TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL State of California

DANIEL E. LUNGREN Attorney General

______________________________________ OPINION : : No. 97-1207 of :

: April 29, 1998 DANIEL E. LUNGREN : Attorney General :

: CLAYTON P. ROCHE : Deputy Attorney General :

:

______________________________________________________________________ THE HONORABLE QUENTIN L. KOPP, ME MBER OF THE CALIFORNIA STATE SENATE, has requested an opini on on the following questions:

1. May members of the legislative body of a local public agency ask questions or make statements while attending a meeting of a standing committee of the legislative body "as observers"?

2. May members of the legislative body of a lo cal public agency sit in special chairs on the dais while attending a meeting of a st anding committee of the legislative body "as observers"?

CONCLUSIONS

1. Members of the legislative body of a local public agency may not ask questions or make statements while attending a meeting of a standing committee of the legislative body "as observers."

2. Members of the legislative body of a local public agency may not sit in special chairs on the dais while attend ing a meeting of a standing committee of the legislative body "as observers."

ANALYSISThe Ralph M. Brown Act (Gov. Code, §§ 54950-54962; "Act") Footnote No. 1 requires the "legislative body" of a "local ag ency" to hold its meetings open to the public unless a specific statutory exemption is applicable (s ee §§ 54951, 54952, 54953, 54962). A notice of all such meetings as well as an agenda of matters to be discussed must be provided to the public. (§§ 54954.1, 54954.2.) Members of the public are permitted not only to attend the meetings but are granted the right to directly address the legislative body on any item within its jurisdiction. (§ 54954.3.)

In 79 Ops.Cal.Atty.Gen. 69 (1996), we concluded that a fourth member of a seven-member legislative body could not attend a meeting of one of its standi ng committees without violating the notice, agenda, and public participation requirements of the Act applicable to the meetings of the legislative body itself. The fourth member wo uld constitute the pres ence of a quorum of the entire legislative body and result in a "meeting" of the legislative body as that term is defined in the Act. ( Id ., at pp. 73-74.)

In 1997 the Legislature responded to our 1996 opinion (Stats. 1997, ch. 253, § 1) by adding subdivision (c)(6) to section 54952.2, excluding the following situa tion from the definition of "meeting" for purposes of the Act:

"The attendance of a majority of the members of a legislative body at an open and noticed meeting of a standing committee of that body, provided that the members of the legislative body who are not members of the standing committee attend only as observers ." (Italics added.)

It is the phrase "only as observ ers" that gives rise to the two questions presented for resolution.

1. Questions or Statements

We are first asked whether the members of a legislative body of a loca l public agency may ask questions or make statements while attendin g meetings of one of their standing committees "as observers." We conclude that they may not do so.

In analyzing the language of section 54952.2, we apply well recognized principles of statutory construction. "To interpre t statutory language, we must 'ascertain the intent of the Legislature so as to effectuate th e purpose of the law.' [Citation.]" ( California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632.) "'[E]very word and phrase employed [in a statute] is presumed to be intended to have meaning and perform a useful function . . . [and] a construction rendering some words in the stat ute useless or redundant is to be avoided.' [Citation.]" ( People v. Contreras (1997) 55 Cal.App.4th 760, 764.) The words of a statute are to be given "'a plain a nd commonsense meaning.' [Citations.]" ( People v. Valladoli (1996) 13 Cal.4th 590, 597.) "'Statements in le gislative committee reports concerning the statutory purposes which are in accordance with a reasonable interpretation of the statute will be followed by the courts. . . .' [Citation.]" ( O'Brien v. Dudenhoeffer (1993) 16 Cal.App.4th 327, 334; see People v. Cruz (1996) 13 Cal.4th 764,773-774, fn. 5.)

The term "observer" commonly means in this c ontext "a representative sent to observe and listen but not to officially participate in a ga thering." (Webster's New Internat. Dict. (3d ed.1961) p. 1558). Accordingly, we believe that the Le gislature, having used the word "only" in conjunction with the words "as observers," intendedto limit attendance in these circumstances to watching and listening without fu rther participation. Those inte nding to qualify as observers under subdivision (c)(6) of section 54952.2 must refrain from asking questions or making
statements. Footnote No. 2 Any conduct other than observing and listening would transcend the statutory authorization, as interpreted under th e "plain and commonsense meaning" rule.

The legislative history of the 1997 amendment of section 54952.2 fully supports our "plain meaning" interpretation of the words used by th e Legislature. The comm ittee reports contain numerous references to the exceedingly limited role of an "observer" in comparison to the rights of a member of the standing committee or of a member of the general public. Attendance, without more, was what the Legislature intended to sanction. Footnote No. 3

Finally, the general purposes of the Act are to ensure not only that any final actions by legislative bodies of local public agencies are taken in a meeting to which the public has advance notice but also that any deliber ations with respect thereto ar e conducted in public as well. (§§ 54950, 54952.2; see Stockton Newspaper, Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95, 100-103; Rowen v. Santa Clara Unified School Dist. (1981) 121 Cal.App.3d 231, 234; Sacramento Newspaper Guild v. Sacramento County Bd. of Supers. (1968) 263 Cal.App.2d 41, 47-51.) "Deliberations" here would include me re attendance, resultin g in the receipt of information. As stated in Frazer v. Dixon Unfiied School Dist. (1993) 18 Cal.App.4th 781, 794: ". . . Deliberation in this context connotes notonly collective decision making, but also 'the collective acquisition and exchange of facts preliminary to the ultimate decision.' [Citations.]" Thus without the special exemption for "observe rs," the mere attendance at the meeting by a quorum of the legislative body woul d constitute a violation of th e Act. To permit observers to testify and ask questions would le t them fully participate in the deliberations of the standing committee, rendering virtually meaningless their restricted status as attending "only as observers."

Accordingly, based upon the plain language of section 54952.2, the legislative history of its recent amendment, and the general purposes of the Act, we conclude that members of the legislative body of a local public agency may not ask questions or make statements while attending a meeting of a standi ng committee of the legi slative body "as observers." Attendance is a limited one in such circumstances, re stricted to watching and listening.

2. Placement of Observers

The second question presented is whether legi slative body members attending a meeting of a standing committee "only as observers" may sit in special chairs on the dais. We conclude that they must sit in the area designated for member s of the public who are attending the meeting.

The primary legislative purpose in adding subdivision (c)(6) to section 54952.2 was to permit legislative body members to attend standing committee meetings. On granting such authorization, however, the Legislature made clear that such observers were to be accorded no special privileges. Indeed, such observers have fewer rights than members of the general public attending the meetings, since as observers they may make no st atements or ask questions.To permit legislative body observe rs to sit on the dais would gr ant them greater rights than members of the public. It could also create the impression that the standing committee meeting constituted a meeting of the legislative body itself. Having th e observers sit in the area designated for members of the general public would eliminate any confusion as to their role in the proceedings and effectuate the Legislature's in tent of not granting spec ial privileges to those attending "only as observers."

We conclude that members of the legislative body of a local public ag ency may not sit in special chairs on the dais while attending a mee ting of a standing committee of the legislative body "as observers."

* * * * *

Footnote No. 1 All references hereafter to the Government Code are by section number only. Footnote No. 2 Of course, if they wish to participate in the meeting, they may do so by having the meeting noticed as a meeting of the full legislative body. Footnote No. 3 Mere attendance would otherwise be proscribed because it would constitute "participation" in the meeting through the receipt of information.