Opinion
Previously published at 15 Cal.App.4th 345, 9 Cal.App.4th 134
As Modified on Denial of Rehearing Sept. 29, 1992.
Review Granted Nov. 30, 1992. [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL
Helsing & Wray, Mark Cain and Mark Wray, Santa Ana, for plaintiff and appellant.
Terry C. Andrus, County Counsel, and Donald H. Rubin, Santa Ana, for defendant and respondent.
OPINION
SILLS, Presiding Justice.
This case is illustrative of Cohen's Law of Secrecy: "The best way to publicize a governmental action is to attempt to hide it."
See Dickson, The Official Rules (1978) at 29.
I
The Orange County Employees Retirement System administers a $1.5 billion fund. It is governed by a nine-member board of directors. The chairman has the authority to form committees. In accordance with established practice, the chairman appointed four board members to each of five committees for the calendar year of 1991. The committees were benefit, investment, operations, real estate and liaison. These committees review the various matters which will eventually come before the full board and make recommendations as to what course of action the board should take. The committees have no decision making authority, and, according to the retirement administrator, serve only in an "advisory" capacity. Board members, however, are paid $100 for attending committee meetings.
On June 18, 1991, the Operations committee met to consider the board's travel policies and draw up a list of recommended changes. The existing travel policy had become a matter of public interest and media attention as a result of a European trip some board members had recently made to inspect retirement fund investments. A reporter for the Orange County Register (published by plaintiff Freedom Newspapers) attempted to attend the meeting but was excluded. This lawsuit followed the next day. (As it turned out, the full board adopted the recommendations of the Operations committee by a vote of 8 to 1.)
The sole question presented on this appeal concerns the proper interpretation of what is commonly referred to as the California Open Meeting Law, or the Ralph M. Brown Act, or simply the "Brown Act." (Gov.Code, §§ 54950 et seq.)
Unless otherwise specifically noted, all statutory references are to the Government Code.
The Brown Act requires all meetings of the "legislative body of a local agency" to be "open and public." (§ 54953.) It sets out several definitions of "legislative body."
Under section 54952.3 "legislative body" includes "[a]ny advisory commission, advisory committee or advisory body of a local agency, created by charter, ordinance, resolution, or by any similar formal action of a legislative body or member of a legislative body of a local agency." According to section 54952.5, a legislative body includes "permanent boards or commissions of a local agency." And section 54952 defines legislative body to mean "any ... committee ... on which officers of a local agency serve in their official capacity as members and which is supported ... in part by funds provided by such agency...."
There is no doubt the board of directors of the retirement system falls within at least two of these definitions. The Orange County Employees Retirement System is a local agency, and its board is a permanent one. (§ 54952.5; cf. § 31520 [setting out how county retirement boards are constituted].) The board is also the "governing board" of a local agency. (§ 54952.) The dispute in this case is whether the board's four-person committees also fall within the definition.
If we accept the characterization of these committees as "advisory," they would be "legislative bodies" as initially defined by section 54952.3 [" 'legislative body' also includes any advisory ... committee"]. However, language at the end of section 54952.3 exempts from the section's definition of legislative body "[a] committee composed solely of members of the governing body of a local agency which are less than a quorum of such governing body." It is upon this proviso that the retirement board rests its case and the court below denied the newspaper's request for a writ commanding the board to open Operations committee meetings to the public.
If the committees of the board were legislative bodies only by virtue of section 54952.3, making advisory committees legislative bodies subject to that statute's less-than-a-quorum exception, we might be inclined to affirm. But the committees also fall within the scope of 54952, to which, as we explain below, there is no less-than-a-quorum exception. Accordingly, we reverse with directions to grant the requested writ. II
The Brown Act was enacted in 1953. The Legislature's declaration of intent was extraordinarily clear: "In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. [p] 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." (§ 54950.)
