The opinion
Filed 4/29/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
SHARON E. BROWN,
Plaintiff and Respondent,
A152824
v.
PACIFICA FOUNDATION, INC., (Alameda County
Super. Ct. No. RG17861044)
Defendant and Appellant.
I. INTRODUCTION
Pacifica Foundation, Inc. (Pacifica) is a California non-profit corporation that
owns and operates public radio stations across the country, including KPFK in Los
Angeles. Sharon Brown was elected to be a “Delegate” of KPFK and subsequently to a
position on Pacifica’s National Board of Directors. However, Pacifica notified Brown
she was ineligible for these board positions because she was a Los Angeles Small
Business Commissioner, and Pacifica bylaws bar individuals from serving in board
positions while they hold any public office. When Brown refused to acknowledge her
disqualification, Pacifica voted to remove her from the KPFK Local Station Board and
Pacifica’s National Board.1
Claiming her removal was instigated by a rival faction of Pacifica’s National
Board, Brown and two other individuals with similar complaints filed the underlying
action for declaratory and injunctive relief. The present appeal is from an order granting
Brown a preliminary injunction enjoining Pacifica during the pendency of this litigation
1
In the lower court and on appeal, the parties often use the term “LSB” to refer to
a Local Station Board and “PNB” to refer to Pacifica’s National Board of Directors.
1
to restore Brown to her board positions. The trial court found that Brown will likely
succeed on the merits of her claim because, as a matter of law, Brown’s position on the
Small Business Commission is not a public office. We reverse the court’s order because
it is premised on a false assumption that the term “public office” has but one legal
definition.
II. FACTUAL AND PROCEDURAL HISTORY
A. Background Regarding Pacifica
Pacifica is a non-profit public benefit corporation that operates federally licensed
radio broadcasting stations “exclusively for educational purposes” pursuant to formal
bylaws (bylaws). According to its bylaws, Pacifica’s radio broadcasting operations have
been designed to “promote the full distribution of public information; to obtain access to
sources of news not commonly brought together in the same medium; and to employ such
varied sources in the public presentation of accurate, objective, comprehensive news on
all matters vitally affecting the community.”
Pacifica has two classes of members: listener-sponsor members, who make at
least minimum contributions to a radio station in their area, either through volunteer work
or financial support; and staff members, who are employed in paid or unpaid positions at
one of five Pacifica radio stations. All members hold voting rights through their
affiliation with a radio station. Local station members separately elect Delegates to
represent them, and the duties of those Delegates include electing Directors to represent
each radio station area on Pacifica’s National Board. Pacifica’s bylaws call for a 22- or
23-member Board of Directors. A Delegate who has served as a Delegate for at least one
year is eligible for election to the office of Director for his or her radio station area, while
non-Delegate members may run for positions as an “affiliate” or “at large” Director.
Eligibility requirements for Delegates include that they must be members in good-
standing, and they must not simultaneously hold or be a candidate for a public office.
This public office ban is incorporated into Article Four, Section 2 of the bylaws, as
follows: “[N]o person who holds any elected or appointed public office at any level of
government, federal, state or local, or is a candidate for such office shall be eligible for
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election to the position of Delegate. A Delegate shall be deemed to have resigned the
position of Delegate if s/he becomes a candidate for public office or accepts a political
appointment during his or her terms as a Delegate. This restriction shall not apply to civil
service employment by governmental agencies.”
This public office ban is likewise incorporated into eligibility requirements for
Directors in Article Five, Section 1, which states: “no person who holds any elected or
appointed public office at any level of government—federal, state, or local—or is a
candidate for such office, shall be eligible for election to the position of Director. A
Director shall be deemed to have resigned the position of Director if s/he becomes a
candidate for public office or accepts a political appointment during his or her term as a
Director. This restriction shall not apply to civil service employment by governmental
agencies.”
The public office ban is also incorporated into bylaw provisions governing
removal of a Delegate and/or Director. Article Four, Section 9 states: “Any Delegate
shall be removed from the position of Delegate, and cease to be a Delegate, upon the
occurrence of any of the following: . . . a disqualifying act, e.g. the appointment to an
elected political office . . . .” Similarly, Article Five, Section 7 provides that “[c]onsistent
with applicable law, any Director shall be removed from the position of Director, and
cease to be a Director upon the occurrence of any of the following: . . . a disqualifying
act, e.g. candidacy, election or appointment to a political office . . . .”
