Untitled California Attorney General Opinion ( 1995 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 95-812
of :
: November 14, 1995
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE BARBARA ALBY, MEMBER OF THE CALIFORNIA STATE
ASSEMBLY, has requested an opinion on the following questions:
1. May weekend hours be counted as part of the required 72-hour period for the
posting of an agenda prior to the regular meeting of the legislative body of a local agency?
2. Would the posting of an agenda for a regular meeting of the legislative body of
a local agency for 72 hours in a public building that is locked during the evening hours satisfy the
statutory requirements for posting the agenda?
CONCLUSIONS
1. Weekend hours may be counted as part of the 72-hour period for the posting of
an agenda prior to the regular meeting of the legislative body of a local agency.
2. The posting of an agenda for a regular meeting of the legislative body of a local
agency for 72 hours in a public building that is locked during the evening hours would not satisfy the
statutory requirements for posting the agenda.
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ANALYSIS
The Ralph M. Brown Act (Gov. Code, '' 54950-54962; hereafter "Act")1 generally
requires all meetings of "legislative bodies" of "local agencies" to be open to the public. (' 54962; see
78 Ops.Cal.Atty.Gen. 218 (1995); 76 Cal.Atty.Gen. 289 (1993); 75 Ops.Cal.Atty.Gen. 89 (1992).)
With certain exceptions, no action or discussion may be undertaken by the legislative body on any item
not appearing on the posted agenda.2 Section 54954.2, subdivision (a) states:
"At least 72 hours before a regular meeting, the legislative body of the local
agency, or its designee, shall 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. A brief general description of an item need not exceed 20
words. The agenda shall specify the time and location of the regular meeting and shall
be posted in a location that is freely accessible to members of the public.
"No action or discussion shall be undertaken on any item not appearing on the
posted agenda . . . ." (Italics added.)3
The questions presented for analysis concern the foregoing italicized language of
section 54954.2. First, may weekend hours be counted as part of the 72-hour period during which the
agenda must be posted? Second, does posting the agenda in a public building that is locked at night
meet the requirement that the agenda be posted in a location that is "freely accessible"?
In answering these questions, we construe the provisions of section 54954.2 in light of
the controlling purposes of the Act. Section 54950 states:
"In enacting this chapter, the Legislature finds and declares that the public
commissions, boards and councils and the other public agencies in this State exist to aid
1
All section references hereafter to the Government Code are by section number only.
2
"Special meetings" of the legislative body are treated separately in section 54956, which requires that notice
thereof "shall be posted at least 24 hours prior to the special meeting in a location that is freely accessible to members of
the public."
3
While there are various exceptions to the agenda posting requirement, an action taken by the legislative body of
a local agency in violation of section 54954.2 is null and void. (' 54960.1, subd. (a).) The legislative body must be
given an opportunity to cure or correct an action alleged to have been taken in violation of section 54954.2 before
judicial relief may be obtained. (' 54960.1, subd. (b).) An action taken which is in substantial compliance with section
54954.2 or meets certain other criteria will not be deemed null and void. (' 54960.1, subd. (d).)
It should also be noted that "[e]ach member of a legislative body who attends a meeting of that legislative body
where action is taken in violation of any provision of this chapter, 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 under this chapter, is guilty of a
misdemeanor." (' 54959.)
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in the conduct of the people's business. It is the intent of the law that their actions be
taken openly and that their deliberations be conducted openly.
"The people of this State do not yield their sovereignty to the agencies which
serve them. The people, in delegating authority, do not give their public servants the
right to decide what is good for the people to know and what is not good for them to
know. The people insist on remaining informed so that they may retain control over
the instruments they have created."
In Carlson v. Paradise Unified Sch. Dist. (1971) 18 Cal. App. 3d 196, 199, the court observed:
"There has been a long and vigorous battle fought against secrecy in
government. [Citations.] It is now the rule that local governing bodies, elected by the
people, exist to aid in the conduct of the people's business, and thus their deliberations
should be conducted openly and with due notice with . . . few exceptions . . . .
[Citations.]"
This rule was strengthened in 1986 with the enactment of section 54954.2. (Stats. 1986, ch. 641, ' 5.)
As explained in Frazer v. Dixon Unified Sch. Dist. (1993) 18 Cal. App. 4th 781, 790:
"[W]hat the Legislature accomplished by those amendments (Stats. 1986, ch.
641, '' 5-6, pp. 2157-2158) was to codify certain judicially and locally created
requirements relating to the posting of and adherence to an agenda - requirements that
had been applicable to school boards since 1978 - to make those requirements more
uniform and generally applicable to all regular meetings of the ``legislative body' of all
local agencies governed by the Brown Act. [Citations.]"
In 1991 the Legislature enacted section 54954.4, declaring in subdivision (c):
"The Legislature hereby finds and declares that complete, faithful, and
uninterrupted compliance with the [Act] is a matter of overriding public importance.