As originally enacted in 1953, the Brown Act defined "legislative body" in a short version of section 54952, which read: "As used in this chapter, 'legislative body' means the governing board, commission, directors or body of a local agency, or any board or commission thereof." (Stats.1953, ch. 1588, § 1, p. 3270; see also Secret Meeting Law, 32 Ops.Cal.Atty.Gen. 240, 241 (1958).) Under this truncated definition, the Brown Act applied mainly to bodies such as city councils and county boards of supervisors. The act did not apply, for example, to a dinner meeting of members of a city planning commission with a developer at a club to discuss a zoning change. (Adler v. City Council (1960) 184 Cal.App.2d 763, 7 Cal.Rptr. 805.)
See remarks of Assemblyman James A. Hayes, printed at 4 Assembly Journal, 1968 Regular Session, page 7163: "As originally enacted, The Brown Act applied simply to governing boards, commissions and bodies like city councils and boards of supervisors."
In 1961, however, the Legislature expanded the definition of "legislative body," as set out in section 54952, to add this language after the word "thereof": "and shall include any board, commission, committee, or other body on which officers of a local agency serve in their official capacity as members and which is supported in whole or in part by funds provided by such agency, whether such board, commission, committee or other body is organized and operated by such local agency or by a private corporation." (Stats.1961, ch. 1671, § 1, p. 3637, italics added.) Section 54952 has not been changed since.
In 1961 the Legislature also added section 54952.5, which expanded the definition of "legislative body" to specifically include "other permanent boards or commissions of a local agency." (Stats.1961, ch. 1671, § 2, p. 3637.) Section 54952.3, pertaining to advisory committees and setting out a less-than-a-quorum exception, was added as part of an effort by the Legislature in 1968 to close a loophole in section 54952.5 which had opened around the word "permanent." Section 54952.3 had its genesis in Assembly Bill 202, introduced by Assemblyman James A. Hayes, himself a former newspaper reporter. According to Hayes, "[c]ity attorneys and county counsels" had "sought to avoid the intent and purport" of section 54952.5 "by advising their city councils, boards of supervisors, etc. to create temporary advisory agencies." In particular, the board of supervisors of Los Angeles County had allegedly avoided the Brown Act by establishing a system of "citizen committees" to advise the board. These committees would "formulate" the board's policy in closed session and make a recommendation at an open meeting of the board, which would "typically" adopt the "program proposed without extensive debate." This was "obvious subterfuge" of the Brown Act and Assembly Bill 202 was "designed to eliminate" it by extending the Brown Act to any board, even if made up of private citizens.
4 Assembly Journal (1968 Reg.Sess.) at page 7163.
See Analysis of Assembly Bill 202 prepared for the Assembly Committee on Governmental Organization (1968 Reg.Sess.).
4 Assembly Journal (1968 Reg.Sess.) at page 7163.
See Analysis of Assembly Bill 202 prepared for the Assembly Committee on Governmental Organization (1968 Reg.Sess.).
Assemblyman Hayes also stated his reason for including the less-than-a-quorum language in what was to become section 54952.3: "The reason was that such committees of the governing body of a local agency are covered by another section of the Ralph M. Brown Act, Government Code Sec. 54952." (Italics added.)
4 Assembly Journal (1968 Reg.Sess.) at page 7163.
In the present case, the committees of the retirement board are made up of officers of the board serving in their official capacity and are supported at least in part (the $100 per meeting payment) with funds from the board. Section 54952 says nothing about committees of less than a quorum. Rather, it uses the inclusive "any" to define the committees within its reach. We must therefore conclude the committees fall within the definition of "legislative body" as set out in section 54952.
We emphasize that our conclusion is premised on the plain language of section 54952, not on the comments of Assemblyman Hayes, who made them years after section 54952 was amended in 1961. We note those comments merely for the light they throw on section 54952.3, not on section 54952.
