Milpitas Possibly Broke State Law on Fireworks, Library Decisions

Milpitas leaders potentially broke California’s open meeting laws Tuesday by cutting library hours and cancelling the July 4 fireworks display without properly notifying the public, and thus denying residents the opportunity to weigh in.

As a result, City council members could be forced to reconsider the cuts and, in a worst-case scenario, go to court over the issue.

Council members on Tuesday agreed to drop library hours from 66 to 54 per week, effective April 1, thus saving $34,000 each month. They also cancelled the city’s annual July 4 fireworks display, saving up to $110,000.

But City officials did not mention those pending decisions anywhere on their meeting agenda, which notifies residents so they can weigh in. According to California’s Brown Act, which governs public meetings, agendas must include a brief description of the items to be discussed and posted 72 hours in advance.

The first official mention of the library or fireworks decisions came on Tuesday morning—the day of the meeting—when a report added to the agenda showed the cuts would be considered under the item, “Receive Budget Update from the Milpitas City Manager.” Agendas provided at the meeting did not mention either decision.

Terry Francke, general counsel for the open government advocacy group Californians Aware, said Milpitas’ decision not to include the pending fireworks and library cuts on the agenda “strikes me as a clear Brown Act violation.”

“Any time that an agenda listing does not alert the public as to a controversial proposal at all, and especially when not even the supporting backup materials give any public notice, than action taken without that kind of warning, I think any court would hold it violates the Brown Act,” Francke said.

A judge in a similar 1980s case ruled that the agenda itself, not just additional reports, should sum up any pending controversial decisions, Francke said.

“With the addition of just a few extra words, the public could have been informed enough about the real action being recommended to react accordingly,” he said.

Michael Ogaz, Milpitas City attorney, said he believed the agenda report added Tuesday was enough to meet Brown Act standards. However, he said he would look into the issue.

“I have always considered that the agenda is the entire document,” Ogaz said.

Councilwoman Debbie Giordano, who voted in favor of the cuts, said that in hindsight, including more information on the agenda would have been the right thing to do. She suggested the City do more for future controversial budget issues.

“The public has the right to know, and they may not have known,” Giordano said.

Vice mayor Pete McHugh said, "It does appear that there could have been a violation."

McHugh said any potential violations probably were unintentional, as staff was working hard to help the City grapple with its ongoing budget crisis.  

From here, the public has 30 days after the meeting to demand a correction. The City then has 30 days to respond. If letter-writers are not satisfied with the response, they has 15 days to file suit in court. If no one files a complaint, the decisions will stand as they are now.