220414 1336 Brown Act Demand & CPRA Request - March 14, 2022 City Council MeetingFrom:Shaila Nathu
To:City Clerk
Cc:Cypress Administration; Paulo Morales; Anne Hertz-Mallari; Frances Marquez; Scott Minikus; Jon Peat
Subject:Brown Act Demand & CPRA Request - March 14, 2022 City Council Meeting
Date:Thursday, April 14, 2022 1:35:46 PM
Attachments:2022.04.14 - Brown Act Demand & CPRA Request (Cypress) - Final.pdf
Dear City Clerk,
Please see attached for a Brown Act demand and a California Public Records Act request regarding
City Council’s closed session discussion and vote to maintain at-large elections that occurred on
March 14, 2022. You will receive this same notice via facsimile to (714) 229-6682 in accordance with
Government Code section 54960.2.
Best,
Shaila
Shaila Nathu
Assistant General Counsel
464 E. Bonita Avenue, #10
San Dimas, CA 91773
(916) 487-7000
April 14, 2022
VIA EMAIL AND FACSIMILE
Cypress City Clerk (via email to cityclerk@cypressca.org and via facsimile to (714) 229-6682)
City Hall
5275 Orange Avenue
Cypress, CA 90630
Re: Brown Act Demand for Cure and Correction
(Gov’t. Code §§ 54960, 54960.1 & 54960.2)
AND
Public Records Act Request
(Gov’t. Code § 6250, et seq.)
Dear City Clerk:
This demand is made on behalf of Californians Aware and a group of concerned citizens
alarmed by the secret and illegal discussion and action taken by the Cypress City Council
(“City Council”) regarding whether to transition from at-large elections to district
elections, in violation of the Ralph M. Brown Act, Government Code section 54950, et
seq. (“Brown Act”). Such discussions and action must take place in open session to
ensure that the public has a meaningful opportunity to participate in the decision-
making process.
Background
At its regular meeting held on March 14, 2022, City Council recessed into closed session for
item 3.1 described in the agenda1 as:
CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION
Pursuant to Government Code Section 54956.9(d)(2)
Significant exposure to litigation - one potential case
Claim of California Voting Rights Act violation from Southwest Voter
Education Project
Though invoking the anticipated litigation exception to the general requirement of open
and public meetings requires a “significant exposure to litigation,” it has come to our
attention that City Council used this closed session to consider and discuss the
1 Available at https://drive.google.com/file/d/1EvcUvgHyEqFhMYcZHtEa5inM_cOpcWVJ/view.
April 14, 2022
Brown Act Demand and CPRA Request
Page 2
implications of transitioning from at-large to district elections and vote to reject district
elections without such exposure, in violation of the Brown Act.
The Brown Act is designed “to facilitate public participation in all phases of local
government decisionmaking, and to curb misuse of the democratic process by secret
legislation by public bodies.” (Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th
547, 555.) “It is the intent of the law that [the] actions [of local public agencies] be taken
openly and that their deliberations be conducted openly.” (Gov’t Code § 54950.) The
California Constitution expands this right by declaring that “[t]he people have the right
of access to information concerning the conduct of the people’s business, and, therefore,
the meetings of public bodies and the writings of public officials and agencies shall be
open to public scrutiny.” (Cal. Const. Art. 1, § 3(b)(2).)
To ensure compliance with the Brown Act, “[a]ll 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, except as otherwise provided in this
chapter.” (Gov’t. Code § 54953; see also Los Angeles Times Communications LLC v. Los
Angeles County Board of Supervisors (2003) 112 Cal.App.4th 1313, 1317 (“[w]ith few
exceptions, the Ralph M. Brown Act obligates government agencies to meet and act in
public”).)
The Brown Act allows bodies to hold closed sessions, but only in limited, statutorily
specified situations, and only after complying with notice requirements. Government
Code section 54956.9 provides that a legislative body may hold “a closed session to
confer with, or receive advice from, its legal counsel regarding pending litigation.”
(Emphasis added.) Litigation is considered pending when “[l]itigation, to which the
local agency is a party, has been initiated formally,” “[a] point has been reached where,
in the opinion of the legislative body of the local agency on the advice of its legal
counsel, based on existing facts and circumstances, there is a significant exposure to
litigation against the local agency,” “based on existing facts and circumstances, the
legislative body of the local agency is meeting only to decide whether a closed session is
authorized due to such significant exposure,” and “based on existing facts and
circumstances the legislative body of the local agency has decided to initiate or is
deciding whether to initiate litigation.” (Gov’t Code § 54956.9(d)(1-4).)
