Painted Cave Ad Hoc Committee v. Board of Directors of the Painted Cave Volunteer Fire Department, et al.
Case No: 19CV01579
Hearing Date: Tue Aug 27, 2019 9:30

Nature of Proceedings: Motion for Peremptory Writ of Mandate to Enforce California Public Relations Act; Motion Preliminary Injunction to Enforce Brown Act

Motion for Peremptory Writ of Mandate to Enforce California Public Records Act

Motion for Preliminary Injunction to Enforce Brown Act

Attorneys:

For Petitioner/Plaintiff: Philip A. Seymour

For Respondent/Defendant: Timothy E. Metzinger, et al. (Price, Postel & Parma)

Ruling: The Court grants petitioner/plaintiff Painted Cave Ad Hoc Committee’s motion for a preliminary injunction to enforce the Brown Act and motion for peremptory writ of mandate to enforce the California Public Records Act. Counsel for petitioner/plaintiff shall prepare orders consistent with the ruling below.

Petition and Complaint

On March 22, 2019, petitioner/plaintiff Painted Cave Ad Hoc Committee (“Committee”) filed a verified petition for writ of mandate and complaint for declaratory and injunctive relief against the Board of Directors of the Painted Cave Volunteer Fire Department (“Board”) and four individuals. On March 27, Committee filed an amended petition and complaint and dismissed the four individuals without prejudice. The causes of action in the petition/complaint are: 1) Petition For Writ of Mandate and Injunctive Relief to Annul Actions Taken in Violation of the Brown Act (Government Code §§ 54960, 54960.1); 2) Declaratory and Injunctive Relief to Enforce Compliance With Brown Act (Government Code §§ 54960, 54960.1); 3) Petition For Writ of Mandate – Violations of Public Records Act (Government Code §§ 6258-6259); 4) Petition for Writ of Mandate (Code of Civil Procedure § 1085; Violation of Mandatory Duty Under Government Code § Government Code § 53069.6.).

Committee alleges: Committee is an unincorporated association of residents of the Painted Cave community in Santa Barbara County. The Painted Cave Volunteer Fire Department (“PCVFD”) provides fire protection for the Painted Cave community. Board is the governing body of PCVFD. PCVFD is a public agency organized under Part 4, Division 12, of the Health & Safety Code (H&S Code §§ 14825-14860). PCVFD is a “local agency” for purpose of the Ralph M. Brown Act (“Brown Act”—Gov’t Code §§ 54950 et seq.) and the California Public Records Act (“CPRA”—Gov’t Code §§ 6250 et seq.). Kevin Buckley, as president of Board and Fire Chief, engaged in financial misappropriations and mismanagement. Committee has requested records from Board pursuant to the CPRA but Board has refused, maintaining that it is not a local agency for purposes of the CPRA. Board has taken actions and made decisions without formal meetings but by way of informal communications in violation of the Brown Act.

Motions

Committee moves for a peremptory writ of mandate to enforce Board’s compliance with the CPRA and for a preliminary injunction against Board conducting any meeting except in full compliance with the Brown Act and against engaging in any discussion, deliberation, decision-making or other communications outside of formal meetings in violation of the Brown Act. The issue common to both motions is simply stated, if not simply decided—whether PCVFD is a local agency under the CPRA and Brown Act.

Board is the governing body of both PCVFD and Painted Cave Volunteer Fire Department, Inc. (the “Corporation”). Committee contends these are not separate entities. Board disputes this but maintains that it doesn’t matter for purposes of the present motions because neither entity is a local agency. For purposes of the present motions and this litigation in general, Board is only a party as the governing entity of the PCVFD and not the Corporation. Although it alleges PCVFD is also known as the Corporation, Committee sued the Board of PCVFD, not the Corporation, and Board answered expressly on behalf of PCVFD and not the Corporation. The Court will discuss the separate entity question below.

The Brown Act provides: “As used in this chapter, ‘local agency’ means 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.” Gov’t Code § 54951. Similarly, the CPRA provides: “‘Local agency’ includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.”

