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Home My WebLink About1988-08-02; City Council; 9565; Council Response to Public Commentro � U •� 4� a 4-1 - M o ro u a bo 0 •ri ro� U rd O ;j 4J bD 4J d G{ •ri Jal x+ •� 3 a� v .0 +� a •r-1 00 00 41jrn v •-1 u a� � �rn 0 0-1 q U ro Uri •ri O rl ri E'7 q a j 0 w U 0 •d 00 00 1 N I Z W 0 V J z n O V AB # Zr- MTG. 8/2/88 DEPT. CA - CI OF CARLSBAD - AGENr i BILL TITLE: COUNCIL RESPONSE TO PUBLIC COMMENT RECOMMENDED ACTION: Ao) DEPT. HD. -- CITY ATTY 5 CITY MGR�— To discuss and respond to the City Attorney°s memorandum as the Council considers appropriate. ITEM EXPLANATION The Mayor has asked that our office review the Brown Act to see if it can be interpreted to allow Council discussion of public comment items. After consulting with the League of California Cities, a number of other city attorneys around the state, and the legislative counsel I have determined that the Brown Act does allow the Council to discuss an item which has been raised by a member of the public during the public comment portion of the agenda. A memorandum discussing the matter in detail, is attached. No action by the Council is required, however, if the Council wishes to change our past practice and allow Council discussion of public comment items you may wish to indicate your future intent in that regard by making an appropriate motion. EXHIBIT Memorandum by the City Attorney dated July 19, 1988 July 19, 1988 TO: Mayor and City Council FROM: City Attorney COUNCIL RESPONSE TO PUBLIC COMMENT This memorandum is in response to a request from the Mayor that I review the provisions of the Brown Act to see if they will allow the City Council to discuss or otherwise respond to items raised by members of the public during the public comment section of the agenda. As a result of that review, I have concluded that the Council may discuss such items. The 1986 amendments to the Brown Act imposed extensive new requirements for City Council agendas. Section 54954.2(a) requires the Council to post an agenda containing a brief description of each item of business to be transacted or discussed at the meeting at least 24 hours in advance. The section prohibits the Council from taking any action on an item not appearing on the posted agenda. The only exceptions are contained in Section 54954.2(b) for an emergency, after a determination by a four -fifths vote that the need to 'fake action arose after the agenda was posted or when the item is continued from a prior meeting. The legislature also added Section 54954.3 which required each agenda to provide an opportunity for members of the public to address the Council on items of interest to the public that are within the subject matter jurisdiction of the Council. No action may be taken on any public comment item unless otherwise authorized by one of the Section 54954.2(b) exceptions and it has been my opinion that the Council may not discuss an item of business which does not appear on the agenda. I have asked the League of California Cities and a number of city attorneys around the state about their practice in dealing with public comment. A substantial majority of the cities have adopted an interpretation of the new law which allows, subject to some limitations, Council discussion of public comment items. In that regard, the League forwarded me a copy of the Legislative Counsel's opinion dated April 13, 1987 which concluded in part as follows: "If the item is an item of interest to the public within the subject matter jurisdiction of the legislative body as to which a member of the public addresses the legislative body ... the item may be discussed by the legislative body." A copy of the opinion is attached to this memorandum. I'm satisfied that if the City Council wishes to follow the general practice in the state and allow discussion of public comment items, -2- that decision can be supported legally. As the opinion says, legislation should be interpreted in a "common sense" way to carry out its intent. The agenda requirement makes sense if it's intended to prevent the Council. from discussing items without first placing them on the agenda to insure the public has notice and an opportunity to be heard. That reason doesn't seem to apply to public comment items when in most cases there is no way the Council can know what the public item is in advance. Since the purpose of the law is to provide the public an opportunity to be heard in a meaningful way, it seems that purpose is frustrated by denying the Council the opportunity to discuss the public's concern. Applying a strict interpretation of t.ne agenda requirt--ment in that circumstance appears to be con4,;rary to the purpose of the law by limiting the public's opportunity for input rather than increasing it. It must be kept in mind that the law prohibits the Council from taking any action in response to public comment. Section 54952.6 makes clear that action does not just mean a vote of the Council. It also includes "a collective decision or commitment or promise". Case law and the attorney general