On April 17, 2019, Community Venture Partners and Livable California filed a "Demand letter to cure or correct Brown Act violations at the January 17, 2019 ABAG Executive Board meeting" (click on the highlighted text to read the full document). Based on the facts and circumstances described in that letter, CVP and LC alleged that the ABAG Board’s vote to endorse the CASA Compact was illegal and therefore null and void.
The full explanation and backstory on why the cease and desist was filed is found in Livable California / CVP's cease & desist letter with ABAG Board for Brown Act violations, Marin Post, April 18, 2019.
The Board of Directors responded to our letter through Deputy General Counsel Cynthia E. Segal, at the end of the very last day they were legally required to do so.
In her letter, she adamantly denied that ABAG violated the Brown Act, even though the violation was clearly captured on videotape, and that ABAG refused to cure the violation or to take any "remedial action' whatsoever. She went on to suggest that agencies are allowed to violate the Brown Act so long as they can show that no one was "prejudiced" by their violation. And finally, the violation doesn't count if it's not "willful" or "deliberate." In other words, if they broke the law by mistake or even on purpose with some rationale, it doesn't count.
I'm going to try to remember these arguments the next time I get a speeding ticket.
In any case, as noted in our April 18th article, what is so unusual here is that in 2013, the California State Legislature enacted SB 751, which was signed by Governor Brown to address this exact same violation by ABAG. That legislation, which amended the Brown Act, contained very, specific language. Effective on January 1, 2014, Government Code § 54953(c)(2) states,
The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.
This is not a vague legal requirement nor is compliance a burden to an agency. SB 751 came about because critics raised concern that for agencies with large legislative bodies, the absence of either a roll call vote or a specific tally and report of the votes of each member of a board, made it difficult if not impossible to determine who voted for or against a measure. This information was considered vital for the public to know.
So again, what is unique about this transgression by ABAG is that the requirements of the law ABAG violated were enacted specifically in response to similar violations by ABAG in 2012. Therefore, it is both ironic and troubling that ABAG’s specific, illegal behavior in this instance, was the result of ABAG’s own past conduct!
Needless to say, we are baffled by ABAG's obstinance. They've left us no choice but to file a legal action.
It continues to amaze me that public agencies vehemently defend illegal actions in situations such as these, where the "cure" is relatively painless. All that is required is for the agency to admit to the violation and to promise to not do so again in the future. They are not precluded then from a "do-over" at which time they can vote again on the same motions or decisions. So why end up in court and end up paying significant legal fees?
CVP encountered this same situation in 2015 when the Marin County Board of Supervisors clearly violated the Brown Act (again, captured on video). And, typically, the County has continued to deny the resultant guilty verdict against them, ever since.
But though these cases may seem like relatively minor violations, what is at stake is quite significant. As we note in the "Prayer" of our Petition,
If the Court were to let ABAG's violation of Government Code§ 54953(c)(2) stand, it would undermine the fundamental purpose of California's open meeting law and set a bad precedent to allow ABAG and other public agencies to continue to violate the Brown Act even further in the future. Legislative bodies, especially their presiding officers and recording clerks, need to conduct business and votes on substitute and main motions on equal terms, in accordance with the law.
Bob Silvestri is a Mill Valley resident and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded only by individuals in Marin and the San Francisco Bay Area.