TransparentGov Novato v. City of Novato: It’s Tough To Maintain a Brown Act Claim When the City Commits to Stop its Offending Practice

In TransparentGov Novato v. City of Novato, plaintiff sought declaratory relief and a writ of mandate regarding the City Council of the City of Novato’s discussion of and action on items that had not been on the City Council’s published agenda.  The court denied such relief because the City had disclaimed its past actions and adopted new policies to avoid similar practices in the future. 

In November 2015, a new mayor was elected in Novato.  Prior to the next Council meeting, the new mayor invited the public to attend the meeting and critique the prior council’s decisions on previously approved projects.  There was significant public comment, and afterwards, the mayor asked her colleagues to reconsider the previously approved projects.  This discussion took place after public comment and during the council-comments portion of the meeting.   The Council ultimately voted to form a subcommittee to study one of the previously approved projects.  This action had not been on the Council agenda. 

Several months later, TransparentGov sent the City a cease and desist letter arguing that the City had violated the Brown Act “by discussing substantive aspects of the solar project and by voting to establish a subcommittee to further consider the project without first giving public notice that these activities might occur.”  The City responded that in the future, it would not create subcommittees, without first notifying the public.  The City also revised its Council policies to require council members to request in writing anything that they wish to have placed on a future agenda so that it can be published. 

TransparentGov nonetheless filed suit.  The First Appellate District rejected plaintiff’s claims on procedural grounds.  The Brown Act requires that any potential challenger first give the public agency an opportunity to cease and desist from the allegedly wrongful action.  (Government Code sections 54960.2 (c)(1) & (3).)  The court explained that “[a] trial court must dismiss with prejudice any case seeking relief for any past action if the court concludes that the legislative body has responded to the letter ‘with an unconditional commitment to cease, desist from, and not repeat the [allegedly wrongful] past action.’” (brackets in original).

 Here, the court found that the City had made such an unconditional commitment by agreeing not to form subcommittees in the manner it had in December 2015 and by revising its internal policies.  The record “includes extensive evidence, which was mostly uncontested, providing factual details and context about the alleged Brown Act violations and the City Council’s amended policy manual.”  That was enough.  “When there is no reasonable basis to believe that a past action will be repeated, a viable claim does not exist simply because a public entity declines to concede that the action was illegal under the Brown Act.”  Therefore, there was no justiciable controversy and the petition was properly denied. 

This case confirms courts’ appropriate willingness to give public agencies the chance to fix their mistakes. This doctrine implicitly acknowledges that judicial resources are best spent where they can “make a difference.” But where a local body has already fixed the problem, there’s no need for the court to spend time or pile on with additional remedies.

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