sr-cao opinion-041779CITY ATTORNEY OPINION
Opinion No. 79-71, April 17, 1979
TO:
FROM:
REQUESTED BY
SUBJECT:
Mayor and City Council
City Attorney
City Clerk
Withdrawal of Consent to Special
Meeting Agenda Item
QUESTION PRESENTED
May the newly elected council consider emergency legis-
lation at the April 17, 1979 organization meeting when neither
the outgoing mayor nor a majority of the outgoing council have
manifested consent to consideration of the item on the agenda?
CONCLUSION
The council may consider the emergency legislation at
the April 17 meeting only if all councilmembers are present
and manifest consent. The council must call a special meeting
in compliance with Section 612 of the City Charter in order to
consider important matters at its organization meeting. The
cancellation of the call of the meeting casts substantial
doubt on the validity of any acts that might be taken, unless
a proper call is specifically waived by all members entitled
to vate. The council, either through the new mayor or four
(4) of its members must call a new special meeting to consider
the legislation, giving no less than 24 hours in writing to
all councilmembers and news media.
ANALYSIS
On April 10, 1979, a general municipal election was
held in the City. At that election, the voters elected
two (2) new councilmembers, re-elected one (1) incumbent
member, and enacted two (2) charter amendments.
Under Elections Code Section 22932, the City Council
must meet on the first Tuesday after a municipal election to
canvass the returns and to install newly elected officers.
Pursuant to Elections Code Section 22932.5, the responsibility
for conducting the canvass has been delegated by resolution
to the City Clerk; after the Clerk certifies the election
results, the council must pass a resolution ratifying the
results. After this occurs, the new councilmembers must
be installed. The City Clerk must then deliver the new
council members' Certificate of Election and administer
the oath of office prescribed in the State Constitution.
After the new councilmembers are installed, the
City Council must elect one of its members as the Mayor and
another as Mayor pro Tempore. Under Section 604 of the
City Charter, this election must occur on the first
Tuesday following the general municipal election.
The meeting that occurs on the first Tuesday following
the General Municipal Election is commonly referred to as the
"organizational meeting". The meeting is mandated by the
Elections Code and the City Charter; it does not have to be
called, but is held automatically and is simply scheduled by
the City Clerk.
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The organizational meeting is distinguished from the
other two types of meetings held by the City Council. Regular
meetings, which are authorized by §611 of the City Charter,
occur on the second and fourth Tuesdays of each month. The pro-
cedure=for conduct at regular meetings is established by Resolu-
tion No. 4848 (CCS). It is firmly established that any council-
member may introduce an item of legislation and place it on the
agenda at a regular meeting. While Resolution No. 4848 is silent
on the question of whether an item, once introduced, may be with-
drawn, it is a universally accepted principle of municipal law that
a councilmember cannot be deprived of his or her right to place an
item on the agenda of a regularly scheduled meeting, even by a
majority of the other councilmembers.
Business not transacted at regular meetings nor required to
be transacted at the organizational meeting must be conducted at a
special meeting. Special meetings are governed by §612 of the City
Charter which reads as follows:
"Special meetings may be called at any time
by the Mayor, or by four members of the City
Council, by written notice delivered per-
sonally to each member at least three hours
before the time specified for the proposed
meeting. A special meeting shall also be
validly called, without the giving of such
written notice, if all members shall give
their consent, in writing, to the holding of
such meeting and such consent is on file in
the office of the City Clerk at the time of
holding such meeting. A telegraphic communi-
cation from a member consenting to the holding
of a meeting shall be considered a consent in
writing. At any special meeting only such
matters may be acted upon as are referred to
in such written notice or consent."
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In addition to the requirements of City Charter X612,
special meetings must conform to the "Secret Meetings Act",
also known as the "Ralph M. Brown Act" Government Code X54950
et seq. That Act, in §54956, requires that a public agency
holding a special meeting must give written notice of the
meeting and the matters to be acted on to all councilmembers
and members of the news media requesting such information no
less than twenty-four (24) hours before the holding of the
meeting. Participation by a councilmember in a meeting that
violates the Brown Act is a misdemeanor, and business trans-
acted at such an illegal meeting is considered void.
