HomeMy WebLinkAboutCity Council - 4330 RESOLUTION NO. 4330
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF HUNTINGTON BEACH ADOPTING A COUNCIL MANUAL
BE IT RESOLVED by the City Council of the City of
Huntington Beach that it does hereby adopt a Council Manual,
which manual is attached hereto and by this reference made a
part hereof.
Future amendments to the Council Manual shall be by
resolution of the City Council which shall relate only to the
sections amended.
Resolutions No. 1463, 2539 , 3164, 33063 3664 and 4227
are hereby repealed.
PASSED AND ADOPTED by the City Council of the City of
Huntington Beach at a regular meeting thereof held on the 20th
day of September 1976 .
Mayor
ATTEST: APPROVED AS TO FORM:
ju
City Clerk ity o e
APPROVED AS TO CONTENT AND
AS INITIATING DEPARTMENT:
Mayor
Res. No. 4330
STATE OF CALIFORNIA )
COUNTY OF ORANGE
CITY OF HUNTINGTON BEACH )
I, ALICIA M. WENTWORTH, the duly elected, qualified City
Clerk of the City of Huntington Beach, and ex-officio Clerk of the
City Council of said City, do hereby certify that the whole number of
members of the City Council of the City of Huntington Beach is seven;
that the foregoing resolution was passed and adopted by the affirmative
vote of more than a majority of all the members of said City Council
at a regular meeting thereof held on the 20th day
of September , 19 76 , by the following vote:
AYES: Councilmen:
Bartlett,Pattinson, Coen, Gibbs, Siebert, Shenkman, Wieder
NOES: Councilmen:
None
ABSENT: Councilmen:
None
City Clerk and ex-officio Clerk
of the City Council of the City
of Huntington Beach, California
T ✓ �
RESOLUTION NO. 3 S
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF HUNTINGTON BEACH ADOPTING A COUNCIL MANUAL
BE IT RESOLVED by the City Council of the City of
Huntington Beach that it does hereby adopt a Council Manual,
which manual is attached hereto and by this reference made a
part hereof.
Future amendments to the Council Manual shall be by
resolution of the City Council which shall relate only to the
sections amended.
Resolutions No. 1463, 25392 3164, 3306., 3664 and 4227
are hereby repealed.
PASSED AND ADOPTED by the City Council of the City of
Huntington Beach at a regular meeting thereof held on the 7th
day of September , 1976.
Mayor
ATTEST: APPROVED AS TO FORM:
City Clerk ity o e
APPROVED AS TO CONTENT AND
AS INITIATING DEPARTMENT:
Mayor
COUNCIL MANUAL
TABLE OF CONTENTS
,
Chapter 1.01 CITY COUNCIL
P
Sections :
1.01.01 Rules of Office of councilpersons
1.01.02 Vacancies
1.61.03 Attendance
1.01.04 Duties of the City Council
1.01.05 Duties of the,Ma.yor
1.01. 06 Duties of the Mayor Pro Tempore
1.01.07 Compensation of councilpersons
Chapter 1.02, CODE OF ETHICS
Sections:
1.02.01 Purpose of code
1. 02.02 Definition
1.02 .03 Responsibilities .of public office
1.02.04 Dedicated service
1. 02.,05 Fair and equal treatment--Unilateral communications
1.02.06 Standards of conduct
Chapter 1.03, COUNCIL MEETING
Sections :
1.0 3.01 Agenda
1.03.02 Time and place of council meeting
Chapter 1.04, PARLIAMENTARY PROCEDURE
Sections :
1.04.01 Roberts Rules of Order Revised
1.04. 02 Parliamentarian
1. 04.03 Motions
1.04. 04 Vote required--Nonemergency
1. 04.05 Emergency ordinances
1.04.06 Adoption of ordinances
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Chapter 1. 043 PARLIAMENTARY PROCEDURE contd.
Sections :
1.04. 07 Reading of ordinances and resolutions
1.04. 08 Alteration of ordinance after introduction
1.04.09 Repeal of resolutions and ordinances
1.04. 10 Orders for payment of money
1. 04.11 The .vote
1.04:12 Division of question ( "split vote")
1. 04.13 Tie votes
1. 04.14 Nomination and election
1.04.15 Rights of Mayor
1.04.16 Quorum
1.04. 17 Ralph M. Brown• Act
1.04.18 Fines , penalties and franchises
1.04.19 Other actions
1.04.20 When minute action.is a resolution
1.04. 21 Minute actions
1. 04. 22 Motion to rescind
1.04. 23 Motion to reconsider
1.04. 24 Vote required on appellate matters
1.04. 25 Appointments to boards and commissions
Chapter 1.05, ROLE OF THE CITY ADMINISTRATOR
Sections:
1.05 .01 Appointment and removal
1.05 .02 Compensation and residence
1.05.03 Duties
1. 05.04 Meetings
1.05.05 Noninterference with administrative service
1.05.06 Acting city administrator
Chapter 1.06 , ROLE OF THE CITY ATTORNEY
Sections :
1. 06,01 Term
1.06.02 Powers and duties
1.06.03 Requests for ordinances and resolutions
Chapter 1.07, ROLE OF THE CITY TREASURER
Sections :
1.07. 01 Term
1.07.02 Powers and duties
ii
TABLE OFF CONTENTS TO
APPENDIX TO COUNCIL MANUAL
TITLE PAGE NO.
Resolution No. 4311, Budget Control 1
Motion to Reconsider 5
Removal of Members of Boards and Commissions 7
Expiration of Terms of Members.of the Recreation and
Parks Commission 9
City Attorney Opinion No. 73-42 10
Parliamentary Procedure--Script for Mayor 12
Ralph M. Brown Act 15
City Reimbursement for Expenses of Councilperson's
Spouse, Memo 39
NIMLO Letter Re City Reimbursement for Expenses of
Councilperson' s Spouse 40
City Council/Department Head Retreat--Brown Act ,
City Attorney Opinion No . 76-40 42
Procedure for Handling Executive Sessions of City
Council, Letter 48
Resolution No. 4283, Conflict of Interest Code. 50
Chapter 1.01
CITY COUNCIL
1.01. 01 Rules of Office of Council persons . The Huntington
Beach City Council is comprised of seven members elected
from the city at large to fill a term of four (4) years. Elec-
tion of City Council members is divided into two (2) cyles. Four
(4) Council members are elected at one general municipal elec-
tion, followed in two (2) years by another general municipal
election where three ( 3) members are elected, and so forth. The
term of a City Council member begins on the first Monday after
election and any tie in voting should be decided by casting lots.
(Charter §500)
1.01.02 Vacancies . A vacancy in the City Council for
whatever reason shall be filled by appointment of the City
Council; thereafter, at the next municipal election at which it
is possible to place the matter on the ballot, the position
will be filled for the unexpired term, if any. (Charter §503)
1. O1.Q3 Attendance. If a City Council member absents
himself frgm all regular meetings of the City Council for thirty
(30) consecutive days after the last regular meeting the member
attended, without the permission of the City Council, or is con-
victed of a crime involving moral turpitude, or ceases to be an
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elector of the city, the City Council shall declare his office
vacant. In the event the City Council fails to fill the seat
by appointment within sixty (60) days, the City Council shall
cause an election to be held to fulfill the unexpired term.
(Charter §503)
1. 01. 4 Duties of the City Council. All powers of' the
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city shall be vested in the City Council except as otherwise
provided in the city Charter. (Charter §505)
The duties of the City Council include, but are not limited
to:
_ (a) Holding regular meetings at least twice per month
at such time as shall be fixed by ordinance (Charter §506)
which is 7 p .m. on the first and third Mondays of each month
in the Council chambers except where a -meeting falls on a
holiday then it is to be held on the following day.
(Resolution No. 4161)
(b) Calling special meetings by a majority of the City
Council. (Charter §507)
1.
NOW ..�
(c) Administering oaths and affirmations in any in-
vestigation or proceeding pending before the Council, to
compel attendance of witnesses , to examine them under oath
and to compel the production of evidence. (Charter §509)
(d) Adopt ordinances and resolutions. (Charter §511)
(e) Approving city contracts or authorizing the City
Administrator so to bind the city. (Charter§518)
(f) By ordinance or resolution providing for the sale or
exchange of personal property not needed in city service, or
not fit for its intended purpose. (Charter §518)
(R) Appointing the City Administrator and setting his com-
pensation. (Charter §603)
(h) Removing the City Administrator by majority vote ex-
cept during or within ninety (90) days of a municipal election.
(Charter §606)
(i) Refraining from interference with the administrative
service; except for the purpose of inquiry, the City Council
must deal with the administrative service through the City
Administrator. (Charter §607)
(,i ) Providing by ordinance or resolution for the organi-
zation, conduct and operation of the various offices and de-
partments of the city . (Charter §702)
(k) Controlling all legal business of the city. (Charter
§703)
(1) Designating depositories for city funds. (Charter §705)
(m) Fixing by ordinance or resolution amounts and terms of
official bonds of all officials or employees . (Charter §712)
(n) Refraining from accepting other elective office while an
elective officer of the city and, if done, the Council member
will be deemed to have vacated his office. (Charter §710)
(o) Refraining from having any financial interest in any
transaction of the city. (Charter §709)
(p) Refraining from engaging in nepotism. (Charter §711)
(q) Appointing to and creating the various boards and com-
missions of the city and providing for their funding in the city
budget. (Charter §§800, 801, 802)
2.
(r) Establishing by ordinance a comprehensive personnel
system. (Charter §1000)
(s) After public hearings, reviewing, considering and adopt-
the annual budget of the city. (Charter §§1202, 1203, 1204)
At any subsequent meeting after adoption, the City Council
may amend or supplement the budget. (Charter §1205)
(t) Adopting by ordinance a centralized purchasing system.
(Charter §1206)
(u) Refraining from levying a property tax for municipal
purposes in excess of One Dollar ($1) on each One Hundred
Dollars ($100) of assessed value of property within the city
without voter authorization. (Charter §1207)
(v) Establishing by ordinance the procedure for assess-
ment, levy and collection of taxes upon property within the city.
(Charter §1208)
(w) Establishing by ordinance procedure for the issuance
of revenue bonds. (Charter §1209)
(x) Establishing a contingency fund for the purpose of
placing the payment of running expenses of the city on a cash
basis . (Charter §1212) Establishing a capital outlay fund and
such other funds by ordinance for special capital outlay pur-
poses . (Charter §1213) The City Council may transfer to any
such fund any unemcumbered surplus funds on hand at any time.
(Charter §1213) The City Council may by ordinance establish
the Treasurer's departmental trust fund for the collections and
deposits of the police, license, building and other departments '
deposits . (Charter §1214) The City Council may by ordinance
establish any other funds not inconsistent with city Charter
provisions . (Charter §1215)
(y) Accepting and rejecting all claims against the city.
(Charter §1216) The City Clerk is authorized to act on behalf
of the City Council in rejecting for insufficiency or denying
claims filed against the city pursuant to Government Code §§900
et seq. (Resolution No. 4051, 7 Apr 75)
(z) Providing for an independent audit of the city each
fiscal year. (Charter §1219)
(aa) Granting franchises for public services after public
hearings, when appropriate. (Charter §1400)
1. 01.05 Duties of the Mayor. On the first Monday after
3.
NOW �
any municipal election where a Council member is elected and
at any time where there is a vacancy in the office of Mayor,
the City Council shall meet and elect one of its members Mayor.
The Mayor is the ceremonial head of the city and shall
have the primary, but not exclusive, duty to interpret the
policies ,' programs and needs of city government to the people.
The Mayor may make and second motions and shall have both
voice and vote in all Council proceedings . The Mayor serves
at the pleasure of the City Council. (Charter §504)
The Mayor may call special meetings of the City Council.
(Charter §518)
The Mayor may execute contracts on behalf of the city .
(Charter §518)
Where the Mayor, Mayor Pro Tempore and City Clerk are
absent from the city, all papers and documents required to be
executed by them may be executed by facsimile signature.
(Resolution No. 3200, 3 Aug 70)
1. 01.06 Duties of Mayor Pro Tempore. The Mayor Pro Tempore
shall perform the duties of the Mayor during his absence or dis-
ability.
1.01.07 Compensation of Councilpersons . For their serv-
ice to the city, Councilpersons shall receive the sum of $125
monthly for ordinary and routine expenses , and in addition to
such sum, shall receive reimbursement for council-authorized
travel and other expenses provided an itemized account is first
submitted for such reimbursement, and is approved by the Council
at the first regular meeting of the month following- the month
during which such expense was incurred.
Councilpersons shall also receive all fringe benefits
granted to department heads of the city, and such fringe bene-
fits shall be included in the annual budget . (Ordinance No.
2079 , 18 Aug 76)
Chapter 1. 02
CODE OF ETHICS
1. 02.01 Purpose of code. The proper operation of demo-
cratic government requires that public officials and employees
be independent, impartial, and responsible to the people. The
purpose of this code is to establish ethical standards of
4.
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conduct for all such officials .
. 1.02. 02 Definition. The municipal officials and em-
ployees of the City of Huntington Beach, whether elected or
appointed, are "public officials and employees" within the
meaning of this code .
1.02. 03 Responsibilities of public office.
(a) Public officials and employees are bound to ob-
serve in their official acts the highest standards of mo-
rality and to discharge faithfully the duties of their office
regardless of personal considerations , recognizing that the
Public interest must be their primary concern. Their con-
duct in both their official and private affairs should be above
reproach.
(b ) Public officials are bound to uphold the Constitution
of the United States and the Constitution of the State of
California and to carry out impartially the laws of the nation,
state and municipality .
1.02. 04 Dedicated service. Public officials and em-
ployees should not exceed their authority or breach the law or
ask others to do so, and they should work in full cooperation
with other public officials and employees unless prohibited
from doing so by law or by officially recognized confidential-
ity of their work.
1.02. 05 Fair and equal treatment--Unilateral communications .
No public official or employee should encourage, make, or accept
any application or communication from any party made out of the
presence and without the knowledge of other parties in a matter
under consideration when such application or communication is
designed to influence official decision or the conduct of the
official himself, or other officials , employees, or agencies in
order to obtain favored treatment or special consideration to
advance the personal or private interests of himself or others .
Any written unilateral communication received by a public
official or employee in matters where all interested parties
should have equal opportunity for a hearing should be made part
of the record by the recipient . Any oral unilateral communi-
cation received under such conditions should be written down in
substance by the recipient and also made part of the record.
1. 02. 06 Standards of conduct . Every officer of the city
shall attempt to be courteous and avoid making rude or personal
remarks . When speaking at a public meeting, the officer's of the
y
5.
city shall attempt to speak to the issue and avoid making com-
ments for the benefit of the audience or the press .
Chapter 1. 03
COUNCIL MEETING
1. 03. 01 Agenda. All items and supporting documents
thereto must be filed with the City Clerk by 5 P.M. on the
Monday preceding a council meeting to be included on that
meeting's agenda.
Any item of an emergency nature that must be acted upon
at the next council meeting may be included by making arrange-
ments with the City Administrator. (Resolution No. 2520,
6 March 67)
Oral communications to the Council must be submitted for
inclusion on the agenda, if not related to an item already on
the agenda. The Mayor or chairperson may use discretion to
allow or disallow oral communication on an agenda item where
the request for oral communication has not been filQd, .as re-
quired in this section.
1. 03. 02 Time and place of council meeting. Regular
council meetings shall be held in the City Council Chambers
on the first and third Mondays of each month at 7 p .m. ex-
cept where a meeting falls on a holiday it shall be held on
the next business day. (Resolution No . 4161, 17 NQv 75)
The time and place of special City Council meetings
shall be decided when called and the call and notice shall
specify such time and place. (Charter §507)
All matters not on the floor by 11 p .m. will automati-
cally be continued to the next council meeting. (Minute Action,
6 May 74)
Chapter 1. 04
PARLIAMENTARY PROCEDURE
1. 04. 01 Roberts Rules of Order Revised. In all matters
of parliamentary procedure which are not expressly provided
for in the city Charter or the ordinances or resolutions of
the city , the procedure contained in "Roberts Rules of Order
Revised," as it now exists or future revisions thereof, shall
control.
6.
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1. 04 . 02 Parliamentarian. The City Attorney is parlia-
mentarian for the City Council, and upon the request of the
Mayor or upon- his own initiative, shall make rulings on points
of parliamentary procedure .
1. 04. 03 Motions . Motions may be made by any member of
the Council and require a second except when a second is not
required by "Roberts Rules of Order Revised. " A motion may be
withdrawn by the mover with the consent of the second and in
the absence of objection from any other member of the Council.