The board asserts the less-than-a-quorum exception set out in section 54952.3 controls, and cites, in support of its argument, the general canon of statutory construction that specific provisions control general ones. This argument fails because, by its terms, the exception set out in section 54952.3 only applies to entities that are legislative bodies "as defined in this section." (Italics added.) By its very language the less-than-a-quorum exception does not relate to bodies which are defined as "legislative" in another section of the Brown Act.
See Kennedy v. City of Ukiah (1977) 69 Cal.App.3d 545, 552, 138 Cal.Rptr. 207: "It is well settled that a general provision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates."
It must be remembered that the scope of the Brown Act is set out in a series of no less than four separate definitions of "legislative body." The effect of these definitions is cumulative: if a body is not within the definition of "legislative body" under one section, it still might be under another. Sections 54952 and 54952.3 each provide definitions of "legislative body." The less-than-a-quorum "exception" merely excludes certain bodies from the definition of "legislative body" given in section 54952.3. It does nothing to affect bodies that fall within the definition of "legislative body" under section 54952.
Definitions of "legislative body" are set out in sections 54952, 54952.2, 54952.3, and 54952.5.
If a body is a "legislative body" as defined in section 54952, it is irrelevant that it is not a "legislative body" as defined by section 54952.3 by virtue of the operation of an exclusion that applies only to 54952.3. There being no less-than-a-quorum exclusion applying to section 54952, the various committees of the board in this case must be open to the public under the actual terms of the Brown Act.
III
A published opinion of the California Attorney General in 1981, however, seems to indicate that there is an inherent less-than-a-quorum exception to section 54952, which operates independently of the statutory less-than-a-quorum exception found in section 54952.3. (See Open Meeting Requirements, 64 Ops.Cal.Atty.Gen. 856, 857-858 (1981).) This particular opinion dealt with the governing boards of two water agencies appointing less than a quorum of their members to a coordinating committee for a certain water project. The opinion held that the question of whether the meetings of the coordinating committee were subject to the Brown Act depended on the factual question of whether the committee was in reality two subcommittees from two different agencies, or a single unitary body. In the course of its discussion, the opinion stated: "Despite the broad language of section 54952 with respect to a 'committee,' this office has throughout the years determined that the open meeting requirements of the act are not applicable to committees composed of less than a quorum of the governing body. This determination has been upheld by the courts. (See discussion in Henderson v. Board of Education (1978) 78 Cal.App.3d 875, 880-883 [144 Cal.Rptr. 568].)" (64 Ops.Cal.Atty.Gen. at p. 857, italics added.) The opinion subsequently quoted from section 54952.3, and concluded the coordinating committee might not be subject to the Brown Act if it was, in reality, two committees consisting of less than a quorum. In so doing, it made a passing reference to a "general exception carved out" by the Attorney General's office for committees outside section 54952.3. (64 Ops.Cal.Atty.Gen. at pp. 857-858.)
Here is the text containing the reference: "Accordingly, whether the [water project's] Coordinating Committee is subject to the open meeting requirements of the Ralph M. Brown Act depends upon whether it is a single 'committee' upon which members of each local agency, the water agency and the irrigation district, serve in their official capacity within the meaning of section 54952, or whether it is in reality two subcommittees of two local agencies consisting of less than a quorum of each governing board within the meaning of section 54952.3 or the general exception carved out by this office with regard to such committees." (64 Ops.Cal.Atty.Gen. at p. 858, italics added.)
The idea of some "general exception carved out" by the Attorney General's office to section 54952 for committees of less than a quorum is usually traced back to an opinion issued in 1958. (See Closed Meetings, 63 Ops.Cal.Atty.Gen. 820, 823 (1980), citing Secret Meeting Law, supra, 32 Ops.Cal.Atty.Gen. 240.) That opinion was issued before language was added to section 54952 which included within that section's definition of legislative body "any ... committee ... on which officers of a local agency serve in their official capacity." (See 32 Ops.Cal.Atty.Gen. at p. 241 [quoting text of section 54942 at the time].) The 1958 opinion considered whether committees of a legislative body--as the term was then defined--came within the purview of the Brown Act. The Attorney General held that where a committee consisted of less than a quorum, the findings of such a committee would necessarily "have not been deliberated upon by a quorum of the legislative body" and therefore "the necessity, as well as opportunity, for full public deliberation by the legislative body still remain[ed]." (32 Ops.Cal.Atty.Gen. at p. 242.)
