closed session during a meeting called pursuant to this section.
All special meeting requirements, as prescribed in Section 54956
shall be applicable to a meeting called pursuant to thfa section, with
the exception of the 24-hour notice requirement.
The minutes of a meeting called pursuant to this section, a list of
persons who the presiding officer of the legislative body, or designee
of the legislative bodv, notified or attempted to notify, a copy of the
rollcall \'ote, and any actions taken at the meeting shall be posted for
a minimum of 10 days in a public place as soon after the meeting as
possible.
SEC. 9·. Section 54960.1 is added to the Government Code, to
read:
54960.l. (a) Any interested person may commence an action by
mandamus or injunction for the purpose of obtaining a judicial
determination that an action taken by a legislative body of a local
agency in violation of Section 54953, 54954.2, or 54956 is null and void
under this section. !\iothing in this chapter shall be construed to
prevent a legislative body from curing or correcting an action
challenged pursuant to this section.
(b) Prior to any action being commenced pursuant to subdi\'ision
(a), the interested person shall make a demand of the legislative
body to cure or correct the action alleged to ha\'e been taken in
violation of Section 54953, 54954.2, or 54956. The demand shall be in
writing and clearly describe the challenged action of the legislative
body and nature of the alleged violation. The written demand shall
be made within 30 days from the date the action was taken. Within
30 days of receipt of the demand, the legislative body shall cure or
correct the challenged action and inform the demanding party in
writing of its actions to cure or correct or inform the demanding
party in writing of its decision not to cure or correct the chalhmged
action. If the legislative body takes no action within the 30-day
period, the inaction shall be deemed a decfr,ion not tu cure or c,)rrf'cl
the challenged action, and the 15-day period to commence the action
described in subdivision (a) shall commence to run the day after the
30-day period to cure or correct expires. Within 15 days of receipt of
the written notice of the legislative body's decision to cure or correct,
the expiration of the 30-day period to cure or correct, or 75 days from
the date the challenged action was taken, whichever is earlier, the
demanding party shall be required to commence the action pursuant
to subdivision (a) or thereafter be barred from commencing the
action.
326 Changes or additions In text are Indicated by underline
(C} An acti
if any of the f
(1/ The act
54953, 54954.2,
(2) The act
of notes, bond
instrument, or
(3) The ac
including a co1
in good faith,
(4) The acti
tax.
(d) During
to subdivision
the legislative
violation of S,
corrected by a
filed pursuant
(e) The fact
cure or correct
construed or a
SEC.10. Se
read:
54960.5. Ac
fees to the plai1
54900.1 where
has violate~hi
agency and sha
or employee Q!
A court mav
defendant in ar.
where the defe
action and the
totally lacking 1
SEC.11. Th,
reference to Se
in Sections 3514
this act. to impl)
ha\'t:-bPen canst
of school and c,
to those meeti,
SEC.12. Re
costs mandate(
pursuant to Par
Title 2 of the (
c1aim for reiml
dollars ( $500,00!
Fund.
symbol • Indicates I
10ne numbers
·r or station for
the event that
·quirements of
ative body, or
:spapers, radio
1olding of the
nd any action
)ssible.
shall not meet
> this section.
Section 54956
~ section, with
~ction, a list of
\y, or designee
, a copy of the
1 be posted for
he meeting as
1ent Code, to
e an action by
ing a judicial
ody of a local
; null and void
construed to
ng an action
to subdivision
he legislative
,een taken in
.nd shall be in
the legislative
demand shall
taken. Within
• shall cure or
ding party in
e demanding
,e challenged
, the 30-day
ire or correct
C'e the action
day after the
of receipt of
re or correct,
·75davsfrom
is earlier, the
tion pursuant
mencing the
,ti,d by underline
1985-1986 REGULAR SESSION Ch. 641
(c) An action taken shall not be determined to be null and void
if any of the following conditions exist:
(1) The action taken was in substantial compliance with Sections
54953, 54954.2, and 54956.
(2) The action taken was in connection with the sale or issuance
of notes, bonds, or other evidences of indebtedness or anv contract
instrument, or agreement thereto. • '
(3) The action taken gave rise to a contractual obligation.
including a contract let by competitive bid, upon which a party has,
in good faith, detrimentally relied.
(4) The action taken was in connection with the collection of anv
~X-•
(d) During any action seeking a judicial determination pursuant
to subdivision (a) if the court determines, pursuant to a showing by
the legishtive body that an action alleged to have been taken in
violation of Section 54953, 54954.2, or 54956 has been cured or
corrected by a subsequent action of the legislative body, the action
filed pursuant to subdivision (a) shall be dismissed with prejudice.
