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CVP/LC v ABAG in San Francisco Superior Court - Round One

Unfortunately, the price of democracy is eternal vigilance. Repeated violations of our State's open meetings law (The Ralph M. Brown Act) by regional agencies like ABAG, if left uncontested, set a bad precedent that will surely be mimicked by other agencies and legislative bodies. Add to that the irony that the reason the Brown Act was amended in 2013 -- when the California State Legislature enacted SB 751 to require that all voting be recorded -- was to address the exact same violation by ABAG at that time.

SB 751 added very specific language in the Government Code. It 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.

What it does not say is that a government agency gets to decide when this requirement applies or which issues are subject to this public reporting requirement. This legal requirement to record and report on voting is not discretionary.

The Association of Bay Area Governments (“ABAG”) has filed a “Demurrer”[1] to dismiss the Petition for Writ of Mandate and Complaint for Injunctive and Declaratory Relief for Violations of the Ralph M. Brown Act Violation, filed by Community Venture Partners, Inc. (“CVP”) and Livable California (“LC”) on May 31, 2019.

On April 17, 2019, CVP and LC filed a "demand letter to cure or correct Brown Act violations at the January 17, 2019, ABAG Executive Board meeting." 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 because the voting methods employed to vote on the prior Substitute Motion to delay that vote, violated the requirements of the Brown Act.

To about read the CVP/LC cease and desist letter CLICK HERE

Responding to a cease and desist letter

Under State Law, when a Brown Act cease and desist letter is submitted to a public agency, that agency has 30 days to respond. Those responses can include an admission of guilt regarding the violation and providing a commitment to cease and desist from further violations and taking action to “cure” or remedy that violation.

The Brown Act, Government Code § 54960.2(c)(1), permits a legislative body

To respond to a cease and desist letter with an unconditional commitment to cease, desist from, and not repeat the past action that is alleged to violate this chapter [Emphasis added] and provides a form response.

Section 54960.2(c)(2) says that such

unconditional commitment … shall be approved by the legislative body in open session at a regular or special meeting as a separate item of business, and not on its consent agenda.

Further, per Government Code 54952.6

action taken means … an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion.

This all means that the ABAG board’s “unconditional commitment” would need to be the result of a motion that was voted on at a properly noticed public hearing.

CVP and LC recently filed a cease and desist violation letter against BART, for a similar, though not identical, Brown Act violation by its board. In that case, BART responded quickly and properly cured that violation immediately by holding their motion and vote again at a properly noticed, subsequent public hearing.

However, in this instance, ABAG chose to deny all allegations and responded by saying,

“[W]e have determined that no remedial action regarding the Board’s actions is required.”

Subsequently, CVP/LC filed a Verified Petition for Writ of Mandate and Complaint for Injunctive Declaratory Relief for Violations of the Ralph M. Brown Act. To fully understand the legal issues involved, please read, CVP and Livable CA file Petition for Writ of Mandate against ABAG for Brown Act violations.

To read the full Petition for Writ CLICK HERE

The nature of the CVP/LC complaint

Our complaint was fairly straightforward. The ABAG board held an unrecorded, anonymous vote on whether to delay the endorsement of the CASA Compact to have more time to research its impacts on cities and counties. It was a clear violation of Government Code § 54953(c)(2), for ABAG to not publicly report (record) the votes and abstentions of each member present for the action on this substitute motion.

Consequently, the public had no idea how their elected representatives voted on this motion, denying them the right to hold that official accountable, and denying organizations such as CVP and LC to the ability to publish that voting record for its members and supporters.

CVP/LC argued further that because this first vote was done surreptitiously (to avoid accountability?), the outcome of this illegal vote impacted the validity of the subsequent vote by the ABAG Board to endorse the CASA Compact immediately, without any further study or public comment.

The evidence and arguments CVP and LC presented in our Petition for Writ could not have been clearer. Again, 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. Ironically, this regulation came about because critics raised concern about ABAG’s failure to record votes and concern for other agencies with large legislative bodies, where 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.

The Empire Strikes Back

In stark contrast to the response we received from BART, ABAG has retained a high-powered, San Francisco law firm, Hanson Bridgett LLP, to fight this out in court, at taxpayer’s expense. But then, judging from the extravagance of ABAG’s new San Francisco headquarters, it appears that for ABAG money is no object.