The origin of the Attorney General's less-than-a-quorum exception was thus assuredly not an inherent exception to the "committee" language of section 54952--that language did not yet exist. It was, rather, a logical conclusion drawn from the way the statute read at the time, which, while it made no reference to "committees," did apply to "governing board[s]." In none of the published opinions of the Attorney General to which we have been cited or have uncovered ourselves has the Attorney General specifically discussed the impact of the 1961 addition of the "any ... committee" language to section 54952 in the context of some sort of inherent or implied exception for committees of less than a quorum. The closest opinion is Secret Meeting Law, 42 Ops.Cal.Atty.Gen. 61, which was written in the wake of the 1961 amendments. While that opinion noted the Legislature had recently added the committee language to section 54952, it nowhere addressed whether or how this addition affected the less-than-a-quorum idea set out in the 1958 opinion. (See 42 Ops.Cal.Atty.Gen. at pp. 65-67.) Rather the opinion focused on the nature of a "meeting" under section 54953.
Besides Open Meeting Requirements and Secret Meeting Law discussed above, see Secret Meeting Law, 42 Ops.Cal.Atty.Gen. 61 (1963); Closed Meetings, 63 Ops.Cal.Atty.Gen. 820 (1980); and Closed City Council Discussions, 65 Ops.Cal.Atty.Gen. 63 (1982).
This brings us to Henderson v. Board of Education, supra, 78 Cal.App.3d 875, 144 Cal.Rptr. 568. The reference to the existence of a less-than-a-quorum exception in Open Meeting Requirements, supra, 64 Ops.Cal.Atty.Gen. at page 857, quoted above, and a somewhat more oblique reference in Closed Meetings, supra, 63 Ops.Cal.Atty.Gen. at page 823, each cited Henderson as authority for their brief references to the independent existence of a less-than-a-quorum exception.
"[T]hese 'seriatim meetings' have been designed to fall within the 'less than a quorum exception' to the Ralph M. Brown Act. That exception, recognized by this office since our opinion in 32 Ops.Cal.Atty.Gen. 240 (1958), and ultimately upheld by the appellate courts of this state in Henderson v. Board of Education (1978) 78 Cal.App.3d 875, 144 Cal.Rptr. 568, generally provides that the Ralph M. Brown Act does not apply to meetings of committees of less than a quorum of the legislative body." (63 Ops.Cal.Atty.Gen. at p. 823.)
In Henderson, a local board of education had a vacancy which it needed to fill by appointment. The board created ad hoc advisory committees composed solely of members of the board, but less than a quorum. These ad hoc committees were created to advise the whole board as to the qualifications of the "numerous" candidates for the post. (78 Cal.App.3d at p. 877, 144 Cal.Rptr. 568.) Two taxpayers then sought to enjoin the board from filling the vacancy by resort to these committees. The trial court agreed with them and issued an injunction.
In reversing, the Court of Appeal confronted the "suggestion" that the 1961 amendment "extended the act to all committees." (78 Cal.App.3d at p. 882, 144 Cal.Rptr. 568.) The court rejected the "suggestion" in a portion of the opinion which consisted mostly of a long quotation from a publication of the Attorney General's office entitled "Secret Meeting Laws Applicable to Public Agencies" (1972).
The quotation began by noting that section 54952.3 codified the exception for advisory bodies. It then stated: " 'However, since the opinion of this office rendered in 1958 in 32 Ops.Cal.Atty.Gen. 240 (1958), such an exception has been recognized in varying circumstances.' " (78 Cal.App.3d at p. 882, 144 Cal.Rptr. 568.) The quotation then reiterated the rationale of the 1958 opinion, namely, that the opportunity for a "full public hearing" would still remain after a committee of less than a quorum had made its findings and recommendations. (Ibid.)
