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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

:
 

OPINION : No. 86-502
 

:
 

of : APRIL 1, 1987 

:
 

JOHN K. VAN DE KAMP :
 

Attorney General :
 

:
 

CLAYTON P. ROCHE :
 

Deputy Attorney General :
 

:
 

THE HONORABLE RICHARD J. MOORE, COUNTY COUNSEL, 

ALAMEDA COUNTY, has requested an opinion on the following question: 

Are meetings of the Board of Directors of the Oakland-Alameda Coliseum, 

Inc. subject to the open meeting requirements of the Ralph M. Brown Act, Government 

Code section 54950 et seq.? 

CONCLUSION 

Meetings of the Board of Directors of the Oakland-Alameda Coliseum, Inc. 

are subject to the open meeting requirements of the Ralph M. Brown Act, Government 

Code section 54950 et seq. 

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ANALYSIS
 

The Ralph M. Brown Act, Government Code section 54950 et seq.1 

requires that all meetings of "legislative bodies" of "local agencies" as defined in the act 

shall be open and public unless excepted by the act or by some other confidentiality 

provision of the law. (See 54951-54953; Sacramento Newspaper Guild v. Sacramento 

County Bd. of Suprs. (1968) 263 Cal.App.2d 41.) "Legislative body" as defined in the act 

is not restricted to the actual governing body of a "local agency." Also "local agency" as 

defined in the act may include nongovernmental bodies. 

This request for our opinion posits the question whether the Board of 

Directors of the Oakland-Alameda Coliseum, Inc. is subject to the open meeting 

requirements of the Ralph M. Brown Act. The corporation is a California nonprofit 

corporation. Its board consists of private citizens, none of whom are appointed by any 

governmental officer or agency. 

I. FACTUAL BACKGROUND 

The Oakland-Alameda County Coliseum, Inc. was formed in 1961 by six 

private citizens under the then California General Nonprofit Corporation Law. Its stated 

purposes were to acquire the necessary real property and to construct a multi-purpose 

public recreation coliseum and stadium in the City of Oakland, and to conduct the 

business affairs of such a complex so as to ultimately vest in the City of Oakland and the 

County of Alameda all the right, title and interest of the corporation in the Coliseum 

complex. 

To effectuate these purposes the corporation entered into a master 

agreement with both the City of Oakland and the County of Alameda which provided in 

detail for the acquisition and construction of the Coliseum complex, the operation thereof 

by the corporation, and the ultimate transfer of the complex to the city and the county. 

This agreement was entered into in the latter part of 1963. 

The master agreement provided that the Coliseum should be constructed 

and financed through the medium of a classic lease and lease-back such as have been 

approved in cases such as Dean v. Kuchel (1950) 35 Cal.2d 444; City of Los Angeles v. 

Offner (1942) 19 Cal.2d 483 and County of Los Angeles v. Nesvig (1965) 231 Cal.App.2d 

1 All section references are to the Government Code unless otherwise indicated. 

2 The lease and lease-back is commonly used to finance the construction of public facilities 

through the aegis of a nonprofit corporation, thus avoiding the debt limitation provisions of the 

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Accordingly, the Coliseum, Inc. agreed to acquire at its own expense the 

real property on which the Coliseum complex was to be constructed and to convey it 

(including improvements to be made thereon) to the city and county. The city and county 

agreed to deposit with a local bank, as trustee, the sum of $1,000,000 as the purchase 

price of the real property. Coliseum, Inc. further agreed to simultaneously deposit the 

sum of $26,000,000 with that bank, as trustee, and agreed to place the deed to the real 

property in escrow for delivery to the city and county. The sums so deposited were to be 

applied to the purchase of the Coliseum complex site and (at the direction of the 

corporation) to the construction costs and expenses of the complex. 

In the grant from Coliseum, Inc. to the city and county of the real property, 

the corporation reserved in its favor a ground lease for 40 years. The corporation then 

executed a sublease of the land and all improvements to be built thereon to the city and 

county which would expire 10 days before the expiration of the ground lease. In 

consideration of the sublease, the city and the county agreed to pay Coliseum, Inc. 

