Can a member agency of a California joint powers authority publicly debate a pending JPA matter with its own appointee, and can the agency tell the appointee how to vote?
Plain-English summary
The Indian Wells Valley Groundwater Sustainability Agency is a joint powers authority (JPA) created by five public agencies (the Counties of Kern, Inyo, and San Bernardino, the City of Ridgecrest, and the Indian Wells Valley Water District) to manage local groundwater under the Sustainable Groundwater Management Act. Each member agency appointed one representative to the JPA board, and two of those member agencies took the practice of holding their own open meetings before each JPA board meeting, taking public comment, and then directing or advising their appointee how to handle items pending at the JPA. Kern County's counsel asked the AG two questions about that practice.
On the Brown Act question, the AG said no, the practice does not violate the Act. The Brown Act prohibits collective deliberation by a majority of a legislative body outside a noticed open meeting; it does not regulate how individual members are instructed by the bodies that appointed them. When a single JPA director attends an open meeting of the agency that appointed him, that is one director discussing a matter with the legislative body of a different agency, not a majority of the JPA board deliberating in private. And even if every appointee did the same thing at their own member agency, they would not be deliberating with each other, which is what the Act forbids. The AG distinguished an older 1996 opinion that involved a subcommittee of the same parent body, where the concern was that a quorum of the parent could effectively reach decisions at the subcommittee meeting. That structural risk is absent here because the member agencies are independent legislative bodies, not subcommittees of the JPA.
On the due process question, the AG took a more nuanced position. When a JPA acts in an "adjudicative" capacity (applying existing rules to a specific set of facts, such as imposing a civil penalty for groundwater extraction in violation of a plan), the parties have a constitutional right to a neutral and impartial decision-maker. A member agency's open-meeting discussion telling its appointee how to vote on a pending adjudicative matter creates two distinct due-process risks. First, the appointee may end up relying on evidence presented to the member agency that was never presented to the JPA, and parties before the JPA had no chance to controvert. Second, the political and even financial pressure exerted by the appointing agency, which can remove the appointee, can rise to a level that creates an "unacceptable risk of bias" comparable to the risks the U.S. Supreme Court flagged in Caperton v. A.T. Massey Coal Co.
The AG drew the line carefully. Advance knowledge of disputed adjudicative facts does not by itself disqualify a decision-maker; tentative views are tolerable; investigations and parallel proceedings are tolerable. What is not tolerable is unwillingness to reconsider, prejudgment locked in by external pressure, or evidence used for decision that the parties could not test. Whether any particular member-agency discussion crosses the line is fact-specific. The right framing for an audience is that legislative-style direction to vote is generally fine, but adjudicative direction is dangerous and may need to be restructured.
What this means for you
These conclusions reflect the law as the AG read it in September 2021. Statutes and case law in this area continue to develop. Verify current authority before relying on a specific procedural detail.
If you are a JPA director or sit on a member agency's legislative body
Routine policy and legislative business pending at a JPA can be discussed and even directed at a member agency's open meeting without raising Brown Act problems, as long as the discussion is at one open meeting attended by no more than one JPA director. If the matter pending at the JPA is adjudicative (a permit decision, a civil penalty, an enforcement action against a particular party), pause before instructing your appointee how to vote. You may compromise the parties' due-process rights, and you may invalidate the JPA's decision later. A safer path: take public input at your member agency, but let your appointee deliberate at the JPA hearing on the basis of what is in that record.
If you are counsel to a JPA
Help the board distinguish legislative from adjudicative items on its agenda. For adjudicative matters, advise member agencies (in writing if needed) that pre-vote instruction by an appointing body to its appointee may invalidate the resulting decision. Document a clear evidentiary record so any party challenging the JPA decision later can see what the JPA itself considered. Petrovich Development Co. v. City of Sacramento is a useful reference for the level of specificity courts will look for when assessing bias.
If you are a party with a matter pending before a JPA
If you suspect a member agency is publicly directing its appointee how to rule on your case, the AG's analysis gives you a due-process argument. The strength of that argument depends on facts: whether evidence outside the JPA record was discussed, whether the appointee made statements showing prejudgment, whether the member agency exerted pressure (financial, political) on the appointee. Document what you can. Raise the issue at the hearing so the record preserves it.
If you watchdog a JPA from the public
The Brown Act side of this is not a tool for you here, the AG says the public discussion at member agencies is not a Brown Act violation. The due-process side is. If a JPA renders an adjudicative decision after appointees were publicly instructed how to vote, the affected party (and potentially intervenors) may have a basis to challenge it. The remedy is in court, not at the AG's office.
Common questions
Q: What makes a JPA decision "adjudicative" rather than "legislative"?
A: Meridian Ocean Systems v. State Lands Com. describes adjudication as "the actual application of already existing rules to a specific set of existing facts," in the manner of a tribunal. Legislative action is rule-making for future cases. Imposing a civil penalty on an identified party for past conduct is the classic adjudicative example. Adopting a groundwater plan is the classic legislative example. The line is not always clean; courts ask what the body is actually doing.
Q: If our appointee just abstains, is the problem solved?
A: Not necessarily. Cinderella Career & Finishing Schools v. FTC and California cases (Nasha v. City of Los Angeles) hold that a single biased member can taint a multi-member body's decision because there is no way to know what effect the biased member had on others. Abstention removes the vote but may not cure a tainted process if the problem already happened in deliberation.
Q: Does the Brown Act let two JPA directors attend the same member agency meeting?
A: Yes, with limits. Government Code section 54952.2(c)(4) lets a majority of one legislative body attend an open and noticed meeting of another, "provided that a majority of the members do not discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within the subject matter jurisdiction." So two JPA directors can be in the same room at a member agency meeting, but they cannot deliberate with each other privately about pending JPA business while there.