B. Brown’s Background and Affiliation with Pacifica
Sharon Brown is an attorney, author and small business owner in the San
Fernando Valley. In January 2015, Los Angeles County Supervisor Sheila Kuehl
appointed Brown to the position of Commissioner on the Los Angeles Small Business
Commission (sometimes referred to as the Commission).
The Commission, which operates pursuant to provisions of the Los Angeles Code
of Ordinances, is comprised of 20 voting members and up to 5 alternate members who
have demonstrated their commitment to representing their business community.
Commissioners are appointed by a member of the Board of Supervisors to serve a three
3
year term, subject to the pleasure of the Board, and may serve no more than two
consecutive terms unless a waiver is secured. The Commission is an advisory body to the
Director of the Department of Consumer and Business Affairs regarding such matters as
“small business contract utilization in the County and small business development in
unincorporated areas of the County.” In its advisory role, the Commission makes
findings and recommendations and reports to the Director and the Board of Supervisors.
It conducts business pursuant to formal rules and procedures and is staffed by employees
of the Department of Consumer and Business Affairs.
In July 2015, Brown applied to be a Delegate for her local radio station, KPFK in
Los Angeles. On the “Cover Sheet” of her nomination packet, Brown provided general
contact and demographic information about herself. The Cover Sheet form contained the
following statement: “I am an eligible Listener-Sponsor Member in good standing, I am
16 years of age or older. I do not hold an elected or appointed public office at any level
of government, nor am I a candidate for such office (this does not include the civil
service). I have read and understand the 2015 Pacifica Fair Campaign Provisions.”
Brown signed her name below this statement, but the following proviso was typed above
her signature: “* I am a Commissioner for the County of Los Angeles Small Business
Commission.” In late 2015, Brown was elected to the KPFK Local Station Board.
On January 7, 2017, Brown was elected by her fellow KPFK Delegates to be one
of four KPFK Director representatives to Pacifica’s National Board. Less than a week
later, a KPFK listener/sponsor member named Tracy Rosenberg sent an e-mail to Brown,
with copies to the Chair and Vice-Chair of the KPFK Local Station Board. Rosenberg
stated that although Brown had recently been elected as a KPFK Director, she was
ineligible to serve as a Delegate or Director while holding her seat as an appointed
Commissioner on the Los Angeles County Small Business Commission. Rosenberg
closed her e-mail with these remarks: “According to the Pacifica bylaws, Ms. Brown has
been ineligible to serve as a delegate on the KPFK local station board for the past 13
months and would be deemed to have resigned at this time. [¶] Ms. Brown would need
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to formalize her resignation from one of the two positions, either as a KPFK delegate or
as an LA County Commissioner.”
On January 12, 2017, Jaime Gomez, KPFK’s Local Station Board Chair, sent an
email to Brown, following up on the Rosenberg e-mail. Gomez stated: “I just received
this information [emoji], and wanted to touch bases with you. My understanding is that a
previous LSB member . . . was removed because she was serving as someone appointed
to a commission. So, please allow me to ask you one or two questions. [¶] • Are you
still serving as a Commissioner on the Los Angeles County Small Business Commission?
[¶] • And if so, do you plan to continue serving on this Commission? [¶] Your
response(s) will assist the LSB in moving forward on this issue.” [¶] Thank you.”
Brown did not respond to Gomez’s email, so he followed up with a formal letter,
dated January 19, 2017. Gomez stated that “[a]ccording to Pacifica Bylaws, Article 4,
Section 2A, your appointment to the Los Angeles County Small Business commission
precludes you from serving on the KPFK Local Station Board/Delegates Assembly.”
Gomez quoted the pertinent bylaw language and then stated: “Based on my
understanding of the bylaws, you were ineligible to run for the KPFK Local Station
Board during the 2015 elections. If you have a different view, I would like to hear from
you by January 31, 2017. If I do not hear from you by this date, I will deem you as
having resigned from the KPFK Local Station Board, and will consider the matter settled.
Thank you for your service.”
On January 23, 2017, Brown sent an email to Gomez, which stated that she was
attaching documents that could be helpful “with committee organization and planning.”