$1,500,000 per year which would be utilized to retire the bonds the corporation would 

issue to finance construction of the Coliseum complex. The master agreement further 

provided that Coliseum, Inc. agreed to build and operate the Coliseum facilities. 

Additionally, the city and county agreed to pay to Coliseum, Inc. the sum of 

$250,000 as consideration for the execution of the master agreement. They also agreed to 

pay the corporation the sum of $1,000,000 in consideration of the corporation's 

agreement to have the plans and or specifications prepared and subsequently to transfer 

title to these plans and specifications to the city and county, subject, however, to the 

corporation's use. Finally, the master agreement provided that upon the termination of 

the 40 year ground lease which the corporation had reserved to itself, the title to all the 

Coliseum facilities would vest in the city and the county. 

As noted, the master agreement contained as a part thereof the actual 

operating agreement between Coliseum, Inc. and the City and the County. Under that 

"sub-agreement" the corporation agreed to operate the Coliseum facilities as an 

independent contractor and pay the net income from such operation to the city and the 

county. The operating agreement permitted and permits the corporation to adopt an 

annual budget, establish rules, regulations, rates and charges for the operation of the 

Coliseum complex. However, these matters are subject to be modified at the instance of 

the city and the county. 

California Constitution applicable to the state and local governments. (See. Cal. Const., art. 

XVI, §§ 1, 18.). See also section 54240 et seq. re "public leasebacks." 

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It is thus seen that for some time into the future the Oakland Coliseum 

complex is to be operated by the Oakland-Alameda Coliseum, Inc. Its basic policy 

decisions will be made by that corporation's board, subject to possible change by the city 

and county. In short, it will not be until the year 2003 that the Oakland Coliseum 

complex will be both owned and operated by the city and county.3 

II. RESOLUTION OF THE ISSUE 

As noted at the outset, the Ralph M. Brown Act is applicable to "legislative 

bodies" of "local agencies" as these are defined in the Act. As stated in section 54953: 

"All meetings of the legislative body of a local agency shall be open 

and public, and all persons shall be permitted to attend any meeting of the 

legislative body of a local agency, except as otherwise provided in this 

chapter." 

However as noted at the outset, a "legislative body" as defined may not necessarily be the 

governing body, and a "local agency" as defined may not necessarily be a governmental 

unit. 

Before discussing the two statutory provisions upon which the resolution of 

the question presented depends, that is, whether the Board of Directors of The OaklandAlameda Coliseum, Inc. is subject to section 54953, supra, and other provisions of the 

Ralph M. Brown Act, we wish to dispose of a preliminary or threshold issue. It has been 

suggested that the Oakland-Alameda Coliseum, Inc. as an entity meets none of the 

definitions of a "local agency" set forth in the act. Accordingly, or so goes the argument, 

since the act applies only to "legislative bodies" of "local agencies", it is immaterial that 

the corporation or its board of directors may literally fall within the meaning of one or 

more of the definitions of "legislative body" set forth in the act. Although appealing in its 

simplicity, we reject such suggestion since it is based upon a faulty premise. That 

premise is that before a particular board or commission is subject to the Ralph M. Brown 

Act, the entity of which it is a part must itself be a "local agency." However, as we will 

demonstrate herein, all that is necessary is that a particular board or commission or other 

multi-member body meets any one of the definitions of "legislative body" contained in 

the act. If it does, then that particular board, commission or other multi-member body 

3 We note parenthetically that the master agreement, including the method of financing the 

construction of the Oakland Coliseum complex and the operating agreement, was upheld by the 

courts as being in all respect "lawful and valid" in County of Alameda, et al.v. Eugene Warino, 

as auditor of the County of Alameda, et al., Alameda County Superior Court No. 337071. 

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will be a "legislative body" of the local agency to which it is related or "tied" by the 

statutory definition.4 

For purposes of the Ralph M. Brown Act "local agency" is defined in three 

sections, that is, sections 54951, 54951.1, and 54951.7. For purposes of the act 

"legislative body" is defined in four sections, that is, sections 54952, 54952.2, 54952.3 

and 54952.5. 