The City Clerk scheduled an organizational council meet-
ing for April 17, 1979, the first Tuesday after the April 10, 1979
General Election, and, as is her usual practice, prepared a
written agenda. The original agenda is labelled "SPECIAL CALL
MEETING" at the top of the first page. The agenda includes ten
(10) items. The first five (5) items involve the certification
of the election, the installation of school board and council-
members, and the election of the Mayor and the Mayor Pro Tem.
The sixth and seventh items are resolutions of commendation for
the two outgoing councilmembers and are considered to be inci-
dental to the organizational meeting. The eighth item involves
consideration of the process of appointment of an Interim Rent
Control Board, a task made necessary by the recent enactment of
Proposition "A", the Rent Control Charter Amendment. This item
was placed on the agenda by a councilmember. The ninth item is
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a request by the Cit
pending litigation.
legislation relating
lated to the passage
by a councilmember.
The bottom of
y Attorney and the City Manager to discuss
The tenth item is consideration of emergency
to building demolition, another matter re-
of Proposition °'A" and placed on the agenda
the agenda contains the typed names and
signature lines of the seven current councilmembers. The agenda
was circulated among the councilmembers, beginning with the Mayor.
The Mayor and four (4) of the other councilmembers signed the
agenda. One councilmember was notified of the agenda but did not
sign it; one councilmember was out of town when-.the agenda was
circulated.
The City Clerk did not circulate a document specifically
notifying the councilmembers of the call of a special meeting
to consider any items, nor did the Mayor or any councilmembers
sign a document specifically designated as a call of the meeting.
On April 16, 1979, three councilmembers, including the
Mayor, notified the City Clerk in writing that they did not con-
sent to consideration of items eight (8} through ten (10) at
the April 17, 1979 meeting.
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A dispute has arisen between the councilmember who placed
the emergency legislation on the April 17, 1979 agenda and
the councilmembers who have manifested their desire that the
item not be considered. Resolution of this problem is complex,
and involves a consideration of competing interests without clear
guiding precedent.
The April 17, 1979 Council meeting is neither a regular nor
a special meeting, but has attributes of both. Like a regular meet-
ing, the organizational meeting that occurs after the election
is mandated by Charter provision, and need not be called. However,
only those matters which relate to the certification of the Munici-
pal Election and the transition from one council to the next, to-
gether with matters reasonably incident thereto, such as the common-
dation of outgoing councilmembers, may be considered at an organi-
zational meeting. The clear consensus of authority, including
the opinions of Samuel Gorlick, President of the National Institute
of Municipal Law Officers, and Royal M. Sorensen, City Attorney
of Santa Monica at the time the City Charter was written, is that
an important matter may not be considered at an organizational
council meeting unless action on the matter has been called by
the Mayor or majority of councilmembers under §612 of the City
Charter and twenty-four {24) hours written notice to councilmembers
and news media has been given pursuant to Government Code §54956.
The circulation of the agenda for signature by a majority
of the councilmembers deviates from the usual procedure for calling
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special meetings. However, either the Mayor or a majority of the
councilmembers may be deemed to have called a special meeting by
signing the agenda, presumably after having read its contents.
If all seven (7) councilmembers eligible to vote at any leg-
islatian or other business proposed as a result of agena items
8 and 10 are present at the meeting and consent to the transaction
of such business, a court will probably accept the proposition
that any defect into the calling of the meeting is immaterial to
its validity.
As was stated in Knickerbocker vs. Redlands Hiah School Dis-
trict, 49 Cal. Ap. 2d 722, 122 P. 2d 289, 293: "The general rule
regarding the waiving of notice of a special meeting of a Board
of Trustees of a school district, where all members are present
and participate, is found in 56 Corpus Juris, at page 337, §210,
wherein it is stated:
'Such notice is, however, for the benefit of
the members of the Board rather than that
of the public, and so, even where it is
required by statute to be given, it may be
waived by the persons entitled to receive it;
and where all the members of a board are pre-
sent and participate in a meeting thereof
they may take official action, and the fact
that no notice of such meeting was given or
no formal call was issued, or that the notice
or call was irregular or insufficient, is
immaterial to the validity of the proceedings."'