Q: Why are political contributions relevant to bias?
A: They are not the issue here, but the AG cited Caperton v. A.T. Massey Coal Co. by analogy. Caperton held that disproportionate campaign contributions to a state supreme court justice by a litigant created a constitutional bias problem. The shared principle is that someone with a stake in the case who can substantially affect the decision-maker's job, career, or finances creates a serious risk of actual bias.
Q: Does this opinion change the Brown Act?
A: No. It applies existing Brown Act doctrine to a specific factual scenario (one director attending the open meeting of his appointing body to discuss pending JPA business) and concludes the Act is not violated. The legislative changes that came after the 1996 opinion (specifically, Government Code section 54952.2(c)(6), allowing a majority to attend committee meetings as observers) confirm the Legislature has been actively maintaining the line between observation, attendance, and prohibited collective deliberation.
Background and statutory framework
The Brown Act, Government Code sections 54950-54963, requires that meetings of the legislative body of a local agency be open and public, with notice and agenda, and prohibits the use of "serial" meetings or other devices to evade the open-meeting requirement. The Act is concerned with collective decision-making by a quorum, not with individual conduct of individual members. Roberts v. City of Palmdale and Sacramento Newspaper Guild anchor the rule that a "meeting" requires two or more persons engaged in the body's business; a single official's actions do not constitute a meeting.
The Indian Wells Valley GSA is a JPA under Water Code sections 10720-10737.8 (Sustainable Groundwater Management Act) and Government Code sections 6500 et seq. (Joint Exercise of Powers Act). Section 10732 authorizes a groundwater sustainability agency to impose civil penalties for plan violations after notice and opportunity for hearing, which is what makes some JPA matters adjudicative.
The procedural due process line of authority comes from federal and California sources. Mathews v. Eldridge sets the federal balancing test, but as the California Supreme Court explained in Haas v. County of San Bernardino, balancing does not apply to bias claims; the unfairness from a biased decision-maker is qualitatively different. Today's Fresh Start, Inc. v. Los Angeles County Office of Education recognizes that administrative decision-makers can investigate, hold preliminary views, and adjudicate without violating due process; Caperton v. A.T. Massey Coal Co. shows the limit, when an interested party has disproportionate influence on the decision-maker, an objective and reasonable observer would perceive a serious risk of bias.
The AG's analysis lands at a fact-specific test. The opinion identifies several pressure points (the member agency's power over the appointment, possible political backlash for breaking with the agency's direction, possible financial repercussions if the appointee is paid). Whether those pressures cross the constitutional threshold depends on the evidence in any given case, mirroring the approach in Petrovich Development Co. v. City of Sacramento.
Citations and references
Statutes:
- California Government Code section 54952.2 (definition of meeting; exceptions)
- California Government Code section 54953 (open meeting requirement)
- California Government Code section 54950 (Brown Act statement of purpose)
- California Government Code section 6500 et seq. (Joint Exercise of Powers Act)
- California Water Code sections 10720-10737.8 (Sustainable Groundwater Management Act)
- California Water Code section 10732 (civil penalties by GSAs)
- U.S. Constitution, 14th Amendment; California Constitution, article I, section 7
Cases:
- Roberts v. City of Palmdale, 5 Cal.4th 363 (1993) (collective vs. individual action under Brown Act)
- Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, 263 Cal.App.2d 41 (1968)
- Page v. MiraCosta Community College Dist., 180 Cal.App.4th 471 (2009) (serial meetings)
- Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (bias from disproportionate influence)
- Today's Fresh Start, Inc. v. Los Angeles County Office of Education, 57 Cal.4th 197 (2013)
- Haas v. County of San Bernardino, 27 Cal.4th 1017 (2002) (financial bias; no balancing)
- Mathews v. Eldridge, 424 U.S. 329 (1976)
- Petrovich Development Co. v. City of Sacramento, 48 Cal.App.5th 963 (2020) (factual inquiry into bias)
- Withrow v. Larkin, 421 U.S. 35 (1975) (combined investigative/adjudicative roles)
- Jarrott v. Scrivener, 225 F.Supp. 827 (D.D.C. 1964) (improper pressure on adjudicators)
- English v. City of Long Beach, 35 Cal. 2d 155 (1950) (extrinsic evidence)
Source
- Landing page: https://oag.ca.gov/opinions/yearly-index
- Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/18-201_0.pdf
Original opinion text
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
OPINION
of
ROB BONTA
Attorney General
CATHERINE BIDART
Deputy Attorney General
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No. 18-201
September 17, 2021
THE HONORABLE MARGO A. RAISON, COUNSEL FOR THE COUNTY OF
KERN, has requested an opinion on the following questions related to the application of
public meeting and procedural due process requirements to a joint powers authority.
QUESTIONS PRESENTED AND CONCLUSIONS
1. Would it violate the Ralph M. Brown Act for appointees to a joint powers
authority to discuss a matter that is pending before that authority with their respective
member agencies, at those agencies’ separately held open meetings?
No. The contemplated discussions would not violate the Act because they would
occur at open, public meetings, and there would be no collective deliberation by a majority
of the members of any legislative body outside of such a meeting.
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2. Would it violate procedural due process for a member agency of a joint powers
authority to discuss with its appointee to that authority, at the member agency’s open
meeting, how to decide or vote a particular way on an adjudicative matter that is pending
before the authority?
Depending on the particular circumstances, such discussion could violate
procedural due process by infringing on a party’s right to a neutral, impartial decisionmaker.
