Wolfe v. City of Fremont

50 Cal.Rptr.3d 524

144 Cal.App.4th 533

J. Dennis WOLFE, Plaintiff and Appellant, v. CITY OF FREMONT et al., Defendants and Respondents.

No. A112386.

Court of Appeal, First District, Division 1.

October 31, 2006.

Peter N. Hagberg, for Plaintiff and Appellant.

Moscone, Emblidge & Quadra, LLP, G. Scott Emblidge, Rachel J. Sater, San Francisco, for Defendants and Respondents.

MARGULIES, J.

This appeal requires us to construe a provision of the Ralph M. Brown Act (Brown Act) (Gov.Code,¹ § 54950 et seq.) that prohibits a majority of the members of a local legislative body, when outside a noticed public meeting, from using "direct communication, personal intermediaries, or technological devices ... to develop a collective concurrence as to action to be taken on an item." (§ 54952.2, subd. (b).)

The police department of the City of Fremont (City) devised a new policy to govern its response to activated home invasion alarms. Plaintiff J. Dennis Wolfe alleges that, in an effort to preempt any interference by the city council with the department's implementation of the policy, the city manager met individually with council members to explain the new policy, garner their support, and secure their agreement not to take any action with respect to the policy. In addition to these meetings, the council members discussed the policy privately among themselves.

After word of the new policy became public, the city council set the matter for formal discussion at a regular meeting. During that meeting, the city manager is alleged to have acknowledged that he met individually with council members to discuss the new policy. Moreover, one council member is alleged to have stated that council members, after having been briefed on the new policy, had expressed their support for it in advance of the meeting.

Wolfe filed suit against the City, the city manager, the chief of police, and the council members, contending that the activities of the city manager and the city council constituted a violation of the Brown Act's requirement that city council meetings be open and public. The trial court granted defendants' demurrer, concluding that the allegations of the complaint failed to state a claim against any of the defendants. While we affirm the trial court's dismissal of the claims against the city manager and the chief of police, we conclude that Wolfe has stated a claim as to the City and the city council. We reverse and remand for further proceedings as to these defendants.

I. BACKGROUND

Wolfe is a City resident. His first amended complaint asserted a single claim for declaratory and injunctive relief under the Brown Act against the City, the Fremont City Council and its individual members (City Council), Fred Diaz, the city manager, and Craig Steckler, the City's chief of police.

According to the allegations of the first amended complaint,² in November 2004, Steckler devised a new policy to govern the police department's response to residential home invasion alarms (the verified response policy). Under the verified response policy, the department would no longer respond to activated home alarms unless an "acceptable reason" for the alarm was verified by a third party. If the police department implemented the verified response policy, it would necessarily cease enforcement of the City's existing False Alarm Ordinance.

After Diaz learned of the new policy and expressed his support, he and Steckler decided to ensure that the City Council would not interfere with or delay its implementation. Accordingly, "in order to deter the City Council from taking any action against, or in regard to," the verified response policy, Diaz "met individually and privately with a majority of the members of the City Council to discuss the ... verified response plan and to obtain, among other things: their support for the plan; their collective concurrence to take no action in regard to the plan; their collective concurrence to take no action in regard to amending the Fremont False Alarm Ordinance ... or in regard to the nonenforcement of the ordinance." As a result of Diaz's meeting with the council members, Diaz "obtained the support and collective concurrence of a majority of the members of the City Council to support the verified response plan and to take no Council action in regard to [the] plan or in regard to the Fremont False Alarm Ordinance."

When news of the verified response policy became public, it caused some discontent in the community. Through local newspapers, it became known that a group of citizens intended to appear at the February 22, 2005 meeting of the City Council to address the verified response policy during the public oral communications portion of the agenda.³ Thereafter, "a majority of the defendant City Council members discussed the[se] matters ... among themselves prior to February 22, 2005." Although the verified response policy was not an agenda item, the City Council arranged for Steckler to speak for 45 minutes on the topic of the new policy before the meeting was opened for general public comment. Steckler's address had been arranged during Diaz's meetings with council members for the purpose of "curbfing] and counter[ing] public criticism of the policy that all defendants had agreed to support."