(e) The fact that a legislative body takes a subsequent action to
cure or correct an action taken pursuant to this section shall not be
construed or admissible as evidence of a violation of this chapter.
SEC. 10. Section 54960.5 of the Government Code is amended to
read:
54960.5. A court may award court costs and reasonable attornev
fees to the plaintiff in an action brought pursuant to Section 54960 o·r
54960.1 where it is found that a legislative body of the local agency
has violatedthis chapter. The costs and fees shall be paid by the local
agency and shaH not become a personal liability of any public officer
or employee of the local agency.
A court may award court costs and reasonable attorney fees to a
defendant in a."ly action brought pursuant to Section 54960 or 54960.1
where the defendant has prevailed in a final determination of such
action and the court finds that the action was clearly frivolous and
totally lacking in merit.
SEC. 11. The Legislature does not intend, by including an express
reference te, Sections 54954.2 and 54960.1 of the Co\'ernment Code
in Sections 35145 and 72121 of the Education Code, as amended bv
this act, to imply that other sections of the Ralph ~. Brown Act which
have been construed as appl) ing to meetings of the governing boards
of school and community college districts shall not continue to apply
to those meetings.
SEC. 12. Reimbursement to local agencies and school districts for
costs mandated by the state pursuant to this act shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code and, if the statewide cost of the
claim for reimbursement does not exceed five hundred thousand
dollars ($500,000), shall be made from the State Mandates Claims
Fund.
symbol v indicates text dtletlon 327
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ORDINANCE NO. 1292
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA AMENDING TITLE 1, CHAPTER 1. 20
OF THE CARLSBAD MUNICIPAL CODE BY THE AMENDMENT
AND ADDITION OF VARIOUS SECTIONS TO REVISE THE
CITY COUNCIL PROCEDURES IN ACCORDANCE WITH THE
NEW BROWN ACT LEGISLATION.
The City Council of the City of Carlsbad, California
does ordain as follows:
SECTION 1: That Title 1, Chapter 1.20, Section 1.20.020
of the Carlsbad Municipal Code is a~ended by the addition of the
following:
"The call and notice shall be posted at least 24 hours
prior to the special meeting on the council chamber door."
SECTION 2: That Title 1, Chapter 1.20 of the Carlsbad
Municipal ~ode is amended by the addition of Section 1. 20. 0 25 to
read as follows:
"1.20.025 Emergency meetings. Notwithstanding anything
in this code to the contrary the City Council may hold an
emergency meeting pursuant to and in accordance with the
provisions of Section 54956.5 of the California Government
Code."
SECTION 3: That Title 1, Chapter 1.20, Section 1.20.030
of the Carlsbad Municipal Code is amended by the addition of the
following:
"When a regular or adjourned regular meeting is
adjourned as provided in this section the resulting meeting is a
regular meeting for the purpose of transacting business."
SECTION 4: That Title 1, Chapter 1.20 of the Carlsbad
Municipal Code is arnended by the deletion of Section 1.20.040.
SECTION 5: That Title 1, Chapter 1.20 of the Carlsbad
Municipal Code is amended by the amendment of Section 1.20.050 to
read as follows:
"1.20.050 Meetings to be public -exceptions -closed
sessions. (a) All meetings of the City Council shall be open
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to the public~ provided, however the City Council may hold closed
sessions during any meeting from which the public and any person
or entity having filed written request for not ice of meetings,
may be excluded for the purpose of considering the matters, as
authorized by Title 5, Division 2, Part 1, Chapter 9, Sections
54950 through and including 54961 of the Government Code of the
State of California or other applicable law.
(b) No mewber 1.)f the City Council, employee of the
City or any other person present durinq a closed session of the
Council shall disclose to any person the content or substance of
any discussion which took place during said closed session unless
the City Council first authorizes the ~·sclosure of such
information by a majority vote."
SECTION 6: That Title 1, Chapter 1.20, Section 1.20.060
of the Carlsbad Municipal Code is amended by the amendment of
subsections {a) and (c) and by the addition of subsection (f) to
read as follows:
"(a) An agenda shall be prepared for each Council
meeting containing the time and place of the meeting, the order
of business and a general description, including the specific
action requested to be taken by the Council, for each item of
!)usiness to be transacted or discussed at the meeting. Items of
business may be placed on the agenda by the direction of a member
of the Council, the City Mana1er or the City Attorney. Agenda
items, including ordinances, resolutions, contracts, staff
reports or other Matters to be submitted to the Council, shall be
delivered to the City Clerk not later than twelve noon on the
Thursday preceding the regular meeting. The Clerk shall
thereafter prepare an agenda packet under the direction of the
City Managar. The agenda packet shall be delivered to the
Council members on the Friday preceding the regular meeting. The
agenda packet shall be made available to the public as soon
thereafter as practicable."
