Lack of Transparency Can Be Expensive for Local Agencies

BY GENA M. STINNETT

A recent case, Galbiso v. Orosi Public Utility District, 167 Cal.App.4th 1063 (2008) (Galbiso), highlighted the importance of openness and access in local government functions. A public agency was required to pay a resident's attorneys' fees where the agency placed a series of roadblocks in the way of the resident's efforts to gain access to all public records, and to voice her grievances at the agency's board meeting. The court ruled the agency violated both the Ralph M. Brown Act [Government Code Sections 54950 et seq. (Brown Act)] and the Public Records Act [Government Code Sections 6250 et seq.]

BACKGROUND

Galbiso involved a long running dispute between a public utility district (agency) and a property owner. The agency had assessed the owner's real property for sewer hookups, which went unpaid, ultimately resulting in the agency foreclosing on the property. The owner attempted to exercise certain rights under the Brown Act and the Public Records Act to help defend against the foreclosure action. When the agency blocked her attempt to assert her rights, the property owner sued.

Prior to trial, the parties entered into a settlement agreement by which the agency agreed to abide by the Brown Act and the Public Records Act, but admitted no wrongdoing. The parties asked the trial court to decide whether the plaintiff had prevailed for the purpose of awarding attorneys' fees. The agency argued the property owner had not prevailed because she had merely succeeded in obtaining the agency's agreement to follow the law, which it claimed to have been doing. The trial court denied an award of attorney's fees, but the appellate court reversed, concluding the property owner was the prevailing party because the local agency had violated both the Brown Act and the Public Records Act.

BROWN ACT VIOLATIONS

The agency violated the Brown Act in two respects. First, it interfered with or denied the property owner's right to speak at its board meetings. Second, the agency failed to make the required disclosures before going into closed session.

The agency interfered with the property owner's right to speak in various ways. When the property owner attempted to speak about the foreclosure lawsuit during the time for public comments on non-agendized items, the agency instructed her to refrain from doing so. When she refused, the agency stopped the meeting and called the sheriff. When the meeting resumed, the Board's chair moved onto the next agenda item and did not take the property owner's public comments. The Board then went into closed session to discuss the tax sale of the owner's real property, and when it resumed the public session, the Board voted on the resolution to sell the property without inviting public comment on it.

These actions violated the Brown Act, which provides that a local agency must allow the public to comment on the topics that will be discussed in closed session prior to going into closed session. Further, during the public comments period at regular meetings of a local agency, the public is permitted to comment on any matter within the subject matter jurisdiction of the local agency, including pending litigation between the agency and the commenter. Also, before voting on an item, the local agency must allow public comment on it. Finally, instead of reading "the title of or otherwise specifically identify[ing] the litigation to be discussed" as required by the Brown Act, the agency merely read off the item numbers on the agenda. While this is permissible for some types of closed sessions, it is not adequate when the local agency is a party to litigation that has been initiated formally. [Government Code Sections 54954.9, 54957.7(a).]

PUBLIC RECORDS ACT VIOLATIONS

The agency violated the Public Records Act by denying the property owner access to the agency's offices to inspect public records and by requiring her to make her requests in writing. The Public Records Act permits oral requests and local agencies must honor such requests. Los Angeles Times v. Alameda Corridor Transportation Authority, 88 Cal.App.4th 1381, 1392 (2001). The property owner had repeatedly gone to the agency's offices to inspect public records. The agency's superintendent asked her to leave after she "repeatedly and loudly" demanded that staff produce certain documents. 167 Cal.App.4th at 1086. The agency then sent the property owner's attorney a letter indicating the agency would comply with any Public Records Act request submitted in writing, provided the records were not exempt from disclosure under the Act.

Even though the agency produced no documents as a result of the lawsuit, the court ruled that the agency's actions, including effectively denying access to "all" public records, merited ordering the agency to pay the property owner's attorneys' fees. 167 Cal.App.4th at 1087.

CONCLUSION

This decision serves as a reminder that public agencies should be vigilant in ensuring that they comply with the provisions of the Brown Act and the Public Records Act, even when faced with a difficult resident. Rebuffing such demands can lead to expensive consequences, including a judicial order to pay attorneys' fees incurred by the resident to contest denial of access to public records or to speak at a public meeting of the agency's board.

FOR ADVICE ABOUT THE BROWN ACT OR THE PUBLIC RECORDS ACT, PLEASE CONTACT GENA M. STINNETT OR ANY OF THE LAWYERS IN THE FIRM'S PUBLIC LAW DEPARTMENT.

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