Brown Act Suit on Private Lunches Goes to Appeal

By Anne Lowe

OPEN MEETINGS — After being dismissed by a judge for a lack of evidence, a lawsuit filed against the Tulare County Board of Supervisors for alleged Brown Act violations will be heading to the Fifth District Court of Appeal in Fresno. 


The lawsuit originated in March after the board certified that almost weekly lunches held in 2009 were business-related. Plaintiffs Richard McKee, the California Newspaper Publishers Association and the Visalia Times-Delta alleged that open meeting laws were violated during these lunches because a voting majority of the board was present and the gatherings were neither given public notice nor held open to public attendance.

The board responded by denying that any Brown Act violations occurred, stating that the members discussed their individual official activities such as travel arrangements and office procedures. The suit was dismissed on Aug. 23 for lack of evidence, as the Times-Delta reports:   

Lawyers for the plaintiffs said they need to conduct discovery, in which the supervisors and other county employees could be compelled to answer questions about what they discussed during 46 lunches in 2009 where a voting majority of the Board of Supervisors was present.
    But Tulare County Superior Court Judge Melinda Reed said she wouldn't allow them to go on "a fishing expedition."
    "[The lawsuit] fails to allege facts showing that any type of policy making discussions affecting the general public or having to do with the county's governmental interest have taken place," Reed wrote.

Attorney Kelly Aviles, who represents McKee, said the decision was based on an incorrect standard. Since no members of the public were present at the lunches, she contends that there is no way to prove that Brown Act violations occurred without questioning the Board members present.

“Normally in litigation you can do discovery,” Aviles said. “You can take depositions and have the Supervisors tell us everything that happened at that meeting. Our point is that if this was the correct standard and this is upheld, then that would mean the end of the Brown act altogether.”

Aviles said that if the appeal is accepted, the Court of Appeal has a number of options to proceed with the case. “On an appeal of this kind, they can basically do whatever they want,” she said. “They can decide there has been a Brown Act violation or they can send us back down to the lower court.”

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