Brown ActThe Brown Act and Ex Parte Communications

Discussing Pending Projects with Public Officials

Talking directly with elected and appointed officials about upcoming projects seems natural, but sometimes such discussions can be illegal.

When a project is pending before the City Council, a board or commission, individuals may want to approach members before the official meeting to express support or opposition to a pending issue. However, when dealing with the "public's business," this may be illegal and improper.

California's anti-secret meeting law - the Brown Act - allows contact with public officials; however, it does not permit discussions that allow a majority of a council or commission to arrive at a "collective concurrence." That is, if before a meeting enough of the council or commission agree to support or deny a project, a violation of the law occurs. This occurs even if the members didn’t know what the others had decided. The Brown Act mandates that all public business must be done in public. See the current version of the Brown Act in the Government Code. Note that the image linked to a PDF is from 2010. It is provided as a lay reference; when in doubt always use the online code searching for Government Code, Title 5, Division 2, Chapter 9 - "Meetings", which is G.C. 54950 through 54963.

Even if such discussions don't violate the Brown Act, such "ex parte contacts" may result in an unfair proceeding. In an ex parte contact, the proponent or opponent is allowed to present ideas or opinions to one or several officials that the rest of the public never hears, violating the Constitutional due process rights of the opposing point of view.

So, if you call a Council member or board or commission member and they decline to talk about a pending matter, it doesn’t mean they don’t want to discuss the matter or take a stand; it's only a dedicated public servant trying to do his or her job in a legally correct manner.