The parties agree that PCVFD would only be subject to these acts if it is an “other local public agency.” The parties also agree that there is no jurisprudence on point to guide the Court and the case is one of first impression.

A. Facts: PCVFD was originally organized as a volunteer fire company by recording a certificate of organization in the records of the Santa Barbara County Clerk-Recorder’s Office on July 14, 1965, pursuant to the provisions of H&S §§ 14825, et seq. The entity was formed and has always operated completely independently from the County of Santa Barbara or any other local, municipal or State agency. Although PCVFD entered into a Memorandum of Understanding with the County of Santa Barbara Fire Department (the “MOU”), the MOU did not grant the County any operational, decision-making, financial, or other form of control over PCVFD. In 2003, PCVFD formed the Corporation for the purpose of acquiring, holding and using moneys for the purchase of equipment and educational materials and to pay for such expenses.

PCVFD’s emergency vehicles bear California exempt license plates and red lights and sirens, and are prominently painted with “Painted Cave Fire Department” signage and emblems. PCVFD participated, until recently, in the statewide mutual aid system managed by the California Office of Emergency Services. PCVFD fire engines and crew served on and received compensation for California fires in 2017 and 2018.

B. Preliminary Injunction and Mandamus Standards: Committee seeks a preliminary injunction against violations of the Brown Act. The court may grant a preliminary injunction when it appears by the complaint that the plaintiff is entitled to the relief demanded or the commission or continuance of some act during the litigation would produce great or irreparable injury to a party to the action. CCP § 526(a). “In deciding whether to issue a preliminary injunction, a court must weigh two ‘interrelated’” factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. … The trial court’s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction.” Butt v. State of California, 4 Cal.4th 668, 677-78 (1992).

PCVFD contends it will be harmed by an injunction because it’s long-standing policy of treating itself as a private entity and its lack of resources and wherewithal to comply with the Brown Act. But PCVFD presents no evidence of any cost associated with holding open meetings nor does it quantify any inconvenience.

“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.” Gov’t Code § 54950. “It is vital to the health of our polity that the functioning of the ever more complex and powerful machinery of government not become democracy’s dark lagoon.” Andrew v. Clark, 561 F.3d 261, 273 (4th Cir. 2009), Wilkinson, J., concurring. Because democracy dies in darkness, if the Brown Act applies, the interim harm to Committee and the public from nonissuance of an injunction would far outweigh any harm to PCVFD in the event the Court issues an injunction. Therefore, the entitlement to an injunction rests solely on the applicability of the Brown Act to PCVFD.

Committee seeks a peremptory writ of mandate requiring PCVFD to turn over documents requested under the CPRA. “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins….” CCP § 1085(a). The mandamus action requires the court to determine whether PCVFD is a “local agency” under the CPRA. As noted above, the definition of local agency in the CPRA is identical to the definition in the Brown Act. The evidence and arguments on both sides of this issue are substantially the same for both the Brown Act preliminary injunction and the CPRA mandamus motion.

C. Local Public Agency Analysis: The Court acknowledges that this issue is a difficult one with good arguments on both sides. The Court will address the arguments in light of Legislative policy in both the Brown Act and the CPRA. The Court will not address the merits of allegations of misconduct in the petition/ complaint. Those are not relevant to the legal question before the Court.

Where, as here, the issue presented is one of statutory construction, our fundamental task is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. We begin by examining the statutory language because it generally is the most reliable indicator of legislative intent. We give the language its usual and ordinary meaning, and if there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs. If, however, the statutory language is ambiguous, we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. Ultimately we choose the construction that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the general purpose of the statute. Any interpretation that would lead to absurd consequences is to be avoided.

Allen v. Sully-Miller Contracting Co., 28 Cal.4th 222, 227 (2002) [internal quotations and citations omitted].