BACKGROUND
A joint powers authority is an entity created when public agencies agree to exercise
a power shared by the agencies. 1 The agencies creating a joint powers authority may come
from different levels of government and be subject to different statutory requirements. In
this Opinion, we address questions related to a joint powers authority called the Indian
Wells Valley Groundwater Sustainability Agency (Indian Wells).
The agreement creating this joint powers authority states that its purpose is to
manage local groundwater pursuant to the Sustainable Groundwater Management Act, by
adopting and implementing a Groundwater Sustainability Plan and providing technical and
financial assistance to local groundwater agencies. 2 Among other powers and
responsibilities, the Indian Wells joint powers authority may impose a penalty for
groundwater extraction in violation of the Plan. 3
Five local agencies created the Indian Wells joint powers authority and comprise its
voting members. 4 Each member agency has appointed a representative to serve on the joint
1
See Gov. Code, §§ 6500 et seq. (Joint Exercise of Powers Act).
Indian Wells Valley Groundwater Authority Joint Exercise of Powers Agreement
(Agreement),
pp.
1-2,
available
at
https://static1.squarespace.com/static/
5a70e98dd55b41f44cbb2be0/t/5ae205a4575d1f737b70678e/1524762023428/Full+JPA+
Agreement.pdf [as of September 17, 2021]; see also Wat. Code, §§ 10720–10737.8
(Sustainable Groundwater Management Act), 10723.6, subd. (a)(1) (authorizing formation
of groundwater sustainability agency by joint powers agreement).
2
See Wat. Code, § 10732, subd. (b)(2) (authorizing groundwater sustainability agency
to impose certain civil penalties after providing notice and opportunity for hearing).
3
These member agencies are the Counties of Kern, Inyo, and San Bernardino, the City
of Ridgecrest, and the Indian Wells Valley Water District. (Agreement, supra, pp. 6–7, 9
& Exh. A.) There are also two non-voting member agencies: the United States Bureau of
Land Management and the United States Naval Air Weapons Station China Lake.
4
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powers authority’s board of directors. 5 We are informed that in advance of the joint powers
authority’s board meetings (but after the agenda for those meetings is posted), two member
agencies have held their own respective open meetings at which they took public comment
on matters that were pending before the authority, and then advised or directed their
respective appointees to the authority with respect to those pending matters. 6 We assume
for the purpose of our analysis that the appointee was the only one from the Indian Wells
joint powers authority board of directors who was present at the member agency’s open
meeting.
ANALYSIS
Question 1
We first consider whether the Brown Act prohibits members of the Indian Wells
joint powers authority board of directors from discussing matters that are pending before
the board when they attend open public meetings of the member agency that appointed
them to the board. 7
1. The Brown Act’s open meeting requirements
The objective of the Brown Act is to facilitate public participation in local
government decisions and to curb misuse of the democratic process by secret legislation. 8
Public agencies “exist to aid in the conduct of the people’s business,” and the intent
underlying the Act is that public agencies’ “actions be taken openly and that their
(Agreement, supra, p. 7 & Exh. B.)
Agreement, supra, pp. 6–7, 9 & Exh. A. Some, but not all, member agencies are
required to select their appointees to the Indian Wells board of directors from the agency’s
own legislative body. (Agreement, supra, p. 7; see also Gov. Code, § 6508 [authorizing
such provision in joint powers authority agreement].) In practice, each agency has selected
its appointee from its own legislative body whether or not it is required to do so.
5
These two member agencies—the City of Ridgecrest and the Indian Wells Valley
Water District—have special voting status at the joint powers authority, and at least one of
them must vote in favor of a proposed action for the Board to approve the action.
(Agreement, supra, p. 9.)
6
The Brown Act is set forth in Government Code sections 54950–54963. (See Gov.
Code, § 54950.5 [naming those sections the Brown Act].)
7
8
Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063, 1075–1076.
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deliberations be conducted openly.” 9 Because the Act is a remedial statute that seeks to
protect the public, courts interpret it broadly to effectuate its purpose. 10
The Brown Act applies to “[a]ll meetings of the legislative body of a local
agency.” 11 And it is expressly incorporated in the agreement creating the Indian Wells
joint powers authority. 12 Except as the Act otherwise provides, all meetings of local
legislative bodies are required to be “open and public, and all persons shall be permitted to
attend.” 13 A “meeting” is “any congregation of a majority of the members of a legislative
body at the same time and location . . . to hear, discuss, deliberate, or take action on any
item that is within the subject matter jurisdiction of the legislative body.” 14
To further the Act’s purpose of facilitating public participation in local government
decision-making, the legislative bodies of local agencies must give public notice of their
meetings by providing the time, place, and agenda. 15 Additionally, the public must have
an opportunity at meetings “to directly address the legislative body on any item of interest
to the public, before or during the legislative body’s consideration of the item.” 16 The Act
prohibits local legislative bodies from taking action by secret ballot. 17 It also prohibits
Gov. Code, § 54950; see also ibid. (“The people of this State do not yield their
sovereignty to the agencies which serve them. The people, in delegating authority, do not
give their public servants the right to decide what is good for the people to know and what
is not good for them to know. The people insist on remaining informed so that they may
retain control over the instruments they have created.”).
9
10
See Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1512.
Gov. Code, § 54953; see, e.g., McKee v. Los Angeles Interagency Metropolitan Police
Apprehension Crime Task Force (2005) 134 Cal.App.4th 354, 362; see Gov. Code,
§ 54952 (defining “legislative body” to include “governing body of a local agency or any
other local body created by state or federal statute”).
11
12
Agreement, supra, pp. 8–9.