1 . 04. 04 Vote required--Nonemergency . For all nonemer-
gency ordinances , resolutions or orders for the payment of
money , four ( 4) affirmative votes are required. (Charter §511)
1. 04. 05 Emergency ordinances . Any ordinance declared by
the City Council to be necessary as an emergency measure for
the immediate preservation of the public peace , health and
safety, and containing a statement of the reasons for its ur-
gency, may be introduced and adopted at one and the same meet-
ing if passed by at least five ( 5 ) affirmative votes . (Charter
§511)
1. 04 . 06 Adoption of ordinances . with the sole exception
of emergency ordinances which take effect upon adoption, no
ordinance shall be adopted by the City Council on the day of
its introductioii nor within five (5) days thereafter nor at
any time other than a regular or adjourned regular meeting.
(Charter 5511)
1. 04 . 07 Readinr, of ordinances and resolutions . At the
time of introduction or adoption of an ordinance or resolution,
it shall be read in full, unless after the reading of the title
thereof, the further reading thereof is waived by unanimous con-
sent of the councilpersons present , except that emergency ordi-
nances shall be read in full . (Charter §511)
1. 04 . 08 Alteration of ordinance after introduction. In
the event that any ordinance is altered after its introduction,
the same shall not be finally adopted except at a regular or
adjourned regular meeting being held not less than five (5)
days after the date upon which such ordinance was so altered.
The correction of typographical or clerical errors shall not
constitute the making of an alteration within the meaning of
this section. (Charter 5511)
1. 04. 09 Repeal of resolutions and ordinances. A resolu-
tion may be repealed by another resolution or an ordinance . If
repeal is by resolution without advance notice , five affirm-
ative votes ; with notice (in the formal Council agenda) , four
7 .
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affirmative votes . An ordinance may be repealed only by another
ordinance .
1 . 04 . 10 Orders for payment of money . No order for the
payment of money shall be adopted or made at any other than a
regular or adjourned regular meeting. (Charter §511)
1. 04. 11 The vote . The vote on all motions shall be by
roll call , and may be recorded by electronic or mechanical
means .
1. 04. 12 Division of question ("split vote" ) . If the
question contains two (2) or more divisible propositions , the
Mayor may, and at the request of any councilperson shall, di-
vide the question (also called "split vote" ) . Example:
(1) Waive further reading of ordinance/resolution (re-
quires unanimous vote) .
(2) Adopt .
1. 04. 13 Tie votes . If a vote is a tie, the motion fails
except that on appellate matters a tie vote on a. motion to sus-
tain the lower body 's decision has the effect of sustaining the
decision of the lower body . A tie vote on a negative motion
does not approve the affirmative side of the motion. Thus a
tie vote on a motion to disapprove or not to do something does
not automatically adopt the opposite . After such tie vote the
question should be made in the affirmative mode .
1. 04 . 14 Nomination and election. Nomination and election
for the offices of mayor and mayor pro tempore , pursuant to
Section 504 of the Charter, shall follow the following procedure:
(a) At the time set for nomination and election, the mayor
and mayor pro tempore shall vacate their respective offices as
such, and the City Clerk or other presiding officer shall call
the Council to order and proceed to conduct an election for the
office of mayor.
(b ) Any member may nominate any other member, no seconds
being required, and nominations shall be open until a mo-
tion to close shall be adopted.
(c) The vote shall then be conducted on the nominees
by secret ballot and if no nominee secures a majority of votes
cast , the two nominees with the highest number of votes shall
be voted on by secret ballot .
(d) All votes on nominees shall be by secret ballot .
t...- 8.
(e ) No write-in votes shall be counted and any such
write-in votes shall be considered as a failure to vote.
(f) In case of tie for the second highest vote , run-
off ballots on such tie nominees shall be cast to break the
tie . The tie is broken when 'one tie nominee receives the
highest number of votes cast on such ballot . When such tie
is broken, a vote shall be taken on the nominee who has the
highest vote, and the tie-breaking nominee .
(g) In case of a tie of more than two (2) nominees for
the highest vote, a vote shall be taken on such tie nominees ,
eliminating all others .
(h) All run-off or tie-breaking ballots are subject to
the same elimination rules as apply to the first ballot .
(i) Successive ballots shall be cast until a nominee
is elected.
0 ) A nominee shall be elected at any time such nominee
has a majority of votes cast on any ballot in which all
nominees eligible for a final ballot are in competition.
(k) Each member shall be entitled to nominate one
e
nominee for each office , No member shall nominate himself.
(1) A mayor pro tempor. e shall then be selected by the
same process as set forth in this section for the office of
mayor.
(m) The mayor and mayor pro tempore , following such
proper election, shall serve for terms of one (1) ,year and
until such time as their successors have been elected and
r qualified and installed. ,
1. 04 . 15 Rights of Mayor. The Mayor has the right to make
motions , second motions and vote on motions . The practice of
some deliberative bodies where the chairman does not vote except
to break a tie does not apply .to the City Council.
1. 04 . 16 Quorum. A quorum for all meetings of the City
Council is four ) councilpersons .
1. 04 . 17 Ralph M. Brown Act . Any meeting, gathering or
coming together of four ( 4) or more councilpersons at which
city business is discussed is subject to the Brown Act . A
full discussion of the Brown Act and its rules and require-
ments is found at Appendix of this manual .
9•
1. 04. 18 Pines , penalties and franchises . In addition
to such other acts of the City Council as are required by the
Charter to be taken by ordinance , every act of the City
Council establishing a fine or other penalty, or granting a
franchise , shall be by ordinance. (Charter §512)
1. 04. 19 Other actions . Actions which are not required
by the .city Charter or city ordinances to be in the form of
ordinances or resolutions may be effectuated by minute action.
1.04. 20 When minute action is a resolution. In all sit-
uations where an action of the City Council under the express
provisions of the city Charter or ordinances shall or may be
by resolution, a "minute action" of the City Council adopted by
at least four ( 4) affirmative votes , shall be deemed a resolu-
tion for all purposes , and such action shall not fail merely
because it lacks the form or title of a resolution.
1. 04. 21 Minute actions . Minute actions require the af-
firmative votes of a majority of councilpersons present and
voting, but not less than tree ( 3) , except when less than a
quorum is present , the lesser number may adjourn from time to
time.
1. 04 . 22 Motion to rescind . A motion to rescind a minute
action without advance notice requires five affirmative votes ;
with notice (in the formal Council agenda) , four affirmative votes .
1 .04 . 23 Motion to reconsider. A motion to reconsider,
when appropriate under Roberts Rules of Order Revised, may be
made at the same meeting or no later than the next regular
meeting of the City Council by a councilperson who voted on
the prevailing side of the motion to which it applies . The
vote required to adopt a motion to reconsider shall be a simple
majority of councilpersons present and voting except that such
motion shall require four (4) affirmative votes in order to
reconsider any motion which required four (4 ) affirmative votes
for adoption. A motion to reconsider may be made only once
with respect to any motion to which it applies ; however, a
motion to reconsider a main motion does not preclude the making
of a motion to reconsider the main motion as amended. A motion
to amend may be reconsidered. A motion to reconsider a motion
to reconsider is not permitted. The vote on the motion to re-
consider shall be taken at the time the motion to reconsider is
made except that the vote on a motion "to reconsider and enter
upon the minutes" shall be taken at the next regular meeting of
the City Council. The effect of the adoption of a motion to re-
consider is to vacate the vote taken on the motion to which it
applies and to present the motion to which it applies to the
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body for action as if no vote had been taken on it . The new
vote on the motion to which it applies neither sustains nor over-
rules such motion because the old vote is vacated and the new
vote is taken as though no previous vote had been taken.
1.04 . 24 Vote required on appellate matters . Where action
has been taken by a lower body that would be final if not ap-
pealed, such as decisions by the Board of Zoning Adjustments or
the Planning Commission, and is subsequently appealed to the
higher body, the following procedure applies:
(a) If the motion is to sustain the lower body 's decision,
a majority of those present and voting is sufficient (four (4)
affirmative votes not required) . It is not necessary to make a
motion to overrule . When there is a tie vote, the lower body
is sustained. However, if the motion to sustain gets less than
a tie vote , a motion to overrule must be made .
(b) If the motion is to overrule the decision of the lower
body, four ( 4) affirmative votes are required. If there are less
than four (4) affirmative votes , the decision of the lower body
is deemed sustained and no further vote is required.
(c) If a motion is made to modify the decision of the
lower body, two separate steps must be taken:
(1) First , the motion to modify requires four (4)
affirmative votes .
(2) Second, if the motion to modify is adopted, a
motion to sustain the decision of the lower body as
modified requires the same vote as the motion to sustain.
( 3) A motion to overrule the decision of the lower
body , as modified, requires four (4) affirmative votes .
If there are less than four ( 4) affirmative votes , the de-
cision of the lower body, as modified, is deemed sustained
without further vote.
(4) If a motion to modify fails , the next motion
is either to sustain or to overrule the subordinate body.
1.04. 25 Appointments to boards and commissions . When a
vacancy occurs for any reason on any board or agency over which
Council has power to fill by appointment , the following pro-
cedure shall be followed to fill such vacancy:
(a) At the first Council meeting following the notifica-
tion to the Council of such vacancy, public announcement shall
11.
be made of said vacancy and a request made for any interested
persons to submit a resume of their qualifications to the
Council prior to the next regular meeting of the Council.
(b ) The Council shall, as soon as is reasonably pos-
sible, fill any such vacancies b ut ,nothing herein shall be
construed to limit its choice to a person who has submitted
an application, as outlined above.
(c) Interviews of candidates for positions .on boards or
comissions shall be held in public at regular or adjourned
regular meetings of the City Council. A list of uniform ques-
tions developed by the appropriate department will be asked of
each applicant to be interviewed. Applicants will be rated on
a numerical scale which will be .made public .
Chapter 1 .05
ROLE OF THE CITY ADMINISTRATOR
1. 05 .01 Appointment and removal . The City Administrator
is the chief administrative officer in the city. He shall be
appointed by the affirmative vote of at least a majority of the
members of the City Council and shall serve at the pleasure of
the City Council. He shall not be removed from office during
or within any ninety (90) day period following any municipal
election when a councilperson is elected. He may be removed
only at a regular meeting by majority vote and thirty (30) days
prior to termination, he must be given notice of intent to re-
move and, if requested, the reasons therefor. Within seven (7)
days after receipt of such notice , the City Administrator may
request a public hearing before the City Council within the
thirty ( 30) day period before his removal . The City Council
may suspend him -but his compensation will continue until re-
moval. The City Council has.uncontrolled discretion regarding
such removal. (Charter §§600, 606)
1 . 05.02 Compensation and residence . Although the City
Administrator need not reside in Huntington Beach upon appoint-
ment , he must take up residence in the city within ninety (90)
days unless that period is extended by the City Council. The
City Council shall set the salary of the City Administrator by
ordinance or resolution and shall set the form and amount of
the corporate surety bond required of the City Administrator.
(Charter §§601, 603)
1. 05. 03 Duties . The City Administrator shall be respon-
sible to the City Council for the proper administration of all
L.. 12.
affairs of the city . His duties include , but are not limited to:
appointment , promotion, demotion, suspension and removal of all
employees and department heads except where this function is
vested in the City Council . Appointment or removal of a depart-
ment head requires City Council approval . The City Administrator
shall prepare and submit to the City Council the city budget, an
annual or more frequent report on city finances and a report
on current administrative activities. He shall keep the City
Council informed of the financial condition and future needs
of the city and make appropriate recommendations . He shall
establish a centralized purchasing system and prepare rules
and regulations regarding contracting, purchasing, and at-
tendanttcontrols for City Council approval and adoption by
ordinance . He shall supervise the enforcement of the law of
the state, city ordinances , charter provisions , franchises
and rights of the city. He shall, subject to policy estab-
lished by the City Council, exercise control over all adminis-
trative offices and departments , all appointive officers and
employees not appointed directly by the City Council, and pre-
scribe general rules and regulations for the conduct of such
offices and departments . He shall perform such other duties
. consistent with the city Charter as may be required by the
City Council. (Charter §604)
1.05 .04 Meetings . The City Administrator shall be ac-
corded a seat without a vote at all meetings of the City
Council and all boards and commissions except where his re-
moval is under consideration. (Charter §605)
1. 05. 05 Noninterference with administrative service.
Except for the purpose of inquiry, no member of the City
Council shall deal with the administrative service under the
control of the City Administrator except through the City
Administrator.
No member of the City Council shall give orders to a
subordinate of the City Administrator either publicly or pri-
vately and except as otherwise provided in the city Charter,
no member of the City Council shall order the appointment or
removal of any person to any office or employment with the
city. (Charter §607)
1. 05. 06 Actin; city administrator. The City Administrator
may appoint, subject to City Council approval , any officer or
department head to serve in his absence as acting city adminis-
trator. If he fails to do so, the City Council may make such
appointment . (Charter §608)
13.
Chapter 1.06
ROLE OF THE CITY ATTORNEY
1.06. 01 Term. The City Attorney is the attorney for
the municipal corporation known as the City of Huntington
Beach. He shall be elected from the city at large, as pro-
vided by the city Charter, and shall serve for a term of
four (4) years and until his successor qualifies . (Charter
§500)
1.06 .02 Powers and duties. The City Attorneys duties
include, but are not limited to: representing and advising
the City Council in all matters, of law pertaining to their
offices . He shall prosecute on behalf of the people all
criminal matters arising from violations of ordinance or
Charter provisions or state law misdemeanors within the city 's
power to prosecute unless otherwise provided by the City
Council. He shall represent and appear for the city in all
actions or proceedings in which the city is concerned or is a
party, and shall appear on behalf of any present or former
city employees in any action,or proceeding arising out of
their employment or by reason of their official capacities .
He shall attend all regular meetings of the City Council
unless excused, and act as parliamentarian, and his decision
rendered with respect to parliamentary procedures, shall be
final. He shall give his advice . or opinion orally or in
writing whenever requested to do so by the City Council or
any of the boards or officers of the city. He shall approve
as to form all contracts made by and all bonds and insurance
given to the city, and prepare all ordinances, resolutions
and amendments thereto. He shall devote such time to his
duties and at such place as the City Council directs by vote
of that body, and perform such legal functions and duties in-
cident to the exercise of the foregoing powers as may be nec-
essary. He shall surrender to his successor all files , books '
and documents pertaining to city affairs .
The City Council shall control all legal business, pro-
ceedings and all property of the legal department, and may
employ other attorneys to take charge of or contract for
prosecutions , litigation or other legal matters . (Charter
§703)
1. 06.03 Requests for ordinances and resolutions . All
requests of the City Attorney 's office by members of the City
Council for preparation of ordinances and resolutions should
be by minute action of the Council.
14 .
Chapter 1.07
ROLE OF THE CITY TREASURER
1. 07. 01 Term. The City Treasurer is the custodian of
public funds of the City of Huntington Beach. He shall be
elected from the city at large, as provided in the city Charter,
and shall serve 'for a term of four (4) years and until his
successor qualifies . (Charter 6500)
1. 07.02 Powers and duties . The-City Treasurer shall
have the power and shall be required to receive `on behalf
of the city all taxes, assessments , license fees and other
revenues of the city, or for which the city is responsible .
He shall receive all taxes or other money receivable by the
city from the county, state, Federal government or any court
or other department, office or agency of the city. He shall
have control of all funds coming into his hands and deposit
them in such depository as the City Council designates by
resolution or, if none is fixed, as the City Administrator
directs . The. City Treasurer shall act in, complianee with
the state Constitution and law in handling, depositing and
securing the public funds . He shall pay out proper orders
or warrants as provided in the city Charter, prepare and
submit to the Finance Director monthly reports of- all re-
ceipts , disbursements and fund balances with a copy to the
City Administrator. He shall perform such other duties con-
sistent with the city Charter as the City Council directs by
ordinance or resolution, and appoint such deputies at such
salaries as the City Council may prescribe by ordinance or
.resolution. (Charter §705)
Chapter 1 .08
ROLE OF THE CITY CLERK
1. 08. 01 Term. The City Clerk is the official recorder
and keeper of the records of the City of Huntington Beach. He
shall be elected from the city at large as provided in the city
Charter, and shall serve for a term of four (4) years and until
his successor qualifies . (Charter §500)
1 .08.02 Powers and duties . The Clerk's duties include
but are not limited to: attending all meetings of the City
Council unless excused, and keeping a full and true record of
such proceedings . Recording and maintaining all ordinances ,
resolutions , written contracts and official bonds. Keeping all
books and records properly indexed and open to public inspection.
15.
The Clerk shall be the custodian of the city seal, and ad-
minister oaths , affirmations , take affidavits and depositions
pertaining to city affairs,and certify copies of official
records. The Clerk shall be ex officio assessor unless the
City Council by ordinance provides otherwise. The City Clerk
shall have charge of all city elections and shall canvass the
votes after all general or special municipal elections and re-
port the results to the City Council for certification.
(Resolution No. 2967, 21 April 69) The City Clerk shall is-
sue subpoenas on behalf of the city upon the request of an
authorized person with the approval of the City Attorney.