A legislative body of a local agency must conduct open, public meetings when making decisions. Gov’t Code §§ 54952.2, 54953. “[T]he Brown Act is a remedial statute that must be construed liberally so as to accomplish its purpose.” Epstein v. Hollywood Entm’t Dist. II Bus. Improvement Dist., 87 Cal.App.4th 862, 869, 870-873 (2001) (finding the City of Los Angeles, an elected legislative body, created a property owners association in order to exercise authority that City could lawfully delegate and the Brown Act applied to the association); Int’l Longshoremen’s & Warehousemen’s Union v. Los Angeles Exp. Terminal, Inc., 69 Cal.App.4th 287, 294, 295-300 (1999) (City Counsel created Los Angeles Export Terminal, Inc., to exercise governmental authority and the Brown Act applied to the corporation).

In enacting the CPRA, the Legislature found and declared “that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” Gov’t Code § 6250. Therefore, public records are open to inspection and each state and local agency shall make records promptly available upon request. Gov’t Code § 6253.

Board emphasizes that PCFVD is formed, operated, and funded independently of the County or any other public agency. Volunteer fire companies (“VFCs”) cannot collect taxes or exercise eminent domain powers, which, in the context of fire protection agencies, are exercisable only by municipal fire departments and fire protection districts. H&S Code §§ 13861(c), 13890 et seq., 13910 et seq., 13938 et seq. But public entities with limited powers and functions are not necessarily granted the power of taxation. Santa Clara Cty. Local Transportation Auth. v. Guardino, 11 Cal.4th 220, 248 (1995).

Part 2.7 of Division 21 of the Health & Safety Code (H&S §§ 13800 et seq.) governs the formation and operation of Fire Protection Districts (“FPDs”). There is a statute that requires FPD boards to meet at least once every three months and the meetings are subject to the Brown Act. H&S Code § 13855. Board attaches importance to the lack of a similar provision for VFCs. But H&S Code § 13855 is probably a reflection of the governance of FPDs, the formation of which requires local agency formation commission approval and for the County Board of Supervisors to call and give notice of an election to establish the FPD. H&S Code § 13823. And “districts” are expressly included in the Brown Act’s definition of “local agency” in Gov’t Code § 54951. Since an FPD is unquestionably a “local public agency” within the meaning of the Brown Act, analysis of FPD statutes does not help in determining whether PCVFD is an “other local public agency.” And “the Legislature intended that all agencies be included in some open meeting act unless expressly excluded.” Torres v. Bd. of Commissioners, 89 Cal.App.3d 545, 549 (1979). The VFC statute need not expressly say the Brown Act applies. It applies if VFCs are local public agencies.

In discussing whether the position of fire chief of a FPD and the position of member of the County Board of Supervisors are incompatible public offices, the Attorney General determined they were. 66 Cal. Op. Att’y Gen. 176 (1983). In a footnote, the Attorney General offered: “The ‘classic’ volunteer fire department, where all personnel including the fire chief are volunteers and the fire department is not even connected with any state or local agency but is a private organization, is established pursuant to [H&S Code §§ 14825, et seq.].” Id. n4. This language is dicta and does not follow any analysis of VFCs as public or private organizations. Judicial opinions are not authority for propositions not considered. McWilliams v. City of Long Beach, 56 Cal.4th 613, 626 (2013). The same holds for Attorney General opinions. California Fed. Sav. & Loan Assn. v. City of Los Angeles, 11 Cal.4th 342, 352 (1995).

Board acknowledges that VFC can be a public agency. “The board of supervisors of a county that has a population of 400,000 or more on or after January 1, 1985, may, by ordinance, regulate the formation and continued existence of fire companies.” H&S Code § 14831. The city council of an incorporated city may do the same. H&S Code § 14832. Santa Barbara County has not elected to regulate the formation and continued existence of VFCs. Board notes that a board of a private corporation that is created by an elected legislative body to exercise authority that the elected governing body may delegate to a private corporation is defined as a legislative body of a local agency by Gov’t Code § 14952(c)(1)(A). But regulation of the formation and continued existence of VFCs does not create the VFCs. The Court does not find that local regulation of VFCs impacts their status as local public agencies one way or the other.

