The Brown Act and Neighborhood Councils by William Kuzmin

• The purpose of this presentation is to provide some background on the City of Los Angeles Plan for a Citywide System of Neighborhood Councils (ordinance no. 174006).

• Quotes and procedures from the Brown Act as they relate to ensuring the Public’s right to free speech.

• An example of a successful Brown act Complaint for a Neighborhood Council’s failure to post a meeting agenda 72 hours in advance.

A Quote

• Not everything that is faced can be changed,

• but nothing can be changed unless it's faced

About Me

• I attended California State University Northridge in the late 1970s. My majors were human factors of engineering and psychology. I learned how to engineer things to be compatible with human behaviors and perceptions. Today it might be the same concept as making a program or website “user friendly.” Our government processes and procedures need to be reformed, so they too are user friendly.

I have a what?• My involvement with the Neighborhood Councils began in

February of 2013 when, by accident, I learned of a proposed land use change that the Neighborhood Council was keeping a secret. This was of grave concern. This is the first time I was aware that a Neighborhood Council existed!

• I got involved. I complained to the Neighborhood council for not informing stakeholders about the issue. My written and verbal complaints about the failures to communicate were made directly to the board at public meetings. They were dismissed or ignored.

• Formal complaints and grievances were filed against the Neighborhood Council for failure to complete ethics training, along with brown act and bylaws violations.

Why am I here?

• I am here to share with you information I have garnered from my experiences. I will also present a real example of a successful Brown Act Complaint against a Board’s failure to comply with the Brown Act agenda posting laws. For educational purposes the most simple basic example was used and there is no intent to single out or draw specific attention to the offending council. I am not an attorney, and nothing is to be considered legal advice.

IT IS ALL ABOUT THE RULES

• I am one of 6 siblings. A tradition at Christmas was a family present under the tree. It was usually a board game. In the evening the family would play the new game. About the year 1964 it was Milton Bradley’s “Game of Life”. I sat at the table with all my brothers and sisters, we pulled out all the pieces and put the board out. Then My father, a mechanical engineer, read the rules out loud before the actual game started. As a 10 year old it seemed like an eternity to get through the reading of the rules so we could begin game. When a dispute arose during the game, my father would stop, pick up the rules, find the one related to the dispute, the dispute was resolved and the game continued.

And about life.

• This life’s example taught me the importance of reading the rules and following instructions. When my family got a Video recording machine in the 1980s – instead of asking my 7 year old daughter to program the time clock, I read the instructions and did it myself. Though my father passed away 5 years ago I still hear his voice “Did you read the instructions?”. Lesson learned Dad, Thank You.

Is any rule more important than another?

• No instruction, law or rule is bigger or smaller in importance. If broken, then cheating has occurred and the outcome of the game is tainted.

What are Neighborhood Councils• Neighborhood Councils are considered “advisory

bodies” only per the City. They do not make regulations or decisions on government issues. They give their recommendations to the city agencies. The Neighborhood Councils and their standing committees are considered “legislative bodies” per the Brown Act. The Publics’ right to be informed of their actions and the free speech right to speak “for or against” a proposed action is protected, regulated and governed by the California Open and Public Meetings Brown Act law.

Neighborhood Council Plan Goals

• Neighborhood Councils are falling far short of the the goals and objectives set forth by the Neighborhood Council Plan Ordinance.

• Quotes from the plan: “WHEREAS, the goals and objectives of the Neighborhood Council system are to: …promote public participation in City governance and decision-making processes ……

• foster a sense of community for all people to express ideas and opinions about their neighborhoods and their government.

Sadly, there is no debate.

• Sadly, too many Board members think because they are elected, they do not have to make any effort to reach out to inform and educate the stakeholders of their official activities. Also, they fail to reach out and engage public opinion. Simply stated they fail “to seek out the diverse opinions of the stakeholders to encourage lively debate.”

What can the public do?

