a very big win for government accountability
(I'm the "et al" in Richard McKee et al...)Filed 11/23/05
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
RICHARD P. MCKEE et al., Plaintiffs and Respondents, v.LOS ANGELES
INTERAGENCY METROPOLITAN POLICE APPREHENSION CRIME TASK
FORCE, Defendant and Appellant. B179548 (Los Angeles
County Super. Ct. No. BS089154)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Dzintra I. Janavs, Judge. Affirmed.
Liebert Cassidy Whitmore, Richard M. Kreisler and Debra L. Bray for
Defendant and Appellant.
Moskowitz, Brestoff, Winston & Blinderman, Dennis A. Winston and
Barbara S. Blinderman for Plaintiffs and Respondents.
_________________________
Appellant Los Angeles Interagency Metropolitan Police Apprehension
Crime Task Force (L.A. Impact) appeals the trial court order
compelling it to comply with the open meeting requirements of the
Ralph M. Brown Act (the Brown Act) (Gov. Code, § 54950 et seq.).
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
L.A. Impact was organized by the Los Angeles County Police Chiefs
Association in 1991 to coordinate the efforts of the police
departments and other law enforcement agencies in Los Angeles County
to fight drug trafficking and money laundering. A memorandum of
understanding (MOU) was prepared and numerous city councils approved
it. For example, the City of Claremont City Council authorized its
police chief to enter into the MOU. Also, by resolution, the City of
Hermosa Beach City Council and the City of Manhattan Beach City
Council authorized participation in L.A. Impact by adopting a joint
powers agreement and MOU.
L.A. Impact then began its operations, and has been quite
successful. According to one report, “[s]ince its founding, L.A.
Impact has arrested 3,600 people and seized 123,000 pounds of cocaine
with a street value of $5 billion [and] has taken in $80 million in
cash and one Lear Jet.”
Because L.A. Impact does not post agendas to the meetings of its
board of directors or its executive council and does not permit
public attendance at its meeting, on March 25, 2004, respondents
Richard P. McKee and Chris Bray filed a petition for writ of mandate,
seeking to compel compliance with the Brown Act. Respondents’ motion
to issue peremptory writ of mandate was heard on October 7, 2004.
Following oral argument, the trial court granted respondents’
petition for writ of mandate, finding that (1) “L.A. IMPACT is a
‘joint powers authority’ authorized by the agreement (MOU) of cities
within Los Angeles County, pursuant to Government Code § 6500 et
seq., to jointly exercise law enforcement powers common to those
member-cities of L.A. IMPACT”; (2) L.A. Impact “is a ‘local agency’
as defined by the Brown Act”; and (3) L.A. Impact’s “Board of
Directors and Executive Council are both legislative bodies as
defined by the Brown Act.” The trial court further found that L.A.
Impact had violated the Brown Act by failing to adhere to its open
meeting requirements, and ordered L.A. Impact, its board of
directors, and its executive council to obey the open meeting
provisions of the Brown Act.
Judgment was entered, and this timely appeal followed.
DISCUSSION
I. Standard of review
Because the central issue presented is the applicability of the
Brown Act, specifically whether L.A. Impact is a local public agency
and whether its board of directors and executive council are
legislative bodies within the meaning of sections 54951 and 54952, we
conduct an independent review of the trial court’s judgment.
(International Longshoremen’s & Warehousemen’s Union v. Los Angeles
Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 293 (International
Longshoremen’s).)
II. The Brown Act’s purpose, scope, and broad construction
“The Brown Act [citation], adopted in 1953, is intended to ensure
the public’s right to attend the meetings of public agencies.
[Citation.] To achieve this aim, the Act requires, inter alia, that
an agenda be posted at least 72 hours before a regular meeting and
forbids action on any item not on that agenda. [Citations.] The Act
thus serves to facilitate public participation in all phases of local
government decisionmaking and to curb misuse of the democratic
process by secret legislation of public bodies.” (International
Longshoremen’s, supra, 69 Cal.App.4th at p. 293; see also Epstein v.
Hollywood Entertainment Dist. II Bus. Improvement Dist. (2001) 87
Cal.App.4th 862, 868 (Epstein).)