The attachments included general descriptions of KPFK board committees and templates
for creating board documents. Although Brown did not make any reference to the
controversy regarding her role on the Small Business Commission, Gomez took this e-
mail as an indication that Brown had elected to retain that role and that she was sending
Gomez KPFK related material that she would no longer need. Accordingly, he sent an e-
mail to the Secretary of Pacifica’s National Board, which stated that Brown was no
longer a member of the KPFK board. In the e-mail, which was also sent to Brown,
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Gomez explained that Brown was ineligible to serve because of her appointment to the
Small Business Commission and advised there would be an election to fill her vacancy.
A few days later, Gomez shared this development with other members of the local and
national boards in an e-mail that was also sent to Brown.
On January 31, 2017, Brown sent an email to Gomez. She acknowledged
receiving Gomez’s January 19 letter, but admonished him to “cease and desist” from
using her professional business address for correspondence about her service with
Pacifica. Brown then stated: “Note that this is my first and only communication with
you regarding this matter. Further, note, that I have no reason to resign and no intention
of resigning from the KPFK Local Station Board or the Pacifica National Board (PNB) as
I was duly elected by the Listener-Sponsor Members and by the Delegates of KPFK,
respectively.” Brown further stated that it was her “understanding” that when similar
issues came up in the past, others were allowed to retain their board positions, and that “a
similar matter has been litigated and the Supreme Court of California ruled that serving in
an unpaid, advisory position without rule-making authority does not rise to the level of
oversight and authority contemplated in Article 4, Section 2A of the Pacifica Bylaws.”
The following week, Gomez sent a follow-up letter to Brown reiterating his
determination that she was disqualified from serving as a KPFK Delegate or a Pacifica
Director. Gomez advised Brown that he took her January 31 letter as an indication of her
intent to appeal his ruling and that he would schedule a “Closed Session” meeting of the
KPFK board for March 12, 2017, at which time she would have the opportunity to
explain her position and present her challenge. Finally, Gomez advised Brown that if the
Board were to overrule his determination regarding Brown’s ineligibility, other bylaws
could be invoked to remove her as a Delegate and Director, including, specifically,
Article Five, Section 7, which states: “Consistent with applicable law, any Director shall
be removed from the position of Director, and cease to be a Director . . . (E) upon the 2/3
vote of the Delegates present and voting (but not less than a majority of all the
Delegates) of the radio station that elected said Director (excluding the vote of the
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Director in question) that said Director has exhibited conduct that is adverse to the best
interests of the Foundation.”
On February 12, 2017, Brown appeared at a KPFK Board meeting and was
recognized by the Chair. A motion was then made challenging Gomez’s determination
that Brown had resigned. The matter was debated and then Gomez’s decision was
sustained by a vote of 12 to 4, with 3 members abstaining. As noted, Brown’s formal
appeal was scheduled to be heard at KPFK’s March 12 board meeting. The day before
that meeting, Brown submitted a packet of information regarding her “improper removal”
as a Delegate and Director. Brown also requested that Gomez recuse himself from
chairing the hearing and that the matter be heard in an “Open Session” in keeping with
public broadcasting guidelines and Pacifica’s bylaws.
At the March 12 meeting, the KPFK board attempted to hold a closed session to
address Brown’s appeal. According to the minutes from the meeting, “[t]he public
physically refused to leave for the closed session.” A motion to hear the matter in open
session was debated and defeated by majority vote. Then there was another failed
attempt to clear the public. Brown and another person successfully urged the public to
refuse to follow the Chair’s instructions to clear the room. Ultimately, the meeting was
adjourned after which two individuals “verbally resigned from the board.”
The hearing on Brown’s appeal was postponed to April 9, 2017. Gomez gave
Brown notice of the new date and advised her that an open session hearing was neither
required nor appropriate under the circumstances. Brown did not attend the April 9
hearing, although she sent an email to board members which stated: “I object to this and
all prior adverse actions, taken personally by you and the Boards, pertaining to my
position as a KPFK LSB Member/Delegate and PNB Director. [¶] Please be advised
that I have hired legal counsel to pursue this matter.”