(Resolution No. 3393, 15 'Nov 71) The City Clerk shall accept
s and consent to deeds and grants of real property to the city
for public purposes . (Resolution No . 3537 , 7 Aug 72) . The
City Clerk may, with the consent of the City Council, appoint
such deputies at such salaries as the City Council may pre-
scribe by ordinance or resolution, and perform such other
duties, consistent with the city Charter as the City Council
may require by ordinance or resolution. (Charter §704)
16.
r
*.e
TABLE OF CONTENTS TO
APPENDIX TO COUNCIL MANUAL
TITLE PAGE NO.
Resolution No. 4311, Budget Control 1
Motion to Reconsider 5
Removal of Members of Boards and Commissions 7
Expiration of Terms of Members.of the Recreation and
Parks Commission 9
City Attorney Opinion No . 73-42 10
Parliamentary Procedure--Script for Mayor 12
Ralph M. Brown Act 15
City Reimbursement for Expenses of Councilperson's
Spouse, Memo 39
NIMLO Letter Re City Reimbursement for Expenses of
Councilperson's Spouse 40
City Council/Department Head Retreat--Brown Act ,
City Attorney Opinion No. 76-40 42
Procedure for Handling Executive Sessions of City
Council., Letter 48
Resolution No. 4283, Conflict of Interest Code 50
RESOLUTION NO. 4311
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
HUNTINGTON BEACH AMENDING RESOLUTION NO. 4309
ENTITLED, "A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF HUNTINGTON BEACH AMENDING RESOLUTION
NO. 3993 ENTITLED 'A RESOLUTION OF, THE CITY
COUNCIL OF THE CITY OF HUNTINGTON BEACH IN RE—
GARD TO BUDGET CONTROL''
WHEREAS, the purpose` of this resolution is to insure re-
sponsible fiscal control of unbudgeted items presented to the
City Council in the. form of ordinances, resolutions, minute
actions , appropriations, orders for the payment of money, and
any means whatever by which the Council is able to act, and
where such action shall or may have an impact upon the budget .
The basic assumption underlying this resolution is that informed
and intelligent action must be preceded by and based upon fiscal
data and information, and upon an understanding and appreciation
of the impact of such action upon the. b udget. It. is recognized
that an integrated and orderly budgetary process requires a
budget in- balance and that any action of the City Council that
shall or may disturb or affect such balance must be preceded
by thorough study and analysis. Where unbudgeted expenditures
are authorized by the City Council, it is and shall be the
policy of the city that adequate provision must first be made
for the funding of such proposals through the budgetary process
to the end that the budget be and remain in balance. It is a
policy of the City of Huntington Beach that the Council shall
not create a deficit in the city's budget by any action of the
Council. This statement constitutes the official policy of the
City of Huntington Beach.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the
1.
DPB:ahb
City of Huntington Beach as follows:
SECTION 1. ACTIONS TO UNBALANCE BUDGET PROHIBITED. The
City Council shall not take any action whether by adoption of
ordinance, resolution, minute action, appropriation, order for
the expenditure of money, or otherwise, which will result in
anticipated expenditures for the current fiscal year exceeding
the total of anticipated revenues for the current fiscal year
plus all other available funds .
SECTION 2. FINANCIAL ANALYSIS REQUIRED. The City
Administrator with the assistance of the staff shall prepare
and transmit to the City Council, together with any ordinance,
resolution, appropriation, request for order of expenditure of
money , or any other request for action which is not funded in
the current fiscal yearts budget, a detailed financial analysis
of the proposed action, giving the impact, both positive and
negative, upon the city's budget. A cash flow time analysis
shall be included to compare proposed cash outlay timing with
cash receipt schedule from the revenue source proposed. Such
analysis shall be contained in a report entitled, "Financial
Impact Report ."
SECTION 3. REVIEW OF FINANCIAL IMPACT REPORT BY CITY
COUNCIL REQUIRED FOR UNBUDGETED ITEMS. The City Council shall
not adopt any ordinance, resolution, appropriation, order for
payment of money, minute action or any other action, without
first reviewing the Financial Impact Report and without first
making adequate provision for the funding necessary to support
such action and to keep the budget in balance. The provisions
contained herein shall apply to unbudgeted items and to items
which cost more money than the amount budgeted for such items.
SECTION 4. AMENDMENTS TO BUDGET. Whenever during the
fiscal year anticipated revenues fall below projections , the
Finance Director shall transmit to the City Council proposed
amendments in the city's budget which will bring the budget into
2.
err+
balance so that no deficit shall be created or maintained.
SECTION 5 . This resolution shall not apply to any proposed
unbudgeted expenditure less than Five Hundred Dollars ($500)
unless such proposed expenditure may reasonably be expected to
result in other related or continuing expenditures.
PASSED AND ADOPTED by the City Council of the City of
Huntington Beach at an adjourned regular meeting thereof held
on the 23rd day of August, 1976
ayor
ATTEST: APPROVED AS TO FORM:
ty 616rk V, City At . 'e
APPROVED AS TO CONTENT AND
AS INITIATING DEPARTMENT:
IVY FISCA
L IMPACT
✓ .,.. i FISCAL ;91r PA"' T -- `,.,F*rErl�___ ......_
City min strator FISCAL I(PACT -- Jf✓�uETEC
REQUIRES_FINANCIAL IMPACT RE°ORT—
3.
Res. No. 4311
STA P, OF CALIFORNIA )
COUNTY OF ORANGE
CITY OF HUNTINGTON BEACH )
I, ALICIA N. AN WOM, the duly elected, qualified City
Clerk of the City of Huntington Beach, and ex-officio Clerk of the
City Council of said City, do hereby certify that the whole number of
members of the City Council of the City of Huntington Beach is seven;
that the foregoing resolution was passed and adopted by the affirmative
vote of more than a majority of all the members of said City Council
at a regular +adjourned nesting thereof held on the 23rd day
of August , 1976 by the following vote:
AYES: Councilmen:
Bartlett, pattinson, Siebert, Nieder
NOES: Councilmen:
None
ABSENT: Councilmen:
Coen., Gibbs, 5henkman
0 zp�
• ,
City Clerk and ex-officio Clerk
of the City Council .of the City
of Huntington Beach, California
�,.•
MOTION TO RECONSIDER :.
In "Roberts Rules of Order, Newly Revised" (the controlling
authority) , the motion to reconsider is classified as a mo-
tion "that brings. the question again before the assembly',"
it being one of the four motions so classified and which
serve "the functions described by.the name of the class."
,(Section 6, page 64, Roberts Rules of Order, Newly Revised)
All citations in this paper are to Roberts Rules of Order,
Newly. Revised, copyright 1970s unless otherwise stated.
The motion to reconsider is briefly described by function as
follows
"If, in the same session that a motion has been
voted, but no later than the same or the next
calendar day, new information or a changed sit-
uation makes it appear that a different result
might reflect the true will of the assembly, a
member who voted with the prevailing side can
propose to reconsider the vote; i.e. , he can
move that the ' "uestions shall come before the
assembl 'again as 'if 'i had 'not. reviousl been
considered. (Emphasis added. Section 6. page 66)
The motion to reconsider (as applied to a main motion)- does not
bring 'a question again before the assembly by its introduction,
but by its adoption, which automatically causes the main ques-
tion to become pending. (See Section 6, page 66. )
The motion to reconsider can, with certain exceptions , be ap-
plied to a vote that was either affirmative or negative, within
a limited time after that vote, and it 2roposes no s ecific
change in a decision but simply ro 'oses that the or g nal
question be reopened. See Section 6. page 7. Thus, the mo-
tion to reconsider does not require the same or a greater vote
for its adoption than the vote which was previously cast on the
main motion and does not violate the principle of parliamentary
law that :
"To change what the assembly has adopted requires
something more (in the way of a vote or previous
notice to the members) than was necessary to adopt
it in the first place." (See Section 6, page 64. )
5.
A main motion can be reconsidered (see Section 7(8) at page
69) . The motion to reconsider requires only a majority vote,.
regardless of the 'vote neoes'sar to 'Adopt the motion to be re-
considered. See Section 3 7 at page 270. )
The effect of making a motion to reconsider is the suspension
of all action that depends on the result of the vote proposed
to be reconsidered either until the assembly takes up the mo-
tion to reconsider or until its effect terminates. When a
motion to reconsider is made and a resulting suspension of
action, it remains in effect until the motion to reconsider has
been voted on and if that motion is adopted until the recon-
sideration is completed (see Section 36, pages 270 and 271) .
The effect of the ado tion of the motion to reconsider is
immediately to • lace before the assembly again the question
on which the vote s to be recons dered--in. the exact position
that it occupied the moment be ore it was voted on originally.
Emphasis added. See Section 36, page 27
6.
m
CRT - OF HUNTINGTON BEACH
INTER DEPARTMENT COMMUNICATION
'L � ►n�,nwctt�TEACH
1
TO HONORABLE MAYOR WIEDER From DON P. BONFA
I � City Attorney
Subject Removal of Members. of Boards Date July 16, 1976
and Commissions
You have asked whether or not City Council may remove members
of boards and commissions prior to the expiration of their .
terms .
An
swer: . Yes
Discussion:
Charter mandated boards and commissions , namely the Planning
Commission (§806 City Charter) ; Library Board (§807 City
Charter) ; and Personnel Board (§808 City Charter) are governed
by §802 City Charter which in relevant part provides that the
members of boards and commissions "shall be subject to removal
by motion of the City Council adopted by the affirmative votes
of the majority of the total membership thereof. " No cause is
necessary.
The Recreation and Parks Commission is not charter mandated but
is created by ordinance . Removal of members of the Recreation
and Parks Commission is governed by §2.64 . 070 of the Huntington
Beach Municipal Code which provides :
"The term or terms of office specified herein
shall not be deemed arbitrary and should the
mayor, with the approval of the city council
determine that it would be for the best in-
terest of the department that a member be
retired, he may so order and appoint a sue-
cessor for the unexpired term of office of
such retired member. "
Therefore, in order to remove a member of the Recreation and Parks
Commission the Mayor must make a determination that "it would be
for the best interest of the department" that the member be re-
tired, and then the Mayor may so order with the approval of the
City Council. After removal the Mayor may appoint a successor
for the unexpired term of office of such removed member. By
implication the Mayor' s appointment of a successor should be
with approval of the City Council .
Generally, we know of no board, or commission or committee whose
members are appointed by the. City Council , which is immune from
7.
�✓ `ole
City Council ''s power of removal. The power to appoint normally
carries with it the concomitant power to remove . Inasmuch as
the Mayor' s question did not specify a particular board or
commission for analysis , we deem this brief opinion to be
sufficient in detail . However should a particular board or
commission, not named in this opinion, be the subject of inquiry,
we shall be pleased to address ourselves specifically to such
board or commission.
Respectfully submitted,
DON P. BONFA
City Attorney
DPB:bt
8.
CITY OF HU4TINGTON BEACH
;(:}t INTER-DEPARTMENT COMMUNICATION
1111NIINWON/EACH
NORMAN WORTHY, Director DON P. BONFA
To Recreation and Parks Department From City Attorney
Subject. Expiration of Terms of Date July 12, 1976
Members of the Recreation
and Parks Commission
You have asked whether or not the terms of the members
of the Recreation and Parks Commission continue until their
respective successors are appointed.
Answer. Yes .
Discussion:
Section 802, under Article VIII, of the City Charter provides
with respect to boards or commissions that their terms shall
continue "until their respective successors are appointed
and qualified. "
Roberts Rules of Order (Newly Revised Edition) , at page 417 ,
Section 49, provides, as a general principle , that members of
old committees continue their duties until their successors
are chosen.
However, Huntington Beach Municipal Code Chapter 2 .64, which
refers to the Recreation and Parks Commission, does not indicate
that the terms of members shall continue "until their respective
successors are appointed. " In our opinion, the continuation of
terms until the successors are appointed is necessary to the
continuity' of a standing board or commission and is by analogy
mandated by Article VIII of the City Charter. Furthermore , in
the absence of an express declaration to the contrary in Chapter 2. 64
of the Huntington Beach Municipal Code, Roberts Rules of Order
(Newly Revised Edition) prevails .
DONE
BONFA
City Attorney
DPB:er
9.
V V
OFFICE OF THE CITY ATTORNEY
OPINION NO. 73-42
May 21, 1973
.SUBJECT: Provisions Applicable to Maintain Decorum
During City Council Meetings
TO: City Council
FROM: Don P. Bonfa, City Attorney
John J. O' Connor, Deputy City Attorney
In view of the emotionally charged atmosphere of the City
Council meeting of March 19 , 1973 (discussion relative to
the cat ordinance) , Mr.. Rowlands has requested a legal
memorandum be directed to the City Council setting forth
available methods of retaining order during Council pro-
ceedings .
Where the activity interferes with the right of City Council
to carry on its public business in an orderly and dignified
manner, because of disruptive conduct by demonstrators,
such as blocking of free passage of the aisles and exits,
yelling, booing, applauding or attempting to address the
Council without proper recognition, there are two provisions
of the Penal Code which may be applicable to retain decorum
in the Council chambers .
1 . Penal Code §415 makes it an offense to disturb the
peace and in an appropriate situation this section
may be invoked.
2 . Penal Code §403 provides :
"Every person who, without authority of law,
willfully disturbs or breaks up any assembly
or meeting, not unlawful in its character. . .
is guilty of a misdemeanor. "
3 . In addition to the foregoing provisions of the Penal
Code, Section 54957 . 9 was recently added to the. .
Government Code.
Government Code §54957. 9 reads :
10.
. .,, .
Office of the City Attorney May 21, 1973
Opinion No. 73_42 Page Two
"In the event that .any meeting is willfully
interrupted by a group or groups of persons
. so as to render the orderly conduct of such
meeting. unfeasible and order cannot be restored
by the removal of individuals who are will-
fully interrupting the meeting, the members
of ;the legislative body conducting the meet-
ing may order the meeting room cleared and
continue in session. Only matters appearing
on the agenda may be considered in such a
session. Duly accredited representatives
of the press or other news media, except
those participating in the disturbance, shall
be allowed to attend any session held pursuant
to this section. Nothing in this section shall
prohibit the legislative body from establishing
a procedure for readmitting an individual or
individuals not responsible for willfully
disturbing the orderly conduct of the meeting. "
The existing provisions of the Penal Code and Section
54957. 9 of the Government Code appear adequate to control
any disturbance of Council meetings .. Some cities have
a specific local. ordinance regulating conduct at Council
meetings, and if Council desires a specific ordinance
regulating public conduct during Council meetings, this
office will be pleased to prepare same at the direction
of Council .
Respectfully submitted,
':;�
DON P. BONPA, Cit Attorney
d
L
J N J. O'CONNOR, Deputy City. Attorney
DPB:JJO: lm
lit
Parliamentary Procedure
Script for Mayor
A. ORDINANCES FOR ADOPTION
B. ORDINANCES/RESOLUTIONS FOR INTRODUCTION
A. ORDINANCES FOR ADOPTION
MAYOR: Next item on the agenda is ordinances for
adoption. Does any council member wish to con-
sider any ordinance separately?
COUNCILPERSON 1: Please withhold Ordinance No. 2091.
MAYOR: Very well. Madam Clerk, please read the rest
of the ordinances by title.
CLERK: (Reads the rest of the ordinances by title. )`
i
MAYOR: A motion is in order . to waive further reading
and adopt.
COUNCILPERSON .l: So moved.
COUNCILPERSON 2: Second.
MAYOR: Please vote. (After a pause to allow voting)
Madam Clerk, please record the vote.
CLERK: .(After recording the vote) Seven ayes (must be
unanimous ) .
;y
MAYOR: (To councilperson who withheld Ordinance No.
2091) Your pleasure, Councilperson Jones, on
Ordinance No. 2091?
COUNCILPERSON 1: Ask for division of the question (or, ask for
split vote) .
MAYOR: Very well. Madam Clerk, please regd Ordinance
No. 2091 by title.
CLERK: (Reads Ordinance No. 2091 by title. )
MAYOR: Thank you. A motion is in order to waive furth
12.
Script for..Mayor contd.
reading.
COUNCILPERSON 1: So moved.
COUNCILPERSON 2: Second.
MAYOR: Please vote. (After a pause to allow for voting)
Madam Clerk, please record the vote.
CLERK: (Records the vote) Seven ayes (must be unanimous) ,
MAYOR: A motion is in order to adopt Ordinance No. 2091.
COUNCILPERSON 1: So moved.
COUNCILPERSON 2: Second.
MAYOR: Please vote. (After a pause to allow for voting)
Madam Clerk, please record the vote.
CLERK: (Records the vote) Six ayes, one no.