“The Brown Act dictates that ‘[a]ll meetings of the legislative body
of a local agency shall be open and public, and all persons shall be
permitted to attend any meeting of the legislative body of a local
agency, except as otherwise provided in this chapter.’ (§ 54953,
subd. (a).)” (International Longshoremen’s, supra, 69 Cal.App.4th at
p. 294; see also Epstein, supra, 87 Cal.App.4th at p. 868.)
The two pivotal questions before us de novo are: (1) whether L.A.
Impact constitutes a “local agency” as that phrase is defined in
section 54951; and (2) whether L.A. Impact’s board of directors and
executive council are legislative bodies within the meaning of
section 54952. In addressing these issues, “we are mindful that as a
remedial statute, the Brown Act should be construed liberally in
favor of openness so as to accomplish its purpose and suppress the
mischief at which it is directed.” (International Longshoremen’s,
supra, 69 Cal.App.4th at p. 294; see also Epstein, supra, 87
Cal.App.4th at p. 869.)
III. The trial court properly concluded that L.A. Impact is subject
to the open meeting requirements of the Brown Act
A. L.A. Impact is a local public agency
Section 54951 defines a “local agency” as “a county, city, whether
general law or chartered, city and county, town, school district,
municipal corporation, district, political subdivision, or any board,
commission or agency thereof, or other local public agency.”
Broadly construing the phrase “other local public agency,” we
conclude that L.A. Impact satisfies this definition. (Torres v.
Board of Commissioners (1979) 89 Cal.App.3d 545, 549-550.)
The parties implicitly, and correctly, agree that in order for L.A.
Impact to be considered a public agency, it had to be created by
statute or Constitution. “A typical governmental instrumentality, if
one can be said to exist, is created by an enabling statute that
prescribes the powers and duties of the instrumentality, and
specifies that it is to be managed by a board selected by the
government in a manner consistent with the enabling law. The
instrumentality is typically established as a separate juridical
entity, with the powers to hold and sell property and to sue and be
sued.” (Amoco Corp. v. C.I.R. (7th Cir. 1998) 138 F.3d 1139, 1146;
see also Imperial Irrigation Dist. v. State Wat. Resources Control
Bd. (1990) 225 Cal.App.3d 548, 567 [“‘the powers of public [agencies]
are derived from the statutes which create them and define their
functions’”].) Applying these legal principles, under the facts
presented herein, L.A. Impact only constitutes a public agency if it
was formed under the Joint Exercise of Powers Act (the JPA) (§ 6500
et seq.).
Under the JPA, a separate public entity can only be created by
agreement. (§ 6503.5; see also Brassinga v. City of Mountain View
(1998) 66 Cal.App.4th 195, 211 [absent a joint powers agreement,
sections 6506 and 6507 are inapplicable].) The trial court found
that there was no agreement between the cities to create L.A. Impact
as a separate entity. Substantial evidence does not support this
finding. (Wolf v. Superior Court (2004) 114 Cal.App.4th 1343, 1351.)
Rather, as set forth below, the evidence overwhelmingly indicates the
cities’ intent, through the MOU, to create a separate entity (L.A.
Impact) to target crime.
L.A. Impact was created by the MOU, with the authority to employ
municipalities’ police powers and public funds throughout Los Angeles
to fight drugs, money laundering, and terrorism. Numerous cities
throughout Los Angeles County authorized participation in the MOU.
In accordance with the terms of the MOU, L.A. Impact is governed by
a board of directors and executive council, with operations conducted
under a separate command structure.
It is a fiscally separate entity, subject to strict accounting
procedures. According to the MOU, funding for L.A. Impact’s
activities is obtained through public grants routed through member
cities, through contributions of personnel and equipment contributed
by member cities, and primarily through the division of the proceeds
of seized assets from the activities that L.A. Impact decides to
target. It even determines its own formula for the distribution of
proceeds of assets it seizes. In fact, as of 2004, it had an
“operating account” of over $9 million, of which over $5 million was
attributable to the asset forfeitures L.A. Impact had secured.