The minutes from the April 9 KPFK board meeting contain the following
summary of the Brown matter: “Chair Jaime Gomez explained that he deemed Sharon
Brown resigned because of her appointment to the Los Angeles County Small Business
Commission by County Supervisor Sheila Kuehl. This determination that Sharon Brown
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had effectively resigned was subsequently upheld by the KPFK Local Station Board and
the Pacifica National Board. However, and in order to protect our organization from
threatened legal action, it was decided by our Governance Committee to recommend a
formal vote to remove Sharon Brown as an LSB Member/Delegate and Pacifica National
Director, as per Pacifica bylaws Article Five, Section 7(E). Removal of a Director,
according to this bylaw, requires a 2/3’s vote of Delegates present and voting. Sharon
Brown had been provided with appropriate notice, and an attempt was made to telephone
Sharon Brown during our closed meeting. A motion to remove Sharon Brown as a
member of the KPFK-LSB and Pacifica Director [was] made and passed with a vote of
18 yes, 1 no, 0 abstentions.”
C. The Present Action
On May 19, 2017, Brown and two other individuals, Efia Nwangaza and Adriana
Casenave, filed a petition for injunctive and declaratory relief pursuant to Corporations
Code section 5617 (section 5617), a provision of the Nonprofit Corporation Law, which
authorizes a superior court action to “determine the validity of any election or
appointment of any director of any corporation.” (§ 5617, subd. (a).) Under this statute,
“[t]he court, consistent with the provisions of this part and in conformity with the articles
and bylaws to the extent feasible, may determine the person entitled to the office of
director or may order a new election to be held or appointment to be made, may
determine the validity of the issuance of memberships and the right of persons to vote
and may direct such other relief as may be just and proper.” (§ 5617, subd. (d).)
Brown and her co-petitioners alleged that Pacifica took improper actions to
remove or prevent them from serving in elected board positions. Allegations regarding
Brown challenged Pacifica’s determination that she is ineligible to serve because she
holds a public office. Nwangaza, a resident of South Carolina, alleged she was removed
from her position as an Affiliate Director pursuant to an improper vote count. Casenave,
a resident of Texas, alleged that a faction of the National Board attempted to remove her
as a Director representative of KPFT in Houston, on trumped up charges of inappropriate
conduct.
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According to the petition, the denial of board positions to Brown and Nwangaza
and attempts to remove Casenave were all part of a plan by “[t]he majority faction” of
Pacifica’s National Board to gain “supermajority control” over the corporation in order to
implement “substantial and irreversible changes to the organization including the
effective dissolution of the Foundation.” Petitioners sought declaratory and injunctive
relief requiring Pacifica to reinstate Brown and Nwangaza and to cease efforts to remove
Casenave.
D. The Preliminary Injunction
Petitioners applied for a temporary restraining order, which was denied. They also
sought a preliminary injunction, for which the trial court issued an order to show cause.
Petitioners argued that Pacifica violated its bylaws and California law by removing or
threatening to remove them from their board positions, and that if Pacifica’s “slight”
majority faction was not prevented from summarily changing election results, members
would be disenfranchised.
Prior to a September 2017 hearing, the trial court published a tentative ruling to
grant a preliminary injunction to Brown but deny it to Nwaganza and Casenave. The
tentative ruling was contested by both sides, which led to further briefing and another
hearing. On October 26, 2017, the court decided to adhere to its original position, filing a
nine-page order that incorporated its tentative ruling and included additional findings (the
October 2017 order). Because Pacifica is the only party who filed an appeal from the
October 2017 order, we limit our review to the order granting Brown preliminary
injunctive relief.
III. DISCUSSION
A. Preliminary Injunction Standards
The decision whether to issue a preliminary injunction requires the trial court to
“ ‘evaluate two interrelated factors: (i) the likelihood that the party seeking the injunction
will ultimately prevail on the merits of his [or her] claim, and (ii) the balance of harm
presented, i.e., the comparative consequences of the issuance and nonissuance of the
injunction.’ ” (Law School Admission Council, Inc. v. State of California (2014)
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222 Cal.App.4th 1265, 1280 (Law Sch. Admission Council).) The court’s ruling is not an
adjudication of ultimate rights, but balances the respective equities of the parties to
determine whether “ ‘ “ ‘pending a trial on the merits, the defendant should or . . . should
not be restrained from exercising the right claimed by him [or her].’ ” ’ ” (Ibid.)
