Did council member violate the Brown Act, state law prohibiting undisclosed meetings?

The Brown Act is a law the California State Legislature passed in 1953 that guarantees the public’s right to know. The Act prohibits local elected officials from participating in informal, undisclosed meetings meant to avoid public scrutiny.

The Brown Act may have recently reared its legislative head in Lemoore. This past month as Lemoore council members conferred and debated their choices for council leadership – specifically the mayor and mayor pro tem – some members may have inadvertently side-stepped the decades-long law and solicited support outside the council chambers.

Both incoming councilmembers, Chad Billingsley and Stuart Lyons, told The Leader recently that before their Dec. 18 swearing-in, first-term Councilmember Holly Blair asked for their votes – in separate conversations – in an effort they say to win the mayor pro tem’s job. The mayor pro tem takes over for the mayor when he or she is unavailable to preside.

According to the two newly sworn-in council members, Blair called both of them and asked for their support.

The Brown Act applies to newly-elected members not yet sworn in. Both council members declined Blair’s entreaties. The mayor’s job eventually went to Eddie Neal during the council’s Dec. 18 reorganization meeting. Council elected Billingsley to the mayor pro tem job.

Asking for votes from more than one councilmember constitutes what the Brown Act refers to as a serial meeting. Such meetings, under the Act, involve a series of communications between a majority of the members of a particular legislative body, a clear violation of the Brown Act’s mandate that any such interactions take place at properly noticed and agendized public meetings.

In other words, a vote to choose a mayor or mayor pro tem – or the discussion of any council-related item – deserves public discourse, and any conversations between more than two council members must be in open session.

Once the new council members were sworn in on Dec. 18 and the meeting neared its conclusion, Blair criticized council members following a plea from incoming Councilmember Chad Billingsley, asking for a new outlook. “I want to ask Ms. Blair (that)  if she wants to make a fresh start, regardless of what she put on social media today about myself and Stuart (Lyons), can we drop that, start over, and get some work done?” he asked.

Blair dismissed Billingsley’s words and directed a few choice words of her own at council members. Her remarks brought an audible gasp from audience members. “The answer is I genuinely think that all of you are terrible people, and I don’t think you have the best interests of the City at heart,” she said. “You have the best interests of yourselves at heart, and no, there is no fresh start because I think you are terrible people.”

Blair’s controversial remarks may have stemmed from the newcomers’ refusal to vote for her as mayor pro tem. Billingsley confirmed that Blair, before Tuesday’s (Dec. 18) council meeting, asked for their votes. “She wanted both Stuart and I to vote for her for mayor pro tem. I said no, and that did not go over well.”

Lyons confirmed that Blair called him too. “She called me and said she would like to be mayor pro tem. I’m not even sure she’s allowed to be mayor pro tem. She kind of hit me out of left field with that.”

Lyons said he hadn’t talked to anybody about the council’s reorganization. He said that Blair got upset because she reminded him that she had defended the fire department. “I didn’t really want to go in her direction for mayor pro tem,” said Lyons.  “She started raising her voice and yelling.”

 Lyons suggested that Blair’s support for the fire department during the recent campaign may have been insincere. “It’s my opinion she used the fire department to publicly punch (Mayor) Ray (Madrigal) in the face. She was defending the fire department, but she says she was doing it solely for the fire department. I’m saying that she did it for her own personal gain.”

Lyons told The Leader he was hopeful that they were going to get along. “But the moment I didn’t endorse her for mayor pro tem the whole thing went south.”

The Leader contacted the First Amendment Coalition (FAC), a non-profit California organization that responds to legal questions, often related to the Brown Act, for its analysis of the council members’ potential serial meeting.

“In the situation you describe, it sounds like one council member was trying to encourage two other council members to vote a  particular way, and thus three council members were speaking/hearing the same information out of public view,” stated the FAC’s Leila Knox.

“This may indeed be a violation of the Brown Act’s prohibition against serial meetings,” she stated in her email to The Leader.

The former mayor, Ray Madrigal, who served four years on the Lemoore City Council and is familiar with the Brown Act, agrees with that assessment and believes that Blair probably violated the long-standing law. “It was nothing less than a serial meeting to engineer her nomination as mayor pro tem,” he said.  “I certainly don’t fault the new council members who I believe were unwitting participants in this serial meeting.” 

Madrigal added that her actions show she isn’t above engaging in a quid-pro-quo, and her unethical behavior and dishonesty are boundless.

“She is a cancer on this city who does nothing but divide and sow discontent,” the former mayor continued. “Her statements from the dais and on social media regarding communications between herself, Mr. Billingsley and Mr. Lyons regarding council reorganization are a clear violation of the Brown Act.”

The council’s Dave Brown was equally critical of Blair’s actions. “If she contacted Billingsley and Stuart, that is a serial meeting,” he said.

He added that both he and Blair, early in their terms, were educated about the Brown Act. “Holly Blair went to the California League of Cities New Council Member Orientation in Sacramento. We went through courses on this. She is very familiar with the Brown Act,” he said.

“We had a council retreat about a year ago where all the council members sat in, and our city attorney also trained us. I don’t see where she does not understand what she’s doing. She’s got to know that was a Brown Act violation, and it’s sad that she did this, especially to two new council members, brand new who hadn't even been sworn in. It’s sad. It’s sad what she’s doing, just very sad.”

According to the FAC, knowingly violating the Brown Act with the intent to deprive the public of information to which it is entitled, is a crime. However, states the FAC, no one has ever been successfully prosecuted.

Can the public or city take any action to remedy or prosecute a perceived violation? Prosecution is not impossible.

According to the FAC, if council members were indeed engaged in a serial meeting in violation of the Brown Act, either a citizen or the district attorney can file a lawsuit seeking a judicial determination that such abuse took place, and ordering that the council cease from engaging in future violations of the Brown Act.  Under Government Code § 54960(a):

The district attorney or any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body, or to determine the applicability of this chapter to past actions of the legislative body, subject to Section 54960.2, or to determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid or invalid under the laws of this state or of the United States, or to compel the legislative body to audio record its closed sessions as hereinafter provided.

Read more about serial meetings on the FAC’s website here: https://firstamendmentcoalition.org/2009/06/aa-serial-meetings/. 

The Attorney General’s guide to the Brown Act also contains an informative section on serial meetings that you might want to review: http://ag.ca.gov/publications/2003_Main_BrownAct.pdf