B. ORDINANCES FOR INTRODUCTION
6
MAYOR: Next item on the agenda is ordinances for intro-
duction.. Does any council member wish to con-
sider any ordinance separately? Hearing none,
Madam Clerk, please read the ordinances by title.
CLERK: (Reads by title.)
MAYOR: A •motion is in order to waive further reading.
COUNCILPERSON 1: So moved.
COUNCILPERSON 2: Second.
MAYOR: Please vote. (After a pause to allow for voting)
Madam Clerk, please record the vote.
CLERK: (Records the vote) Seven ayes (must be unanimous) .
B. RESOLUTIONS FOR INTRODUCTION
MAYOR: A motion is in order to waive further reading and
adopt.
P So moved'.COUNCILPERSON 1. ve .
13.
`irr+
Script for Mayor contd.
COUNCILPERSON 2; Second.
MAYOR: Please vote. (After a pause to allow for voting)
Madam Clerk, please record the vote.
CLERK: (Records the vote) Seven ayes-(must be unanimous) .
If any councilperson wishes to .vote against any resolution,
he should ask -that the resolution in question be withheld, and
then the procedure is as follows:
MAYOR: Madam Clerk, please read Resolution No. 1111
by title.
CLERK: . (Reads Resolution No. 1111 by title.)
MAYOR: A motion is now in order to waive further reading
of Resolution No. 1111.
COUNCILPERSON 1: So moved.
COUNCILPERSON 2: Second.
MAYOR: Please vote. (After pause to allow for voting)
Madam Clerk, please record the vote.
CLERK: (Records the vote) Seven ayes (must be unanimous.) .
MAYOR: A motion is in order to .adopt Resolution No. 1111.
COUNCILPERSON 1: So moved.
COUNCILPERSON. 2: Second.
MAYOR: Please vote. (After pause to allow for voting)
Madam Clerk, please record the vote.
CLERK: (Records the vote) Six ayes, one no.
END OF SCRIPT
14.
15 December 1975
TO: Members of the City Council
City Administrator
FROM: City Attorney.
SUBJECT: Ralph M. Brown, Act
Transmitted herewith is a paper, dated August ` 1975, on the
Ralph M. Brown Act--Operi Public Meetings, from the League of
California Cities, containing:
1. An explanatory letter from Bill Keiser, Legislative
Counsel and Don Benninghoven, Executive Director of the League.
Note that the Attorney General monograph published in 1972 (see
footnote on .page 2 of the Keiser-Bonn nghoven letter) was mailgd
to you by the City Attorney about two years ago.
2. The text of the Brown Act, California Government Code
Sections 5495.0 `et seq. to which we have added th.e 'amendments
and additions which will go into effect January 1,. 1076. .
3. A very good. paper written by Frank Gi11ios City Attorney
of Lose Altos Hills and Millbrae
The new provisions which go into effect January 1, 1976 are sum-
marized as follows :
1. Section 54.952. 3 is amended to include in the definition
of "legislative body" any advisory commission, advisory com-
mittee or advisory body of a local agency created by a member of
the aovernins body.
2. Section 54957 is amended to narrow the "personnel" ex-
ception to the open meeting requiremenE by excluding, in effect,,
from execytive sessions and thus requiring an ',open meeting; for
the consideration of the "appointment, employment or ,dismissal
of or to heir complaints or charges brought at,ainst" any person
appointed to An office by the legislative body; provided,, how
.ever, that no elective positions of City manager, city attornc-y
or department Heads sWiall be considered employee positions .
We interpret, this to mean that: o,�se, : p�+eetings ar.e required in
cases of the "appointment, employment or dismissal or to hear
15.
Now
Members of the City Council 15 Decen'ber 1(q
and City Administrator Page 2
Halph M. Brown Act
complaints or charges brought against" (a) members of boards ,
commissions , committees , and (b ) elective positions of council
person; city attorney, city clerk and city treasurer. Of course,
the only authority the Council has with respect to elected of-
ficers -is to consider an appointment to fill a vacancy. I have
checked this interpretation with Carlyn Reed, Chief Staff Attorney
for the League and she concurs . However, Mrs. Reed has -promised
to check with William Keiser, Legislative Counsel of the League
and other staff attorneys at the League office and will communi
cate with me if our interpretation does not represent a consensus .
3. Section 54957.1 is added to require that the city council
shall "publicly report at a subsequent public meeting any action
taken, and the roll call vote whereon; to appoint, employ, or dis-
miss a public employee arising out 'of any executive session of the
legislative body. "
It has always been valid to take action, including taking a vote,
in executive session and it has not been necessary to rep,�,ort the
action taken (including the vote) at a public .meeting. However,
this will change on January 1, 19,76, when the action taken (in-
eluding the vote) in executive session must be publicly reported
at a subsequent public meeting, in connection with the appoint-
ment , employment or dismissal of a public employee. With respect
to all other matters , no public report must be made ., This 'em-
phasizes the reason why, as the City Attorney has frequently ad-
vised for years,, executive minutes should be made of actions
taken (including roll ,call votes) in executive sessions.
4. Section 54960 .5 is added to permit a court to award
court costs and reasonable attorney fees to the plaintiff in an
action to enforce the Brown Act and .that .such costs and fees
shall be paid by the city and not become. a personal liability of
any public officer or employee. This section also provides
that the court may award court costs and reasonable attorney
fees to a defendant in any such action where the defendant has
prevailed and the court ,finds that the action was "cl6ariy friv
olous and totally lacking in merit ."
There is no easy shortcut to understanding the Ralph M. Brown
Act . It is very vague . and ambiguous in some of- its sebtions.
Mernbers of the City Council 15 December 197
and City Administrator Page 3
Ralph M. Brown. Act
I commend this transmittal to your serious study. Should you
have questions , I shall be pleased to assist you.
Respectfully submitted,
DON P. BONFA
City Attorney
DPB:ahb
Attachment
i
PON
SR 1 _10— •®11-- Si 1
1 eu lta of floe and data outside the territory of the
1 Y or a
2 local dM be held within the ' of tine 2
3 agency a"be ova and public, and notice-thereof 3 4 must be 'y or,by at leak 24 hams 4 aRl fixther that nonelective positions
5 before the time of Mch,Meetim to each Votona 5 8� _ O , legal counsel, '
6 regcsesbed, m e slsdti �, ,. er or tax eot3ec of
7 H the advi�ow► o�, o r 7 any services Within
8 to provide to dye of it 8 limited bou be deemed employ ee
9 Provid e by bylnwss or by whate%w othw ide is 9 Nothing in this shall be prevent
10 by that advisory body for the conduct of its Nakiesh fw 10 any board, commudon, committee, or other body
I the time and place for holding such regalar meet ngs.,No 11 organized and operated by any private organization as
j12 other notice of r meetings 12 defined in.Section 952 from holding executive sessions
I3 "Legislative " as d is regarired.efiled in this section does not 13 to consider (a) matters affecting the national security,or
14 include a committee composed-solly of members of the 14 (b) the appointment, employment or dismissal of an
15- governing body of:a local agency which are less than a 15 employee or to bear complaints or charges brought
16 quorum of such governing body. 16 against such employee by.another person or employee
1; The provisions of Sections 54954, 5405. 54965.1, and 17 unless such requests a public hearing. Said
IS 54956 shall to meetings under this section. 18 body also may exclude from any such public or private
19 s t- ° 957 of Ahe fiovernoaerat. 19 meetin& lion of a witness, any or all
20 Code ' mile It to read: 20 other witnesses in the matter being investigated by the
21 54957. Nothing contained in this chapter shall be 21 legMafive body.
22 construed to prevent the l -* w-4 22 M& .14 SEC. p• Section 54957.1 is added to the
23 agency from holding executive sessions with the Attorroy 23 Government Code, to read:
24 General, district attorney, sheriff, or chief of police, or 24 54957.1. The legislative body of any local agency shall
25 their respective deputies, on matters posing a threat.ao 25 publicly report at R subsequent public meeting any action
So tl:e security of public buildings or a threat to the publie s � . taken, and the rollcaU vote thereon, to appoint, employ,
jr, right of access to public services or public facilities, or 27 or dismiss a public employee arising out of any executive
l28 from holding executive sessions during a regular-, or 28 session of the legislative body. -
M special meeting to co ' 2'9 B SE 10. Section .S is added to the
30 employment or dismAnal of a: 30 GovernmentCode, to read:
311 complaints or chargethrought 31 5496DA. A court may award court costs and
another--pen, en flr emp - _ 32 reasonable attorney fees to the plaintiff in an action
=3 requests a public heetWAU legislative body abo.UW 33 brought pursuant to Section 54960 where it is found that
. rXc_::de from any such public or private meedag,during 34 the local agency has violated the provisions of this article.
35 the examination of a witness,any or all other witnesses in 35 Such costs and.fees shall be paid by the local agency and
36 the matter being investigated by the legislative body. 36 shall not become a personal liability of any public officer
or the of dais sectiga,.the teem"empkag y�. 37 or employee therec
"j 3S sha'.1 not inrclude an n a 38 A court may aw d court costs and reasonable attorney
Y P� ppointed OwMi mice ,
l_.f_ Live body of a locs;l ; p`+upvidbd, hove elf, i fees'to a defendant in any action brought pursuant to
40 that positions of car ,er, 40 Section-549W where the defendant h vaned in a
SB 1 -12--
1 final determination of such action and the court finds that
2 " the action wo clearly frivolous and totally leclang in
R
. 3 merit: _
4 ice: 43 SW. 11. No appropriation is made by this
5 act, nor is any obligation created thereby under Section
6 2231 of the Revenue and Taxation Code, for the
7• reimburwnaent of any local agency for any costs that may
8 be ncurred by it in carrying can. any programs ar
9 performing any service required to 6e carried on or
10 performed"by it-by this-act.
f�
• 1
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i
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.Aagwa Of Cejoftr
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1,9�5
C�birlrnr.r (;rhrs ��+
WnrN j,rrnlh,,, �,
$acrnento, California OR4��y
August 105
TO: Mayors, Council Members, City Managers, City Clerks and City Attorneys
SUBJECT: Ralph M . Brown Act' -- :Open Publiue Meetings
A year ago the League sent all mayors, managers, clerks and attorneys a copy of an
analysis of the Ralph M . Brown Act prepared by Frank Gillio, City Attorney of Los
Altos Hills and Millbrae, Because of the importance of the Act to all members of local
legislative bodies, we'have added all council members to this mailing. Frequent at-
tempts to further amend the Brown Act making it impractical and unworkable also
suggest that in addition to the Gillio analysis and a,copy of the Act itself, it would be
desirable to review its history, as well as its current provisions, so that individual
members of local legislative bodies will be fully aware of open meeting requirements
and also be in a better position to discuss proposed,amendments with their legislators.
A detailed legialative history oi'&U.S nate and A , :ly'bills aileelkV tie Brown Act
hvm '1953 to 1075 has been included only in the city attorneys mailing.
The Brown Act was the forerunner of legislation designed to open up all levels of
government to the public. Co-sponsored by,the League of California Cities and the
CaUfornia Newspaper Publisher* Association it was adopted in 1933 10 give new vigor
to century-old public meeting laws that were all too frequently ignored It also ex-
tended the open meeting requirements to a wide variety of local public agenoies. boards
and commissions not then oovered by an open meeting law. The very earliest statutes
in C ornia's first legislative section in 1850 provided with resepect to cities generally
"A city shall, by ordinance, fix the times and places of holding their stated meetings.
and their p edin s . ,...,,.�..., ublic.". .(Section 10, Clsaptsr 14, Statutes
1050.) Between 1830 and 1879 a "Ilar psod on igcluded in each special act
creating a city and in 1883 with the adoption of the Municipal Corporations Act under
which general law cities were formed, Section $58 ((government Code Section 38808)
provided "All meetings shall.be public." (Chapter 49, Statutes 1083.) Every char-
ter adopted pursuant to Article XI of the Constitutioe .has included a provision requiring
council meetings to be,public. Th* lPF*;wu Act. throw the spotlight of coampUance on open
meeting laws and unlawful secret me+ s-today are both rare and hazardous.
In extending the open meeting law Wall local ju riodiction
' a, boards Bad.commissions
and focusing the public's attention on open me g laws, the Brown Aa* declared "it
*Government Code Sections 54930,-54 1 (attached) .
It09 "O' STREET • f:ACY1AMEN70 05514 HUM UAREMONi • HE RKIAEY 9470, -NP Ifil1ON CENTER • LOS AWPIPA aims
(916) 444!,790 (41,1!14'(01AII
�'
'�✓ r..r
is the intent of the law that their (legislative bodies) actions be takes openly and that
their deliberations be conduc.tc:d openly . " A H enacted in 1953. the Hrovm. act required
all meetings of a legislative body of a local agency to be open and public and granted
all persona the right to attend Huch me,etinAIH . "Legislative: body" was broadly defined
to inel))de not only all loc id t;elv(.,�rning tx)diVH hUt also local h0e1111H and commissions.
"Lucal agency" fclho waH broadly defined (A) inc hide every types of local public body .
Each legislative body of a local agency was required by ordinance or resolution to
provide for the conduct of its meetings including the time and place thereof.. Provision.
was made for the holding of special meetings provided 24 hours notice of the meeting
was ,given to all news media requesting written notice. Notice of the special meeting
had to contain the time and place of the meeting as well as the business to be transacted.
No other business could be considered. Executive sessions were limited to the consi-
deration of the appointment, employment or dismissal of public officers or employees
or to hear comp?.:ieats or charges l srou ht against such officers or employees. While
the Brown Act as enacted in 1953 did not include a penalty or a method of enforcement,
the first appellate decision to interpret the law held that two existing provisions of other
statutes prescribed a misdemeanor`penalty- (G&e'rt invent Code Section 1,122; Penal
Code Section 177.)
The first major revision of the Brown Act occurred in 1961 when Governor (Pat)
Brown vetoed one bill which, among other things, would have made any action taken
in violation of the Brown Act void but approved a substantially pimilar bill which ex-
cluded the objectionable section The 1961 legislation added a short title, definition
of legislative body and, more importantly, a definition of "action taken" as well as two
methods of enforcing V-s open meeting law. It made each member of the legislative body
attending a meeting in violation of the Act with knowledge of the fact that the meeting wa
in violation thereof guilty of a misdemeanor . It also authorized any interested person
to bring an action to prevent the holciin,g or threatened holding of closed meetings. The
law also has been amended f•om time to time to make it expressly applicable to charter
cities, to include advisory bodies; and to require mailed notice of meetings to property
owners by public districts. As Mr. Gilliole paper clearly indicates, the courts, and
particularly the Attorney General, hxtve had many occasions to interpret the Act.* They
both agree that it applies to all mekings of a majority of the members of the legislative
body where public business is discussed. The Act does not apply to sodal gatherings
and the difference between a social gathering and a meeting arranged for pursuit of
the public's business will usually be, quite apparent as Justice Friedman noted in
Sacramento Newa;,paper Guild v. 283 C.A. 2d 41. Thus, while
the criminal penalty applies c,nly 0 unlawful me ngai where action is ,10,ten. the courts
may enjoin any meeting or d�@ oatet ad me'6ting where the public bu d ' of the particular
local agency is discussed or deliberated.
Attempts have been made almost every year to extend the Brown Act to committees of
less than a quorum.notwithstanding the fact that such committees or indiViduals cannot
take action. The courts and the Attorney General have stated:
"In general terms, the concept is that the Act does not apply to meetings
*Secret Fleeting Laws Applicable to Public Agencies - Evelle J. Younger, Attorney
General, .Jan. 1972; Boom 300, State Building, 350 McAllister, San Francisco 94102
-2-
of committees of less than a quorum of the legislative body of the local agency .
'Phis is because the findings of such a committee have not been deliberated
upon by a rluorurn of the legislative body, and consequently the opportunity
for a fill public hearing and consideration of the committees' findings and
r ecommeiidations by a quorum still remains. Hence the public's rights under
the Act are mill protected . "
I'hc� d,c �i�lat.urc; also has rejected attempts to limit the court approved exerr.rtive
0 0,'hit.h pt.t )rlits the „ikN attorney"to meet with the city council to discuss
pendiog .)r anti,:il->ated litigiition in order to prevent the city's adversary from
gaining an unfair advantage to the detriment of the public generally.
One word of caution . As we said last year, there are very few exceptions to the
open meeting requirements of the Brown Act and Mr. rillio discusses.them in some
detail and points out that the so� called "personnel" session exception is a narrow
one. Fxecutive scissions may not be held to consider so-called "personnel" matters.
The Bro wr, Act only permits an executive session to consider the appointment , employ-
ment or dismissal of a public officer or employee or to hear complaints or charges
brought against such officer or employee. It also permits a legislative body to meet
in executive session with its designated representative prior to and during labor
negotiations to discuss salaries , salary schedules and fringe benefits when necessary
to review the city's position and instruct such representative. These are very speci-
fic exceptions. In giving notice to news media of a proposed executive session, the
notice should be in the language of the statute and not simply that a so-called "person-
nel" matter is to he discussed .