Gov. Code, § 54953, subd. (a); see also Sacramento Newspaper Guild v. Sacramento
County Bd. of Supervisors (1968) 263 Cal.App.2d 41, 47–48; 63 Ops.Cal.Atty.Gen. 820
(1980).
13
14
Gov. Code, § 54952.2.
15
Gov. Code, §§ 54954, 54954.2.
16
Gov. Code, § 54954.3, subd. (a).
17
Gov. Code, § 54953, subd. (c)(1).
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them from holding closed sessions, with certain statutory exceptions. 18 Further, the Act’s
open meetings requirement may not be evaded through “serial” meetings. 19 Specifically,
outside of a meeting held in compliance with the Act, the Act prohibits a majority of
members of a legislative body from using “a series of communications of any kind, directly
or through intermediaries, to discuss, deliberate, or take action on any item of business that
is within the subject matter jurisdiction of the legislative body.” 20
2. In the scenario presented by the requestor, there is no collective deliberation
by members of any legislative body outside of a public meeting
The scenario we confront here is one in which the legislative body of a joint powers
authority is composed of one appointee from each of the member agencies. The requestor
has asked us whether it violates the Brown Act for these appointees to discuss matters that
are pending before the joint powers authority, while attending an open meeting of the
legislative body of their own member agency. We assume for the sake of our analysis that
no other member of the legislative body of the joint powers authority is present at the
member agency meeting. 21
We recognize that the Brown Act “does not purport to regulate the individual
conduct of individual” members of any legislative body. 22 Instead, the Act is concerned
with collective deliberation among a majority of the members of a legislative body. 23 As
Gov. Code, § 54962; see, e.g., Gov. Code, §§ 54956.9 (allowing closed session
relating to litigation, as specified), 54957, subd. (b) (allowing closed session relating to
personnel matters, as specified); see also Gov. Code, § 54957.7 (requiring body to disclose
items that will be discussed in closed session, limiting discussion to those items during
closed session, and requiring body to reconvene in open session and report certain actions
and votes taken in closed session).
18
19
Gov. Code, § 54952.2, subd. (b).
Gov. Code, § 54952.2, subd. (b)(1); see Page v. MiraCosta Community College Dist.
(2009) 180 Cal.App.4th 471, 503–504.
20
If we were instead presented with a scenario where more than one director of the joint
powers authority board attended the meeting of a particular member agency, we would
look to Government Code section 54952.2, subdivision (c)(4), which explicitly allows a
majority of one legislative body to attend and participate at another legislative body’s
meeting. See footnotes 32–33 and accompanying text.
21
22
65 Ops.Cal.Atty.Gen. 63, 66 (1982).
Gov. Code, § 54952.2, subds. (a) (providing that Brown Act applies to congregation
of majority of legislative body’s members to hear, discuss, deliberate, or take action on
23
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the California Supreme Court has observed, some sort of collective decision-making of the
body must be at stake:
[T]he action of one public official is not a “meeting” . . . because the [Brown
Act] uniformly speaks in terms of collective action, and because the term
“meeting,” as a matter of ordinary usage, conveys the presence of more than
one person, it follows that under [the Act], the term “meeting” means that
“two or more persons are required in order to conduct a ‘meeting’ within the
meaning of the Act.” 24
The scenario presented here does not involve any collective deliberation by a
majority of any legislative body outside of its open meeting. The deliberation by each of
the member agencies occurs at the open meeting of that agency’s legislative body. And
that deliberation is not among a majority of the board of directors of the Indian Wells joint
powers authority because there is only one board member on each member agency’s
legislative body—the appointee. 25 Indeed, even if every appointee deliberated with their
appointing agency at its open meeting, that would not add up to a prohibited collective
deliberation by the Indian Wells joint powers authority under the Brown Act because the
appointees would not be deliberating with each other.
3. Consideration of opposing views does not alter our conclusion
We have considered and evaluated opposing views submitted to our Office.
Ultimately, however, those views do not change our conclusion.
First, we address a concern that it would undermine the public’s opportunity to
participate in decision-making on matters pending before a joint powers authority if those
matters were previously discussed by the legislative bodies of the member agencies.
item within body’s jurisdiction), (c)(1) (exempting from Act “[i]ndividual contacts or
conversations between a member of a legislative body and any other person,” so long as
the contacts are not used to conduct a “serial” meeting by a majority of members of that
body); see Golightly v. Molina, supra, 229 Cal.App.4th at p. 1514 (“[I]t is collective
decisionmaking by a legislative body, not the solitary decisionmaking of an individual
public official, which is subject to the Brown Act”).
Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 375–376, quoting Wilson v. San
Francisco Municipal Ry. (1973) 29 Cal.App.3d 870, 879.
24
See Gov. Code, § 54952.2, subds. (a)–(b); Golightly v. Molina, supra, 229
Cal.App.4th at pp. 1513–1514; Sacramento Newspaper Guild v. Sacramento County Bd.
of Supervisors, supra, 263 Cal.App.2d at pp. 47–48.
25
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Proponents of this view reason that, if a number of appointees to the joint powers authority
sufficient for a majority vote were to definitively reach the same decision based on
discussions with their member agencies, it would render the public input at the joint powers
authority’s own meeting irrelevant and unlawfully pre-determine a matter pending before
the joint powers authority. They assert that an earlier Attorney General opinion supports
this reasoning.