Still, one has to stop and wonder why ABAG would choose to do this when the remedy of holding a properly agendized meeting and holding a proper roll call vote could be so easily accomplished? After all, what’s the rush? The CASA Compact is not legislation that has a deadline. This makes us wonder what they are afraid will happen if the public knows who voted for or against a delay and the need for more feedback from locally elected city and county officials.

In anticipation of an August 12, 2019 hearing date, Hanson Bridgett LLP has filed a Demurrer and Motion to Strike, asking the Court to dismiss the CVP/LC complaint. In it, ABAG’s attorneys make lengthy and contorted arguments, mostly without legal citation or evidence, to allege that it doesn’t matter if they violated the Brown Act because in their opinion the overall outcomes would not have changed even if they had followed the law.

To read the ABAG Demurrer CLICK HERE

It gets weirderer and weirderer

As I noted above, ABAG failed to respond to our cease and desist letter with an unconditional commitment to cease, desist from, and not repeat its Brown Act § 54953(c)(2) violation. Instead, in their Demurrer, they state that

“[W]hile ABAG was unwilling to accede to Petitioners’ demand that it rescind its approval of the CASA Compact, its Board did publicly commit to ensuring that all future votes are conducted by roll call where support for or against a given action is less than unanimous.” (Demurrer, p. 13, lines 7-10).

In defense of this, ABAG’s legal counsel argues that ABAG Executive Board Vice President Jesse Arreguin read a statement at the May 16, 2019, Executive Board meeting, regarding Brown Act violations (without admitting they were talking about our cease and desist letter) and that should satisfy their legal requirement to make an “unconditional commitment.”

Let's examine that. During his general remarks, Board VP Arreguin is purported to have said,

“First I want to reiterate the process for voting on actions at our Executive Board meetings where support for, or against, a given action is less than unanimous. Under those circumstances, the Clerk will conduct a roll-call vote to report the vote or abstention of each member present and to determine whether there are a sufficient number of votes to approve an action. So, I just want to let everyone know, I will ask to see if there is unanimous consent to a particular item; if not, we will proceed to a roll-call vote on those items.”

This method of addressing the requirements of the Brown Act is certainly creative, to put it charitably, in more ways than one can count.

First of all, it is post-hoc and has no bearing on their previous violations. Second, how is this in any way an adequate response to our Brown Act demand letter, under the requirements of the regulations?

Arreguin’s verbal statement (vs. a required formal motion and vote) was not an “unconditional commitment” by ABAG to cease, desist from, and not repeat” its Government Code § 54953(c)(2) violation. Further, because this supposed “cure” failed to provide any agenda, agenda packet, meeting minutes or resolution demonstrating that “its Board did publicly commit,” to allege that this is responsive to the law is legally inadequate and may even constitute yet another Brown Act violation on top of the first one.

“Unanimous” actions taken are not exempted nor is “unanimous” defined in the Brown Act. If one or more voting members were present but failed to reply to a “unanimous consent” request, then § 54953(c)(2) requires that the ABAG Executive Board

publicly report … abstention on that action of each member present for the action.

Furthermore, as we’ve noted in our response to ABAG’s Demurrer, if Vice President Arreguin’s policy was to stand, then ABAG would be placing considerable pressure upon dissenting directors to conform to the majority position and change their votes, or to leave the room in order to obviate a roll call vote and be held accountable to the public. It is no secret that politicians tend to avoid standing out in a crowd or going against the tide, whenever possible.

To address this and other erroneous and irrelevant legal issues raised by ABAG counsel regarding whether or not CVP or LC was “prejudiced” by their violation of the Brown Act (we most decidedly were), CVP and LC filed a Petitioner’s Opposition to the ABAG Demurrer, on July 30, 2019.

To read our opposition to the ABAG Demurrer CLICK HERE

What is most brazen in all this is ABAG’s attempt to have its cake and eat it, too. Their argument to the court that Arreguin’s comments at a hearing should be considered a sufficient response to their prior Brown Act violation, in fact, constitutes an admission of that prior violation, in direct contradiction to their prior, stated denial of that violation.

Business as usual

The only way one can make any sense out of ABAG’s response is to assume that this is a predictable first step that big law firms employ to attempt to bully plaintiffs and get a case dismissed before it gets started. It takes little effort on their part to file the Demurrer and if it fails, they haven’t lost anything.

We can only hope that the court will see the folly of ABAG’s ploy and reprimand them for wasting the public’s time and money in to avoid admitting their guilt.

[1] An objection that an opponent's point is irrelevant or invalid while granting the factual basis of the point.

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.