Section 54951 sets forth what might be characterized as the general 

definition of "local agency." It 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." 

Thereafter,"local agency" is defined in sections 54951.1 and 54951.7 to include certain 

nonprofit corporations, neither of which would include the Oakland-Alameda Coliseum, 

Inc. Section 54951.1 provides: 

"For the purposes of this chapter, and to the extent' not inconsistent 

with federal law, the term local agency' shall include all private nonprofit 

organizations that receive public money to be expended for public purposes 

pursuant to the 'Economic Opportunity Act of 1964.'" 

And section 54951.7 provides: 

"'Local agency' includes any nonprofit corporation, created by one or 

more local agencies, any one of the members of whose board of directors is 

appointed by such local agencies and which is formed to acquire, construct, 

reconstruct, maintain or operate any public work project." 

As will be recalled, the Oakland-Alameda Coliseum, Inc. was formed by six private 

individuals. And further, no member of its board of directors is appointed by either the 

City of Oakland or the County of Alameda. Furthermore, it has nothing to do with the 

Economic Opportunity Act of 1964. 

4 The faulty basic premise also overlooks the real possibility that a multi-member group 

which meets one of the definitions of "legislative body" contained in the act may be a diverse 

group having no relationship to any common entity. 

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We now proceed to the definitions of "legislative body" for purposes of the 

Ralph M. Brown Act. Initially, section 54952 sets forth what may be characterized as the 

general definition thereof and provides: 

"As used in this chapter, 'legislative body' means the governing 

board, commission, directors or body of a local agency, or any board or 

commission, committee, or other body on which officers of a local agency 

serve in their official capacity as members and which is supported in whole 

or in part by funds provided by such agency, whether such board, 

commission, committee or other body is organized and operated by such 

local agency or by a private corporation." 

Section 54952.2 then provides a definition of "legislative body" for bodies which have 

been delegated authority of a local agency. It provides: 

"As used in this chapter, 'legislative body' also means any board, 

commission, committee, or similar multi-member body which exercises any 

authority of a legislative body of a local agency delegated to it by that 

legislative body." 

Section 54952.3 thereafter provides a definition of "legislative body" so as to include 

advisory bodies to a local agency. It provides: 

"As used in this chapter 'legislative body' also includes any advisory 

commission, advisory committee or advisory body of a local agency, 

created by charter, ordinance, resolution, or by any similar formal action of 

a legislative body or member of a legislative body of a local agency. . . . 

"'Legislative body' as defined in this section does not include a 

committee composed solely of members of the governing body of a local 

agency which are less than a quorum of such governing body. . . ." 

And finally, section 54952.5 provides a definition of "legislative body" which includes 

permanent boards and commissions of a local agency. It provides: 

"As used in this chapter 'legislative body' also includes, but is not 

limited to, planning commissions, library boards, recreation commissions, 

and other permanent boards or commissions of a local agency." 

It is thus seen that the fact that a nonprofit corporation is not one of the 

types contemplated by sections 54951.1 or 54951.7 supra, does not necessarily preclude 

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its inclusion within the requirements of the Ralph M. Brown Act. This is manifest from a 

reading of the definition of "legislative body" set forth in the general definition of section 

54952 where certain boards, commissions, committees or bodies of a local agency are to 

be included "whether such board, commission, committee or other body is organized and 

operated by such local agency or by a private corporation." (Emphasis added.) In short, 

it is seen that if the statutorily specified relationship exists between a privately organized 

or operated committee and a "local agency", that board, commission or other body will be 

a legislative body of that local agency. 

This same reasoning should apply throughout. Thus where a private board 

or commission meets the criteria set forth in any of the definitions of "legislative body", a 

sufficient connection will exist between it and the local agency to which it is "tied" so as 

to make it a "legislative body" of that local agency. We so conclude.5 

Having disposed of this preliminary threshold issue, we proceed to the main 

issue, that is, whether the Board of Directors of the Oakland-Alameda Coliseum, Inc. is 

subject to the Ralph M. Brown Act. As we view the problem, the question is whether to 

focus upon the definition of "local agency" set forth in section 54951.7, supra, to resolve 

the issue, or whether to focus upon the definition of "legislative body" set forth in section 

54952.2 to do so. 