We disagree. The situation addressed by that earlier opinion is unlike the situation
we consider here. It involved collective deliberation by a majority of the members of the
same legislative body at that body’s advisory subcommittee meeting. 26 The members of
that subcommittee comprised three of the legislative body’s seven members. We
concluded that no additional members of the parent legislative body could attend the
subcommittee meetings because otherwise those meetings would be attended by a majority
of the members of the parent body. 27 As we described, a Brown Act problem arose because
the unanticipated presence of a majority of the members of the parent body at the
subcommittee meeting created the possibility that the parent body would effectively
resolve matters at the subcommittee meeting, reducing the parent body’s next meeting to a
“rubber stamp.” 28 We explained:
Although the subcommittee meeting would be noticed and open to the public,
the public would not anticipate that items will be resolved at that meeting
due to the less than a quorum composition of the subcommittee. Members
of the public wishing to present their views when the item is to be decided
will attend the legislative body’s meeting only to find that the decision has
in effect already been made. The public will effectively be denied the right
to present views prior to the legislative body’s actual determination. Such
result would undermine the Legislature’s purposes in requiring notice, a
posted agenda, and public participation prior to the resolution of a matter by
a legislative body. 29
26
79 Ops.Cal.Atty.Gen. 69, 69 (1996).
Id. (“A fourth member of a seven member legislative body of a local agency may not
attend, as a member of the public, an open and noticed meeting of a less than a quorum
advisory committee of that body, without violating the notice, agenda, and public
participation requirements of the Ralph M. Brown Act applicable to meetings of the parent
legislative body”).
27
28
79 Ops.Cal.Atty.Gen., supra, at pp. 75–76.
29
Ibid.
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Following our Opinion, the Legislature amended the Brown Act to allow a majority
of the members of a legislative body to attend committee meetings, “provided that the
members of the legislative body who are not members of the standing committee attend
only as observers.” 30 Further, the situation described in Question 1 is quite different from
that addressed in our prior opinion. The member agencies who appoint the board of
directors of the joint powers authority are independent legislative bodies—not advisory
subcommittees of the joint powers authority. And they are not comprised solely of
members of the board of directors of the joint powers authority. Instead, there is only one
member in common between each of the member agencies’ legislative bodies and the board
of directors of the joint powers authority. So the problematic situation in our earlier opinion
is not present.
Second, we consider a suggestion that a Brown Act violation may be found on these
facts because reports and media broadcasts of the meetings of member agencies would
allow the appointed members of the board of directors of the joint powers authority to gain
knowledge of each other’s deliberations that occurred at the meetings of their respective
member agencies. We do not see how this could be grounds for a Brown Act violation.
An enumerated exception to the Act allows members of one legislative body to attend
meetings of another legislative body—and, consequently, to gain first-hand knowledge of
those meetings. 31 Specifically, the exception states that the Act does not apply to
[t]he attendance of a majority of the members of a legislative body at an . . . open
and noticed meeting of a legislative body of another local agency, provided that a
majority of the members do not discuss among themselves, other than as part of the
scheduled meeting, business of a specific nature that is within the subject matter
jurisdiction of the legislative body of the local agency. 32
If members of the board of directors of a joint powers authority may attend a member
agency meeting without violating the Brown Act, it follows that they may also read or
listen to second-hand media reports of such a meeting without running afoul of the Act.
30
Gov. Code, § 54952.2, subd. (c)(6) (added by 1997 Cal. Stat., ch. 253, § 1).
See Gov. Code, § 54952.2, subd. (c)(4). The members are limited to observing the
meeting only when the majority is attending a meeting of its own standing committee. (See
Gov. Code, § 54952.2, subd. (c)(6).)
31
32
Gov. Code, § 54952.2, subd. (c)(4), italics added.
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Finally, we consider a suggestion that another Attorney General opinion, dealing
with a joint powers authority, supports the conclusion that the circumstances here violate
the Brown Act. That opinion concluded that a vote by an appointee to a joint powers
authority was valid even though the appointee’s vote was contrary to the appointing
agency’s position on the matter. 33 We recognized that a member of a joint powers
authority’s legislative body has independent discretion when voting on authority matters. 34
If anything, that earlier opinion supports—rather than undercuts—the conclusion we reach
here. Because an appointee to the legislative body of a joint powers authority is not bound
by the appointing agency’s position, an opportunity would remain for public participation
in the appointee’s decision-making at the meeting of the joint powers authority.
Question 2
The second question asks whether a procedural due process violation would occur
if a member agency at its open meeting discussed with its appointee to a joint powers
authority how to decide or vote a particular way on an adjudicative matter that comes
before the authority. A matter is “adjudicative” if it involves “the actual application of
already existing rules to a specific set of existing facts,” in the manner of a tribunal, as
opposed to the development of legislative rules to apply to future cases. 35 In the scenario
presented by Question 2, then, the appointed directors of the joint powers authority would
“act in a quasi-adjudicatory capacity similar to judges.” 36
When “an administrative agency conducts adjudicative proceedings, the
constitutional guarantee of due process of law requires a fair tribunal.” 37 This requirement
33
See 83 Ops.Cal.Atty.Gen. 267, 267–268 (2000).
Id. at p. 268, citing Harbach v. El Pueblo De Los Angeles etc. Com. (1971) 14
Cal.App.3d 828, 834, and finding nothing to the contrary in the relevant statute, ordinances,
resolutions, or joint powers agreement.
34
35
Meridian Ocean Systems, Inc. v. State Lands Com. (1990) 222 Cal.App.3d 153, 167.
36
Petrovich Development Co., LLC v. City of Sacramento (2020) 48 Cal.App.5th 963,
973.
Morongo Band of Mission Indians v. State Water Resources Control Bd. (2009) 45
Cal.4th 731, 737. Our due process analysis is limited to constitutional principles that would
govern any joint powers authority. A particular joint powers authority may also be
governed by a statute that provides additional procedural rules. (See, e.g., Gov. Code,
§ 11400, subd. (a) [identifying “administrative adjudication provisions of the
Administrative Procedure Act”]; see also Gov. Code, §§ 11410.10–11410.30 [applicability
of administrative adjudication provisions].)
