APPEAL from a judgment of the Superior Court of Los Angeles County, Mary Ann Murphy, Judge. (Los Angeles County Super. Ct. No. BC396305)
The opinion of the court was delivered by: Croskey, J.
CERTIFIED FOR PUBLICATION
Reversed with directions.
A government contractor agreed under the terms of its contracts to comply with the Ralph M. Brown Act (Brown Act) (Gov. Code, § 54950 et seq.) in meetings of its board of directors to the extent that the meetings involved publicly funded programs. We hold that members of the public are the intended beneficiaries of such a contractual provision and can enforce the provision as third party beneficiaries of the contract. The government contractor cannot be sued directly under the Brown Act, however, because it is not a "legislative body" as defined in the act.
FACTUAL AND PROCEDURAL BACKGROUND
Options-A Child Care and Human Services Agency (Options) is a nonprofit corporation that administers subsidized childcare and education services to families in the San Gabriel Valley and Whittier areas of Los Angeles County under contract with the state Department of Education. Service Employees International Union, Local 99 (SEIU), is a labor union representing employees in public school districts and child care facilities in Southern California. Francisco Torres is an employee of SEIU.
Options and the Department of Education entered into a series of contracts effective from July 1, 2007, to June 30, 2008. Fourteen of those contracts expressly incorporated separate documents entitled Funding Terms and Conditions or Program Requirements, including a provision stating:
"Any private tax-exempt or private non-tax exempt agency receiving public funds under these regulations must, to the extent of the publicly funded program, comply with the Ralph M. Brown Open Meetings Act ('Brown Act'), Government Code Sections 54950-54963. Board meetings shall be open to the public except for meetings with its designated representatives prior to and during consultations and discussions with representatives of employee organizations . . . . Minutes of these open meetings shall be available to the public."
Four other contracts expressly incorporated other Program Requirements documents, including a provision stating in the following or substantially identical language:
"Each contractor is required, as a condition of its contract with the California Department of Education (CDE), Child Development Division (CDD), to adhere to these requirements and Title 5 regulations pertaining to Child Development Programs, in addition to all other applicable laws and regulations."
Former California Code of Regulations, title 5, section 18015 stated:
"Any private tax exempt or private non-tax exempt agency receiving public funds under these regulations must, to the extent of the publicly funded program, comply with the Ralph M. Brown Open Meetings Act ('Brown Act'), Government Code Sections 54950-54961."*fn1
Options's board of directors met on June 16, 2008. Several items on the meeting agenda related to publicly funded programs, but no publicly accessible agenda was posted 72 hours before the meeting. The agenda did not indicate the items to be discussed in executive session, and those items were not announced during the public portion of the meeting. Written reports distributed to the directors at the meeting were not made available to members of the public attending the meeting.
2. Trial Court Proceedings
SEIU and Torres filed a complaint against Options in August 2008 and filed a first amended complaint in October 2009. They allege in their first amended complaint that Options agreed under the terms of its contracts with the Department of Education to comply with the Brown Act. They allege that Options failed to comply with the Brown Act at its meeting of June 18, 2008, by (1) failing to post an agenda at least 72 hours before the meeting; (2) failing to disclose the items to be discussed in executive session; (3) failing to provide members of the public an opportunity to address the board; and (4) failing to make available to members of the public reports and other writings distributed to the directors.
SEIU and Torres allege counts against Options for (1) violation of the Brown Act and (2) breach of contract. They allege in their first count that Options agreed to be treated as a legislative body under Government Code section 54952 and that Government section 54960, subdivision (a) provides for injunctive and declaratory relief to stop or prevent a violation of the Brown Act. They allege that an actual and present controversy exists as to whether Options complied with the Brown Act at its meeting of June 18, 2008, and that they are entitled to a judicial declaration that Options violated the Brown Act in the manners alleged. They also allege that they are entitled to an injunction compelling Options and its agents and employees to comply with the Brown Act. They allege further that they are entitled to recover their attorney fees under Government Code section 54960.5.
SEIU and Torres allege in their second count for breach of contract that they are intended beneficiaries of the contract provisions requiring compliance with the Brown Act, that they are entitled to enforce those contractual provisions as third party beneficiaries, and that they are entitled to the same remedies alleged in their first count.
SEIU and Torres moved for summary judgment or alternatively for summary adjudication that (1) they are third party beneficiaries of the contracts between Options and the Department of Education and (2) Options violated the Brown ...