e-Bulletin: Brown Act Case Allows Individual Meetings Between City Manager and Councilmembers

On October 31, 2006, in Wolfe v. City of Fremont, the California Court of Appeal held that a city manager's meetings with individual councilmembers to discuss a particular topic, standing alone, cannot be the basis for a violation of the Ralph M. Brown Act.

This case is notable, in part, because it was decided after the dissemination of a letter earlier this year by the Orange County District Attorney suggesting that a briefing or an exchange, such as that between a city manager and a councilmember, qualified as a “meeting,” and that the occurrence of several of these such "meetings" would constitute a violation of the Brown Act. The District Attorney's opinion had prompted widespread concern that informal councilmember briefings would be prohibited, but the Wolfe decision should help alleviate those fears.

In Wolfe, the City of Fremont Police Department devised a new policy to govern its response to activated home invasion alarms. The city manager met individually with councilmembers to explain the new policy, garner their support and secure their agreement not to oppose the policy. As a result of the city manager's meetings with the councilmembers, he obtained the support and collective concurrence of a majority of the members of the City Council to support the new policy.

The Wolfe court remanded the case for further proceedings to decide whether the Brown Act was violated due to the "collective concurrence" and other pre-meeting discussions by the councilmembers. However, the court was careful to note that for informal deliberation to fall within the scope of the Brown Act, some sort of "collective decisionmaking process" must be at stake, stating that "serial individual meetings that do not result in a 'collective concurrence' do not violate the Brown Act."

The court rejected the plaintiff's contention that the mere existence of meetings between the city manager and councilmembers violated the Brown Act. The court concluded that conveying policy-related information verbally is not inherently different from the sending of written memoranda to council members, as approved in other cases.

The court noted that serial meetings between a city official and individual councilmembers can lead to Brown Act violations, but only if (1) the city official acts as a "personal intermediary" for council members during the course of such meetings and (2) the meetings are used by a majority of the legislative body to develop a "collective concurrence" regarding a matter of interest.

Therefore, under the Wolfe decision, as long as a local agency official is simply conveying information to individual members of a city council, school board, or governing board of a special district, he or she is not in violation of the Brown Act.

Best Best & Krieger, through its Municipal & Redevelopment Law Practice Group, will continue to monitor and report on this case.

Disclaimer: BB&K eBulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué. ©2006 Best Best & Krieger LLP