37
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derives from both the federal and state Constitutions, which prohibit a governmental
agency from depriving any person of property without due process of law. 38 “The
touchstone of due process is fundamental fairness.” 39 Due process therefore requires
(among other things) an impartial adjudicator who is “free of bias for or against a party.” 40
To be sure, due process requirements in administrative adjudications “allow[] more
flexibility” than in the context of judicial proceedings. 41 In applying due process principles
to administrative proceedings, our state court of appeal has emphasized that “the question
is simply what process is due in a given circumstance.” 42 “The standard of impartiality
required at an administrative hearing is less exacting than that required in a judicial
proceeding.” 43 But due process “always requires a relatively level playing field, the
‘constitutional floor’ of a ‘fair trial in a fair tribunal.’” 44 “[I]n other words,” it requires “a
38
U.S. Const., 14th Amend., § 1; Cal. Const., art. 1, § 7, subd. (a).
People v. Lemcke (2021) 11 Cal.5th 644, 655; see id. at p. 659, fn. 7 (“While the
protections afforded under the due process clauses of the California Constitution and the
federal Constitution are not coterminous [citations], we have previously acknowledged
that, as with the federal Constitution, the ‘essence’ of our state due process clause is
‘fundamental[] fair[ness in the] decision-making process.’ [Citations.]”).
39
Morongo Band of Mission Indians v. State Water Resources Control Bd., supra, 45
Cal.4th at p. 737; see Today’s Fresh Start, Inc. v. Los Angeles County Office of Education
(2013) 57 Cal.4th 197, 214 (discussing due process in administrative adjudications); Horn
v. County of Ventura (1979) 24 Cal.3d 605, 612 (procedural due process applies to
administrative but not legislative matters); Nasha v. City of Los Angeles (2004) 125
Cal.App.4th 470, 482 (same); 78 Ops.Cal.Atty.Gen. 77, 78 (1995).
40
Today’s Fresh Start, Inc. v. Los Angeles County Office of Education, supra, 57
Cal.4th at p. 214 (noting that while the “bar against financially interested adjudicators
applies with as much force to administrative adjudicators as to judicial officers” in other
respects, “administrative hearings need not be conducted with the same rigor demanded of
judicial proceedings,” citing Haas v. County of San Bernardino (2002) 27 Cal.4th 1017,
1027 and Gai v. City of Selma (1998) 68 Cal.App.4th 213, 219).
41
42
Nightlife Partners v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90.
Gai v. City of Selma, supra, 68 Cal.App.4th at p. 219; see, e.g., Withrow v. Larkin
(1975) 421 U.S. 35, 56 (recognizing that it does not violate due process for an agency
decision maker “to receive the results of investigations, to approve the filing of charges or
formal complaints instituting enforcement proceedings, and then to participate in the
ensuing hearings”).
43
44
Nightlife Partners, supra, 108 Cal.App.4th 81, 90, original emphasis.
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fair hearing before a neutral or unbiased decision-maker.” 45
When analyzing claims of a prohibited bias, the balancing inquiry called for in most
procedural due process cases does not apply. 46 “[T]he unfairness that results from biased
decisionmakers strikes so deeply at our sense of justice that it differs qualitatively from the
injury that results from insufficient procedures.” 47 The fact that a decision-maker with a
prohibited bias participated in an adjudicatory decision is enough to invalidate the
decision. 48 And if a legislative body performs the adjudication, the participation of one
member with demonstrable bias generally taints the adjudication, because it is impossible
to know what effect it had on other members of the body. 49
A due process violation can be established “by proof of actual bias” or by “showing
a situation ‘in which experience teaches that the probability of actual bias on the part of the
45
Ibid.
Haas v. County of San Bernardino, supra, 27 Cal.4th at p. 1035. Generally, courts
analyze federal due process claims by balancing three factors: “First, the private interest
that will be affected by the official action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s interest, including the
function involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.” (Mathews v. Eldridge (1976) 424 U.S. 329, 335.)
Due process analysis under the California Constitution also weighs a fourth factor: “the
dignitary interest in informing individuals of the nature, grounds, and consequences of the
action and in enabling them to present their side of the story before a responsible
government official.” (People v. Allen (2008) 44 Cal. 4th 843, 862–863, 868.)
46
Haas v. County of San Bernardino, supra, 27 Cal.4th at p. 1036. “In Justice Holmes’
famous phrase, ‘even a dog distinguishes between being stumbled over and being kicked.’”
(Ibid.)
47
Woody’s Group, Inc. v. City of Newport Beach (2015) 233 Cal.App.4th 1012, 1022–
1023; Nasha v. City of Los Angeles, supra, 125 Cal.App.4th at p. 485 (“Because the
Planning Commission’s decision was tainted by bias and must be vacated, it is unnecessary
to address Nasha’s other contentions”).
48
Cinderella Career & Finishing Schools, Inc. v. FTC (D.C. Cir. 1970) 425 F.2d 583,
592 (“Litigants are entitled to an impartial tribunal whether it consists of one [person] or
twenty and there is no way which we know of whereby the influence of one upon the others
can be quantitatively measured”); see, e.g., Nasha v. City of Los Angeles, supra, 125
Cal.App.4th at pp. 478, 485 (bias of one of three planning commissioners tainted
commission’s decision).