• Take action to insure the Neighborhood Councils are playing by the rules by filing legitimate effective complaints. There are many rules and laws with many facets. For outreach and communication, the most basic of Brown act laws are the agenda posting requirements and the free speech right to public comment. Also, the public’s right to criticize any legislative body’s actions without fear of retribution.

File a Brown Act Complaint

• Prior to filing a lawsuit to challenge an alleged Brown Act violation, the complaining party must make a written demand on the legislative body to cure or correct the alleged violation. The written demand must be made within 90 days after the challenged action was taken in open session unless the violation involves the agenda requirements under Section 54954.2, in which case the written demand must be made within 30 days.

Within the time frames.

• The legislative body is required to cure or correct the challenged action and inform the party who filed the demand of its correcting actions, or its decision not to cure or correct, within 30 days. A suit must be filed by the complaining party within 15 days after receipt of the written notice from the legislative body, or if there is no written response, within 15 days after the 30-day cure period expires.

Gather the evidence

• Become familiar with the text of the Brown Act (revised 2013)

• Gather the evidence. – Copy of the Agenda– Video or audio recording of meetings if applicable– Photographic evidence showing failure to physically

post an agenda within posting time frames– Computer Screen shots of documents showing the

creation date (meta tags)

Photographic evidence

• If there is no agenda posted prior to the 72 hours (24 hours for special meetings), then take a photograph with a cell or smart phone showing the missing agenda at the posting location. The photo contains a digital date and time stamp. Return and repeat each day until the agenda is posted so the photos provide an accurate record and establishes a window on the time period when the agenda was posted.

Public Records Act• If there are emails or other public documentation

related to the complaint, you are entitled to receive a copy of those documents by making a formal request of the Board. It must state the request is being made per the Public Information Act. The problem is they can delay delivery as much as 45 days before being in violation of the time frames for providing the public documents. They may also charge a fee to produce copies of the requested documents. Reference the request for supporting documents in the complaint, and attach a copy of the request.

Sent the complaint to . . .• Los Angeles County District Attorney – Department of

Public Integrity. pwilkinson@da.lacounty.gov• Send it to the offending Neighborhood Council Board

as a formal complaint• Send it to the Department of Neighborhood

Empowerment (DONE) ncsupport@lacity.org. If there is Brown act violation, they probably failed to meet the minimum Department of Neighborhood Empowerment (DONE) resolution agenda posting requirements too. Add these alleged violations to the complaint as violations of the Neighborhood Council bylaws and department regulations.

Why complain to the Department of Neighborhood Empowerment?

A Brown act violation is also a Neighborhood Council bylaw violation. The District Attorney department of Public Integrity may not reply for many months. If the purpose of the complaint relates to nullifying a motion to spend public funds, it will be too late to reverse the decision. Since the City attorney would prefer not to face a lawsuit or have any board convicted of a Brown act violation, they “may” take action to stop the expenditure until the violations are cured. This will also confirm the complainant did everything possible to get resolution without filing a lawsuit.

Common Neighborhood CouncilBrown Act Violations page 1

• Failure to comply with agenda posting requirements.• Failure to take public comment• Censure of public Comment• Failure to report roll call votes• Serial meetings – These probably happen all the

time but proof is near impossible to obtain. If a committee has 5 members, a quorum is 3 and a majority is 2. Therefore if two members of a committee meet and come to a consensus on a topic, it is a serial meeting.

Common Violations page 2• Failure to provide the procedure for meeting

interpreters and or American Disabilities Act requirements.

• Discussion of items not on the agenda by the board. • Insufficient description of agenda items. Failure to

provide supporting documentation mentioned in agenda items. Use of undefined acronyms.

• Failure to comply with Brown act requests for certain documents by the public: The Brown Act requires written material distributed to a majority of the body by any person to be provided to the public without delay.

The Remedies for violations are…• There are both civil remedies and criminal

misdemeanor penalties for Brown Act violations. The civil remedies include injunctions against further violations, orders nullifying any unlawful action, and orders determining the validity of any rule to penalize or discourage the expression of a member of the legislative body (Section 54960.1).