The Brown Art h;,s been a model for the rest of the country. It was one of the first
giving renewed strength to public,meeting laws and it has served as a good example
for state agencies and the Legislature itself. Properly adhered to and enforced, there
probably is no better open meeting law in the country . It has been a major factor in
maintaining good government in California. Amendments other than for purposes of
clarification or to take care of changing conditions in the administration of the public's
business, e.g . , labor negotiations , are unnecessary and should be avoided. With
full knowledge of the Act and its history , you will be in the best-possible position to
preserve a workable open meeting law for the purposes intended by its sponsors and
by Ralph M . Brown .
William If Keiser Don Benninghoven
Legislative Counsel Executive Director
EkO.. ACT - .Council Meetings
(Government Code)
';/►e,`,t1. 1n ern,:t Inn thiea chapter, the the ginlature finds ,attd declares .that ttw"
e,=tt,t h vrr►rt,I vi Ion.,, , boll ad A tared <:,,► nc, t la; ,a it t:he other pith] tv agencieta tat I.It Is "t :►#
,+xiyt afd in Lite c:pilduct of the people °a business.. It is the :intent of tt,t: law
that their actions be taIken openly and .that, their deliberations be conducted open-
ly.
The people of this State des not yield their sovereignty to the ar,encieb .whi: tt
serve them. The people, in delegating authority, do not give their public servants
the right to decide what to good for the people t^ know and what is not good for
them to know. The people iin lst on remaining informed so that they "y retain con-
. trol over the instruments they have created.
54950.5. This chapter shall be known as the Ralph M. Brown Act.
54951 . As used in this chapter, "local, agency" means a county, city, whethc,
general law or chartered, city, d, p,ounty, t ,. serhool district, amicipal cor➢o:-
ation, district, political subdliaica, or any board, comisslon or agency thereof,
or other local public agency®
54951.1. For the purposes of this chapter, and to "the extent not inconsistent
with federal law, the tem "local agency" shall include all ptteate'nonprofit or-
+gauizations that receive public money to be expended for public purposes pursuant
to the "Economic, Opportunity Act of 1964".
54951.7. "Local ageu i° inclil4es any nonprofit corporation, created by one or
more public ag�aariea, tp o directors is, #toted by such public agencies
and which is fotirsd to a ialr , c t t, rocs' t ` t, salutals or operate: any
public work .project.
54952. used in this chapter, "legislative body" means the governing board,
commission, direetors or body of a local agency, or my board or conalselon thereof,
and shall Include any board, civ, eoi , committee. or other body on which officers
of a local agency serve is their VHIK1,4111 capacity as members and vhich is supported
In whole or in part by* fund* pr n,i 6 y aka $ whether o rd, co io-
eion® committee or other is a:e iaad d opera by such l .Ag"ey or by
a private corporation.
54952.3. An use4 In this chapter, "Legislative body" also Includes any advi-�
sort' commission,, advisory committee of advlaV7 body. of a loch] agency. created by
charter, ordinance, resolution,, or by any slWilar formal action o! a 'gover,nIng
body of a local apaacy.
Meetings of such advisory co missions, c ttess or bodlers cOteceirning sub-
ects.which do not require an a luation of facts and data outside the territory .
of the local agescy shall be held within the territory of they local- agency and.
shall be open and public, ,and notice thereof must b delivered porsoz&Uy or by
mail at least 24 bourn'.beefor'e thm tioa of such meeting to each teWiiek wW has re+
questod, in writing, notice of -such sting.
If. the advisory commission, com ittee or body elects to provide for the hold-
ing of regular miattings., it shall provi4a by bylaws, or by whatever other rule is
utilised by that advisory bo the couductl,.p ..its business, for he time and
place for holding such sgulsr dr-I ' . No of r '�notice of lwV**tinSs le.
required. "
8/17S
"Legislative body" as desinc6 in th4S Petzi5on does not include a committee
composed solely of members of govervin s b;^iy of a local agency which are less
than a quorum of Stich governliig body.
Tilt! prov'itiloivi of S,!ettrks; ; � c?�i�, �<� ' ss°).1 , and 54.956 shall not apply
to meetings under china neccion,
54952. 5. As used in th!r� ob,, tzzr, ,:; at.ii a body" also includes, but is
not limited to, planning ii'hrz-,--Y bw )s rdaa .recrention commissions, and
other pernaaent hr,,ird;i or oi' Irlial agency.
54952.6. As used. to t.'hl? a-hap e r s `' 3, t .;�� ,aakpn" means 3 collective decision
made by A majority of the meirbera ref c; body, a collective commitment
or promise by a majority of the of i askive body to make a positive
or a negative decision, o. an 4ctiinl v i by = Ftalc-city of the members of a legis-
lati.ve body when sitting ns .i fiajd <a :r-.o a motion, pr®posal, resolution,
order or ordinance,
54953. All meetings cf ilit_ gtsla g, ° ,; - :J a local agency shall be open
and public, and all persons owi. I �,e per ;�� .d v attend any meeting of the legis-
lative body of a local agevc t,, except e.s *Tovided in this chapter.
514953. 3. A member of the put:ric.- be recgul,:ed, as a condition to
attend an< , at <t cf ql = e u;g _ a, a 4. ca',_ agenc7, to register his
name and other information, to aow;,)Iete H, quehtionpaire, or otherwise to fulfill
any condition precedent to his etterdance.
54954 . The legislative it °.o<.Nsl a;er zy shall provide, by ordinance,
resolueicin, bylaws, or by w! 64,te•rz' otlicr r=.�;.{ i.: iequired for the conduct of buss
nesA by that body, the time for holclinr, r° ::l r r-matings. Unless otherwise pro-
vided for in the act under vhfe:h the l��r��� �'� bey waa formed, meetings of the Iegia-
lative body need not be hel('�i il�e of. than territory over Which the
local agency exercises jurl3dtcti., n, i r r; .. ?, ee soy regular sooting falls on
a holiday, such regular rmec ,_nf :lha'k , b bh.. k., or, ths, next. business day. If, by
reason of fire, flood, earths : g, .>. , i.t shsll be unsafe. to meet in
the place designated, the aet.ln -� duration of the emergency
at such place as is d4t1pa7 ? ��,t �r � �. .. or of the legislative body.
54953. The adjourn any regular, ad-
journed regular, are cict ter i, xidJocv,,,,# c4-FO` o la to a time snd place ape cified _
In the order of adjo .srnmen a L,cl— 4 qi,J.�= so adjourn from times to time.
If al: members are absent frain cry -ag ulat": r u 4ad...onrvO, regular meeting the clerk
or secretary of the legialez-1ve beO �:a . ale; ��t�w ueeting adjourned tc a .stated
time and place and he shall caur t ;����tee d.. �i �w ^� the adjournment to be given
in the same manner as providcd i �� ::= E �� ,, 5� fcr opecial meetings, unless such
notice 13 waived as provilded fc,r uper,! l A cope of the order or notice
of adjournment shall be conspicuo+r,I, o-� o,, near the door of the place
where the regular, adjourned a.burned special meeting was held
within 24 hours after the time w ��v., ' het a regular or adjourned
regular meeting is adjourned <js .;sr��►4:�e€� �a��� 94"etion, the resulting adjourned
regular meeting is a regular wefxtira; :`ra: , 4urposea. When an order of adjourn-
ment of . any Meting fair to , k F}: ��� :;:: :,t Oeitch the ,nd journed asset is to
be hold, it shall be held at the. e.,OV, xpecif'ied *�r t gular eetings by eranance,
resolutioir, by law, or otht!r rulw..
54955.1. Anv hearing bet.n n�16, or no,:� red or ordered to be held, by a legis-
lative body of a local tganz.;r (di: ncy . : order or notice of cmtinuence
be continued or recontingmd to a cs��,r,ra�.�;a_ ;,. �� �i.ti of the legislative body. in the
u
same manner and to the same extent set forth in Section 54955 for the adjournment
Of meetings; provided, that if the hearing is continued to a time less than 24 hours
after the time specified in the order or notice of hearing;, a copy of the order or
notice of continuance of hearing shall be posted immediately following the meeting
at which the order or declaration of continuance was adopted or made,
54956. W special 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 mem-
ber of the legislative body and to each local newspaper of general circulation,
radio or television station requesting notice in writing. Such notice must be de-
livered personally or' by mail at least 24 hours before the time of such meetings as
specified in the notice. The call and notice shall specify the time and place of
the special meeting; and the business to be tranacted. No other business shall be
considered at such meetings by the legislative body. Such written notice may be
dispensed with as to any member who at or prior to, the time and meeting convenes
files with the clerk or secretary f the legislative body a written waiver of
notice. Such waiver may be given by teiegragt. Such written notice may also be
dispensed with as to any mmembe ;who, is actually present at the m"t-I g at .the time
it convenes.
54957. Nothing; contained in this chapter shall be construed to prevent the
legislative body of a local ageacy froyn holding executive sessions during a regular
or special meeting to consider the appointment, employment or dismissal of a public
officer or employee or to hear coraolaints or charges brought against such officer
or employee by another public officer, person or employee unless such officer or
employee requests .a public hearing. The legislative body. also may exclude from
any such public or private meetings, during the examination of a witness, any or all
other witnesses in tine matter being investigated by the legislative body.
Nothing in this chapter shall be construed to prevent any board, commission,
committee, or other body organized and operated by any private organization as de-
fined in Section 54952 from holding executive sessions to consider (a) matters
affecting the national security, or (b) the appointment, employment or dismissal of
an .officer or employee or to hear co&plaints or charges brought against such officer
or employee by another officer, person, or employee unless such officer or employee
requests a public hearing. Said body also may exclude from any such public or pri-
vate meeting, during± the examination of a witness, any or all other witnesses in
the matter being; investigated by the legislative body.
54957.6. Notwithstanding un, other provision of law, a legislative body of a
local agency may hold execrative v saions with its designated representatives prior
to and during; consultations and discussions with representatives of employee organi-
zations regarding the salaries, salary schedules, or compensation paid in the form
of fringe benefits of employees in order to review its position and instruct its
designated representatives.
54957.9. In the event that any greeting; is wilfully interrupted by a group or
groups of persons so as to render the orderly conduct of such meeting unfeasible
and order cannot be restored by the removal of individuals who are wilfully inter-
rupting the meeting, the members of the legislative body conducting the meeting mey
order the meeting; room cleared .and continue in session. Only matters appearing on
the agenda may be considered in such a session. Duly accredited representatives
of the press or other news media, except those participating; in `he disturbance,
shall be allowed to attend any session held pursuant to this section. Nothing in
this section shall prohibit the legislative body from establishing a procedure for
readmitting an individual or individuals not responsible for wilfully disturbing
the orderly conduct of the meeting.
-3- sil��c
-
54958. The provisions of this chapter shall apply to th'a .4 1 dative body of ,
awry local agency notwithstendi g the conflicting provisions of 'A16y other state
law.
54959. Each member of a legislative body who attends a meeting of such legs.
lative body where action is taken in violation of any provision of. this chapter,
with knowledge of the fact that the meeting is in violation thereof, is guilty of
a slademeanor.
54960. Any interested pe,evun way commence an action by mandamus, injunction
or declaratory relief for the pu.rposf., of stopping or preventing violations or
threatened violations of this chapter by memberh 'of the legisl,atiye-;body of a local
agency or to determine the applicat4lity of this chapter to actioss or threatened
future action of the legislst:vt body,
54961. No local af;ency rhn1.1 x), duct ary meeting, conference, or other func-
tion in any facility that prohibf-:G admittance of any person, or person$, on
the basis of race, religioos cr - color, nAtiOnal origin, antest;yv. or sex. This
section shall .aOply to y 1L;c l gezzity as defined in Section 54051.
`firer✓ ..
Open Public Meetings
Requirements of tlw itali;fl N1 . 8romin Act and Exceptions Thereto
by
-rank Gillio
City Attorney of
Lo'n . ltos H ils and Millbrae
The Brown Act, descri`oud ar,: =°°ae open meeting law in the United States,
requires that meetings Qoyf.each of be open and public without any restriction
on the right of the public to *At:te::.d:
1 . The City Cou.ncll„
2 ., City Boards oi° Comm!i&6ic4ls,
3. Advisory Committees,
4. Any other body on whi= °.. city officers serve in their official capacity
and which is supported par is Ijr or totadty 1-y city funds.
5. Any private nonprofit; or .;anizati.on. receiving public money pursuant to
the L,;onomi c Opportunity Acl at 1.910 i,`z.
6. Any nonprofit corporation crc ted by one or more public agencies who
also.appoint the board of dire,.-tars find, whose purpose relates to acquisition, construction,
reconstruction, maintenance or open r,iz n of ,.,ny public work project.
The requirement that cp��i =,o the public does not apply to meetings of
committees of a City Council cnrv3L 4ivtx " leis than a quorum of its members.
Executive or personuel aes.uo a . . m1h,"ch members of the public and press are
barred may be held d.urinf-,A ,{i J-e rF.I i, 6'P dal weeting for the following purposes:
1. To consider the empzoyweaa+ of a public officer or employee, or to .
hear charges brought against 6eti a .04o11 onless the officer or employee in question
requests a public hearin,W,
2 To discuss with the City litigation pending, proposed, or anticipated.
where a public discuselon would ben fit t1h e C4.ty':s adversary and be detrimental to the
public.
3 To meet with st rict Attorney, Sheriff or Chief of Police
(or their deputies) on mat'en s, "posilt a thr,-..gat to the security of public buildings or a
threat to the public's right of acc e sa to pu,blic services or public facilities,,,
4. To instruct city 3:epresentati> �.7 ,:onc,a ruin salaries, salary schedules, or com-
peneation paid in the form of fringe b: '"its prior to or during negoti:+ions with employee
organizations .
5 ro negotiate and o: wanization representatives following
the .intervention of a �:bor dispute.
8 To consider kiia.p+ Ati :i s -'. security, in the case of a.body
operated by a private Officers serve in their official capacity
and which is sulapo t:-til Y, - = ty :-Funds.
In add:_tior, if aizY ,R :r:., ° z: ::,upted by a group or groups of persons
so as to render the a".;ng unfeasible and order cannot be re-
stored by the remova.'' :. iy dt xzQ a11y interrupting the meeting, the mem-
bers of the body cond-.. .Ij,.;. r the meeting room cleared and continue
in session. Only ratter-, z,f, _x .rJa :_;,aay be considered in such a session.
Duly accredited yr news media, except those partici-
pating in the disturlaar.c�. , - i curi�3 any such session: The body may
establish a procedur.c, {.,> � � ;° .:�. or :individuals not reponsible.for
willfully disturbing l h�r �x'..ing.
Each body sub3ect t..) Cw �,i rn from conducting any meeting, con
ference, or other funci.A . _,, 4 the admittance of any. person, or
persons, on. the basis, t ' _ E, '. national origin, ancestry, or sex.
Attendance at 3 rn=etin -Nn Act where action is taken and
with knowledge of the fact. °kf r. . violation of the Act, carries criminal
penalties.
The term "action. is
1 . A collective drxiio ..A. the members, or
2 , A collective majority of the members to make a
po.Fi ve or a negi-,11
? . An actual �������:: b �� ��-. �� vrhen sitting as a body on a motion, .
1)'oposal, resoluti(,al ol-liIA;3IN, . f
:e srated (.i e that public commissions, boards
and :ouncils, and other pu,:: �,;: � �=��a of California conduct their delibera-
t'.or.s and take their ac ti c>n,- �`
ANAL
Unless otherwise indicated, all references are.to the Government Code of
California.
OPEN MEETING REQUIREMENT
The Brown Act (Secs. 54950 to 54961, Incl.) requires that all meetings of the
"legislative body" of a city, among others, be open and public and all persons be per-
mitted to attend, with exceptions discussed later (Sec. 54053) .
The right of the public to notice of and to attend meetings without restrictions
has been jealously guarded.
A San Diego City Council rule was declared invalid which required citizens who
desired to attend "Council conferences" to register with the City Clerk and identify the
groups they represented, the agenda item. in which.they were interested, and whether
they were trying to influence the passage or defeat of such legislation. Persons attend-
ing such "Council conferences" were required to agree to remain silent unless requested
to speak (27 Ops. 'Cal.Atty.Gen. 123 - 1956) . The State Legislature in 1957 amended the
Act to conform to this opinion and to provide that a member of the public cannot be re-
quired as a condition to attending'a meeting to register his name and other information,
to complete a questionnaire., or otherwise to fulfI11.any condition which is.a condition
precedent to his attending the meeting (gec. 54053.3)
All that is required under the Brown Act is that meetings be open and public and
all persons permitted to Attend. It does not explicitly or impliedly infer a right to broad-
cast meetings. It is within the discretion of a County Board of Supervisors to refuse to
permit a radio station to broadcast its regular meetings .(38 Ops.Cal.Atty.Gen. 52 - 1961)
A 4ouncil rule prohibiting the use of tape recorders or mechanical devices in the
Council Chambers to obtain tapes or recordings of council proceedings was held to be
invalid (Nevene v. City of Chino - 1965 - 233 CA 2d 775) , the court noting that the de-
vice could be operated without noise or interference with council proceedings, and that
the.rule bare "what clearly should be.permitted in.making an accurate record of what
takes place at such meetings."
