A JUDGE HAS RULED that Alameda County and its Board of Supervisors did not follow procedure when it appointed former interim Supervisor David Brown in 2021.
“This is a victory for open and transparent government,” said Marcus Crawley, president of the Alameda County Taxpayers’ Association, which filed the suit. “We sued because the Board used confusing and misleading language in the agenda to hide their intention to quickly appoint an ‘insider’ to fill Supervisor Wilma Chan’s seat, so soon after she unexpectedly died.”
On Nov. 3, 2021, Supervisor Chan was killed after being struck by a car while walking her dog. With the District 3 Supervisor seat vacant, the Board had 60 days to appoint a replacement.
An agenda was posted four days before the Nov. 16 meeting with an item to make a decision regarding the appointment. At the meeting, the Board decided to appoint Brown to fill the seat, a move that the Taxpayers’ Association called “rushed.”
The Association sued the county in 2022, alleging that the Board and county did not follow the Brown Act, a law that requires legislative bodies to keep meetings open to the public, provide sufficient public notice of agendas, and allocate time for public comment.
Hon. Judge Michael Markman of the Alameda County Superior Court ruled earlier this month that the language of the agenda item “failed to adequately describe that the Board would take action at that meeting to appoint David Brown as the supervisor for District 3, in violation of the Ralph M. Brown Act,” according to the order.
According to agenda item from the Nov. 16 meeting, the Board was supposed to act on developing a “process/schedule” to select an appointee. Another part of the item indicated that an appointment would also be voted on.
However, the agenda item did not mention Brown’s name or any other potential candidates. Also, the language used for the agenda item was deemed “unfairly opaque and confusing” because it indicated that the Board would vote on developing a “process/schedule” to select an appointee.
On the day of the meeting, Brown sent a text message to former Supervisor Richard Valle saying “I need you to make the motion no matter what today. Waiting a week might doom our chances,” according to the order.
Brown was the former chief of staff to Chan, and Chan’s family supported Brown’s appointment, according to the court order.
At the meeting, Supervisor Nate Miley made a substitute motion to continue the discussion of who to appoint next week. A debate followed, with Miley relenting and withdrawing the substitute motion.
The Board then voted to appoint Brown.
“The fact that the Board would actually vote on the appointment, rather than just discuss and vote on the process/schedule, was not at all evident from the agenda,” the judge wrote in the order.
The Taxpayers’ Association also filed a suit against Brown, alleging that he did not meet the requirement of living in District 3 before and during an appointment. The court ruled that the pre-residency requirements do not apply to supervisors appointed to fill vacancies.
Brown left the seat in early 2023 at the end of Chan’s term.
Markman denied four out of five allegations of Brown Act violations argued by the Taxpayers’ Association, which included accusations that public comment was too restrictive and that a secret meeting was held to discuss the appointment.
As part of the ruling, the Board will be required to “clearly and unambiguously” state when it may vote on future interim appointments and identify all candidates that it may appoint. The court also suggests that the Board craft and adopt a procedure for future interim appointments in order to comply with the Brown Act.
