Untitled California Attorney General Opinion ( 1998 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-1207
of :
: April 29, 1998
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney :
General
:
______________________________________________________________________
THE HONORABLE QUENTIN L. KOPP, MEMBER OF THE CALIFORNIA STATE
SENATE, has requested an opinion on the following questions:
1. May members of the legislative body of a local public agency ask questions or make
statements while attending a meeting of a standing committee of the legislative body "as
observers"?
2. May members of the legislative body of a local public agency sit in special chairs on
the dais while attending a meeting of a standing committee of the legislative body "as
observers"?
CONCLUSIONS
1. Members of the legislative body of a local public agency may not ask questions or
make statements while attending a meeting of a standing committee of the legislative body "as
observers."
2. Members of the legislative body of a local public agency may not sit in special
chairs on the dais while attending a meeting of a standing committee of the legislative body "as
observers."
ANALYSIS
The Ralph M. Brown Act (Gov. Code, §§ 54950-54962; "Act") Footnote No. 1 requires the
"legislative body" of a "local agency" to hold its meetings open to the public unless a specific
statutory exemption is applicable (see §§ 54951, 54952, 54953, 54962). A notice of all such
meetings as well as an agenda of matters to be discussed must be provided to the public.
(§§ 54954.1, 54954.2.) Members of the public are permitted not only to attend the meetings but
are granted the right to directly address the legislative body on any item within its jurisdiction.
(§ 54954.3.)
In 79 Ops.Cal.Atty.Gen. 69 (1996), we concluded that a fourth member of a seven-member
legislative body could not attend a meeting of one of its standing committees without violating
the notice, agenda, and public participation requirements of the Act applicable to the meetings of
the legislative body itself. The fourth member would constitute the presence of a quorum of the
entire legislative body and result in a "meeting" of the legislative body as that term is defined in
the Act. (Id., at pp. 73-74.)
In 1997 the Legislature responded to our 1996 opinion (Stats. 1997, ch. 253, § 1) by adding
subdivision (c)(6) to section 54952.2, excluding the following situation from the definition of
"meeting" for purposes of the Act:
"The attendance of a majority of the members of a legislative body at an open and noticed
meeting of a standing committee of that body, provided that the members of the legislative body
who are not members of the standing committee attend only as observers." (Italics added.)
It is the phrase "only as observers" that gives rise to the two questions presented for resolution.
1. Questions or Statements
We are first asked whether the members of a legislative body of a local public agency may
ask questions or make statements while attending meetings of one of their standing committees
"as observers." We conclude that they may not do so.
In analyzing the language of section 54952.2, we apply well recognized principles of
statutory construction. "To interpret statutory language, we must 'ascertain the intent of the
Legislature so as to effectuate the purpose of the law.' [Citation.]" (California Teachers Assn. v.
Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal. 4th 627, 632.) "'[E]very word and
phrase employed [in a statute] is presumed to be intended to have meaning and perform a useful
function . . . [and] a construction rendering some words in the statute useless or redundant is to
be avoided.' [Citation.]" (People v. Contreras (1997) 55 Cal. App. 4th 760, 764.) The words of a
statute are to be given "'a plain and commonsense meaning.' [Citations.]" (People v. Valladoli
(1996) 13 Cal. 4th 590, 597.) "'Statements in legislative committee reports concerning the
statutory purposes which are in accordance with a reasonable interpretation of the statute will be
followed by the courts. . . .' [Citation.]" (O'Brien v. Dudenhoeffer (1993) 16 Cal. App. 4th 327,
334; see People v. Cruz (1996) 13 Cal.4th 764,773-774, fn. 5.)
The term "observer" commonly means in this context "a representative sent to observe and
listen but not to officially participate in a gathering." (Webster's New Internat. Dict. (3d ed.
1961) p. 1558). Accordingly, we believe that the Legislature, having used the word "only" in
conjunction with the words "as observers," intended to limit attendance in these circumstances to
watching and listening without further participation. Those intending to qualify as observers
under subdivision (c)(6) of section 54952.2 must refrain from asking questions or making
statements. Footnote No. 2 Any conduct other than observing and listening would transcend the
statutory authorization, as interpreted under the "plain and commonsense meaning" rule.
The legislative history of the 1997 amendment of section 54952.2 fully supports our "plain
meaning" interpretation of the words used by the Legislature. The committee reports contain
numerous references to the exceedingly limited role of an "observer" in comparison to the rights
of a member of the standing committee or of a member of the general public. Attendance,
without more, was what the Legislature intended to sanction. Footnote No. 3
Finally, the general purposes of the Act are to ensure not only that any final actions by
legislative bodies of local public agencies are taken in a meeting to which the public has advance
notice but also that any deliberations with respect thereto are conducted in public as well.
(§§ 54950, 54952.2; see Stockton Newspaper, Inc. v. Redevelopment Agency (1985) 171
Cal. App. 3d 95, 100-103; Rowen v. Santa Clara Unified School Dist. (1981) 121 Cal. App. 3d 231,
234; Sacramento Newspaper Guild v. Sacramento County Bd. of Supers. (1968) 263 Cal. App. 2d
41, 47-51.) "Deliberations" here would include mere attendance, resulting in the receipt of
information. As stated in Frazer v. Dixon Unfiied School Dist. (1993) 18 Cal. App. 4th 781, 794:
". . . Deliberation in this context connotes not only collective decision making, but also 'the
collective acquisition and exchange of facts preliminary to the ultimate decision.' [Citations.]"
Thus without the special exemption for "observers," the mere attendance at the meeting by a
quorum of the legislative body would constitute a violation of the Act. To permit observers to
testify and ask questions would let them fully participate in the deliberations of the standing
committee, rendering virtually meaningless their restricted status as attending "only as
observers."
Accordingly, based upon the plain language of section 54952.2, the legislative history of its
recent amendment, and the general purposes of the Act, we conclude that members of the
legislative body of a local public agency may not ask questions or make statements while
attending a meeting of a standing committee of the legislative body "as observers." Attendance is
a limited one in such circumstances, restricted to watching and listening.
2. Placement of Observers
The second question presented is whether legislative body members attending a meeting of
a standing committee "only as observers" may sit in special chairs on the dais. We conclude that
they must sit in the area designated for members of the public who are attending the meeting.
The primary legislative purpose in adding subdivision (c)(6) to section 54952.2 was to
permit legislative body members to attend standing committee meetings. On granting such
authorization, however, the Legislature made clear that such observers were to be accorded no
special privileges. Indeed, such observers have fewer rights than members of the general public
attending the meetings, since as observers they may make no statements or ask questions.
To permit legislative body observers to sit on the dais would grant them greater rights than
members of the public. It could also create the impression that the standing committee meeting
constituted a meeting of the legislative body itself. Having the observers sit in the area
designated for members of the general public would eliminate any confusion as to their role in
the proceedings and effectuate the Legislature's intent of not granting special privileges to those
attending "only as observers."
We conclude that members of the legislative body of a local public agency may not sit in
special chairs on the dais while attending a meeting of a standing committee of the legislative
body "as observers."
*****
Footnote No. 1
All references hereafter to the Government Code are by section number only.
Footnote No. 2
Of course, if they wish to participate in the meeting, they may do so by having the meeting noticed as a meeting of
the full legislative body.
Footnote No. 3
Mere attendance would otherwise be proscribed because it would constitute "participation" in the meeting through
the receipt of information.