The quotation next noted that the Attorney General's office had taken the " 'view' " that even nonadvisory committees " ' "should continue to be governed by our prior interpretation of the law as set forth in ..." our 1958 opinion, I.L. 69-131. Capsulized, this would appear to mean that at least ad hoc, nonpermanent committees or boards not formed by formal action ... would additionally still fall within the "less than a quorum exception." ' " (78 Cal.App.3d at p. 883, 144 Cal.Rptr. 568.) The quotation then elaborated on the distinction between permanent and ad hoc committees. (Ibid.)
Nowhere in the quotation were the implications of the actual language of section 54952 discussed, or why the less-than-a-quorum exception articulated in the 1958 opinion should apply to committees that otherwise come within the express terms of section 54952 as amended in 1961. Rather, after setting out the quotation, the court in Henderson briefly noted the Attorney General had "consistently adhered to the less than a quorum exception," and then concluded: "True the opinions of the Attorney General are not binding on the courts [citation], but in the absence of controlling authority we deem the rationale thereof persuasive since the Legislature is presumed to be cognizant of that construction of the statute." (Ibid., fn. omitted.) The court in Henderson did not identify precisely the "rationale thereof" it found "persuasive."
As shown in our own excerpt of Henderson quoting "Secret Meeting Laws," the latter cited an indexed letter of the Attorney General, IL 69-131, for the idea that the Attorney General's office had taken the "view" that bodies other than advisory commissions mentioned in section 54952.3 should "continue to be governed" by the office's "prior interpretation" set out in the 1958 letter. The 1972 publication did not give the reasoning behind this indexed letter; it merely cited it. IL 69-131, however, does not appear in any of the bound volumes of the Attorney General's opinions. Henderson's reliance on the 1972 publication's citation of IL 69-131 is thus somewhat like relying on a treatise that itself relies on a nonpublished opinion of the Court of Appeal and does not explain the rationale of the nonpublished opinion.
In its brief discussion after the quotation, however, Henderson cited two published opinions of the Attorney General's office for that office's "consistent adherence" to a less than quorum exception, Meetings, 51 Ops.Cal.Atty.Gen. 201 (1968) and Board of Supervisors Public Meetings, 57 Ops.Cal.Atty.Gen. 209 (1974). The 1968 opinion involved the ability of a public body to deliberate in private concerning labor negotiations with public employees, holding there was an implied exception in the Brown Act for a board of supervisors to discuss labor negotiations in private once a state conciliator had intervened in the proceedings. (See 51 Ops.Cal.Atty.Gen. at pp. 206-207.) Its only references to the less-than-a-quorum exception were in two passing footnotes which did not confront the impact of the 1961 amendments.
The first footnote read in its entirety: "It is also our understanding that the requestor is aware of the 'less than a quorum' exception to the Ralph M. Brown Act regarding non-permanent committees formed for limited purposes." (51 Ops.Cal.Atty.Gen. at p. 202, fn. 3.)
The 1974 opinion also dealt with public employee labor negotiations. The question was whether a board of supervisors might be able to meet in secret to discuss its bargaining position. (See 57 Ops.Cal.Atty.Gen. at p. 210.) The opinion concluded that even though the board might have the right to meet in secret with its negotiating representative to discuss its position, there was no implied exception to allow the board to meet in secret by itself. (Ibid.) There were two reasons for the opinion's conclusion:
(1) the Brown Act disclosed a strong public policy against secret meetings and doubtful cases should be resolved in favor of open meetings; and
(2) implied exceptions to the Brown Act were permitted "only where legal principles codified in the state statutes preceded the Brown Act." (57 Ops.Cal.Atty.Gen. at p. 212.)