The open meeting requirement extends beyond meetings of the city council. Since
the Act was adopted in 1953, the definition of a "legislative body" hai bees expanded,to •
include, in addition to the City Council, the following:
1 . A planning commission, library board, recreation commission and other per-
manent city boards or,commissions (Sec. 54052.5) ,
2. Any, advisory commission, advisory committee or advisory boa.7d, whether
created by charter, ordinance, resolution, or any smilar formal action of the city council
(Sec. 54952.3) .
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'fir►'' `r./
3.. Any board, commission, committee, or other body on which city officers
.c rv;- n their official capacity as members and which is supported in whole or in part
by city funds, whether the particular body is organized and operated by the city or
by a private corporation (Sec , 54952) .
i.. Any private nonprofit organization receiving public money pursuant to the
Ece:,-m:c Opportunity Act of 1904 (Sec. 54951.1) .
5. Any nonprofit corporation created by one or more public agencies who also
appoint the board of directors and whose purpose relates to acquisition, construction,
xeconstruction, maintenance qr operation of any public work project (Sec. 54951.7)
However, meetings of a committee composed solely of members of the governing
b-.)d.v (City Council) which are less than a quorum of such governing body are excluded
fx am the open meeting requirement, (Adler v Culver City - 1960 164 .CA 2d 763, 77.1;
32 Ops. Cal. Atty..'Gen.. 240 - 1058 - See also Sec. 54952.3) .
Special provisions simplifying the operation of advisory committees should be noted.
The procedural provisions of the Act (fixing time of meetings, notice of adjourned or
spec.:al meetings or continuance of hearings) do not apply to advisory. committees. If
regular meetings are held, it is only necessary to provide in the by-laws or in the com-
mittee rules for their time and place. The Act does not apply to committee meetings held
outside of the City if necessary in order to gather facts or other information. In the ab-
sen-_e of regular meetings notice of a meeting when held is required to be delivered per-
sonally or by mail twenty-four hours.in.advahce to esgh_person who has'.requested, in
av-i.ting, such notice. The Act does n .apply to advi com itt"s WAch are created
;rformally (Sec 54952.3) :
Under the Civic Centex Act (Education' Code Sec. 10556 et'seq) an organization
Using a public school facility may not exclude the general public or use the school facili-
ties for private or closed meetings or recreational.activities. The general public may
not be excluded from attending and obServing the'mestings or recreational activities
'52 Ops. Cal. Atty. Gen, 220 - 1900) .
PENALTY AND REMEDIES
FOR VIOLATION
It .`.a important tp determine whether the Browq Act applies to a particular meeting
because of the penalty provided. Each member of the Councilor of a board, commission:
or cornet:*`ee, who attends a meeting "where action is taken in violation of any provisions
(qf the Brown Act) with knowledge of the fact that the meeting is in violation thereof" is
guilty of'a misdemeanor (Sec 54059) . The terns "'action taken" is d+aftt id in Section
5405" 8 to mean:
A collective decision made by a majority of the members of a legislative
b it Al collective commitment or promise by a majority of the members of a legis-
:ace.-.,e oody to make a positive or a negative decision, or an actual;vote by a ma-
lority of the members of a legislative body wltoft'sifing as a boa;; or. entity, upon
a motion, proposal# resolution ortrir or oral r A64
-4-
The criminal penalty added in 1961 is limited to a meeting at which "action" is
taken (Sacramento News a er Guild v. Sacramento County Board of SuiDervisoris -
1988 - 28 CA ad 41, 48 holding.that "the roiadeaslor penalty of the roam Act is
focused on the meeting where action is "e'n' , not 'on the tweeting confined to deliberation") .
However, any interested.person may commence a civil action in'the Superior Court
(Mandamus, Injunction or Declaratory Relief) to stop, or prevent either.a.violation or a
threatened violation of the Brown Act or lo, deter4iine whether the Act applies to "actions
or threatened future action" (Sec. 8498ti)
/ The validity of the actions taken-at a.meeting claimed to have been held in violation
of the Brown Act, nevertheless,,hdve'beets held byi the courts not to be affected.
Violations of the Brown Act even if true as charged would not invalidate a compre-
hensive zoning ordinance (Adler v. Culver City ='1900, - 184 CA 2d 70, 774-775; C1�arg-
mont Taxpayers dissociation v. City of Claremont - 1903 - 223 CA*2d 589, 603-594) .
Even if a.Police Commission regulation requiring police officers (off duty or on duty
in civilian dress) to be-equipped with a revolver was passed secretly, the regulation
would not be invalidated (Stribling v. Mailliard 1970 8 CA 3d 470, 474) .
Answering claims that a violation of the Brown Act occurred by reason of telephone
contact among the members of a Redevelopment Agency and holding of one or more meetipgs
concerning qualifications of proposed redevelopers prior to a joint public study session of
the Council and Agency, the Court (Old Town Development Corporation v_. The Urban
Renewal Agency of the City of Monterey - 1987 - 249 CA 2d 313, 329) after noting that
there was no allegation that the "action taken" in adpp#gg each resolution determining
which was the qualiftd proposal and eotting a heaA g 'land dlepomifloi i was not at a
public meeting, held:
"Insofar as the allegations suggest that there was 'a collective commitment
or promise by a majority of the members of (the Agency) to make it positive or
negative decision' on the matters in question, in violation of the Brown,Act, it
would not invalidate the action subsequently taken., (The) contentions
regarding purported violations of the Brown Act are unavailing, because,
even if true, the ordinance would not be invalidated."
WHAT IS A MEETING?
As frequently pointed out, one of the problems connected with application of this
.Act is its failure to define the word "meeting" (36 Ops. Cal. Atty.. Gen. 175 - 1960) . Both
Attorney General and the Courts have discussed what constitutes a "meeting".
Construed in the light of the Brown Act's objectives, the term "meeting." extends to
informal sessions'or conferences designed for the discussion of public huaines:e. By the
apecihc inclusion of committees and their meetings, the Brown Act dewiinstrates it,; g,rwr w
application to collective-investigatory and consideration activitS, stopping whorl cA offs, w,
action (Sacramento Newspaper Guild v. Sacramento County Board or
11,168 ;'63 CA ?d 4:1 . 49 , 1 ir»•i,lv;ng a luncheon meeting attended by Oie. entire'Roard
of Stbper•risors., other county officers, and members of the Central Labor Council
AFL-CIO, at which the social workers union strike against Sacramento County
was dise.vissed, and.to which newspaper,reporters were denied admission. The-
Court he I d the luncheon'to. be a meting within the meaning of the Act.)
'Th. Brown Act does govern regularly held luncheon meetings by members
of one or more City Councils with representatives of certain civic associations toi
discuss Items of area importance (school and airport facilities, water supply,
sewage disposal and beach erosion), and at which a City Council regularly
schedules attendance as a group (43 Ops. Cal. Atty.. Gen. 36 - 1964) . The public
is entitled to notice of and the right.to gttend such meetings because even though
no decisions or agreements to make decisions were made at such informal luncheon
sessions, the nature of such meetings and perhaps their true purpose and design .
was to provide a forum for the free exchange of information and ideas on items of
area importance with a view toward, obtaining a general consensus which in turn .
would provide the bases for fruitful "action" by the legislative bodies. However,
mere social attendance by a majority of a Council at luncheons or dinners given
b; civic or fraternal organizations, such g+s the Rotary,, Kiwanis, Lions, :Optimists,
Elks or Moose, does not.constitute a meeting.of the City Council subject to the Act.
The Brown Act does not apply to special committees or subcommittees con-
si siting ..;f less than a quorum of the members of the legislative body (e.g. , City
Council) which created them, because the necessity and opportunity for full public
deliberation.by the legislative body:Still remains, , The Act does apply 0.#.committee
composed of a majority or more of the members of the legislative body.(32`Ops.. Cal.
Atty. Gen 240 - 1958) .
The requirements of the Brown Act cannot be avoided by the use.of;the device
commonly known as a "committee of the whole" (27 Ops. Cal. Atty. Gen. 123 - 1956) .
In 1963 the Attorney General (42 Ops. Cal. Atty, Gen. 61) held that there is
-o s;at+story authority for excepting "informal sessions" from the application
cf the Brown Act. In holding that the public was entitled to notice of and to attend
briefing sessions held in.the City of Lodi, 30 minutes prior to scheduled public
xee" go in the City Manager's conference chambers, the Attorney General noted
...at the requirement.that meetings be open and public had been interpreted as in-
III:...r1i; discussion sessions within the term "meetings" . The right to notice and to
attend a meeting is not dependent on whether "action". is taken or whether the mem-
cers of the governing body do or do not intend to take action. The term "all meetings"
Fret,.owsly was interpreted as encompassing more than just meetings at which formal
act.on was taken. The references in the Brown Act concerning "action taken"
relate only to the imposition of criminal penalties on the members of legislative
bodies . These provisions are separate and.distinct from those provisions giving
the people the right to notice of and attendance at all meetings of the legislative
body.
A hearing officer appointed under a grievance procedure established,by an
agreement to hear charges preferred against,a city .employee who demanded that .
',A hearing be opened to the public is i6t.required to conduct a public:hesfijag.
The single "hearing officer" who functions by himself is not a "legislative
body" nor is the hearing a "meeting" within the meaning of the Brown Act.
a hearing conducted by a.single individual (is not required to) be open,64 to
the public . ." under the Act. Seadans of the.Act defining "legislative body"
use words all of which import the involvement of more than one person,:and con-
ventional definitions of "meeting" refer to the presence of more than one person
(Wilson v. San' Fr cis oo. Mun1c1psl_Rahway - 1973 - 29.CA. 3d 870, 87S-881) .
A meeting of a local admissions.committee of the County Superintendent
of Schools' office to review the application of an-educationally handicapped child
to attend special education classes is not subject-to the Brown Act because the
committee is,not.a.legislative body.vf a,focal agency,within theme ngt the Act
by reason of being an advisory arm or adjunct to &'single county otBcer (98 Ops.
Cal Atty. Gen. 14, -10 - .1973) .
The earliest California appellate court decision interpreting what is a
meeting under the Brown Act, as well as other of its provisions,. was Adl._._er...
City Council of the C bE of Culver City (1980) 184 CA 8d 703. Notwithstanding the
Attorney General's misconception of the Adler decision and the 1901 amendments
following that decision (42 Ops Cal. Atty..Gen '6i 1963) Adler has been sub-
sequently cited with approval and except where affected by subsequent legislative
action, it remains as much the law of the state as a>ay other decision'of the District
Court of Appeal. In Stribling v. Mailliard - 1970 - 8 CA 3d 470., 474-476, ,the
court, after citing Adler, said: " (3ome of the effects of the Adler case were removed
by legislation, but the proposal to make void any,action taken at nonpublic.Meetings
was objected to by the Governor and,was:eliminated bom the-
he.propooW'awandment
to the statute. See e2 Ops Cal. Atty: Gen. 'el,eo 1889..)"
EXCEPTIONS Tip,'T� OPEO
MEETING REQUIREMENT
i
There are several exceptions to the strict rule of the Brown Act that all
meetings shall be open and public, and all persons be permitted to attend. These
exceptions appear in the Brown Act itself:or have been created by inter( 0ution
of both the appellate 'courts and the Attorney General.
An executive.session may be held. during a regular or special meeting
1 . With the Attorney General, district attorney, sheriff or chief of police,
or their deputies, "on matters posing a threat to the security of public buildings
or a threat to the public's right of access to public services or public facilities.; or,
2. . to consider the appointment, employment or dismissal of a public officer
or employee, or to hear.complaints or charges brought against an officer or employee,
unless the officer or Employee requests a public.hearing (Sec. 54957) .
A board, commission, committee, or other body organized and opt_ated by a
private corporation on which city officers serve in their official capacity as #nembPrH .
and which is supported in whole or in part by city funds. may hold executive
sessions concerning: .
1
'fir✓` �s
1. Matters affecting the national security,. or
2. The appointment, employment or dismissal of an officer or employee or to
hear complaints or charges brought agaipot an of#or or employee, unless the officer
or employee requests a public hearing 03ecs. 54,O52, 54157) .
In either of the foregoing cases during the examination of a witness, any or all
other witnesses in,the matter-being investigated may be excluded whether. the meeting
is being conducted as a public or private one..
The City Council may hold an executive session with6 its City Attorney to discuss
litigation pendbigi proposed, or antic fed. The authorities are cited.uitd�er the topic
"Litigation" .
A City Council may hold executive sessions with its designated representatives
prior to and during consultations and. discussions with employee organization represen-
tatives concerning salaries, salary schedules or compensation, paid iri the form of fringe
benefits in order to review► the city's pb&*Hon and instruct its representatives (Sec. 54957.6) ,
A City Council may negotiate and discuss with representatives of employee organi-
zations during an executive session held after the intervention of a state labor conciliator
as authorized by law without violating the. Brown Act, because the.records of the Depart-
ment of Industrial Relations are confidential. If the confidentiality required by law is
to be maintained, the deliberations which the records memorialize artist also be privileged
and confidential. The purpose of the statute (Labor Code Sec. 05) is to prevent the
disclosure of what tre.nepiree during conciliation proceedings. (51 Ops. Cal. Atty. Pon.
201 - 1968) The labor negotiations exception appearing in the Brown Act: (Sec. 54957.8)
refers to a city council holding.executive`sessions with its representatives. The most:
recent exception:found by the Attorney,06herid ref ns to an executive session with rep-
resentatives of the employees.
EXECUTIVE SESSIONS
The right to hold an executive session to consider "personnel" matters is described
as a narrow exception and certain rules have been laid down .
An executive session may be held,only during a regular or special meeting for
which adequate notice has been given as required by the Brown Act (43 Ops Cal. Atty.
Gen. 79 - 1904) .
The appointment of.a Councilman to fill an existing vacancy during an executive
session following which no public vote is taken by the Council in connection with the
appointment is proppr because executive sessions may be JLeld to consider the appoint-
ment of a public officer, among other things. The word "consider" includes tFie r
!/ to act n e0 oT appointment of an officer .(Luc" v. Board of Trustier` of ArmiLo
rr.n.rl n,rr r.r.�.rr,r.�.
Jo:nt Union High School District - 197.1 - 18 CA 3d 588, 991 40 Ops. Cal. Atty.. Gen.
4 - 19�62) .
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The right -to hold an executive session for the appointment of a public officer extends
to the choosing by a public body of its own officers and is not restricted to the appoint-
ment of some person to a separate posiV*' ot..,gr (§#&E v Oakijj ,j(useum Advisory
Commission - 1073 - 38 CA 3d 73, 76)
Neither- members of the press nor any other individuals who are not witnesses in the
nutter being investigated may be admiited to an executive session.because the Brown
Act "does not permit exceptions to be made for one or more memilers of the-press or any
other member of the publ-Lc" There is no authorization for a "semi=executive" session to
which only particular members of the public selected or approved by the public body
are permitted to attend. The entire purpose for authorising executive sessions. namely.
secrec confidentiality, and absence of publicity,, would-be rendered nagatory by per-
initt3 individuals other than meinbetre;.of the puVIIc body'involved to atbertd- executive
see (48 Ope. Cal. Atty: Gen, 34 - 198t5)
The Brown Act percr_`s a closed session La consider the: dismissal of an officer or
ployee unless such officer or employee reglaests a public hearing. In a dismissal
matter the Council to action was eufticient even though not done in an open publics meeting
(Cossol$po v City .of F�ontana. - 19 -- 136 CA 2d.0080 e12) ,
The Brown Act does no; req a,re publication of a detailed agenda specifying termina-
tion of an employee's contract as a matter to be considered at an executive session .(Lu_cas_
v. Board of Trustees of Armi o Joint Union High School District 1971 - 18 CA-Id
988, 992 Krautiea"tr..,golsno County 3 for Coi2i a District - 1874 - 42 CA 3d 394 . 404)
The general.rule is that an employee may request a public hearing rather than an
executive session The employee has no right to require s closed meeting. Unless the
employee has asked for a public meeting the discretion lies with the governing body as
to whether the hearing shall be public or private. (44 Ops. Cal. Atty.. (Pin. 147 1904) .