Section 54951.7, enacted in 1970 (Stats 1970, ch. 710, 1), provides that a 

"local agency" will include a nonprofit corporation formed 1) "to acquire, construct, 

reconstruct, maintain or operate any public work project" when 2) the nonprofit 

corporation was formed by one or more local agencies and 3) any one of its board 

members is appointed by such local agencies. The Oakland-Alameda Coliseum, Inc. 

would meet criteria "1,"6

, but not "2" or "3." As will be recalled, the corporation was 

formed by six private citizens in 1961, and none of its board is appointed either by the 

City of Oakland or the County of Alameda.7 

5 We would also note the futility of attempting to narrowly construe what is a "local agency" 

for purposes of the Ralph M. Brown Act when one observes that "any board or commission 

thereof" is both a "local agency" as defined in section 54951 of the act and a "legislative body" 

as defined in section 54952 of the act. The Legislature itself has blurred any line one might 

attempt to draw between the two. 

6 . "There is no doubt that the term 'public works' means 'all fixed works constructed for 

public use,'. . . " . (Cuttino v. McKinley (1933) 130 Cal.App. 136, 138. See also Raley v. 

California Tahoe Regional Planning Agency (1977) 68 Cal.App.3d 965, 982-983.) 

7 One might speculate that the city and the county may have significant input as to who is 

appointed to the board. However, this would not vitiate the Articles of Incorporation of OaklandAlameda Coliseum, Inc. which states: 

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Section 54952.2, enacted in 1981 (Stats 1981, ch. 968, § 25), defines 

"legislative body" to mean also "any board, commission, committee, or similar multimember body which exercises any authority of a legislative body delegated to it by that 

legislative body." As will be developed at length, post, the legislative bodies of both the 

City of Oakland and the County of Alameda may be said to have delegated some of their 

powers to operate a Coliseum complex to the Oakland-Alameda Coliseum, Inc., and 

hence to its board of directors as its governing board. 

We focus first upon section 54951.7. It has been urged that this section 

should govern our issue since it is the special provision of the Ralph M. Brown Act 

which specifies and hence governs which nonprofit corporations formed to construct or 

acquire and operate public works projects fall within the requirements of the act. This 

follows by application of the rule of construction that a special statute governs a more 

general statute which also would encompass the same subject matter, whether enacted 

before or after the more general statute. (See, e.g., Bailey v. Superior Court (1977) 19 

Cal.3d 970, 977, fn. 8.) Accordingly, or so goes the argument, since the OaklandAlameda Coliseum, Inc. does not fit the criteria set forth in section 54951.7, the 

Legislature intended to exclude it and similar nonprofit corporations from the 

requirements of the act.8 

We, however, decline to follow this argument for the reason that this rule of 

construction, that the special provision controls the more general provision (no matter 

which was first enacted), requires that the two statutes be inconsistent or in conflict. 

(See, e.g., People v. Garcia (1986) 178 Cal.App.3d 887, 894; Code Civ. Proc. 1859). It 

is readily seen that there is no conflict between the language of sections 54951.7 and 

54952.2. The former merely sets forth criteria for including certain nonprofit 

corporations within the scope of the Ralph M. Brown Act. The latter provision merely 

provides that certain multi-member bodies will be considered "legislative bodies." 

Section 54952.2 is coincidentally broad enough to include those nonprofit corporations 

included within the scope of 54951.7 which have been delegated powers of "legislative 

"Except to the extent that the By-Laws may provide that any vacancy 

created by the resignation or removal or a director elected by the members may be 

filled by the vote of the members, if the office of any director becomes vacant, the 

remaining directors in office, by a majority vote, may appoint any qualified person to 

fill such vacancy. . . ." 

8 This argument also brings into play the rule of construction that "the expression of certain 

things in a statute necessarily involves exclusion of other things not expressed." (Henderson v. 