Committee points out that, for purposes of the Firefighting Thermal Imaging Equipment Act of 2001 (Gov’t Code §§ 8590 et seq.), “‘Local agency’ means any city, county, city and county, fire district, special district, or joint powers agency that provides fire suppression services. ‘Local agency’ also includes a fire company organized pursuant to Part 4 (commencing with Section 14825) of Division 12 of the Health and Safety Code.” Gov’t Code §§ 8590.1(b); 8590.10(e). That definition is in a wholly different statutory scheme, which establishes a “thermal imaging equipment purchasing program” under which the Office of Emergency Services can acquire that equipment on behalf of local and state agencies. Gov’t Code § 8590.2. The statute has nothing to do with formation or governance of VFCs. The fact that the Legislature specifically added VFCs to the eligibility list in Gov’t Code § 8590.1(b) may evince an understanding that VFCs are not always considered local agencies.

Committee relies on Carmel Valley Fire Prot. Dist. v. State of California, 190 Cal.App.3d 521, 537 (1987), for the proposition that “fire protection is a peculiarly governmental function.” But that does not mean that only governmental agencies can fight fires. In that case, Los Angeles County argued that it was entitled to State reimbursement for expenditures for its fire fighters’ protective clothing and equipment because they were purchased pursuant to the State’s executive orders and, therefore, constituted a state-mandated “new program” or “higher level of service.” Id. at 530. The court of appeal agreed with the County. The court noted: “This classification is not weakened by State’s assertion that there are private sector fire fighters who are also subject to the executive orders. Our record on this point is incomplete because the issue was not presented below. Nonetheless, we have no difficulty in concluding as a matter of judicial notice that the overwhelming number of fire fighters discharge a classical governmental function.” Id. at 537. The court necessarily recognized that some firefighters are not discharging governmental functions. Regardless, the case did not address the public/private nature of VFCs.

Committee argues that the statutes “impose public responsibilities on fire companies that go beyond mere firefighting, including keeping records of fires in the local area, aiding in the enforcement of fire regulations, and taking charge of personal property rescued from a fire until it is returned to its owner,” citing H&S Code §§ 14841, 14842, and 14845. A VFC may adopt bylaws and regulations and impose internal penalties not exceeding five dollars or expulsion. H&S Code § 14835. A VFC fire chief must wear a badge at fire scenes. H&S Code § 14844. The fire company may adopt an official seal which displays the emblem of the state of California. H&S Code § 14836. If the fire company does adopt such a seal, the secretary of the company must take the constitutional oath of public office and be bonded. H&S Code § 14838. Active volunteer firefighters of a fire company are exempt from peacetime military service. H&S Code § 14855. Fire company vehicles are exempt from California vehicle registration fees and may bear government exempt license plates, but may not be loaned, used or rented for any private or commercial use. H&S Code § 14833. The California Highway Patrol may issue authorized emergency vehicle permits to any vehicle owned by a VFC. Veh. Code § 2416(a)(7).

Committee does not say whether PCVFD has taken advantage of these sections, other than the provision for exempt license plates. Even if it has, the Court finds these privileges serve to promote VFCs rather than making them into public agencies. Still, the provisions suggest the Legislature gives VFCs privileges of an entity engaged in the work of a public agency.

H&S Code § 14842 provides that a VFC chief “shall aid in the enforcement of all fire ordinances, examine buildings in process of erection, report violations of ordinances relating to prevention or extinguishment of fires, and when directed by the proper authorities institute prosecutions therefor.” The fact that a VFC’s role is one of assistance and reporting, without authority to enforce ordinances, does not necessarily suggest it is a public agency. But “proper authorities” typically do not direct private entities to institute prosecutions.

Civil Code § 1714.11(a) provides immunity from liability for a public fire department that donates fire equipment to a VFC. The VFC must inspect and repair the equipment prior to use for public safety purposes. Civil Code § 1714.11(b)(2). The statute does not confer any immunity on VFCs or suggest that they are comparable to the donor public fire departments.

