Police Task Force Subject to Open Meeting Rules
December 2, 2005
The California Court of Appeal, 2nd District, published an opinion on November 28, 2005, in the case of McKee vs. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (L.A. Impact), holding that the task force is a “local agency” and, therefore, must comply with the open meeting requirements of California ‘s Brown Act (Gov’t Code sec. 54950 et seq.).
The Court ruled that, as a result of the manner in which L.A. Impact was formed, it is a “joint powers authority,” as defined by the Act. Since it was created and authorized pursuant to an MOU entered into between several cities within Los Angeles County, L.A. Impact’s “…Board of Directors and Executive Council are both legislative bodies as defined by the Brown Act.” As such, the Court held that the task force violated the Brown Act by not posting agendas of their meetings, and by not holding public meetings as prescribed in the Act.
L.A. Impact was created in 1991 by the Los Angeles County Police Chiefs Association as a joint task force and has been extremely successful in fighting drug trafficking, money laundering and terrorism. However, the court found that it was formed pursuant to the Joint Exercise of Powers Act (a JPA), in accordance with Gov’t Code sec. 6500 et seq.) and, therefore, must comply with all rules which govern the operations of JPAs.
The Court stated that “…the evidence overwhelmingly indicates the cities’ intent, through the MOU, to create a separate entity (L.A. Impact) to target crime.” It is “…governed by a board of directors and executive council, with operations conducted under a separate command structure. It is a fiscally separate entity, subject to strict accounting procedures.”
The Court further found that “(i)t even determines its own formula for the distribution of proceeds of assets it seizes. In fact, as of 2004, it had an ‘operating account’ of over $9 million, of which over $5 million was attributable to the asset forfeitures L.A. Impact had secured. Also, pursuant to the MOU, L.A. Impact can enter into contracts, which it has done.” The Court pointed out that the task force had even purchased its own helicopter.
The Court compared the creation and legal status of L.A. Impact to other, more typical, multi-agency law enforcement task forces. The Court pointed out that the typical task force is not created as a separate legal entity. In referring to one specific task force, the Court noted that, “…although the task force has a board of directors and a unique source of funding, there was no ‘explicit language’ in the agreement that formed the task force indicating that it was a separate legal entity.”
In reviewing still another narcotic task force, the Court focused on the fact that the task force “…did not have an operating budget, its member entities (cities) retained responsibility for the employment, salary, benefits, and terms and conditions of all employees, and unit personnel were deemed to be continuing under the employment of the member entities.” “In contrast … there is ample evidence that L.A. Impact was intended to be a separate legal entity,” and operated as such after its formation.
HOW THIS AFFECTS YOUR AGENCY:
This decision does NOT prevent the creation of multi-agency task forces. The primary problem regarding L.A. Impact was the manner in which it was created and the development of, in essence, a corporation which was authorized to act independently.
It was able to, for example, purchase property and equipment, rent office space and conduct other business in its own name, as an independent legal entity. If there had been no such action taken by the cities, and purchases, leases, etc. were accomplished through one of the individual member cities, the situation would have been completely different.
If any of your jurisdictions are involved in a multi-agency task force which has been created in the same manner, this decision will have a specific impact upon you, as well. As a result of being subject to the Brown Act it is, for example, not possible to have a spontaneous meeting, since agendas must be posted, at least 72 hours before the meeting. Additionally, it is not possible to hold a “public” meeting and then continue the meeting after the “public” meeting ends – that violates the Brown Act, as well.
Even though L.A. Impact is now required to post agendas and hold public meetings, there is an exception to those requirements when they would adversely impact on legitimate law enforcement activity. As the Court noted, “…Gov’t Code sec. 54957.8 allows for closed meetings of multi-jurisdictional drug law enforcement agencies in order ‘to prevent the impairment of ongoing law enforcement investigations, to protect witnesses and informants, and to permit the discussion of effective courses of action in particular cases.”
A potential, significant, adverse effect would be, for example, not being able to have a general discussion, in private, about what the task force would like to do in the future. Since that is not addressing specific investigations and/or specific cases, it would probably not fall into the exception set forth in the Code.
For all other joint task forces, both those in currently in existence, and those formed in the future, it is important to avoid creating such formal, legal, separate entities. By avoiding that formality, the work of law enforcement, in joint efforts, can continue without interference.
It may also be possible to disband an existing task force, which was created in such a manner as to invoke the Brown Act, and then re-establish it without creating a separate legal entity.