Mann Theaters Corp. (1976) 65 Cal.App.3d 397, 403.) 

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bodies." In short, there is no conflict between these sections. There is at most an overlap 

in these statutory provisions. 

Having rejected the applicability of section 54951.7 to resolve the issue 

herein, we now proceed to section 54952.2, the 1981 enactment. It is clear that both the 

City of Oakland and the County of Alameda would themselves have the power to operate 

the Coliseum complex. (See Gov. Code, § 25351 et seq.; City of Oakland v. Oakland 

Raiders (1982) 32 Cal.3d 60, 71.)9 

As will be recalled, the Oakland-Alameda Coliseum, Inc. was initially 

formed to acquire the necessary real property for and to construct and operate the 

Coliseum complex in the City of Oakland. The master agreement between the 

corporation and the city and county contained a "sub-agreement", that is, the "operating 

agreement". Under the latter agreement the corporation agreed to operate in the status of 

independent contractor all the Coliseum facilities (which the corporation had initially 

conveyed to the city and county, and ultimately had leased back to them). The operating 

agreement required and requires the corporation to pay the net income from such 

operation to the city and county. It also permitted and permits the corporation to adopt an 

annual budget, establish rules, regulations, rates and charges for the operation of the 

Coliseum complex to the corporation, and hence to its board of directors. This "operating 

agreement" parallels the operating agreement discussed in County of Los Angeles v. 

Nesvig, supra, 231 Cal.App.2d 603 with respect to the County Music Center. In that case 

the County of Los Angeles, also through the aegis of a nonprofit corporation and a lease 

and lease-back, provided for the construction of the Music Center. In that case, the 

county also provided that this nonprofit corporation should operate the Music Center 

under an "operating agreement" for 40 years. 

Noting that a public body may not delegate its powers of control over 

public affairs, the court nonetheless held that the operating agreement was a lawful 

delegation of county functions stating: 

"Clearly, the operation and management of places of public 

assembly is an administrative function which may be delegated . . . the 

issue in each case of delegation is whether ultimate control over matters 

involving the exercise of judgment and discretion has been retained by the 

public entity . . . 

9 Since the Coliseum complex was completed many years ago, we need not concern 

ourselves herein with respect to any delegation by the city and the county to acquire and 

construct such a complex. 

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". . . In Haggerty [Haggerty v. City of Oakland, 161 Cal.App.2d 

407] . . . the lease of a convention hall and banquet building by the City of 

Oakland for operation by a private party was found to be a valid exercise of 

city power under proper controls, since under the lease the city retained the 

right to control the use of the premises for convention or banquet purposes 

and to control prices, charges, subleases, and practices of the lessee." (Id., 

at p. 617.) 

Accordingly, the board of directors of the corporation, as its governing 

body, have been delegated powers of the city and county to operate the Coliseum 

complex. Therefore, the status of the corporation and its board of directors is to be 

determined by section 54952.2, as added to the Ralph M. Brown Act in 1981, and not by 

inferences to be drawn from section 54951.7, the section added in 1970 relating 

specifically to nonprofit corporations formed to construct or operate public works 

projects. 

In so concluding, we would point out that a body which has been delegated 

powers of a "legislative body" of a local agency pursuant to section 54952.2 will itself be 

a "legislative body" for purposes of the Ralph M. Brown Act only when meeting with 

respect to the exercise of those delegated powers. Such a delegation may be narrow or 

may be virtually all encompassing. We appear to be dealing with the latter form of 

delegation herein. 

Conceivably, the Board of Directors of the Oakland-Alameda Coliseum, 

Inc. could meet for the sole purpose of discussing matters which do not fall within the 

scope of any delegation from the city or the county, for example, a discussion of purely 

corporate matters unrelated to the operation of the Coliseum complex. However, as a 

general proposition, it would seem that their meetings of necessity would normally relate 

to their delegated powers. 

Accordingly, we conclude that the meetings of the Board of Directors of 

the Oakland-Alameda Coliseum, Inc. are subject to the open meeting requirements of the 

Ralph M. Brown Act. 

***** 

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