Ralph M. Brown Act:
Attorney General's Guide
(Note: This page contains a segment of the California Attorney
General's 1994 pamphlet, "The Brown Act: Open Meetings for Local Legislative
Bodies," Deputy Attorney General Ted Prim, editor. No alteration of the substance has
been made in placing the pamphlet on this site, although some formatting changes have been
made to allow for navigating the text.)
Return to Brown Act table of contents
CHAPTER VII.
PENALTIES AND REMEDIES FOR VIOLATION OF THE ACT
To assist in enforcement of the open meeting laws, criminal penalties, civil injunctive
relief and the award of attorney's fees are provided. In addition, with certain statutory
exceptions, actions taken in violation of the Brown Act may be declared null and void by a
court.
1. Criminal Penalties
The Act provides criminal misdemeanor penalties for certain violations. Specifically,
the Act punishes attendance by a member of a body at a meeting where action is taken in
violation of the Act, and where the member intends to deprive the public of information to
which the member knows or has reason to know the public is entitled. (sec. 54959.)
The term "action taken" as defined by section 54952.6 includes a collective
decision, commitment or promise by a majority of the members of a body. The fact that the
decision is tentative rather than final does not shield participants from criminal
liability; whether "action" within the meaning of the statute was taken would be
a factual question in each case. (61 Ops.Cal.Atty.Gen. 283 (1978).) Mere deliberation
without the taking of some action will not trigger the criminal penalty.
2. Civil Remedies
A. Injunctive Relief
The Act provides civil remedies in the form of injunction, mandamus or declaratory
relief. (sec. 54960.) These remedies are available to prevent further or future violations
and do not require knowledge or action taken -- elements required for imposition of
criminal liability. (See Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs.,
supra, 263 Cal. App.2d 41.)
If a person or member of the media believes a violation of open meeting laws has
occurred or is about to occur, or there is some belief that a past violation will reoccur,
he or she may wish to contact the local body, the attorney for that body, a superior
agency or the district attorney. If such contacts are not successful in resolving the
concerns, either the district attorney or any interested person also may seek relief in a
superior court. (sec. 54960.) An "interested person" may include, in addition to
the public, a public entity or its officers. Where a legislative body has committed a
violation of the Act concerning closed-session meetings, a court may order the body to
tape record future closed sessions pursuant to the procedures set forth in section
54960(b).
B. Voidability of Action
Either interested persons or the district attorney may seek to have actions taken in
violation of the Act declared null and void by a court. (sec. 54960.1.)
Before a suit can be initiated, the complainant must make within 90 days a written
demand to the board to cure or correct the violation, unless the action was taken in an
open session but in violation of section 54954.2 (agenda requirements), in which case the
written demand shall be made within 30 days from the date the action was taken. (sec.
54960.1(b).) If the board refuses or fails to cure or correct a violation of sections
54953, 54954.2, 54954.5, 54954.6 or 54956 within 30 days from receipt of the written
demand, the complainant may file a suit to have the action adjudged null and void. (sec.
54960.1(b).) Suits under this section must be brought within 15 days after receipt of the
body's decision to cure or correct, or not to cure or correct; or 15 days after the
expiration of the 30-day period for the body to cure or correct -- whichever is earlier.
(sec. 54960.1(b).)
Once an action is challenged, a body nevertheless may cure or correct that action
without prejudice and may have the lawsuit dismissed. (sec. 54960.1(d).)
Exemptions are provided in connection with decisions involving bonds, taxes and
contracts on which there has been detrimental reliance. (sec. 54960.1(c).) Also, actions
"in substantial compliance" with the requirements of the Brown Act are exempt.
(sec. 54960.1(c)(1).) Persons having actual notice of matters to be considered at a
meeting, within statutorily prescribed time periods in advance of a meeting, are barred
from having an action declared null and void. (sec. 54960.1(c)(5).)
C. Attorney Fees
The Act provides for the award of attorney fees. (sec. 54960.5.)
The Act provides that a plaintiff may receive attorney fees, but the award is against
the agency, not the individual member or members who violated the Act. The defendant
agency also may receive attorney fees when it prevails in a final determination and when
the proceeding against the agency is frivolous and without merit. (Sutter Sensible
Planning, Inc. v. Board of Supervisors, supra, 122 Cal.App.3d 813; Frazer v. Dixon Unified
School Distr., supra, 18 Cal.App.4th 781, 800.)
In Common Cause v. Stirling (1981) 119 Cal.App.3d 658, the trial court measured the
petition for attorney fees under section 54960.5 against the standards established in Code
of Civil Procedure section 1021.5, regarding the enforcement of an important right
affecting the public interest.
Since the trial court concluded that attorney fees would not have been justified under
section 1021.5, it refused to grant an award under the Act. The appellate court reversed,
stating that even though recoveries would be small under normal principles, the damage was
to the public integrity and, therefore, the Legislature had determined that public funds
should be made available to pay for attorney fees to enforce these laws. Factors which
should be considered in determining whether an award of attorney fees would be
"unjust" and, therefore, should not be made, include the effect of such an award
on settlement, the necessity for the lawsuit, the lack of injury to the public, the
likelihood that the problem would have been solved by other means, and the likelihood that
the problem would reoccur in the absence of the lawsuit.
The case was remanded to the trial court which still concluded that the plaintiff was
not entitled to attorney fees. The matter once again was appealed, and the appellate court
reversed the trial court a second time. (Common Cause v. Stirling, supra, 147 Cal.App.3d
518.) The court held that the plaintiff was entitled to attorney fees because it had
established a legal principle on behalf of the public.
