01.25.2016
Technical Difficulties with an Online Meeting Agenda Does Not Always Constitute a Brown Act Violation if the Meeting Proceeds

On January 19, 2016, the California Attorney General issued Opinion No. 14-1203, which concluded the Brown Act’s online agenda-posting requirement for regular meetings is not necessarily violated if the local agency’s website experiences technical difficulties (e.g., power failure, cyber-attack, or other third-party interference) that cause the agenda to become inaccessible to the public for a portion of the 72 hours that precede the scheduled meeting.  In such circumstances the public agency’s legislative body may lawfully hold its regular meeting as scheduled if it otherwise substantially complied with the Brown Act’s agenda-posting notice requirements.

Generally, Government Code section 54954.2(a)(1) requires an agenda be posted “At least 72 hours before a regular meeting.”  The agenda must specify the time and location of the regular meeting, and must be posted in a location that is freely accessible to members of the public and on the local agency’s Internet Website, if the local agency has one.”  A member of the public who believes notice of a particular topic was insufficient may seek to invalidate any action taken on that topic at the meeting, after first demanding that the agency “cure and correct” the purported violation, but invalidation will not occur if the agency has substantially complied with the notice requirements or the person received actual notice.  (Government Code §§ 54960.1(a), (d)(1) and (d)(5).)  Substantial compliance “means actual compliance in respect to the substance essential to every reasonable objective of the statute.”  (Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23, 29.)

With these provisions in mind, the Attorney General’s analysis initially addressed whether substantial compliance occurs when an agency technically fails to provide all methods of notice required by the statute.  As noted by the opinion, the purpose of the Brown Act is to ensure the actions and deliberations of a public legislative body are open to the public.  Although the online-posting requirement furthers this legislative intent, finding a technical violation of the Brown Act for a temporary lapse in the online notice poses tremendous public policy concerns.  Specifically, it would effectively penalize agencies for having an online presence (since no website notification is required when no website exists), it would require meetings to be rescheduled for “trivial website issues,” and it may discourage public participation if individuals show up for a meeting that has been canceled on short notice.

Analogizing to the notice provision in the Bagley-Keene Open Meeting Act (Government Code § 11125(a)), and relying on the California Court of Appeal’s analysis of this provision in North Pacifica LLC v. California Coastal Commission (2008) 166 Cal.App.4th 1416, and Castaic Lake Water Agency v. Newhall County Water District (2015) 238 Cal.App.4th 1196, the Attorney General concluded that when a temporary problem with an agency’s website makes the online notice inaccessible, substantial compliance occurs if the agency made “reasonably effective efforts to notify interested persons of a public meeting.”

Though not meant to be an exhaustive list, the opinion identifies factors an agency should consider in analyzing whether it took “reasonably effective efforts,” which include: (1) how long the technical problems existed; (2) the efforts taken to fix the problems or otherwise inform the public; and (3) the actual effect the problem had on public awareness.  Put in simpler terms, the opinion states “If the risk of public confusion is high, the statutory objectives would likely not be served, and the agency should reschedule its meetings.”  The Attorney General ultimately concluded that “fleeting or trivial technical issues will not typically require the cancellation of meetings.”

Given the fact-specific nature issues related to technical violations and substantial compliance, we recommend consulting legal counsel in the event of pre-meeting concerns or receipt of a post-meeting “cure or correct” demand.

Tags: Brown Act

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