Here, litigation had not been initiated and City Council had neither decided nor was
deciding whether to initiate litigation. Nor was City Council’s discussion limited to
whether a closed session was warranted at a later date due to a significant exposure to
litigation. City Council incorrectly relied on the definition of pending litigation
requiring that “based on existing facts and circumstances, there is significant exposure
to litigation against the local agency.” (Gov’t Code § 54956.9(d)(2).) But the mere
possibility that a body’s action might be challenged in court is not a sufficient threat to
April 14, 2022
Brown Act Demand and CPRA Request
Page 3
justify a closed session. As the Attorney General’s manual on the Brown Act states, “the
purpose of [section 54956.9] is to permit the body to receive legal advice and make
litigation decisions only; it is not to be used as a subterfuge to reach nonlitigation
oriented policy decisions.” (Cal. Dept. of Justice, Off. of Atty. Gen., The Brown Act
(2003), p. 40.) Allowing City Council to engage in such preemptive discussion of topics
of wide public concern, including weighing the pros and cons of at-large vs. district
elections and voting on the form of elections, behind closed doors undercuts not only
the closed session exception for pending litigation but also the Legislature’s declaration
that “the public commissions, board and councils, and the other public agencies in this
State exist to aid in the conduct of the people’s business. It is the intent of the [Brown
Act] that their actions be taken openly and that their deliberations be conducted
openly.” (Gov’t. Code § 54950.)
Furthermore, Government Code section 54956.9(e)(5) requires that where a legislative
body claims that there is significant exposure to litigation against the local agency based
on existing facts and circumstances and “a statement threatening litigation made by a
person outside an open and public meeting on a specific matter within the responsibility
of the legislative body,” the official or employee of the local agency receiving knowledge
of the threat must make a contemporaneous or other record of the statement prior to
the meeting available for public inspection pursuant to Government Code section
54957.5. “Where litigation has been threatened outside a public meeting, it may be
discussed in closed session under section 54956.9, subdivision (e)(5) only if a record of
the threat is made before the meeting, which record must be made available for public
inspection pursuant to section 54957.5. (§ 54956.9, subd. (e)(5).)” (Fowler v. City of
Lafayette (2020) 46 Cal. App. 5th 360, 369, as modified on denial of reh'g (Mar. 11,
2020), review denied (July 22, 2020).) “Read together, sections 54956.9, subdivision
(e)(5) and 54957.5 require public agencies to include with the agenda materials
litigation threats to be discussed in closed session.” (Id. at 370.) Here, City Council did
not meet its duty to make the record of the statement threatening litigation part
available for public inspection, thereby ignoring Government Code section
54956.9(e)(5)’s express directive to disclose documented threats related to a closed
session agenda item.
To the extent City Council used the claim of California Voting Rights Act violation from
Southwest Voter Education Project it cites in the agenda but does not provide for public
inspection to vote to maintain at-large elections in closed session defies Trancas
Property Owners Assn. v. City of Malibu (2006) 138 Cal.App.4th 172 (“Trancas”). In
that case, the court prohibited a public agency from taking action that should have been
handled in open session via a settlement agreement approved in closed session. The
court explained, “[a]s a matter of legislative intention and policy, a statute that is part of
a law enacted to assure public decision-making, except in narrow circumstances, may
not be read to authorize circumvention and indeed violation of other laws requiring that
April 14, 2022
Brown Act Demand and CPRA Request
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decisions be preceded by public hearings, simply because the means and object of the
violation are settlement of a lawsuit.” (Id. at 186.) Just as the court in Trancas
disavowed the body’s adoption of a settlement that accomplished action for which a
public hearing is required by law, City Council here cannot use the pretense of a claim
that the California Voting Rights Act has been violated to vote on at-large elections vs.
district elections in closed session. To allow this would be to usurp the public’s right to
notice and opportunity to participate in the decision-making process, in contradiction to
the letter and intent of the Brown Act.
Members of the public must be able to address the body before or during the
consideration of any item discussed by the body. (Gov’t. Code § 54954.3.) But this
provision means little without giving the public the necessary information about what
items are going to be discussed. Therefore, the Brown Act also requires that, prior to
holding any closed session, the legislative body is mandated to disclose the item or items
to be discussed. (Gov’t. Code § 54957.7(a).) The body must first “post an agenda
containing a brief general description of each item of business to be transacted or
discussed at the meeting, including items to be discussed in closed session.” (Gov’t.