Unless specifically stated, no future Budget Act, or related budget enactments, shall in
any manner, be interpreted to suspend, eliminate, or otherwise modify the legal
obligation and duty of local agencies to fully comply with Chapter 641 of the Statutes
of 1986 in a complete, faithful, and uninterrupted manner."
Thus, the Legislature has repeatedly emphasized the need for legislative bodies of local government
agencies to keep the public informed as to "the conduct of the people's business."
1. Posting the Agenda for 72 Hours
The Legislature has determined that 72 hours is a sufficient length of time for the
posting of the agenda for a regular meeting of the legislative body of a local agency. (' 54954.2, subd.
(a).) This 72-hour period is not qualified or limited by any other statutory language; it is not expressly
restricted to weekdays or working hours. Terms of limitation, such as "business hours," are not
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contained in the statute. The posting must simply occur throughout the 72-hour period immediately
preceding a regular meeting of the legislative body. (See Santa Barbara Sch. Dist. v. Superior Court
(1975) 13 Cal. 3d 315, 335 [Education Code section 966 requirement that school board post an agenda
48 hours prior to a regular meeting construed as applying to 48-hour period immediately preceding that
meeting].)
"When the language of a statute is clear, its plain meaning should be followed, without
reading unspecified restrictions into it, unless to do so would lead to an absurd result." (In Re Aaron S.
(1991) 228 Cal. App. 3d 202, 208.) Including weekend hours within the 72-hour posting period would
not lead to an absurd result or inadequate notice.4
We conclude that the plain meaning of section 54954.2, subdivision (a) is to be
followed. Each of the 72 hours immediately preceding the regular meeting, regardless of whether any
of the hours may fall on a weekend, is part of the requisite posting period. A contrary conclusion
would invite confusion and uncertainty which the Legislature sought to avoid when it codified the
agenda requirements. (See Frazer v. Dixon Unified Sch. Dist., supra, 18 Cal.App.4th at 790.)
2. Posting the Agenda in a Freely Accessible Place
Turning to the second question presented, we observe that public buildings in which
government notices are typically posted may not be open 24 hours a day. Such buildings are routinely
locked during evening hours. What is the obligation of a local agency with respect to choosing the
location for the posting of an agenda as mandated by section 54954.2?
Section 54954.2, subdivision (a) requires that the posting occur in a location that is
"freely accessible" to members of the public. "Accessible" may commonly be defined as "capable of
being reached . . . capable of being . . . seen . . . ." (Webster's Third New Internat. Dict. (1971) p. 11.)
"Freely" in this context may reasonably be defined as "without hindrance." (Id., at p. 906.)
Obviously, locked doors would provide a "hindrance" to the agenda being "seen" during the 72-hour
period. If an agenda cannot be viewed where it is posted, the purpose of section 54954.2's posting
requirement would be frustrated.
"A fundamental rule of statutory construction is that a court should ascertain the intent
of the Legislature so as to effectuate the purpose of the law." (DuBois v. Workers' Comp. Appeals Bd.
(1993) 5 Cal. 4th 382, 387.) "In construing a statute the court will consider the purpose of the law and
adopt a construction which will further that purpose." (Robinson v. Fair Employment and Housing
Com'n (1992) 2 Cal. 4th 226, 234.) "Consistent with the intent of the Legislature, a statute should be
accorded a reasonable and common sense interpretation avoiding absurd or impractical results."
(Dakin v. Department of Forestry & Fire Protection (1993) 17 Cal. App. 4th 681, 686.)
As previously noted herein, the Act's central purpose is to promote openness in
government. The Legislature has made it clear that it considers "complete, faithful and uninterrupted
4
This is particularly true in light of the conclusion we reach in response to the second question.
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compliance" with the Act to be a matter of overriding public importance. ('' 54950, 54954.4, subd.
(c).) Given this strong expression of legislative intent and the fact that adequate notice to the public is
critical in attaining the full benefits of the Act's provisions, we find that the "freely accessible"
requirement is to be strictly interpreted. Not only must the agenda be posted for at least the full 72
hours immediately preceding the meeting, it must be posted in a location that is freely accessible
throughout that period.5 In short, the notice must be posted in a location where it can be read by the
public at any time during the 72 hours immediately preceding the meeting. Members of the public
cannot be expected to have full opportunity to learn of agenda items of interest if the place where the
agenda is posted is inaccessible to them during any portion of the required 72-hour period.
We conclude that the posting of an agenda for a regular meeting of the legislative body
of a local agency for 72 hours in a public building that is locked during the evening hours would not
satisfy the statutory requirements for posting the agenda. Such resolution most closely comports with
the intent of the Legislature, affords uniformity of application, and does not work an undue hardship on
the local agency.
*****
5
For example, if the building in question is closed during the evening hours, the agenda may be posted on the outside of
the building in a lighted display case if necessary.
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