Minutes of exec,�tive sessions c ncerring discussions or action on personnel mat-
ters are not available for pvWic Inspection. They maybe made public by the,determina-
tion W a majority of the governing body, to make all or any portion of the minutes of an
executive session ptibtic as they deem appropriate regardless of the concurrence of the
parties involved, To rewire that the minutes of ar, executive session must be open•to
publ.,c inspection would destroy the very,purpoee'of the exception ootaittad In the Brown
Act 144 Ops Cal Atty Gen 147 - 1984)
Whei. a schcoid distr Lt em. ploj-ee regveated a public hea4M in a personnel matter
and the governing board held an executive session prior to the second public hearing
in order to review the answer a given during the first public hearing the employee
claimed that since he had re. aiested a public%earing it was improper to consider any
phase of the matter in an exec%t_ve sesa:on. The court held that'if there was a technical
violation of the Brown Act. it in no way prejudiced the employee's rights and did not
invalidate the. Boaro's-ac::on. r.ecauae the Board did not take any action or dear any addi-
tional evidence ;Huntinaton Beach Union S.cthte,l I?3st. V. Colling - 1. 02 - 202 CA
A discussion during an executive session of the qualifications of two persons to
continue as radiologists which was.followed by an open meeting during which one
agreement relating to radiology services-was terminated and another approved, was
held not to violate the Brown Act because the discussion during an executive session
of the personal qualifications of the two men in question came within the "closed see-
sion exception" provided in the Brown Act (LiL"Ay ,Xqvthern San .P_UW: county
Hospitgi Dist. 1980 246 CA $d 67;8, sty-679)
LITIGATION
Meetings of a City Council with its City Attorney for the purpose.of general dis-
cussion and consideration of problems confronting'the Council, including legal prob-
lem, are subject to the Brown Act, The holding of an executive session with.the City
Attorney.to consider litigation pending or threatened originally was approved by the
Attorney General.
The public interest with which the Brown Act is concerned does not require con-
ferences between a City Council and its City Attorney held solely to discuss litigation
(including condemnation of property) kend ng, pX2RWd or antici aced, to be.open.to
the public where a public discussion of such matters would redoun b benefit of
the city's adversary and to the detriment of the public (36.Ops. Cal. Atty.. Gen. 175 -
1960) . The Attorney General was quick to point out that "'. . in the normal relation
between a City Council and its City Attorney where.the City Council seeks the legal
advice of.the City Attorney as to-tIhe 14gai effect of..'m►t wpending bef i .the City
Council, such meetings must be open to 4ie public,"
This opinion was reinforced in 1963 when the Attorney General (42 Ops. Cal. Atty.
Gen. 01) stated that meetings of a City Council with the City Manager, City Attorney,
and*Planning Director are subject to the open meeting,requirements of the. Brown Act
unless the subjects under discussion involve matters within the executive 'session
exception (Sec. 54957) , or are the subject of then current or pending litigation within
the narrow limits carefully outlined in the 1960 opinion.
The first judicial sanction of this exception came in a case in which the District Court
of Appeal permitted a Board of Supervisors to confer with its attorney under conditions
in which the lawyer-client privilege.would obtain(Sacramento Newspapey!G_WUd v.
Sacramento County Board of Supervisors - 1967 - 255 CA 2d 51)
However, the definitive approval of a publ.Lc body's right to meet with its attorney
.n an executive session under the appropriate circumstances came one year later in
Sacramento Newspaper Guild v. Sacramento County Board of Supervisors (1968)
263 CA 2d 41, 52-55. A privilege attaches tb confidential lawyer-client communications
which is just as available to public agency clients and their lawyers as to their private
counterparts. The Evidence Code distinctly includes public agencies among the clients
who may assert this privilege. The.privilege serves a policy assuring private consul-
tation If client and counsel must confer in public view and hearing, both privilege and
policy are stripped of value. After noting that the statutory lawyer-eL.;nt privilege of
public agencies actually predates the Brown Act, the Court concluded that the public
meeting requirement in the Brown Act did not abrogate by implication the statutory policy
assuring opportunity for private legal consultation 'by public agency clients. Government
-10-
' rrrf err+
should have no advantage in legal strife; neither should it be a second'-'class citizen.
PROCEDURAL AU S
.. CaNc'L�1�"('l�tG•ME�TI51GfS
A meeting is not required to be held within the boundaries of the territory over
which a particular public body exercises jurisdiction unless the law under which, the
City or other local public agency was formed provides otherwise (Sec. 54054)
Meetings of city, councils in general law cities must be held within the corporate,
limits of the'city (Sec. 30808) . On May 1, 1975, the Superior Court of San Luis Obispo
County held that the law under which general law,cities were formed provides that city
councils of such cities must meet within the bo•andaries thereof. The court also noted that
other advisory boards. commissions and committees must meet within the city limits ex-
cept for meetings which require an examination of facts and data outside the territory of
the local agency. (Five Cities DPW
P Recorder al v. Ci of A ' Grande -
1975'- San Luis Obispo County:StijArior Court No.'- 5437) .
The Merced City Charter, requires that all. City Council meetings be held iri the Coun-
�.l Chambers in the City Hall (Merced Charter Sec.. 409) . Notwithstanding that notice was
gl;ren of Council dinner meetings I held in local restaurants and which were attended by
the;press, such meetings at which there was a discussion or deliberation concerning
public business, were held to be a violation of the Brown Act. While the Charter require-
ment concerning the plane of holding meetings was controlling, it should be noted that
such gatherings were he'_d to be "meetings" within the decision of the Sacramento News-
Ltaper..Guild case discussed previously. Meetings of Councilmen with other municipal,
county or statewide legislative bodies or officials for the discussion of matters of common
Werect, wherever held, were excepted. (Linton v.: City Council - 1968 -- Merced County;
Superior Court No. 37039)
A numbez of procedural rules also are laid down in the Brown Act. It requires that
4he time and place of regular meetings be set by ordinance, resolution, or by-laws, A
regular meeting falling on a holiday is to be held on the next business day. In case of
an emergency, the presiding officer may designate another meeting place (Sec, 54954) .
Any type -of meeting may be adjourned to a time and place specified, or by the clerk or
secretary :a :he absence o: all members, in which case written notice must be given in
the same mamaer as provided for special meetings . A copy of the order or notice of
adjournment is required to be posted at the place where the meeting was held within
9'4 hours thereafter, If the order fails to state the hour .at which the adjourned.meeting
's to be held, it shall be held at the hour eperl-fled for regular meetings (Sec 54955) A
h-7ar*:--:g rr,a}v be con':.:r.ed in the same manner as a meeting may be adjourned, but if it
is co'.inued less than 24 hours after the time specified in the order or notice of hearing.
a ccp;; of the cony nuance order or notice must be posted.immediately fb116 i J4g.the meet-'
Notice of a especial meeting, which may be called by the presiding officer or a
-r...jorfty of the members, 's regoired to be delivered personally or by j..ail to eacri
:Yerrlt�er an-1 !:) eacf. local new '1.)aper., radio, or' television statiol) which hAA requv-4!cJ
notice `n ,vr•ling, at least 29, h > Irs prior to the t.me of the special meeting; The•
t►usiness to be transacted mulct be specified in addition to the tim e and place, and no
►+ht•r business may to considered, Writteh notice may be dispensed with 4s to any
orember who riles H written waiver or notice at or prior to the time or tho special me(tting.
Any uva«-► ► ►Wray i)v piven i►y telegram, Written quttce may be dimpenowd with vs to-any
Member who) is.artuall,y present when the meeting convenes- (Se►;. .54956)
The required notice to news media of special meetings must be actually delivered
at least 24 hours before the time of ouch meeting to . oee.media who'have requested
no vice in writing. Deposit of such a rkoti�e in the iliail,i+ts not sufficient (53 t>pa. Cal.
Atty. Gen. 246 - 1070)
Any property owner within a District (but not a city) may request,in writing mailed
notice of every regular or special m tin (Sec. 54954.1) The detailed'r�equirements
to be complied with by,the District are 'soil forth in tfte statute.
The right to notice of special meetings has been strongly upheld.. As early as 1858
the State Supreme Court (County of Eldorado v. Aoed 11 C 130 held that the business
of the Supervisors fs ►+squired to be d at rtuc:maerl o#rided by law,
x u ,
and the public is enti#.led to notice of Business proposisd to be trangsete+� at special
•rieetings,
The press may require twenty-four hours advance notification of any special meeting .
o1f the whole public agency, but such notice is not required as to.any regular or adjourned
reg4lar meeting The minutes of a ragular or special mse>`ing:of the 1"144ve body of
a local public agency-are.public re s-;Open to in ec (42 Ops. C4. 41 . Gen. 240
lose)
MISCELLANEOUS PROVISIONS
In 1070 the State Legislature added several provisions to the Brown Act. '
Every local agency within the purview of the Brown.Act is forbidden from conducting
any meeting, conference; or other function in any facility that prohibits<the admittance
bf any person; or par.$.+ n►e, on the boats of.;xace; religious creed, color, lonel.orgin,
ancestry, or sex ( ead6n 54961) .
5`In the event that any meeting is willfully interrupted by a group or groups of per-
sons so as to render the orderly conduct of-such meeting unfeasible and,.order.cannot be
restored by the removal of individuals who are, willfully interrupting the,,meeting, the
amembers of the legislative body conducting the meeting may order the »eoug room
cleared and continue in session.
On;y matters.appearing on tte.agenda may be considered in such a session . Duly
accredited representatives of the press or other news med=a, except those participating.
in the disturbance, shall be allowed to attend any session held pursuant to this section.
Nothing in this section shall prohibit the legislative.body from establishing' a:procedure
for readmitting an individual or indi,viduahl.n6t,respons.ble for willfully-idisowbing the
orderly conduct of the meeting" (9ec1~Ioti 44957.0:} ,
.A : .1975 -12-
hT TY OF HILPIWTINGTO EACH
INTER-DEPARTMENT COMMUNICATION
MINTINGTON&M," - -
FLUYU G . BELSITO
To Acting City Administrator From City Attorney
Subject City Reimbursement for Date June 29 , 1976
Expenses of Councilperson' s
Spouse
You have asked for the City Attorney" s opinion ,respecting
the legality of reimbursing; the expenses of the spouse of
Council member when attending a function whose cost when
Incurred by the Council member is reimbursed by the City .
With respect to the Council. member, rciinhurserlient. is
authorized under Section 502 of the City Ch�.r.rt-cr on order of
the- City Council for council-authorized tr�avelinf; ntid either
expenses when on official duty upon submission of it:emi_zed
expense account therefor. Therefore , if a Council member
attends a dinner meeting or other function "on official duty"
as a member of the City Council , such expense is reimbursable
upon Submission of itemized expense account therefor. The:-P
expenses should be submitted in stimmary form i,o the City Council
for approval once each month as required by proposed amended
Section 2 . 28.010 of the Huntington Beach Municipal Code .
There is no prov1slon in t:.he Clt;y Charter for reimbursement
of expenses of the Counci1 member' s spouse even when said spouse
accompanies the Council member who is .on "official duty" as such.
We find no clear authority for rei rliburseiiiont of expenses of
Council 'member' s, Spoils;e and although :i:t: is not, entirely free from
doubt, it; is our conservative opinion that such reimbursements
would not: be valid inasmuch as they probably constitute a "gift
of public funds" .
Respectfully submitted ,
I1ciN P . 1WNVA
City Attorney
DPP:er
39.
1-4rXA IV1\t`1L 111tJ 11 J 11.J' V1' 1Y1V141V11 ^J • IVV vrriVZ1%0
839 - 17t1i STREET, N.W. � WASHINGTON, D.C. 20006 �"'�, (2021 347-7996
1)N TIN
PRESIDENT �O )1976 -0
EUGENE N.COLLINS 4
City Attorney V;hattanooga,Tennessee1st VICE PRESIDENT Y 000NARD B.MATTOX,JR.
City Attotnfy
Richmond.VirginiaJuly 9, 1976
2nd VICE PRESIDENT gTTOHERBERT P.GLEASON Don P. Bonfa
Corporation Counsel
Boston,Massachusetts City Attorney
3rd VICE PRESIDENT P.O. Box 190
THOMAS EMMET WALSH Huntington Beach, Calif. 92648
City Attorney
Spartanburg,South Carolina
Dear Don:
TREASURER
HENRY W.UNDERHILL,JR.
City Attorney This is in response to your inquiry of July l as to
Charlotte, North Carolina whether a City may legally pay the expenses of a spouse
GENERAL COUNSEL of a city official who is being sent at city expense to
CHARLES S.RHYNE
Washington,D.C. a .work-related conference.
TRUSTEES: Although we were unable to find any case law in point,
N.ALEX BICKLEY the general principle governing public purpose expenditures
City Attorney
Dallas,Texas seem to support your conclusion that such expenses could
SAMUEL GORLICK not be justified as necessary for "municipal affairs. "
City Attorney
Burbank,California A Minnesota court has succinctly stated the generally
AARON A.WILSON accepted law concerning expenditures for public purposes.
City Counselor
Kansas City,Missouri
"The state or its municipal subdivisions or
�wJOHN Kansas
OEKKER
City Attorney agencies may expend public money only for a pub-
Wichite.Kanses lic purpose. A 'public purpose' is such an ac-
BURT PINES tivity as will serve as a benefit to the com-
City Attorney munity as a body and. which, at the same time,
Lot Angeles,California is directly related to the functions of govern-
JAMES B.BRENNAN ment. A legislative declaration of public pur-
City Attorney
Mllwaukea,Wisconsin pose is not always controlling. In the final
WALDO F.BALES analysis , the courts must make the determina—
City Attorney tion. The mere fact that some private interests
Tulsa,Oklahoma may derive an incidental benefit from the acti-
W.BERNARD RICHLAND vity does not deprive the activity of its pub—
Corporation
wYorNow or lic nature if its primary purpose is public. On
New York, New York
the other hand, if the primary object is to pro
—
Corporation R.O mote some
corporation Counsel
tnsN private end, the expenditure is ille-
Chicatlo. Illinois gal, although it may incidentally also serve
S.G.JOHNDROE,JR. some public purpose.," Port Authority v. Fisher,
City Attorney 269 Minn. 276, 132 N.W. d 183 , 192 (1964) . See
Fort Worth,Texas also Visina v. Freeman, 89 N.W. 2d 635 (Minn. 1958) ;
J. LAMAR Y
City Attorneytorney City of Pi &stone v. Madsen, 178 N.W. 2d 594 (Minn.
Mesa.Arizona 1970) .
BENJAMIN L.BROWN
City Solicitor A California court concluded that "payment of the ne-
Baltimore•Maryland cessary expenses incurred by the duly delegated officers and
employees of the city of Roseville in attending the annual
conference of the League of California Cities, will consti-
MI m1'0 I tute a lawful disbursement of municipal funds for a public
""""""" "'""""""""" purpose. " City of Roseville v. Tulley, 131 P. 2d 395, 400
Don P. Bonfa -2- July 9, 1976
(Cal. Ct. App. 1943) . The public purpose served by attendance of
city officials at this conference was that of improving the admini-
stration of municipal affairs. Certainly, this same public purpose
would not be served by the attendance of city officials' spouses.
Thus, accepting the orthodox view that - some- publie purpose is ne-
cessary to justify expenditure of public .funds, . it 'is our conclu-
gion that the expenses of the spouses of city officials cannot le-
gally be paid by the City.
If we can be of any further assistance, please do not hesitate
' to ,calf, upon us.
Sincerely,
Charles S. Rhyne
General Counsel
CSR:PAjj
e
41.
OFFICE OF THE CITY ATTORNEY
OPINION 140. 76-40
29 July 1976
SUBJECT: City Council/Department Head
Retreat--Brown Act
REQUESTED BY: City Administrator
PREPARED BY: City Attorney
QUESTION: Would you please provide an opinion as
to the legal ramifications and/or steps
necessary for the Council/Depart,-,lent Head
retreat to be held. Because of the fact
that the retreat is scheduled to be held
out of the city) could there possibly be
a problem with the Brown Act?
ANSWER: A City Council/Department Head Retreat may be
held out of the City but it is subject to the
Brown Act .
DISCUSSION:
You have orally explained that the purpose of the retreat
is "team building" and to study "the policy framework for
the five-year budget . " No action will be taken at the retreat .
Personnel Director Ldward Thompson has told me the retreat is
tentatively planned for two days and one or two nights at some
-
as yet undetermined place in Orange County.
We n.n.-fume the retreat has a "municipal purpose" . The City
Charter reco-nizes only fo.rnal meetings, i.e. regular meetin s,
including adjourned regular or re-adjourned' regular meetings
(Section 506 City Charter) and special meetings (Section 507
City Charter) of the City Council.
The City Charter provides that all "meetings" shall be held in
the Council Chambers .of the City or in such place within the
City to .which any such meeting May be adjourned, and shall be
fL
42.