Although the general purpose of this interim measure is to preserve the status quo
pending a determination on the merits of the action, the court “also has the power to issue
a preliminary injunction that ‘ “ ‘mandates an affirmative act that changes the status
quo’ ” ’ [citation], but should do so only in those ‘ “ ‘extreme cases where the right
thereto is clearly established.’ ” ’ ” (Integrated Dynamic Solutions, Inc. v. VitaVet Labs,
Inc. (2016) 6 Cal.App.5th 1178, 1183–1184 (Integrated Dynamic).)
Ordinarily, the decision whether to grant a preliminary injunction is reviewed for
an abuse of discretion, and factual findings underlying the court’s ruling are reviewed for
substantial evidence. (Integrated Dynamic, supra, 6 Cal.App.5th at pp. 1183–1184.)
However, the appellate court will more closely scrutinize an injunction that changes the
status quo. (Ibid.) Moreover, when the determinative factor in deciding whether to grant
a preliminary injunction is a question of law, that determination is subject to de novo
review. (Law Sch. Admission Council, supra, 222 Cal.App.4th at pp. 1280–1281; see
also Jamison v. Department of Transportation (2016) 4 Cal.App.5th 356, 361.)
B. Brown’s Likelihood of Success on the Merits
In this case, the trial court found that Brown demonstrated a likelihood of
succeeding on the merits because her role as a Small Business Commissioner does not
constitute a public office that would disqualify her from a board position under the
Pacifica bylaws.
According to the October 2017 order, the parties agreed that Pacifica’s bylaws
should be interpreted in accordance with principles of contract interpretation. There is
precedent for that approach. (See Scott v. Lee (1962) 208 Cal.App.2d 12, 15; Smith v.
Kern County Medical Assn (1942) 19 Cal.2d 263, 270–271.) However, the trial court did
not employ contract principles to interpret the pertinent bylaw language. Instead, the
court concluded that (1) the California Supreme Court has determined that the term
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“public office” has only one acceptable definition, and (2) the Los Angeles Small
Business Commission does not fit that definition as a matter of law. As we will explain,
these conclusions are legal errors.
According to the trial court, the Supreme Court has identified two essential
elements of a public office: “(1) that it is a continuing, permanent position defined by
law and passed from person to person, and not occasional or specific to one individual,
and (2) that its occupant exercises a public function, and wields some part of the public
entity’s judicial, executive, or legislative power.” The trial court derived this definition
from two cases, Spreckels v. Graham (1924) 194 Cal. 516, 530 (Spreckels) and Dibb v.
County of San Diego (1994) 8 Cal.4th 1200, 1212 (Dibb).)
In Spreckels, supra, 194 Cal. 516, petitioners alleged they were candidates for
“presidential electors” who were denied their right under section 1188 of the California
Political Code to have their names included on an upcoming election ballot. The
Supreme Court rejected this claim because it found that a presidential elector is not a
public office under section 1188. The court based this finding on its assessment of the
legislature’s likely intent when it used the phrase “a candidate for any public office” in
section 1188. (Id. at p. 530.)
In reaching its holding, the Spreckels court considered possible definitions of the
term “public office,” but it explicitly rejected the notion that only one such definition
exists. As the court explained: “It is difficult, perhaps impossible, to frame a definition
of public office or public officer which will be sufficiently accurate, both as to its
inclusion and its exclusion, to meet the requirements of all cases. But two elements now
seem to be almost universally regarded as essential thereto. First, a tenure of office
‘which is not transient, occasional or incidental,’ but is of such a nature that the office
itself is an entity in which incumbents succeed one another and which does not cease to
exist with the termination of incumbency, and, second, the delegation to the officer of
some portion of the sovereign functions of government, either legislative, executive, or
judicial.” (Id. at p. 530.) The Spreckels court then found that a presidential elector does
not satisfy these elements, but it explicitly refused to hold that these elements are
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essential to a public office. It also found that the fact that presidential electors do not fit
this two-part definition does not mean a fortiori that presidential electors are not public
officers, explaining that there “are approved definitions sufficiently broad to include them
as such,” and that “[a] definition sufficiently accurate to meet the requirements of one
case may be found inadequate to another.” Ultimately, though, the court concluded that
when the legislature used the phrase, “ ‘a candidate for any public office,’ in section
1188” it did not intend for those provisions to apply to presidential electors. (Id. at
pp. 530–531.)