Also, pursuant to the MOU, L.A. Impact can enter into contracts,
which it has done. It purchased its own “rotorcraft” and arranged
with the City of Pasadena to hangar and maintain it at the Pasadena
Heliport.
Because of these facts, Timberlake By Timberlake v. Benton (M.D.
Tenn. 1992) 786 F. Supp. 676 (Timberlake) and Hervey v. Estes (9th
Cir. 1995) 65 F.3d 784 (Hervey) are readily distinguishable. In
Timberlake, the plaintiff brought an action pursuant to title 42
United States Code section 1983 (section 1983) “alleging a violation
of her constitutional rights when the vehicle in which she was riding
was stopped by officers of the 19th Judicial District Drug Task Force
and she was strip searched in the back seat of a patrol car at the
scene.” (Timberlake, supra, at p. 680.) “Defendant Jack Uffelman,
sued in his official capacity as the director of the 19th Judicial
District Drug Task Force, [sought] summary judgment on the ground
that the Task Force is not a ‘person’ under 42 U.S.C. § 1983 and
therefore . . . not amenable to suit.” (Ibid.)
The district court agreed with the defendant and granted his motion
for summary judgment. (Timberlake, supra, 786 F. Supp. at p. 684.)
It found that although the task force has a board of directors and a
unique source of funding, there was no “explicit language” in the
agreement that formed the task force indicating that it was a
separate legal entity. (Id. at p. 682.) In so ruling, the district
court also considered evidence that each officer assigned to the task
force remained an employee of the city or county assigning him and
his salary was paid by that city or county. (Id. at pp. 682-683.)
Ultimately, the district court concluded that “in the absence of
clear indications that the Task Force is an entity, the Court will
not imply its existence.” (Id. at p. 683.)
In Hervey, “[l]aw enforcement officers conducted a military-style
raid to search for a methamphetamine laboratory” and the subjects of
the search brought an action pursuant to section 1983 against Tahoma
Narcotics Enforcement Team (TNET), an “intergovernmental task force
made up of various local, county and state agencies with authority to
investigate suspected drug operations.” (Hervey, supra, 65 F.3d at
p. 786.) The district court granted TNET’s motion for summary
judgment and one of the plaintiffs appealed. (Id. at p. 791.)
The Ninth Circuit affirmed, reasoning that TNET was not subject to
suit under section 1983 because it merely was “an intergovernmental
association” and the plaintiff “provided insufficient evidence that
the entities that created TNET intended to create a separate legal
entity subject to suit.” (Hervey, supra, 65 F.3d at p. 792.)
Looking at the language contained in the agreement that formed TNET,
the Ninth Circuit concluded that a separate legal entity was not
contemplated. Specifically, TNET did not have an operating budget,
its member entities retained responsibility for the employment,
salary, benefits, and terms and conditions of all employees, and unit
personnel were deemed to be continuing under the employment of the
member entities. (Ibid.) Finally, distinguishing TNET from other
intergovernmental agencies, the court noted that there was nothing in
the agreement that indicated that TNET had been created or approved
by acts of state legislatures. (Ibid.)
In contrast, as set forth above, there is ample evidence that L.A.
Impact was intended to be a separate legal entity. Moreover, unlike
the entities at issue in Timberlake and Hervey, the evidence in the
instant case demonstrates that L.A. Impact operated as a separate
legal entity after its formation.
L.A. Impact argues that the absence of any specific language
indicating the creation of a separate entity supports the inference
that no separate entity was created by agreement. In light of the
foregoing evidence, this contention is of no consequence. The
language of the MOU and L.A. Impact’s actions in accordance therewith
evinces an agreement that L.A. Impact would function as a separate
legal entity. Accordingly, attorney Leland C. Dolley’s opinion in
1991 that the executive council was not intending L.A. Impact to be a
separate entity is simply a contrary legal conclusion not supported
by the evidence.
The fact that not all city councils may have formally agreed to the
MOU is irrelevant. Once at least two city councils agreed to create
L.A. Impact as a separate entity, as we conclude occurred, it became
a local public agency whose legislative body is subject to the Brown
Act. (§ 6502 [“two or more public agencies by agreement may jointly
exercise any power common to the contracting parties”].)