• A member of a legislative body will not be criminally liable for a violation of the Brown Act unless the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under the Brown Act (Section 54959)

Real Sample Brown Act Complaint and ResponseA Neighborhood Council Failed to post it’s meeting agenda 72 hours in advance. There is no malice or intent to target the Neighborhood Council that the

complaint was filed against. The example is for educational and enlightenment purposes only.

The complaint text page 1• 28 October 2013• To:   The District Attorney’s Office – Department of Public Integrity• From:  William Kuzmin – Granada Hills Stakeholder• Subject:  Complaint against the Granada Hills North Neighborhood Council Board of

Directors• Violation:  Failure to post General Meeting agenda in compliance with the Brown Act

that states the agenda must be posted 72 hours before the meeting.• Last month on September 30th,  I attended the Granada Hills North Neighborhood

Council to request time to present a concern to the Planning and Land Use committee about the floor area ratio restrictions which appear not to be in compliance with current municipal codes.  I was told they would be glad to hear my presentation and the Chairman came and got my business card and said he would contact me.   I did not hear from him. So on October 17, I sent an email asking if I was scheduled to present to the PLU meeting on October 21.  He told me I was not scheduled because I never asked to be scheduled.  Then told me the meeting had been cancelled.  Needless to say I was not happy about this behavior. So now I, have to go and complain to another NC about their failure to communicate to the stakeholders.  I am on the GHNNC email list and there was no email to the stakeholders that the meeting was cancelled. 

Complaint Text page 2• On Friday October 25 I kept waiting for the GHNNC to post their

General Meeting Agenda. By 6:33pm it was not posted on the website (exhibit A). I drove to the GHNNC office on Woodley Av and took a picture of the store front, no agenda had been posted (exhibit B) just a newsletter was posted (exhibit C). Then sometime on October 26th the agenda was posted to the GHNNC website (exhibit D) with a creation time of 8:25 pm and a modification time on Oct. 26 at 7:40am.

• The evidence proves the meeting agenda was not posted in compliance with the Brown Act. Please take the appropriate action.

• Sincerely,• William Kuzmin, Granada Hills Homeowner

Exhibit A Screen shot

Exhibit B

Exhibit C

Exhibit D

DA Response Letter to GHNNC.• May 9, 2014• • The Honorable Members of the Board• Granada Hills North Neighborhood Council• 11139 Woodley Ave.• Granada Hills, CA 91344 • RE: Alleged Brown Action Violations• PID 14-0117• Dear Members of the Council:• Our office has received complaints of possible violations

of the Brown Act by GHNNC. From our review, it appears that one violation has occurred as explained below.

DA response page 2• The violation relates to the timeliness of posting an agenda for the October 28,

2013, meeting. The complainant provided evidence that the physical posting for this meeting was not present 72 hours in advance of the meeting. Government Code §54954.2(a)(1) requires that agendas be posted at least 72 hours before a meeting in a location that is freely accessible to the public. These requirements apply to the GHNNC Board, Government Code §54952.

• It is essential that every member of the legislative body understand that the Brown Act works to foster public confidence in the decision making process by ensuring advance notice of meetings, public presence and input at those meetings. The Brown Act assists legislative bodies by ensuring that the public’s rights are balanced with an agency’s obligations in best serving the public’s interest. Ultimately, compliance with the letter and the spirit of the Brown Act ens

• It is our hope that the Board will take initiative to post agendas in a timely manner to avoid the necessity of formal enforcement. Please contact us should you have any questions.

• Very truly yours, JACKIE LACEY, District Attorney

Conclusion Summary

• Get involved.• Be proactive for positive change• Assert the public right to free speech• Visit http://SEEC-Reform.com and sign up to

receive emails for all future meetings. This presentation and future practical guides will be uploaded and available on the website.