Wolfe v. City of Fremont

Full title: J. DENNIS WOLFE, Plaintiff and Appellant, v. CITY OF FREMONT et al.…

Court: California Court of Appeals, First District, First Division

Date published: Nov 30, 2006

No. A112386 (Cal. Ct. App. Nov. 30, 2006)

Opinion

Page 1319i

144 Cal.App.4th 1319i __ Cal.Rptr.3d__ J. DENNIS WOLFE, Plaintiff and Appellant, v. CITY OF FREMONT et al., Defendants and Respondents. A112386 California Court of Appeal, First District, First Division November 30, 2006

Alameda County Super. Ct. No. FG 05204433. Stein, P.J.

THE COURT:

It is ordered that the opinion filed herein on October 31, 2006 (144 Cal.App. 4th 533;__ Cal.Rptr.3d__ ) be modified as follows:

1. On page 16, [144 Cal.App. 4th 550, advance report, 1st para., line 1], delete the final paragraph on the page, and replace it with the following paragraph and footnote:

The City argues that no violation of the Brown Act could have occurred because the complaint alleges that it was Diaz, rather than the members of the City Council, who held the intent to create a collective consensus. The complaint, however, alleges not only that Diaz had conversations with the council members but also that the council members spoke among themselves about the verified response policy. Section 54952.2, subdivision (b), in proscribing the use of “direct communication” to reach a collective concurrence, does not include a requirement that the use have been intentional. If a collective concurrence results from direct communication among members of the legislative body, it does not matter whether the participants intended that result.¹¹ The absence of an intent requirement is consistent with the purpose of the act, which is not merely to prevent conscious backroom deals but to ensure that collective deliberations, whatever their outcome, are conducted in public.¹²

Add new footnote 11, [144 Cal.App. 4th 550, advance report, 3d para., line 30], to read as follows:

¹¹ In light of the allegations of the complaint, we have no occasion to decide whether the use of a “personal intermediary” to reach a collective consensus must be intentional in order to constitute a violation under section 54952.2, subdivision (b). We express no opinion on that issue.

Footnote 11 in the filed opinion will be retained at the end of this paragraph and renumbered as footnote 12. Subsequent footnotes will be renumbered as appropriate.

Page 1319j

There is no change in the judgment.

To the extent the relief sought by respondents’ petition for rehearing is not addressed by this amendment, the petition is denied.