This principal does not derogate from the well-established
rule that a special meeting is legal only when all members are
present and participate or when there has been compliance with
all conditions precedent and a quorum is present. Baumgardner
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vs. City of Hacethorne 104 Cal Ap. 2d 512, 231 P. 2d 864 (1951);
City of Orange vs. Clement, 41 Cal Ap 497, 183 P. 189 (1919);
20 McQuillin, Municipal Corporations ~13.37A. These cases
clearly hold that actions taken at illegally called special
meetings are void unless the defect rendering the meeting ille-
gal is waived by universal consent. If one {1) councilmember
is absent when the questionable agenda items are considered, or
objects to the transaction of the business at the special meeting,
there is no consent and the meeting is defective. (See Burns vs.
Stenholm, 310 Mich. 639, 17 N.W. 2d 781 (1945)).
Thus, if there is a defect in the placing of agenda items
8 and 10 on the agenda for the meeting, and the defect is not
specifically waived by all councilmembers, there is substantial
risk that a court reviewing business transacted at the meeting
will find that the meeting is a nullity and that the business
is void. There remains the question of whether a defect exists.
Neither this office, nor the Ydational Institute of Municipal
Law Officers, nor any of several City Attorneys questioned on
the subject, are aware of any judicial decision, reported or
unreported, that specifically deals with the question whether the
person or persons who call a special meeting of a City Council,
may, by withdrawing the call, invalidate the meeting. In the
opinion of Samuel Gorlick, President of Nimlo and City Attorney
of Burbank, special meetings are commonly cancelled, but usually
this occurs when less than a full council will be present or when
the matter prompting the special meeting has been resolved.
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We found one (1) reported case involving the cancellation
of a special meeting, Republic Corporation vs. Carter, 22 A.D.
2d 29, 253 N.Y.S. 2d 280 (1964). In this case, the president
of a corporation involved in a struggle for corporate control
called a special meeting. The Board of Directors,dominated by
the opposing faction, cancelled the special meeting and fired
the president. The court held that in this case, in the absence
of specific direction in the by-laces, the Board of Directors
had no implicit power to cancel a special meeting called by the
president. The facts of this case are so dissimilar from our
situation that it is virtually useless as guiding precedent.
The general rule on reconsideration and rescission of decisions
of City's is stated in 62 C.J.S. 772, §407:
"A municipal governing body may re-
consider or rescend action previously
taken by it, provided the body has
not exhaisted its power in the matter
sought to be reconsidered, or vested
rights or the intervening rights of
third persons are not thereby im-
paired, or such subsequent action is
not prohibited by, or inconsistent
with, charter or statutory provisions
or rules of the body."
To similar effect is 20 McQuillin,Municipal Corporations
§13.49. While numerous cases uphold this general principle,
chiefly in the context of reconsideration of municipal ordinances
and contracts, no case specifically illuminates the point in
hand. (See Atkinson vs. Offner, 86 Cal App 2d 92, 194 P. 2d
33 (1948) Reagan vs. City of Sausalito, 210 Cal App 2d 618,
26 Cal Rptr 775 (1962)).
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While the public has been informed of the meeting and of
the presence of the agenda items in question, it cannot be said
that anything in the nature of a vested right has been acquired
by the-public in general or by any segment thereof. Since, if
the Mayor and the two (2) councilmembers who have withdrawn their
consent are permitted to reconsider and rescind any actions that
may be deemed to constitute a call of a special meeting, it is
apparent that serious questions might be raised as to the legality
of any legislation or resolution enacted without such consent.
The meeting, insofar as it takes on the character of a special
meeting, should be deemed to be cancelled.
If all seven (7) councilmembers entitled to vote on the
agenda items do not consent to hear to waive the defect in the
call and hear the item as scheduled, the recourse of the new
council is to call a new special meeting and follow the require-
ments of the Brown Act. Thus, the councilmembers should be noti-
fied in writing of the time and place of the special meeting and the
matters to be transacted. The news media that have requested
notice of special meetings should also be notified. The meeting
may not occur earlier than twenty-four (24) hours after the giv-
ing of the notice.
Our opinion is limited to the unique factual circumstances
at hand. This opinion should not in any way be construed as
authority for the proposition that, at a regular meeting, the
right of an individual councilmember to place an item on the agenda
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may be abridged by any other councilmember or combination
thereof.
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ST PHEN SHADIE STARK,
Assistant City Attorney
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City Attorney