Thus, neither of the two published authorities cited in the Attorney General publication quoted in Henderson articulated a valid rationale for an exception, outside of section 54952.3, for committees of less than a quorum, and one of those authorities--the 1974 opinion--provided two persuasive reasons why there should be no such exception: doubtful cases should be resolved in favor of open meetings and implied exceptions must be based on prior statutory law.
We now return to the unpublished authority cited by the Attorney General's office, an indexed letter to Senator George R. Moscone. (See Cal.Atty.Gen., Indexed Letter, No. IL 69-131 (June 30, 1969).) The first part of the letter introduced its topic: "whether Government Code section 54952.3 applies only to advisory committees and not to committees composed solely of members of a governing body which are less than a quorum of such governing body." The letter then noted there were "questions" concerning the scope of the less-than-a-quorum language in section 54952.3, and acknowledged that Assemblyman Hayes had "expressed the view that this language was intended to apply only to new section 54952.3 and not to the entire Ralph M. Brown Act."
While not in the bound volumes of the Attorney General's opinions, a copy was obtained from the Opinion Clerk of the Attorney General's office.
In the next three paragraphs the letter rejected Assemblyman Hayes' view, relying on the authority of the Attorney General's 1958 opinion and the fact that a number of bills had been defeated which would have overruled the Attorney General's "long-standing interpretation of the quorum problem." The letter concluded by distinguishing Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, 69 Cal.Rptr. 480, noting that case dealt with a meeting of all members of a county's board of supervisors, and reiterated that the Attorney General's office still believed its "prior opinion" constituted "a correct interpretation" of the Brown Act. Nowhere did the letter address the impact of the addition of the "any ... committee" language to section 54952 in 1961.
Here is the verbatim text of the three core paragraphs of IL 69-131:
We decline to follow Henderson in implying into section 54952 an exception for committees of less than a quorum. The core of the Henderson decision is the simple persistence of the Attorney General's office in adhering to the view that there is an implied exception in the Brown Act for committees of less than a quorum. If the 1958 opinion which originally articulated the exception had found such an exception notwithstanding the "any committee" language, there might be some persuasive force to the Attorney General's "consistent view." But, as we have seen, the 1958 opinion did not imply a less-than-a-quorum exception into section 54952. Rather, it derived the exception from the text of the statute as it stood at the time--which did not include any language extending the definition of "legislative body" to any committee.
The true genesis of some sort of "carved out" exception to section 54952 for committees of less than a quorum was in the 1969 unpublished letter, not the 1958 opinion. The 1969 unpublished letter, however, did not consider the 1961 intervening change to the text of the statute. The 1972 "Secret Meeting Law" publication of the Attorney General's office then gave credence to the "view" of the 1969 letter, and the court in Henderson simply repeated the 1972 publication. Later published opinions of the Attorney General's office then treated Henderson as having baptized the "carved out" exception in appellate holy water.
We decline in this opinion to join this circle of error. While we agree that courts should give great weight to the published opinions of the Attorney General, they are not bound to perpetuate obvious errors in nonpublished indexed letters.
An indexed letter is, essentially, a statement from an attorney to a client, in a nonadversarial setting. Unlike court decisions, opinions and letters of the Attorney General are not forged in the crucible of the adversarial process, nor are they subject to direct review by higher courts.
Besides the argument stemming from the simple fact of the Attorney General's "view," one may extract from Henderson two additional rationales in favor of an implied exception for committees of less than a quorum in section 54952:
(1) such an exception still allows for "full public hearing" when a quorum of the legislative body finally does meet to consider a committee's findings (see 78 Cal.App.3d at p. 882, 144 Cal.Rptr. 568, citing the 1958 opinion), and
(2) the Legislature had not acted in the face of the Attorney General's "view."