11
(c) The City Clerk shall post the agenda on the
Council Chamber doors at least 72 hours before a regular Council
meeting. The City Clerk shall prepare and file a signed
declaration of the time and place of posting and a certified copy
of the posted agenda. Except as provided in subsection (f) of
this section no business shall be transacted or discussed at the
meeting on any item not appearing on the posted agenda. A
direction by the Mayor with the consent of the Council to refer a
matter raised by a member of the public to _staff for a report or
to place a matter on a future agenda shall ncit constitute action."
"{f) The City Council may discuss or take action on
items of business not a~pearing on the posted agenda under any of the following conditions:
{1) An item has been continued by che Council to
a date certain from a properly posted agenda at a meeting held
five days or less before the date action is taken on the item.
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(2) Upon a determination by a two-thirds vote of
the Council, or if less than two-thirds of the members are
present a unanimous vote of those present that the need to take
action arose after the agenda was posted.
(3) Upon a determination by the Council that an
emergency exists. For purposes of this sect ion "emergency" means
a crippling disaster, work stoppage or other activity which
severely iwpairs public health or safety where prompt action is
necessary due to the disruption or threatened disruption of
public facilities."
SECTION 7: That Title 1, Chapter 1.20, Section 1.20.oeo
of the Carlsbad Municipal Code is amended by the deletion of
subsection (e).
SECTION 8: That Title 1, Chapter 1.20, Section 1.20.110
of the Carlsbad Municipal Code is amended by the ame11dment of
subsection (14) to read "Public comment" and by the addition of
subsection (15) to read "Adjournment."
SECTION 9: That Title 1, Chapter 1.20 df the Carlsbad
Municipal Code is amended by the addition of Section 1.20.305 to
read as follows:
=1.20.305 Opportunity for public to address the
council -non agenda items. (a) Every agenda for a regular
Cou,':::11 meeting shall provide a period for members of the public
to address the Council on items of interest to the public that
are not on the agenda but are within the jurisdiction of the
City Council.
(b) Speakers shall be limited to three minutes each
with the total time for all spe~kers not to exceed fifteen
minutes unless additional time is granted by majority vote of the
Council. Anyone desiring to speak shall reserve time at the
meeting by filing a written request with the City Clerk.
Speakers will be called in the order reserved within the
available time. The presiding officer with the consent of the
Council may, if time permits, allow persons co speak who have not
filed a written request to reserve time.
(c) Each person desiring to address the Council shall
approach the podium, state his name and address for the record,
state the subject he wishes to discuss, and state whom he is
representing if he represents an organization or other persons.
All remarks shall be addressed to the Council as a whole and not
to any member thereof. No questions shall be asked of a Council
member or a member of the City staff without obtaining the
permission of the presiding officer. 'fhe presiding officer shall
not permit any communication, oral or written, to be made or
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read where it does not bear on something of interest to the
public which is within the subject matter jurisdiction of the
City Council."
SECTION 10: That Title 1, Chapter 1.20, Section
1.20.420 of the Carlsbad Muncipal Code is amended by the
addition of the following:
"If the hearing is continued to a time less than 24
hours after the time specified in the notice of such hearing a
notice of continuance shall be posted immediatley after the
meeting on the Council Chamber doors."
EFFECTIVE DATE: This ordinance shall be effective
thirty days after its adoption, and the City Clerk shall certify
to the adoption of this ordinance and cause it to be published
at least once in the Carlsbad Journal within fifteen days after
its adoption.
INTRODUCED AND FIRST READ at a regular meeting of the
Carlsbad City Council on the 2nd
and thereafter
day of December , 1986
PASSED AND ADOPTED at a regular meeting of said City
Council held on the 9th day of • December , 1986 by the
,following vote, to wit:
AYES: Council Members Lewis, Kulchin, Pettine and Mamau:x:
NOES: None
ABS ENT: None
J{pp~J)~A~S'O'.lftelR~RM AND LEGALITY
VINre~~D<r2!R·~1:o~JWt-
~1NCENT F. BIONDO, JR., City Attorn
RONALD R. BALL -
ATTEST:
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