Committee submits arguments made in support of Assembly Bill 2148 (2008), which updated the VFC statute. [Committee Exhibit JJ] Those arguments included: “This non-controversial and simple bill will serve as a tool to allow volunteer firefighter departments to operate with greater efficiency and clarify and update relations between volunteer fire departments and other governmental agencies.” Committee contends that the use of the term “other governmental agencies” indicates that the Legislature intended that VFCs, too, are governmental agencies. This legislative history did not address the meaning of “local agency” in the Brown Act or CPRA. The import of the “simple bill” was to enable VFCs to operate more efficiently and to facilitate their relations with governmental agencies. The comment does suggest an equivalency with “other governmental agencies.”

Committee also relies on legislative history for a bill that was not passed. [Committee Exhibit KK] The Court does not consider this helpful. The proposed bill did not address whether VFCs are public agencies but only proposed to mandate background checks and provide for reimbursement of “local agencies” for costs associated with that mandate.

In 2018, the Legislature passed AB 2380, which regulates use of privately contracted private fire prevention resources. The Legislature expressly found and declared “that firefighting and fire protection services are a municipal function and a public good to be provided by public agencies and their employees.” H&S Code § 14865. A privately contracted fire prevention resource shall heed all evacuation warnings and leave the area when prompted, shall maintain a liaison at incident command, shall not communicate on incident command radio frequencies without prior approval, and shall focus on pre-fire treatment. H&S Code § 14867. The Legislature has not deemed it necessary to similarly regulate VFCs.

Finally, PCVFD significantly referred to itself as a “public agency located in the County of Santa Barbara” in a resolution adopted on July 3, 2018. [Committee Exhibit P]

D. Conclusion: Considering all of the foregoing, the Court concludes that PCVFD is an “other local public agency” within the meaning of the Brown Act and the CPRA. The Legislature has expressly found and declared “that firefighting and fire protection services are a municipal function and a public good to be provided by public agencies and their employees.” PCVFD has many privileges and attributes of public agencies. Mountain communities such as Painted Cave are located in areas particularly vulnerable to fire and depend on VFCs for protection. Citizens of Painted Cave should have no less access to transparency in decisions affecting their fire protection than citizens of communities with municipal fire departments or fire districts. Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. PCVFD is subject to the requirements of both the Brown Act and CPRA. Therefore, the Court will grant both a peremptory writ of mandate and a preliminary injunction.

E. PCVFD and the Corporation: The Court is faced with determining what entity/entities will be subject to the writ and injunction. Unfortunately, Board did not address this question substantively, simply asserting that the Corporation is separate.

PCVFD was formed in 1965 and the Corporation in 2003. Committee wants the Court to enter orders binding both of them as a single entity. PCVFD argues that the 2003 incorporation did not create a new entity but merely changed PCVFD into an incorporated VFC. Committee points out that the corporation owns all fire equipment and other property of PCVFD, the Corporation holds all bank accounts and it manages all finances, the name PCVFD and the name of the Corporation are used interchangeably, and there is a single board.

Committee may be correct. The entities may not be truly separate or, as the effective governing body of a local public agency, the board of the Corporation may be subject to the Brown Act and the CPRA. But the Court cannot make that determination without jurisdiction. And the Court cannot exercise jurisdiction over a legally separate entity that has not been sued, has not been served with process, and has not appeared in this action. Committee has not sued the Corporation. Simply alleging that PCVFD is also known as the Corporation is not sufficient. Committee must prove the unified nature of the two entities in an action to which both are parties.

The writ and preliminary injunction will apply to the PCVFD and to Board when it acts as the governing body of PCVFD.

F. Order: The Court grants petitioner/plaintiff Painted Cave Ad Hoc Committee’s motion for a preliminary injunction to enforce the Brown Act and motion for peremptory writ of mandate to enforce the California Public Records Act. Counsel for petitioner/plaintiff shall prepare orders consistent with this ruling. Specifically, the orders shall not refer to Painted Cave Volunteer Fire Department, Inc.