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Under the Ralph M. Brown Act a memorandum placed in the county clerk’s office is not “available for public inspection” at a time when the clerk’s office is closed for business.

Posted by Precious D. Edem | Sep 27, 2021 | 0 Comments

The California Court of Appeal in Sierra Watch v. Placer County, et. al (Aug. 24, 2021, No. C087892) recently held that under the Ralph M. Brown Act, a memorandum placed in the county clerk's office is not “available for public inspection” at a time when the clerk's office is closed.

In Sierra Watch v. Placer County, the agenda for a regular meeting of the Placer County Board of Supervisors included an item to approve a proposed development for the project.  The agenda for the Board meeting was posted more than 72 hours prior to the meeting.  However, the day before the meeting took place, the interested parties revised the proposed project and updated the development agreement for the project.  This documentation was emailed to the county clerk's office at 5:36 p.m. the day before the scheduled meeting.  Upon receipt, the county clerk's office emailed the updated development agreement and memorandum to the members of the Board of Supervisors.  The county clerk then placed copies of the documentation in the clerk's office where the public can inspect County records.  The clerk's office was closed to the public as of 5:00 p.m. The next day, the Board of Supervisors approved the development project along with the updated development agreement.

Sierra Watch filed a petition for writ of mandate and complaint for injunctive and declaratory relief alleging violations of the Brown Act.  Sierra Watch alleged under Government Code section 54957.5(b) of the Brown Act that it was a violation of the Brown Act to not make the development agreement and memorandum available for public inspection until the following day.  

The trial court rejected Sierra Watch's claims, and Sierra Watch filed an appeal.  The Court of Appeal reversed the ruling of the trial court with respect to the Brown Act. 

The Court of Appeal considered the issue of whether the County complied with section 54957.5(b) when during the 72 hours prior to the Board meeting, the county clerk transmitted the documents to the members of the Board of Supervisors after the county clerk's office was closed.  While the County contended the memorandum was “available for public inspection,” Sierra Watch disputed that argument because the county clerk's office was closed.  Sierra Watch contended that the documents were not available for public inspection until the following morning when the county clerk's office was open for business. 

The Court of Appeal rejected the County's arguments.  Based on the plain reading of section 54957.5, the Court of Appeal concluded that subdivisions (b)(1) and (b)(2) are not only concerned with merely placing documents to allow for public inspection but to ensure the documents are actually available for public inspection after the agenda is posted and before commencement of the regular meeting, i.e., between the time of posting the agenda and the start of the Board meeting.  Moreover, the Court of Appeal found that this conclusion was supported by the Legislature's intent.  The Legislature enacted subdivision (b) of section 54957.5 partly because of the disparity in access to information available to the public versus board members.  

Next, the Court of Appeal rejected the contention under section 54957.5(b) that a public agency could post material online if it is not physically possible to do so at the clerk's office.  The appellate court held that under sections 54957.5(b)(1), a local agency shall make material available at a public office or location and may also make the material available online (b)(2).

Lastly, the Court of Appeal declined to decide the issue proposed by the County of what a public office is to do if an opponent or board member sends email communications in the middle of the night that is required to be made available for public inspection.  The Court of Appeal concluded that for purposes of this appeal it was sufficient enough to find the County violated section 54957.5(b)(1) when it failed to make the development agreement and memorandum “available for public inspection” at the same time it disseminated these public records to the Board of Supervisors.

In light of the holding in Sierra Watch v. Placer County, districts must ensure agenda related materials distributed to board members after the regular agenda is posted shall also be available for public inspection at the same time the materials are made available to board members.  Likewise, materials submitted for distribution after posting the regular agenda, cannot be distributed to board members if the materials are not also available at that time for public inspection at the district.  Please note this requirement does not pertain to confidential materials distributed to board members. 

Disclaimer: This Parker & Covert LLP post is intended for informational purposes only and should not be relied upon as legal advice. Legal issues and principles apply differently, sometimes substantially, depending on context and facts. Review or receipt of this post does not create an attorney-client relationship.

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Precious D. Edem

Associate

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