Dibb, supra, 8 Cal.App.4th 1200, was a tax payer challenge to a county charter
provision that established the Citizens Law Enforcement Review Board (or CLERB) to
investigate public complaints against the county sheriff and probation departments.
Attempting to demonstrate that the CLERB was not authorized, the plaintiff argued that
its members were not “ ‘county officers’ ” within the meaning of Article XI, section 4 of
the California Constitution because they were not public officers under the two-part test
discussed in Spreckels. (Id. at pp. 1211–1213.) Rejecting this argument, the Dibb court
found: “[A] public officer (or a county officer) is one who, inter alia, is delegated a
public duty to exercise a part of the governmental functions of the political unit for which
he, as agent, is acting. That test is plainly met here.” (Id. at p. 1212, italics omitted.)
Neither of these cases purports to establish an all-purpose definition of the term
public office or public officer. Indeed, in Spreckels the Supreme Court expressly
declined to do so. It declined again in In re M.M. (2012) 54 Cal.4th 530 (M.M.). The
issue there was whether a public school security officer is a public officer within the
meaning of Penal Code section 148, subd. (a)(1). The M.M. court stated: “The term
‘public officer’ found in section 148(a)(1) is ambiguous on its face. Indeed, this court
long ago observed that ‘[i]t is difficult, perhaps impossible, to frame a definition of . . .
public officer which will be sufficiently accurate, both as to its inclusion and its
exclusion, to meet the requirements of all cases.’ ” (Id. at p. 536 quoting Spreckels,
supra, 194 Cal. at p. 530.) Because the meaning of the term “public office” as it was
used in section 148, subd. (a)(1) could not be “gleaned from the phrase itself,” the M.M.
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court examined statutory history to determine the Legislature’s intent and concluded
ultimately that the intent of the Legislature was to define “public officer” for purposes of
this statute to include “public officials and employees who perform law enforcement
related duties in connection with their office or employment.” (Id. at p. 536.)
The M.M. court also discussed the two-part Spreckels test, which it characterized
as the common law definition of a public officer. (M.M., supra, 54 Cal.4th at pp. 541–
544.) The court acknowledged that all officers who assist law enforcement agencies do
not fall within this common law definition. However, it concluded that the Legislature
did not purport to incorporate the common law definition into Penal Code section 148 or
“to require that one hold a ‘public office’ in order to qualify as a ‘public officer’ under
that section.” (Id. at p. 543.) Moreover, the court found, “the term ‘public officer,’ as
used in Penal Code section 148(a)(1) and elsewhere in the Penal Code is not intended to
be limited to incumbents elected or appointed to a fixed term of public office.” (Id. at
p. 543.) Thus, the court concluded that decisions “which draw upon the common law
definitions of ‘public officer’ and ‘public office,’ do not control the meaning of the term
‘public officer’ as used in section 148(a)(1).” (Id. at p. 544.)
Read together, these cases compel the conclusion that California does not
recognize a single legal definition of the term “public office.” (See also People v.
Superior Court (Sahlolbei) (2017) 3 Cal.5th 230, 236–237 [statute prohibiting public
officers from making contracts in which they have a financial interest has long applied to
a city’s outside counsel who does not fall within the Spreckels definition of a public
officer.]; Neville v. County of Sonoma (2012) 206 Cal.App.4th 61, 79–81 [under pertinent
statutes, county commissioner of agriculture and sealer qualified as both an employee and
public officer.].) The term “public office” is ambiguous on its face and its meaning
depends on issues of context and intent, neither of which the court considered here
notwithstanding the fact that the parties submitted extrinsic evidence regarding the
purpose of the pertinent bylaw provisions.
The October 2017 order granting Brown a preliminary injunction states that the
parties “agree that the relevant Bylaw’s use of the term ‘public office’ implicitly
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incorporates the California Supreme Court’s definition of that term.” We find no
evidence of such an agreement. Regardless, there is no such definition. The common
law test may be a useful tool, but it is by no means definitive. The trial court’s contrary
conclusion was an error of law.