Bolstering our conclusion is the fact that the police chiefs could
not have entered into this task force without the cities’
authorization. Section 6502 requires a legislative body’s approval
before “public agencies by agreement may jointly exercise any power
common to the contracting parties.” As the trial court correctly
noted, nothing in Penal Code section 830.1 (which sets forth the
authority of peace officers) gives “police chiefs as individuals or
the police chiefs association as a private organization the power to
form a permanent joint task force with permanent governing bodies
utilizing city employees and equipment.” Given that L.A. Impact
could not have come into existence without the cities’ approval, it
follows that the cities created the task force. (Epstein, supra, 87
Cal.App.4th at pp. 870-871.)
B. L.A. Impact’s board of directors and executive council are
legislative bodies
“The term ‘legislative body’ has numerous definitions, grouped
together in section 54952.” (International Longshoremen’s, supra, 69
Cal.App.4th at p. 294.) Subdivision (a) provides that “legislative
body” includes “[t]he governing body of a local agency or any other
local body created by state or federal statute.” (§ 54952, subd.
(a).)
Here, L.A. Impact’s board of directors and executive council are
“governing bod[ies]” of a local agency. (§ 54952, subd. (a).)
According to the MOU, the board of directors is “responsible for
establishing policy and overall strategy for the Executive Council.”
And, the executive council directs the “policy, procedures and
affairs of the organization.” Undeniably, L.A. Impact’s board of
directors and executive council are legislative bodies, whose
meetings are subject to the Brown Act.
Alternatively, the Brown Act applies to L.A. Impact’s board of
directors and executive council pursuant to section 54952,
subdivision (c)(1)(A). That statute provides, in relevant part, that
a legislative body includes: “A board . . . or other multimember
body that governs a private corporation, limited liability company,
or other entity that either: [] (A) Is created by the elected
legislative body in order to exercise authority that may lawfully be
delegated by the elected governing body to a private corporation,
limited liability company, or other entity.” (§ 54952, subd.
(c)(1)(A).) L.A. Impact’s board of directors and executive council
are “board[s]” or “multimember bod[ies]” that govern an entity, and
L.A. Impact was delegated with authority possessed by city councils
to exercise municipalities’ police powers with public funds. Also,
as set forth above, various municipalities in Los Angeles County were
involved in the creation of L.A. Impact. Consequently, L.A. Impact’s
board of directors and executive council are legislative bodies
subject to the Brown Act. (Epstein, supra, 87 Cal.App.4th at pp.
870-872; International Longshoremen’s, supra, 69 Cal.App.4th at p.
295.)
IV. Public policy does not compel a different result
Finally, L.A. Impact urges that public policy requires that its
meetings not be open to the public. It contends that “[w]hile the
public right of access to legislative bodies is supported by strong
public policy, an equally important interest to our democratic
society is for law enforcement personnel to enforce criminal laws
effectively and as safely as possible.” For that reason, L.A.
Impact’s meetings regarding task force strategies and operations
should not be subject to public disclosure. What L.A. Impact
ignores, however, is that not all of its meetings are required to be
open to the public. (See, e.g., § 54957; Kleitman v. Superior Court
(1999) 74 Cal.App.4th 324, 331.) For example, section 54957.8 allows
for closed meetings of multijurisdictional drug law enforcement
agencies in order “to prevent the impairment of ongoing law
enforcement investigations, to protect witnesses and informants, and
to permit the discussion of effective courses of action in particular
cases.” (§ 54957.8.) And, section 54957 was amended in 2002 to
provide for greater confidentiality for local and state public
meetings when issues of public safety are being discussed. Given
these (and other) exceptions to the open meeting requirements of the
Brown Act, we hardly believe that the Legislature intended
crime-fighting strategy meetings to be open to the public.
DISPOSITION
The judgment of the trial court is affirmed. Respondents are
entitled to costs on appeal.
CERTIFIED FOR PUBLICATION.
______________________________, J.
ASHMANN-GERST
We concur:
_______________________________, P. J.
BOREN
_______________________________, J.
DOI TODD