49
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judge or decisionmaker is too high to be constitutionally tolerable.’” 50 Whether such a
situation exists is determined “based on an objective assessment of the circumstances in
the particular case.” 51 The focus of that assessment is whether, “under a realistic appraisal
of psychological tendencies and human weakness,” the situation “poses such a risk of
actual bias or prejudgment that the practice must be forbidden if the guarantee of due
process is to be adequately implemented.” 52
Bias may result from an adjudicator’s financial interests or other circumstances. 53
When a decision maker has a “financial interest [that] would offer a possible temptation to
the average person as judge not to hold the balance nice, clear and true,” that violates due
process. 54 But “[a]bsent a financial interest, adjudicators are presumed impartial.” 55 This
“presumption of impartiality can be overcome only by specific evidence demonstrating
actual bias or a particular combination of circumstances creating an unacceptable risk of
bias.” 56 A mere subjective appearance of bias is not grounds for disqualification. 57
Ultimately, bias “must be established with concrete facts rather than inferred from mere
appearances.” 58
Morongo Band of Mission Indians v. State Water Resources Control Bd., supra, 45
Cal.4th at p. 737, quoting Withrow, supra, 421 U.S. at p. 47; see Golden Day Schools, Inc.
v. State Dept. of Educ. (2000) 83 Cal.App.4th 695, 709.
50
51
See People v. Peoples (2016) 62 Cal.4th 718, 788.
52
Withrow, supra, 421 U.S. at p. 47.
53
See Caperton v. A.T. Massey Coal Co. (2009) 556 U.S. 868, 876–877.
54
Haas v. County of San Bernardino, supra, 27 Cal.4th at p. 1026.
Today’s Fresh Start, Inc. v. Los Angeles County Office of Education, supra, 57 Cal.
4th at p. 219.
55
Morongo Band of Mission Indians v. State Water Resources Control Bd., supra, 45
Cal.4th at p. 741; see also Lent v. California Coastal Commission (2021) 62 Cal.App.5th
812, 855 (“A party must allege concrete facts that demonstrate the challenged judicial
officer is contaminated with bias or prejudice. ‘Bias and prejudice are never implied and
must be established by clear averments,’” quoting Andrews v. Agricultural Labor Relations
Bd. (1981) 28 Cal.3d 781, 792).
56
57
Andrews v. Agricultural Labor Relations Bd., supra, 28 Cal.3d at pp. 791–794.
Petrovich Development Co., v. City of Sacramento, supra, 48 Cal.App.5th at p. 974,
quoting Independent Roofing Contractors v. California Apprenticeship Council (2003) 114
Cal.App.4th 1330, 1340.
58
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We are asked whether, in light of the above principles, it would violate procedural
due process for a member agency to discuss with its appointee to the board of directors of
a joint powers authority how to decide or vote a particular way on an adjudicative matter
that is pending before the authority. We have not found any judicial precedent addressing
this precise scenario. And we recognize that a member agency’s instruction to vote a
certain way would not legally bind an appointee during the adjudication before the joint
powers authority. 59 Nevertheless, existing precedent suggests that the member agency’s
discussion of the pending matter could compromise the appointee’s neutrality in at least
two ways.
First, a member agency’s consideration of a matter could, in some circumstances,
create a situation where the appointee relies on evidence outside the record that is before
the joint powers authority, or prejudges the matter prior to the adjudicatory proceeding by
the joint powers authority. The requestor’s legal analysis focuses on this possibility,
reasoning that the member agency’s deliberations about the matter would effectively be a
separate hearing at which the appointee would hear evidence and testimony that the
appointee would later rely on during the adjudicatory proceeding before the joint powers
authority. We agree that it could violate due process if the appointee voted based on
evidence presented to the member agency—but not to the joint powers authority—or on
other “information of which the parties were not apprised and which they had no
opportunity to controvert.” 60 The right to a fair hearing “would be meaningless if the
tribunal were permitted to base its determination upon information received without the
knowledge of the parties.” 61 We also take seriously the concern that the appointee might
prejudge the matter as a result of the proceedings before the member agency. We recognize
that courts have upheld a variety of administrative procedures where agency decision
makers investigate, hold hearings, and even form tentative views before adjudicating a
matter. 62 “[A]dvance knowledge of adjudicative facts that are in dispute . . . does not
59
See 83 Ops.Cal.Atty.Gen., supra, at p. 267.
60
English v. City of Long Beach (1950) 35 Cal. 2d 155, 158.
Id. at p. 159; see also ibid. (“A hearing requires that the party be apprised of the
evidence against [it] so that [it] may have an opportunity to refute, test, and explain it, and
the requirement of a hearing necessarily contemplates a decision in light of the evidence
there introduced”), Vollstedt v. City of Stockton (1990) 220 Cal. App. 3d 265, 269 (holding
that a city manager violated due process by upholding a demotion based on information
received from the city’s personnel director instead of from the hearing before the city’s
civil service commission).
61
Today’s Fresh Start, Inc. v. Los Angeles County Office of Education, supra, 57 Cal.
4th at pp. 226–227 (rejecting the view “that engaging in an administrative investigation
and forming opinions based on the fruits of that investigation yields the sort of extrinsic
62
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disqualify the members of an adjudicatory body from adjudicating a dispute.” 63 But if it
were demonstrated that the appointee was unwilling to reconsider the recommendation of
the member agency, that could violate due process. 64
Second, we believe that a member agency’s discussion with its appointee about how
to vote in a particular way in an adjudicative matter, coupled with the agency’s position of
influence over the appointee, could create independent due process concerns. As a general
matter, procedural due process concerns can arise when someone with an interest in a
proceeding has disproportionate influence over the decision maker. In Caperton v. A.T.