holds that action includes deliberation which is defined as "something which looks like it pints to or could coalesce into a decision." our existing practice of "no response" protects the Council from being accused of a Brown Act violation. If the matter is discussed someone can allege that the Council Is discussion improperly crossed the line and became deliberation or action in violation of the Brown Act. If the Council wishes to discuss public comment items I, will monitor the discussion and may find it necessary to interrupt the Council with a caution and advise that the discussion should be terminated until the matter can be placed on a subsequent agenda. If the public comment relates to a past action of the Council then there is little possibility of a problem when the Council responds. A clarification of a factual misconception or a response to an unjust criticism should also not present a problem. However, any discussion of a public comment item which could be the subject of Council action in the future will have to be carefully monitored and the line will have to be drawn. Reasonable minds can differ over the point at which discussion ends and the decision making process begins. The attorney's advice or the council's decision on where to draw that line can always be second guessed and criticized. As the Council knows, even acting in good faith on advice from the City Attorney does not prevent someone from making a complaint to the grand jury. -3- The decision of whether or not to continue the present practice and bear the frustrations of being unable to respond to the public at all or to allow discussion but deal with the line drawing is one for the Council to make. please let me know if you have any questions. VINCENT F. BIONDO, JR. r City Attorney rmh attachment cs City Manager City Clerk JALK I. 11GFTON .ANN MACKEY CHIEF, DEPUTIES JAIAES L. ASHFORO JERRY L BARSFTT STANILY M LOIRIRAORE EOWARE- K PURCELL JOHN T STUDERAKER DAVID D ALVES JOHN A CORZINE C. D—ID DICKEnsON RORERT CULLEN DUFFY ROREpt D. GRONKE SHERWIN C MACKENSIE. JR. TRAC Y O POWELL II JIH.AIL WING PRINCIPAL DEPUTIES 3021 STAT. CAPITOL SACIIA UENTO, CA 05814 1016) 445.303; 8011 STATE BUILDING 107 SOUTH BROAD W AT LOS ANGELES. CA 00012 12131 B20.2550 'Nfdafk Gann5d 91- Honorable Gary A. Condit 2141 State Capitol Dear Mr. Condit: of Talfforn- in SION M. GREGORY Sacramento, California April 13; 1987 Open Meetings - 4g930 QUESTION GERALD ROSS ADA✓S M_11 L ANDERSON PAD, AN I., �• DANA S APP_, G CHARLES C AS _ RANEENL P BL.15_E AUELIA 1. BUZ;, EILEEN J BU.IDN HENRY J. CONTREAAS BEN E DALE JEFFpEY A M_'. CLINTON J DEA ^r LAWRENCE H FEIN SHARON R FISE• JOH.. N FOSSETTE HARVEY J FOSTER CLAY FULLED ALVIN D GRESS THOUAS R HE.iER MICHAEL J KEp SYEN L DOUGLAS KINNE, VICTOR KOZIE,S. EVE B KROTINGEp DIJLI ANA G L RDUULO I LOPEZ JADES A MAwSA_A FRANCISCO A MAp TIN PETER MELNICOE ROBERT G MI —ER JOHN A MDGEP VERNE L OJVER EUGENE L PAINE MARQUE RISE P^•.. MICHAEL B SAIEwY MARY SHAW RUSSELL L SPAIII.� WILUAu K 5'AA. MAR. FRA NALIN TLR11 .TEFL T. MICH.,.. AEL H UPS R'C HAAD B WE `Ipl.. 0A 161. A VIE THOUAS D WHE•AN JAVA T W. TGRD.E CHRISTOPHEF. Z•A.LL DEPUTIES May the legislative body of a local agency at a regular meeting discuss an item of business which does not appear on the agenda for that meeting if no action is taken on the item at that meeting? OPINION The legislative body of a local agency may not generally discuss an ite= of business at a regular meeting which does not appear on the agenda for that meeting. However, the legislative body is authorized to take action on the item if if by subdivision (b) of Section 54954.2 of the Government Code or the item is an item of interest to the public within the subject matter jurisdiction of the legislative body as to which a member of the public addresses the legislative body, as authorized by Section 54954.3 of the Government Code, the :item may be discussed by the legislative body. ANALYSIS The Ralph M. Brown Act (Ch. 9 (commencing with Sec. 54950) Pt. 1, Div. 2, Title 5, Gov. C.)* generally requires that the meetings of legislative bodies of local agencies, as defined, be open and public. * All references are to the Government Code. II Honorable Gary A. Condit - p. 2 - #8930 Subdivision (a) of Section 54954.2 reads as follows: 1154954.2. (a) At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief eg neral 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. No action shall be taken on any item not appearing on the ohs sted agenda." (Emphasis added.) ____ This section requires the agenda to be posted at least 72 hours before a regular meeting and to contain a brief general description of each item of business to be transacted or discussed. It also prohibits action being taken on an item not appearing on the posted agenda. The term "action taken" is defined, for the purposes of the Ralph M. Brown Act, to mean a collective decision made 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 the members of the legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance (Sec. 54952.6). However, subdivision (b) of Section 54954.2 permits the legislative body to take action on items of business not appearing on the posted agenda for a regular meeting if any of specified conditions exist. These conditions include: the determination by a majority vote of the legislative body that an emergency situation exists; a determination by a two-thirds vote or, if less than two-thirds of the members are present, a unanimous vote that the need to take action arose subsequent to the posting of the agenda; or ,the item was posted for a prior meeting occurring nit more than five calendar days prior bo the date action is taken and at the prior meeting the item was continued to the meeting at which action is being taken. Further, subdivision (a) of Section 54954.3 requires that Every agenda for regular meetings 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, but prohibits any action from being taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2. Honorable Gary A. Condit o p. 3 - #8930 The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purposes of the law (Select Base Materials v. Board of Equal., 57 Cal. 2d 640, 645). Statutes must be given a reasonable and commonsense construction in accordance with the apparent intention and purposes of the lawmakers -one that is practical rather than technical and that will lead to a wise policy rather than mischief or absurdity (Anaheim Union Water Co. v. Franchise Tax Bd., 26 Cal. App. 3d 95, 105). Furthermore, it cannot be assumed that the Legislature indulges in idle acts; rather, every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect (Stafford v. Realty Bond Service Corp., 39 Cal. 2d 797, 805). We think that the most reasonable and commonsense construction of the provisions in question, and the construction which best harmonizes them, is that the posted agenda for a regular meeting is required to contain a brief general description of each item of business which the legislative body of the local agency proposes to transact or discuss at 'the meeting. The agenda must also provide an opportunity for members of the general 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. What these items of interest to the public would be would generally not be a matter as to which the legislative body would have any information before the meeting. Thus, we do not think that subdivision (a) of Section 54954.2 requires that the posted agenda contain any reference to the particular items as to which members of the public may address the legislative body at a regular meeting. Furthermore, if a member of the public directly addresses the legislative body on an item of interest to the public which is within the subject mat•tier of the legislative body, there is no provision of the Ralph M. Brown Act or other law which would either expressly or impliedly prohibit the members of the legislative body from discussing the item. They may have questions regarding the item, or it may be impossible or inconvenient for the member of the public to attend another meeting. However, we do not think that the members of the legislative body are free to discuss items which are not on the agenda or which are not presented by members of the public,. To permit them to do so would render meaningless the requirement that the posted agenda contain a reference to the items of business to be transacted or discussed at the meeting and the provisions of subdivision (b) of Section 54954.2 which permit the legislative body to take action on items not appearing on the posted agenda for a regular meeting if any of the specified conditions exist. Honorable Gary A. Condit - p. 4 - 48930 Finally, subdivision (b) of Section 54954.2 permits the legislative body to take action on items of business not appearing on the posted agenda for a regular meeting if any of the specified conditions exist. There is, again, no provision of the Ralph M. Brown Act or other law which would either expressly or impliedly prohibit members of the legislative body from discussing items of business not appearing on the posted agenda for a regular meeting as to which the legislative body is authorized to take action by subdivision (b) of Section 54954.2. There is no other provision of law that would authorize the legislative body of a local agency at a regular meeting to discuss an item of business which does not appear on the agenda for that meeting. It is, therefore., our opinion that the legislative body of a local agency may not generally discuss an item of business at a regular meeting which does not appear on the agenda for that meeting. However, if the legislative body is authorized to take action on the item by subdivision (b) of Section 54954.2 of the Government Code or if the item is an item of interest- *^ +-V%- public within the subject matter jurisdiction of the body as to which a member of the public addresses thi body, as authorized by Section 54954.3 of the Govern the item may be discussed by the legislative body. Very truly yours, Bion M. Gregory Legislative Counsi By, Paul. Ant.iila Deputy Legislativ, PA: kg