The premise behind the first rationale is open to debate, to say the least. An exception for committees of less than a quorum allows for the easy evasion of the Brown Act by the use of secret "serial meetings" of such committees to transact business that would otherwise be transacted in public. As pointed out in Stockton Newspapers, Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95, 214 Cal.Rptr. 561, the idea that, even with the exception, there will still be a future opportunity for public discussion, does not apply to such serial meetings.
The retirement board vigorously argues there is no evidence that it is actually using the device of serial meetings to evade the Brown Act. We agree. The record does not show any such serial meetings have ever been held.
In Stockton Newspapers, a board of a redevelopment agency was alleged to have conducted its deliberations concerning the sale of certain property through the "medium" of a "serially conducted telephone poll." The court ruled that if proven, this was a violation of the Brown Act: "Such [i.e., an exempt committee reporting back to the parent body] is not the case where a number of the members sufficient to constitute a quorum of the legislative body has already been informed and deliberated, albeit serially, on a matter of public business by the time the matter reaches the stage of public discussion." (171 Cal.App.3d at p. 103, 214 Cal.Rptr. 561.)
In any event, the "future opportunity" or "report back" theory cannot serve as the basis for an implied exception to the Brown Act because, as pointed out by the Attorney General's 1974 opinion, such an exception would not be rooted in statutory law enacted prior to the Brown Act--unlike, say, the attorney-client privilege. (See 57 Ops.Cal.Atty.Gen. at p. 211: "Implied exceptions to the Brown Act have been accepted where a literal application of the act would completely negate principles of law long since recognized by the courts and codified in the state statutes prior to the Brown Act's passage in 1953." See also Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs., supra, 263 Cal.App.2d 41, 69 Cal.Rptr. 480.)
The second rationale--legislative inaction in the face of the Attorney General's "view"--is no more persuasive. As the Attorney General's office wrote in its 1963 opinion, "[i]nterpreting statutes on the basis of what the Legislature did not do is a hazardous venture at best. [Citation.] It is a method of statutory construction resorted to only when statutory language is ambiguous." (42 Ops.Cal.Atty.Gen. at p. 66, italics added; see also People v. Knowles (1950) 35 Cal.2d 175, 183, .) As explained above, there is no ambiguity in the language of section 54952 as applied to this case. Any committee means any committee.
Moreover, as expressed in the Attorney General's 1974 opinion, given the strong public policy in favor of open government, " 'doubtful cases should be resolved in favor of open and public meetings.' " (57 Ops.Cal.Atty.Gen. at p. 212, quoting an unpublished index letter to Assemblyman John T. Knox. ) To the degree this case is at all doubtful, we think that the declaration of legislative intent found in section 54950 must outweigh the fact the Legislature declined to correct an unpublished index letter and the judicial and Attorney General opinions that simply perpetuated that error.
Cal.Atty.Gen., Indexed Letter, No. IL 66-184 (Nov. 23, 1966). We do not, of course, rely on the authority of this indexed letter for the "doubtful cases" rationale. Rather, the authority for that idea is best found in the exceptionally bold declaration of intent set forth in section 54950 and in the rule that statutes should be interpreted consistently with their purpose. (See Anderson Union High Sch. Dist. v. Schreder (1976) 56 Cal.App.3d 453, 460, 128 Cal.Rptr. 529.)
IV
The present case illustrates why it is more consistent with the basic purpose of the Brown Act to confine the less-than-a-quorum exception to its statutory leash in section 54952.3, rather than impliedly letting it loose to roam about the entire act.
The scope of the five standing committees of the board in this case is very broad indeed. It is hard to imagine a substantial agenda item that would not come within the bailiwick of benefits, operations, investment, real estate or liaison. The retirement board has thus constituted itself so as to assure that most of its business can be routed through one of its "exempt" committees. Each committee consists of four members--the maximum possible without a quorum. There is a quorum as between any two committees (assuming membership on the five committees is fairly distributed among the nine board members).