Code § 54954.2(a)(1).) “No action of discussion shall be undertaken on any item not
appearing on the posted agenda,” and the body “may only consider those matters” that
were included in its statement of items to be discussed in closed session. (Gov’t. Code §§
54957.7(a), 54954.2(a)(2).)
Government Code section 54954.5(c) provides closed session agenda description language
that a body may use to describe a conference with its legal counsel regarding anticipated
litigation.
CONFERENCE WITH LEGAL COUNSEL—ANTICIPATED LITIGATION
Significant exposure to litigation pursuant to paragraph (2) or (3) of
subdivision (d) of Section 54956.9: (Specify number of potential cases)
(In addition to the information noticed above, the agency may be required
to provide additional information on the agenda or in an oral statement
prior to the closed session pursuant to paragraphs (2) to (5), inclusive, of
subdivision (e) of Section 54956.9.)
Initiation of litigation pursuant to paragraph (4) of subdivision (d) of
Section 54956.9: (Specify number of potential cases)
Describing a closed session item in substantial compliance (i.e. by including the
information provided above) shields legislative bodies and elected officials from liability
for violations of Government Code sections 54954.2 and 54956. However, this
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Brown Act Demand and CPRA Request
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protection presupposes that the legislative body is honest in its description of closed
session agenda items. Failing to do so undermines the entire purpose of the statute and
therefore cannot be deemed substantial compliance. Here, there was no “significant
exposure to litigation,” and the description therefore is false. As a result, City Council
and its members are not eligible for the safe harbor.
Here, the discussion and vote on the elections systems in closed session violates
Government Code sections 54953 and 54956.9 and the failure to specify that the City
was considering converting from district elections to at-large elections violates
Government Code sections 54957.7(a), 54954.2(a)(2), and 54954.5(c). These violations
ultimately prevented the public from discussing whether this change should be
undergone at all.
Demand
In order to ensure that the public has the ability to meaningfully participate in the
decision-making process relating to City Council elections, CalAware hereby demands
that pursuant to Government Code sections 54960 and 54960.1, City Council cure and
correct its illegal actions by rescinding any “action taken” (meaning any “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 a negative decision, or an actual vote by a majority of the members of a
legislative body”) with regard to City Council elections, outside of a noticed, public
meeting.
Additionally, pursuant to Government Code sections 54960 and 54960.2, City Council
must agree to refrain from similar violations in the future.
City Council must notify this office of its decision to cure and correct as described, or of
its refusal to do so, within 30 days. If the Board fails or refuses to cure and correct or
respond as demanded, CalAware intends to seek judicial invalidation of the challenged
actions pursuant to § 54960.1, as well as other relief set out in § 54960.
California Public Records Act Request
In order for the public to have the information it needs to participate in any further
discussions about whether to maintain at-large elections or adopt district elections,
CalAware would like copies of the following records pursuant to the California Public
Records Act:
1. Any and all communications, including but not limited to, emails, letters, text
messages, voicemails, memos, to or from any City Council member, former City
April 14, 2022
Brown Act Demand and CPRA Request
Page 6
Council member, City Attorney, or any City official, employee, consultant, or
contractor, including any communications that exist on personal device
regarding:
a. Maintaining at-large elections and/or adopting district elections; and
b. The March 14, 2022 City Council meeting and its agenda.
2. Any and all communications, including but not limited to, emails, letters, text
messages, voicemails, memos, from March 2021 to present, that were sent to or
received by a majority of members of City Council regarding the format of
elections.
These records should be released to CalAware and the public prior to any
reconsideration of this issue to ensure that the public has the information necessary to
be involved in a meaningful way in the decision-making process.
Sincerely,
Shaila Nathu
Assistant General Counsel
Californians Aware
464 E. Bonita Avenue, #10
San Dimas, CA 91773
(916) 487-7000
cc: City Council (via email only to adm@cypressca.org)
Paulo Morales, Mayor (via email only to pmorales@cypressca.org)
Anne Hertz-Mallari, Mayor Pro Tem (via email only to ahertz-
mallari@cypressca.org)
Frances Marquez, City Councilmember (via email only to
fmarquez@cypressca.org)
Scott Minikus, City Councilmember (via email only to sminikus@cypressca.org)
Jon Peat, City Councilmember (via email only to jpeat@cypressca.org)