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Former Alameda County supervisor Dave Brown. (Photo courtesy of Alameda County, via BCN)<\/p>\nFormer Alameda County supervisor Dave Brown. (Photo courtesy of Alameda County, via BCN)<\/p>\n
A judge has ruled that Alameda County and its Board of Supervisors did not follow procedure when it appointed former interim supervisor Dave Brown in 2021.\u00a0<\/p>\n
\u201cThis is a victory for open and transparent government,\u201d said Marcus Crawley, president of the Alameda County Taxpayers\u2019 Association, which filed the suit. \u201cWe sued because the Board used confusing and misleading language in the agenda to hide their intention to quickly appoint an \u2018insider\u2019 to fill Supervisor Wilma Chan\u2019s seat, so soon after she unexpectedly died.\u201d\u00a0<\/p>\n
On Nov. 3, 2021, Supervisor Chan was killed<\/a> 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.\u00a0<\/p>\n An agenda was posted four days before the Nov. 16, 2021 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\u2019 Association called \u201crushed\u201d.<\/p>\n The association sued the county<\/a> in 2022, alleging that the board and county<\/a> 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.\u00a0<\/p>\n Judge Michael Markman of the Alameda County Superior Court ruled this November that the language of the agenda item \u201cfailed 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\u201d, according to the order.\u00a0<\/p>\n According to agenda item from the Nov. 16, 2021 meeting, the board was supposed to act on developing a \u201cprocess\/schedule\u201d to select an appointee. Another part of the item indicated that an appointment would also be voted on.<\/p>\n However, the agenda item did not mention Brown\u2019s name or any other potential candidates. Also, the language used for the agenda item was deemed \u201cunfairly opaque and confusing\u201d because it indicated that the Board would vote on developing a \u201cprocess\/schedule\u201d to select an appointee.\u00a0<\/p>\n On the day of the meeting, Brown sent a text message to then-Supervisor Richard Valle saying, \u201cI need you to make the motion no matter what today. Waiting a week might doom our chances,\u201d according to the order.\u00a0<\/p>\n Brown was the former chief of staff to Chan<\/a>, and Chan\u2019s family supported Brown\u2019s appointment, according to the court order.<\/p>\n 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.\u00a0<\/p>\n The board then voted to appoint Brown.\u00a0<\/p>\n \u201cThe 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,\u201d the judge wrote in the order.\u00a0<\/p>\n The Taxpayers\u2019 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.\u00a0<\/p>\n Brown served nearly 14 months in the seat until the end of Chan\u2019s term in early 2023, with Lena Tam elected<\/a> to the next full term in the position the prior November.\u00a0<\/p>\n Markman denied four out of five allegations of Brown Act violations argued by the Taxpayers\u2019 Association, which included accusations that public comment was too restrictive and that a secret meeting was held to discuss the appointment.<\/p>\n As part of the ruling, the board will be required to \u201cclearly and unambiguously\u201d 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.<\/p>\n