Massey Coal Company (2009) 556 U.S. 868, for instance, the United States Supreme Court
held that it violated due process for a judge to hear an appeal brought by a company whose
chairman made massive contributions to the judge’s election campaign shortly before the
company filed the appeal. The Court reasoned that “there is a serious risk of actual bias—
based on objective and reasonable perceptions—when a person with a personal stake in a
particular case had a significant and disproportionate influence in placing the judge on the
case by raising funds or directing the judge’s election campaign when the case was pending
or imminent.” 65 In a similar vein, courts in other states have repeatedly disapproved of the
appearance at the hearing on behalf of a party by one who appoints the adjudicator. 66
bias the due process clause was intended to prohibit”).
State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 841, quoting
Breakzone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1236.
63
Id. (“There must be . . . a commitment to a result (albeit, perhaps, even a tentative
commitment), before the process will be found violative of due process”); see, e.g., Furtney
v. Simsbury Zoning Comm’n (1970) 159 Conn. 585, 594 (“The decisive question in the
instant case is whether Eno [a commissioner] had actually made up his mind, in advance
of the public hearing, that he was going to approve the proposed change of zone regardless
of any changes or arguments in opposition which might be urged at the hearing”); cf.
Today’s Fresh Start, Inc. v. Los Angeles County Office of Education, supra, 57 Cal. 4th at
p. 227, discussing the United States Supreme Court’s decision in Trade Comm’n. v. Cement
Institute (1948) 333 U.S. 683 (“Even assuming that the entire commission had formed the
view, based on its investigation, that the cement industry was engaged in unlawful price
fixing, that view did not prevent members of the cement industry from producing
voluminous evidence, presenting testimony and argument, and persuading the commission
to revise its conclusions”).
64
65
Caperton, supra, 556 U.S. at 884, italics added.
See, e.g., Place v. Board of Adjustment of Borough of Saddle River (1964) 42 N.J.
324, 332 (declaring this practice “patently improper”); Barkey v. Nick (Mich. Ct. App.
1968) 11 Mich.App. 381, 384–385 (voiding a decision “made pursuant to an argument by
66
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Courts have also recognized that, in certain circumstances, an appointee’s desire to
appease other government officials creates an unacceptable risk of bias. In Jarrott v.
Scrivener (D.D.C. 1964) 225 F.Supp. 827, for example, the court found a due process
violation based on secret communications from highly placed government officials to
members of a zoning board. The two board members, both “relatively subordinate
government employees,” were informed “that a favorable decision” on a zoning matter
“would be pleasing, and an unfavorable decision displeasing, to persons in very high
governmental brackets.” 67 The court found that these communications created pressure
that was real, “and the Board members contacted could not fail to be aware that they would
incur administrative displeasure if they decided the appeal unfavorably.” 68 The court
added that there “might be room” for a different conclusion if the communications had
been public. 69
The question presented here potentially implicates the general concerns underlying
these cases, but the factual scenario is obviously different from the ones discussed above.
Unlike Jarrott, we assume that any discussion on how to vote would be communicated to
the appointee in the context of an open meeting of the member agency. And unlike
Caperton, there is no indication that anyone at the member agency holds a personal stake
in the matter or made the appointment with a particular matter in mind. Nonetheless, we
recognize that the scenario contemplated in the question presented could potentially exert
a substantial external influence on the appointee’s decision with respect to an adjudicative
matter. For example, an appointee could face significant political repercussions for
breaking with the member agency’s direction, including the possibility of losing the
appointment on the joint powers authority board. And the appointee might even face
financial pressure if, for example, the appointee receives remuneration for the appointment.
Ultimately, more facts would be needed to assess bias in any given case. A recent
state court of appeal decision further illustrates the fact-specific nature of the inquiry that
would be required. In Petrovich Development Co., LLC v. City of Sacramento (2020) 48
Cal.App.5th 963, the court considered an adjudicatory hearing conducted by a city council
about a conditional use permit for a gas station. One of the city councilmembers lived in
a neighborhood near the proposed station, belonged to a neighborhood association that
one charged in part with the appointment of that administrative body,” and finding it
imposed “duress on the members of the board, not as a matter of fact, but as a matter of
law”).
67
Jarrott v. Scrivener (D.D.C. 1964) 225 F.Supp. 827, 834.
68
Ibid.
69
Ibid.
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opposed the station, and made statements opposing it. 70 The court held that these facts,
standing alone, did not demonstrate an unacceptable probability of bias, but that the
councilmember “crossed the line into advocacy against the project” in specific actions
leading up to the hearing. 71 The “concrete facts” showing bias included “affirmative steps
to assist opponents of the gas station conditional use permit” and the councilmember’s
work to organize opposition at the very hearing where he was supposed to be a neutral
decision maker. 72
The question before us today is framed in general terms and, as illustrated,
procedural due process analysis requires a careful inquiry into “the circumstances in the
particular case.” 73 As a general matter, however, we believe that the scenario presented
here could create a substantial risk of infringing a party’s due process right to a neutral,
impartial decision-maker in the adjudicatory proceeding. The member agency’s discussion
of how to vote a particular way could lead the appointee to rely on extrinsic evidence or
prejudge the matter. And it could also create varying degrees and types of pressure on the
appointee. The result could very well be a risk of actual bias or prejudgment too high to
be constitutionally tolerable. 74
70
974.
Petrovich Development Co., LLC v. City of Sacramento, supra, 48 Cal.App.5th at p.
71
Ibid.
72
Id. at 976.
73
People v. Peoples, supra, 62 Cal.4th at p. 788.
See Morongo Band of Mission Indians v. State Water Resources Control Bd., supra,
45 Cal.4th at p. 737.
74
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