After the February 22 meeting, the City Council placed on the agenda for their March 8 meeting an item entitled, "Alarm Response Policy, Public Comment on the Fremont Police Department Policy of Verified Response to Intrusion Alarms." During the course of that March meeting, Diaz "admitted that after meeting with defendant Steckler and supporting his Verified response' proposal, Diaz met individually with each of the members of the City Council to provide them information on the Verified response' proposal and to answer their questions." Councilmember Dominic Dutra then "admitted on the record that [the] Council had been fully briefed on the Verified response' proposal and had expressed their support before February 22, 2005," when the first meeting occurred. Although the complaint does not specify the ultimate fate of the verified response policy, it appears that the City Council took no action to prevent its implementation.

In addition to these specific allegations, the complaint contains more general allegations of what Wolfe claims to have been unlawful conduct by City officials. He alleged that "there is a common and continuing practice in Fremont city government in which the City Manager meets serially and individually with a majority of members of the City Council to discuss business items that are, will be, or may be on the agendas of upcoming meetings of the City Council" and that "the purposes of the serial meetings ... are to exchange information, explore viewpoints, reach decisions, and help develop a collective concurrence of a majority of the members of the defendant City Council on how to respond to and deal with issues that come before, or may come before, the defendant Fremont City Council." Wolfe also alleged that City Council closed sessions, ordinarily restricted to the discussion of confidential matters, are used for a similar purpose.⁴

Defendants filed a demurrer and motion to strike regarding the first amended complaint, arguing that (1) any serial meetings of the City Council regarding the new policy did not violate the Brown Act because the City Council had no authority over police department policies, (2) the allegations were improperly vague and conclusory, and (3) Diaz and Steckler were not subject to the Brown Act.

The trial court sustained the demurrer against Diaz and Steckler without leave to amend on the ground that they were not proper parties to a Brown Act claim. Without explanation, the court also sustained the demurrer to the claims against the remaining defendants "with leave to amend, for Plaintiff to allege, if possible, facts demonstrating that these defendants engaged in conduct that violated the Brown Act." When Wolfe failed to file an amended pleading within the time period allotted, the trial court entered judgment in favor of defendants.

II. DISCUSSION

The Brown Act is intended to ensure that the deliberations and actions of the governing bodies of local agencies are open and public and that provision is made for meaningful public access to their decision-making. (§ 54950.) To that end, the act requires the meetings of such bodies to be open to the public, held on a regular schedule, and conducted in accordance with an agenda available in advance of the meeting. (§§ 54953, 54954, 54954.2.) Conversely, the act prohibits action on items not placed on the agenda and severely restricts the type of actions such bodies can take in private session. (§§ 54954.2, 54956.7-54957.)

Wolfe contends that the allegations of the first amended complaint demonstrate that council members, through individual, serial discussions with Diaz and among themselves, reached a consensus not to take action with respect to the verified response policy, thereby violating Brown Act provisions that prohibit the legislative body of a local agency from conducting nonpublic meetings.

A. Judicial Interpretation of the Brown Act

This matter must ultimately be decided by application of the statutory language of the Brown Act. Because the current statutory language was enacted in consideration of a few key judicial decisions construing an earlier version of the act, however, we begin with a review of those decisions.

"It is clearly the public policy of this state that the proceedings of public agencies, and the conduct of the public's business, shall take place at open meetings, and that the deliberative process by which decisions related to the public's business are made shall be conducted in full view of the public." (Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist. (2001) 87 Cal.App.4th 862, 867,104 Cal.Rptr.2d 857.) To this end, the Brown Act "requires that most meetings of a...