Thus, while the board strenuously argues there is no evidence it has actually utilized its committee structure in a "serial manner" to evade the Brown Act (cf. Stockton Newspapers, Inc. v. Redevelopment Agency, supra, 171 Cal.App.3d at p. 103, 214 Cal.Rptr. 561 [conduct of deliberations concerning sale of certain property through "medium" of "serially conducted telephone poll" held violative of Brown Act] ), the fact remains that the board has put itself in a position to evade the Brown Act at will. The board in this case has structured its standing committees so as to make maximum possible use of a less-than-quorum-exception. Were we to hold that some sort of nonstatutory less-than-a-quorum exception insulated these committees--made up entirely of board members considering regular board business items and paid for with board funds--we would be opening a gaping loophole in the Brown Act.
We hasten, however, to point out the limited scope of our decision. This opinion is confined to the question of whether committees of local agencies coming within the purview of section 54952 are insulated from the Brown Act by an implied less-than-a-quorum exception. We do not reach the issue of whether temporary committees of less than a quorum appointed to study specific agenda items and report back to the legislative body are necessarily "committees" within the meaning of section 54952. Nor do we hold that meetings, discussions or conferences between members of a governing board or between members of a governing board and their staff fall within the purview of section 54952. All we hold is that the standing committees of this board are committees within the meaning of section 54952, and those committees are not insulated from the open meeting requirements of the Brown Act because of some sort of implied less-than-a-quorum exception.
V
The committees of the retirement board fall within the terms of section 54952. There is no implied exception for committees of less than a quorum of the board. Accordingly, we reverse the judgment of the trial court, and direct that a writ of mandate issue commanding the board to open its regular committee meetings, including the meeting of the Operations committee, to the public. Each party will bear its own costs on appeal.
WALLIN and SONENSHINE, JJ., concur.
The second footnote made a simple reference to impending enactment of section 54952.3: "We note that the Ralph M. Brown Act will be amended by A.B. 202, Stats.1968, ch. 1297, making its terms applicable to advisory commissions, committees or bodies created by a local agency, but exempting therefrom '... a committee composed solely of members of the governing body of a local agency which are less than a quorum of such governing body.' " (51 Ops.Cal.Atty.Gen. at p. 207, fn. 9.)
"We do not concur with Assemblyman Hayes' interpretation of the general provisions of the Ralph M. Brown Act. As previously indicated, we have heretofore interpreted the Ralph M. Brown Act as not applying to meetings of all legislative bodies composed of less than a quorum of such bodies. (See 32 Ops.Cal.Atty.Gen. 240 (1958), supra.)
"The resolution of the quorum problem with respect to other legislative bodies, that is, bodies other than the advisory commissions referred to in section 54952.3, should continue to be governed by our prior interpretation of the law as set forth in the above-cited opinion.
"We suggest that the defeat of AB 2334 in 1963, AB 946 in 1968, and SB 716 and SB 717 in 1968--all of which were specifically designed to overrule the long-standing interpretation of the quorum problem by the Attorney General's Office--provides some support for our view as to the continuing validity of that interpretation."
The court did not focus on the question of whether the less-than-a-quorum exception spelled out in section 54952.3 was confined merely to that section or applied to the whole of the Brown Act. Rather, the court assumed, without citation to authority or any explanation, that the exception applied to the whole of the Brown Act. (See 171 Cal.App.3d at p. 102, 214 Cal.Rptr. 561.) The only authority cited in this context involved a reference to the future-opportunity-for-a-public-hearing rationale, for which the court cited Henderson, two of the Attorney General opinions we have already discussed (65 Ops.Cal.Atty.Gen. 63, 65 and 63 Ops.Cal.Atty.Gen. 820, 828) and Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 805, 178 Cal.Rptr. 299. For its part, the court in Joiner specifically declined twice to address whether a body outside the scope of section 54952.3 would be subject to the less-than-a-quorum exception in that statute. (See 125 Cal.App.3d at p. 801, fn. 1, and p. 803, fn. 3, 178 Cal.Rptr. 299.)