Bridges v. Mt. San Jacinto Community College Dist., 8/8/17 CA4/2
This is a CEQA case, and touches on an important principle under the Brown Act, a California law meant to increase transparency in government. Here, a college in Riverside County wanted to build a new campus and so entered into a contract to buy land from Riverside County’s park district. Without exhausting administrative remedies, plaintiff sued the college under CEQA, alleging that the college violated CEQA by entering the purchase agreement before the college conducted an EIR (an environmental impact report) and without adopting what’s known as CEQA implementation guidelines (loosely, the procedures for how the EIR process is done). The trial found in favor of the college and dismissed the case. Held: Affirmed.
Ordinarily this case would not be worth writing about because the merits of plaintiff’s case were so bad. Despite plaintiff’s claims to the contrary, under the purchase contract the college could not close escrow until an EIR was completed, which is all that was required. As to the adoption of CEQA guidelines, an agency can comply with this requirement by incorporating CEQA’s guidelines. In addition, a college’s is exempt from adopting its own guidelines and can piggyback on another local’s agency’s CEQA guidelines. Not only did other local agencies adopt CEQA guidelines, so did the Chancellor the Riverside Community College District. On the merits, this case never should have been brought.
At the same time the case highlights a potentially more serious problem concerning how the Brown Act works. The Ralph Brown Act (Government Code 54950 et seq.) was enacted in 1953 and guarantees the public’s right to attend and participate in meetings of local legislative bodies. As relevant here, the Brown Act required the college to post meeting agendas at least 72 hours in advance in a publicly accessible location, which includes the college’s website. (Gov. Code, § 54954.2, subd. (a).) But, according to the law, posting to a website provides people like plaintiff with “constructive notice,” which courts say is legally sufficient.
At the same time the case highlights a potentially more serious problem concerning how the Brown Act works. The Ralph Brown Act (Government Code 54950 et seq.) was enacted in 1953 and guarantees the public’s right to attend and participate in meetings of local legislative bodies. As relevant here, the Brown Act required the college to post meeting agendas at least 72 hours in advance in a publicly accessible location, which includes the college’s website. (Gov. Code, § 54954.2, subd. (a).) But, according to the law, posting to a website provides people like plaintiff with “constructive notice,” which courts say is legally sufficient.
Here, plaintiff failed to exhaust her administrative remedies, probably because she didn’t know about the meeting. In other words, she didn’t go to the meeting or otherwise raise her objections before coming to court. A failure to exhaust appropriately provides an additional ground for dismissal of this type of case–people rightly have to take their issues to the public agency before running to court. (This rule has limited application in cases where a public agency didn’t hold a public meeting or where it failed to give notice as required by statute.)
Allowing notice by website is problematical because not everyone has a computer or access to the internet. In 2014 Pew reported that only 59% of seniors go online. (See http://www.pewinternet.org/2014/04/03/older-adults-and-technology-use/) While more older Americans are going online, for now this still presents a problem where people lose rights based on notices they can’t access.
The second problem is that, as far as I know, there is no current restriction on the location or font for Brown Act notices that are posted on an agency’s website.
According to a PowerPoint prepared for the 2017 City Attorney’s Spring Conference, there are some potential and needed changes coming for the Brown Act: AB 2257– Govt. Code § 54954.2(a)(2), Effective January 1, 2019 • Must post meeting agendas on agency’s primary website homepage accessible through prominent, direct link. • Posting must be in open format that is retrievable, downloadable, indexable, and electronically searchable by commonly used internet search applications. • Purpose of legislation to ensure online agendas not buried within website or posted in manner not “intuitively navigable.”
This will be a good start, but will it be enough? Remember, the Brown Act requires only 72 hours’ notice. Opinions vary dramatically on how quickly Google–to mention but one search engine–will index new content. I have seen reports that it could take 18 minutes, days or months.
This issue will require further study and attention if the real goal is to encourage government transparency and public involvement.