E
OFFIC1 OF TIIF CITY ATTORIILY July 290 1916
Opinion No. 76-40 Page 2
open to the public . (Section 508 City Charter) . The City
Charter contains no definitions of the term "meeting" . It is
the opinion of the City Attorney that Section .5�08 refers only to
the kinds of meetings specifically mentioned in' the City Charter,
namely; regular meetings (including; adjourned regular or re-
adjourned regular meetings ) under Section 506 and special
meetings under Section 507, and all Informal meetings such as
study sessions, conferences, retreats, etc; . may be held at ape
place either within or outside the City a% nay be designated by
the City Council provided they are open to the public if they
are so required to be under the Ralph M. }gown Act..
The City Charter contains its own "Little Brown Act" in Section
510, which provides,,' in relevant- part, that ",all regular .and
the City Council shall be open and ublic
s ecial. meetings. . of y P P
Fmphases added), vrith exceptions to allow executive ses-
lions as designated in said Section 510. Thus, in our opinion,
.Section 510 City Charter (Citizen Participation) applies only to
formal ("regular" and "special") meetings of the City Council
and-"c[aes not apply to informal meetings
Although the Ralph 11. Brown Act, Section 54950 et sea. California
"meeting",Government Code, does not contain a definition of the
definition has been provided by court decisions and Attorney
General's opinions. The following excerpt from the pamphlet
issued by the office of the Attorney General entitled "Secret
Meeting Laws Applicable to Public Agencies" (Revised , April 1976)
at pages 12, 13 and 14, discusses "What is a meeting?"
11What is a ':teeting,?
'The question of what constitutes a meeting
within the Act sometimes may present a difficult
question. Of course, no problem exists as to
regularly scheduled and duly noticed regular and
special meetings of a le;islative body. The prob-
lem arises as to informal meetings of a majority
of the members of. aboard. Such a meeting may
have varying purposes and characteristics. It
Is significant to note that the Act itself does
not define the term 'meeting' .
"In a published opinion of this office written
in 1963 we expressed the view that so-called
'informal, ' 'study, ' 'discussion, ' 'informational, '
'fact finding, ' or 'pre-council' gathering; of a
j majority of the members of a board probably fell
within the scope of the Act as 'meetings' whether
or not the individual members intended to or
even took any action at such a gathering. 42 Ops .
Cal. .At-ty. Gen. 61 (1963 ) .
43 .
OFFICE OIL THE CIT 1976
Y ATTORNEY Jule 29,
Opinion No. 76-40 Page 3
v "In 1964 we held that re ularl,y scheduled
luncheon meetings by the members of one or,
more city councils with representatives of
certain civic associations for the purpose
of discussing items such as school and air-
port problems and other items of .puhl.ic im-
portance fell within the Act . We pointed out,
however, that our opinion was not to be con-
strued to prohibit legislative bodies from
mere social attendance at luncheons and dinners
such as are often given by fraternal groups such
as the Rotary Club or Riwanis . 43 Ops . Cal. Atty.
_ Gen. 36 (1964) . See also I.L. 71-122 to the
same general effect .
"The courts have specifically held that the. Act
now applies to informal meetings . In Sacramento
Newspaper Guild v. Sacramento County Bd of Suprs . ,
263 Cal. App . 2d 41 (1968) , the court held that a
luncheon gathering which included five county
supervisors, the county counsel, county executive,
county director of welfare and certain union offi-
cers to discuss a strike which was underway against
the county was a meeting within the Act, and
therefore newspaper reporters were improperly
excluded. The court 's language at pages 50-51
of the decision is an excellent summary of the
reasoning behind its decision. The court stated:
'In this area of regulation, as well as
others, a statute may push beyond debatable
limits in order to block evasive techniques .
An informal conference or .caucus permits
crystallization of secret decisions to a
point ,just short of ceremonial acceptance.
There is rarely any purpose to a nonpublic
pre-meeting conference except to conduct
some part of the decisional process behind
closed doors. Only by eribracinr the collec-
tive inquiry and discussion stares, as well
as the ultimate step of official action,
can an open meeting; regulation frustrate
these evasive devices . As operative criteria,
formality and informality are alien to the
law's design, exposing; it to the very evasions
it was designed to prevent. Construed. in the
light of the Brown Act 's objectives, the term
'meeting;' extends to informal sessions or
conferences of the board members designed for
the discussion of public business . The ElIts
Club luncheon, attended by the ,Sacramento
County Board of Supervisors, was such a :neetin,". '
44 .
OFFICE OF TH.L CITY ATTORN8Y July 29, 1976
Opinion IJo. 76-40. Page 4
"Thus, meetings include informal gatherings
where the public 's business is discussed as
well as formal meetings . "
It appears that, and, in the opinion of the City, Attorney,
a City Council/Department Head Retreat falls within the broad
purview of the term "Meeting", as used in the Brown Act, but
does not constitute a meeting under the City Charter. Thus,
informal, as distinguished from formal meetings, are subject
to the own Act but not to the City Charter:
Under the Brown Act, all meetings of the legislative body of
a local agency shall be open and public and all persons shall
be permitted to attend any meeting of the legislative body
of a local agency, excent as otherwise provided in the Act
(Section 54953 California Government Code). However, the
Brown Act does not require that meetings of the legislative
body of a local agency be held within the boundaries of the
territory over which the local agency exercisesjurisdiction,
unless otherwise provided for in the Act under which the local
agency was formed. (Section 54954 , California Government Code) .
The Brown Act further provides that the legislative body of
a local agency shall provide, by ordinance, .resolution, bylaws
or by- whatever other rule is required for the conduct of business
by that body; the time for holding regular meetings.. (Section
54954, California Government Code) . The City Charter by Section
506 provides that "City Council shall hold regular meetings at .
least twice each month at such times as it shall fix by ordinance
or resolution and may adjourn or re-adjourn any regular meeting
to a date and hour certain which shall be specified, in the order
of adjournment and when so adjourned, each adjourned neeting
shall be a regular meeting for all purposes. . . . " The time and
Place of regular council meetings is fixed by Resolution No. 4161
(November 17, 1975) which provides that reggular council meetings
"shall be held in the City Council Chambers on the first and
third Mondays of each month at 7: 00 p.m. "except where a meeting
falls on a holiday it shall be held on the next business day. "
A City Council/Department Head Retreat is not a regular or special
.meeting of the City Council tinder the City Charter and therefore
need not be held within the Citylimits of Huntington Beach, however,
it does fit the broad scope of the term "meeting" under the Ralph
M. Brown Act and therefore, must be open to the public. The times,
dates and Place of the City Council/Department Head Retreat must
be announced at a regular meeting of the City Council to enable
the public and th-e press to attend the retreat .
The following requirements should be observed:
1. The retreat shall not constitute a regular or adjourned
regular meeting or a special meeting of the City Council. It
�✓ must not be a formal meeting.
2. There shall be no "action taken"- as defined in Government
45.
OFFICE OI+' THE CITY ATTORNEY July 292 1976
Opinion ,do. 76-40 Pale 5
Code Section 54952.6. which reads: ". . .collective decision
made by a majority of the members of a legislative body, a
collective commitment or promise 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 a legislative
.body when sitting as a body or entity, upon a motion, proposal,
resolution, order, or ordinance. " If ":action" were to be taken,
the meeting would in fact be "formal" ana' sub,ject to the City
Charter.
"Deliberation" at the retreat is inevitable and is permitted
inasmuch as the retreat will be open to the public and under the
Brown Act need not be held within the City of Iiuntin-ton Beach.
Study or deliberation without action would not appear to violate
the City Charter if no regular, adjourned or special Meeting,
as -classified in the Ciiarter, is involved. The reason for this
is that Section 511 of the City Charter provides that no ordinance
shall be adopted by the City Council at an.,, time "other than at
a regular or adjourned regular meeting" nor shall any "order for
the payment of money be adopted or made in any other than a
regular or adjourned regular meetin . " Although not expressly
stated in the Charter, it is-the opinion of the City Attorney that
no resolution of the City Council May be introduced or adopted
at any but regular or adjourned regular meetings. There appears
�„► to be no City Charter prohibition against study sessions or
informal sessions or retreats at which no "action" is taken.
COUCLUSION
1. A City Council/Department Head Retreat at which no "action"
is taken, held outside the City is not a violation of the City
Charter because it is neither a regular or ad,iourned, or special
meeting of the City Council. . It is an informal as distinguished
from a formal meeting.
2. The City's "Little grown Act", Section 510 of the City Charter
(Citizen Participation) , does not prohibit such retreat because
said section is limited to "regular and special meetings of the
City Council: "
3. The Ralph M. Brown Act does apply to such .retreat by reason
of the broad scope definition of "meeting" which has been wafted
upon the Brown Act by court decisions and Attorney General's
opinions . The Brown Act itself contains no definition of the
term "meeting. "
�r
46 ,
SWO►
OFI+ICE OF Tilt CI`1"Y ATTOMN Y July 29, 1976
Opinion No. 76-40 Pare 6
i
4. The Brown Act does not Prohibit the City from holdinf-
meetin s outside the City. The City Charter does not require
Y q
informal meetings to be held within the City. '"he renuirement
of the City Charter is that formal meetings must be held within.
the City limits.
5. inasmuch as the out-of-town "retreat" is subject to the
Frown Act, its tines, dates and place must be announced at a
regular meeting of the City Council and it must be, open to the
public and the press . Although probably not technically required,
we advise that notice be given pursuant to Section 549560 California
Government Code.
6. The reason why no "action" may be taken at an out -of-town
retreat is not because of the Prown Act but because ,if "action"
were taken the retreat would de facto become a formal meeting of
the City Council and thus, the City Charter recyuirenent that
such formal Meetings be held within the City limits would apply.
7. We recommend _that d scretion .be used And that in order to
avoid criticism, the retreat not .be held at a place so distant
from the City of Huntington Beach as to create undue hardship
` upon attendance by the public or press.
8. City AttorneyMemorandum Opinion p n dated May 21, 1973
superseded by this opinion.
Respectfully submitted,
.901.1 P. I3014FA
City Attorney
DPB:er
47 .
May 29, 1973
"r. John *1. Powers
City Attorney
City of VAlleio
City Nall, '
Vallejo, California 94590
Re: Your letter of May 23, 1973
.. Procedure for ifandlitir
Executive Sessions of City Council
Dear }!r. Pnwers
The policy described in your letter has never been
formalized nor has it been put in writing :' 7 had esu�;�tested
to the then Mayor and the City Administrator that a policy
be developed for the conduct of executive se nnionas . Nothing
further was done except that the City AOmInistraator and 1
discussed the natter and it was informally agreed that he
would submit to me for prior approval all topics to be
covered in council executive nesaions . :his , I think,
tV,, ❑ is a large step 'in the right dire ction.
My idea of what the policy should be in thin. regard
is very simple and I will outline it as _follows s
1. The . City, Adninistra.tor -should submit to the
I:eI.ty Attorney a written as►e#nda for each. council e+xeMcutive
ession for prior alproval try the City Attorney in terms of
the R!tlph M. Brown .Act , court deeisi.on3 anti other legal
sources (e• '. they Attorney Ileneralln Pnrnphletsi , City
Attorney Opinions , City Attorney Department Conference
papern , etc. ),
2. The City Attorney should be prerse ht In the neeting
room during all council executive se nnionn . This will ►dive
they Mayor. who in prealditir as chairran or the neeti.nrr, legal
counsel on whether or not the council ia► toeing the mark
With reference to the Brown Act.
3. Written Minutes should be kept of all matters dis-
cussed in the executive nesesions. Such minutes should be
fte4pt by the City Clerk and retained in an executive folder
In the City Clerk 's vault. The purpose of the minutes, of
course, Is to mare certain that matters discussed and df.%ci-
31ons reached in exe cutive* session art, reported Recurately.
The hut;an mcet:►ory 1s a frail instrument
48 .
Re: Your le'bmrer of "ay 23 , 1973 Fttpe+
-- Procedure for Handlinr
"40cuti.ve :;w-assione! of City
Council.
4. When tho City Attorney advises- the: Mayor .that
the Council is discussing a mntter which should not be
discussed In executive session pursuant to the Brown Act ,
they Mnyor hhould ordor the Council to discontinue such dis-
cussion and to return -to leesrally, permitted tor-icn.
All rersotia present at the executive pension,
Including the mamhesrs of Council, City Administrator, City
Attorney, City Clerk, and other stafr members, should res-
pent the executive nature or the meeting and all matters
discussed therein and should not reveal any ,executive Matters
to the press or anyone else without first obtaining prior
permission of the City Council.
9 . The number or executive sessions :should be kept
to a minimum.
7. The Council should ro into executive session only
from and during., a council meeting. • (It is my position that.
any counei l' meeting is asurficient for thin rurnos.e: whether
regulnr, arljourned or ,pecial) .
8. in announcing that the Council will recess to exe-
cutive session, the Mayor should Indicate what the executive
1 J session In beinr, called for. Thiq may be (tones +_n loe+nernl terms,
such ass "to discuss litigation" or "to discuss personnel
matters" . In my opinion, it In not necessary for the Mayor
to announce publicly the exact topic by title , thus, it is
not necessary. for the Mayor to any: "to discunsst litration
involving the Doe v. City case" or "to discuss personnel
matter involving Jnnee mith" . To be that �speeaifie, it esees;as
to me,� may reveal too much information which the law does not
require and s+-tay give the press leads to follow up in ordor
to break the curtain of secrecy which in proper matters is
permitted by the Brown Act .
truat the above information will he of help to you
and if 'your cite develop.q a policy on the suh.ject or executive
sessions, please send a copy to the underairned.
Vary truly yourz ,
DON P. BnNFA
City Attorney
DPR:er
c.c. Va,yor Jerry A. t'sttney
1)Rv1d D. nowlsnda, City Administrator
49,
RESOLUTION NO.. 4283
' A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF HUNTINGTON BEACH ADOPTING A CONFLICT OF
INTEREST CODE APPLICABLE TO THE MEMBERS OF
THE CITY COUNCIL PURSUANT TO THE POLITICAL
REFORM ACT OF 1974
THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH RESOLVES "
AS FOLLOWS:
SECTION 1. ADOPTION OF CONFLICT OF INTEREST CODE. In
compliance with §87300 of the Government Code, the City Council
hereby adopts this Conflict of Interest Code.
SECTION 2. APPLICATION OF CODE, This Conflict of Interest
Code. shall be applicable to members of the City .Council.
SECTION 3. DISCLOSURE. Members of . the City Council are
required, pursuant to Government Code §87200, to disclose invest-
ments , interests in .real property and income. No other or no
i additional digclosure ' requirements are imposed by this Conflict.
of Interest Code.
SECTION b . CIRCUMSTANCES REQUIRING DISQUALIFICATION. Any
member of the City Council, whether acting as a Council member or
as governing board member or Commissioner of any city agency, in-
cluding the following:
City of Huntington Beach `Redevelopment Agency
.Parking Authority of the City of Huntington Beach
must disqualify himself or herself from making or participating in
the making of any decisions which will foreseeably have a material
financial effect , distinguishable from its effect on the public
generally , or any financial interest , as defined in Government
Code §87103. No member shall be prevented from making or par-
ticipating in the making of any decision to the extent his or
her participation is legally required for the decision to be
made.
DPB:bt 50•
ti
SECTION 5. The City Clerk is directed; to forward a. cer-
tified copy of this resolution to the Fair Political Practice
Commission.
PASSED AND ADOPTED by the City Council of the City of
Huntington Beach at a regular meeting thereof .held on the
16th - of August , 19760
12
149YOr
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ATTEST:
645t y C 1 e rk
APPROVED AS TO CONTENT:. APPROVED AS TO FORM
i
.�...,
i Adm n g rator y orney
APPROVED, INITIATING DEPAR'INT:
Af
NO FISCAL. IMPACT
FISCAL IMPACT BUDGETED
i
FISCAL IMPACT -- NOT BUDGETED
REQUIRE-S FINANCIAL IMPACT DEPORT
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DPB:bt
No. 4283 t
am OF CAL17MIA )
+�. COUNTY 0! ONANCL ) s•t
CITY OF NWIMON BBACN )
I, ALICIA K. WSNI fONMl, the duly sleeted, qualified City
Clerk, of the .City of Huntington Death, and ex-officio Clerk of the
City Council of said City, do hereby certify that the whole number of
aonbers of the City Council of the City of Huntington Beach is seven;
that the foregoing resolution was passed Add adopted by the Affirmative
vote of more than s majority of all the -w6 m ira of said City Council
at a regular , sooting thereof held on the I day
of hmal , 19�, by the following vote:
AYES: Councilmen;
ba:ctlntt, gattinson giebert
NOEB: Councilman:
Dons
ABSENT: Councilmen:
Coen, Gibbs
dCa
City Clerk and ex-officio Clark
of the City Council of the City
of Hvatingtoft Beath, California