Moreover, the trial court committed a separate error by materially altering the
common law definition. As noted, that definition consists of two elements: (1) a fixed
and permanent tenure of office “ ‘in which incumbents succeed one another’ ”; and
(2) “ ‘delegation to the officer of some portion of the sovereign functions of government,
either legislative, executive, or judicial.’ ” (Dibb, supra, 8 Cal.4th at p. 1212, italics
omitted, quoting Spreckels, supra, 194 Cal. at p. 530.) Here, the trial court found that the
undisputed facts demonstrate that the Los Angeles Small Business Commission satisfies
element (1) but does not satisfy element (2).
The court’s analysis of the first prong of the common law test is not disputed by
either party on appeal. As the court found, the Small Business Commission is not an
informal body but a “permanent and continuing” entity, with membership and operations
defined by law, which conducts public meeting and other business subject to the Brown
Act. Thus, the first prong of the common law test is clearly met.2
As for element (2), the common law definition requires a delegation of a “public
duty” (Dibb, supra, 8 Cal.4th at p. 1212), or “some portion of the sovereign functions of
government” (Spreckels, supra, 194 Cal. at p. 530). Here, as the trial court explicitly
found, the Los Angeles Board of Supervisors has delegated tasks to the Small Business
Commission that it would otherwise perform itself, and the Commission “clearly serves a
function that aids the Board of Supervisors.” Despite these findings, the trial court
2
In the trial court, Brown requested judicial notice of court records from
Burnstein v. Pacifica Foundation, No. RG11-562056 (Burnstein), a 2011 case in which
the court found that Pacifica acted improperly by disqualifying an individual from
serving as a Director on the ground that he was an informal advisor to the Oakland
Mayor. The trial court took judicial notice of Burnstein, but it concluded that case was
distinguishable under the first prong of the “ ‘public office’ test.”
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concluded that element (2) cannot be satisfied as a matter of law because one fact is
dispositive—the Commission is a “purely advisory” body.
The court acknowledged there is a “genuinely debatable question” whether a
formally constituted advisory committee constitutes a public office but then provided two
reasons for concluding that it never does. First, an advisory body cannot promulgate
rules or regulations or make decisions with legal force. Second, the duties of an advisory
body like the Commission are not “qualitatively different” from the role of hired staff of
a public officer. According to the court, the “only obvious, principled distinction”
between a member of a legislative body, who indisputably holds a public office, and a
member of hired staff, who performs fact finding and advisory functions but is not a
public officer, is that the former exercises the power of a governmental entity. By this
“standard,” the court concluded, Small Business Commissioners are analogous to salaried
staff who support a legislative body but do not hold a public office.
We conclude that the trial court’s wholesale exclusion of advisory commissions
from the definition of a public office was legal error. The fact that a body serves an
advisory function does not preclude it from being a public office, as demonstrated by
Dibb, supra, 8 Cal.4th 1200, where the Supreme Court found that the citizens review
board created by the county was a public office under the common law definition. In its
discussion, the court paraphrased pertinent provisions of the ordinance that created the
CLERB: “The CLERB is designed to ‘advise’ and make ‘recommendations’ to the board
of supervisors, the sheriff, and the chief probation officer concerning complaints against
peace officers employed by the county. The code specifies that the CLERB ‘will be
advisory only and shall not have authority to manage or operate the Sheriff’s Department
or the Probation Department or direct the activities of any County officers or employees
. . . .The [CLERB] shall not decide policies or impose discipline against officers or
employees of the County.’ ” (Dibb, supra, at pp. 1204–1205.) Despite the fact that the
CLERB is an advisory body, the Supreme Court found that its members hold a public
office under the common law definition.
15
Moreover, the trial court’s conclusion that there is no meaningful distinction
between the Small Business Commission and hired staff of a legislative body is equally
flawed. In contrast to the Commission, hired staff of legislative bodies do not satisfy the
first element of the common law definition of a public office. In its May 2017 order, the
trial court distinguished the Burnstein case (see fn. 2) because it involved an individual
whose role as an informal advisor to the Oakland Mayor did not satisfy the first element
of the common law definition of a public officer, whereas Pacifica “demonstrated at
length . . . that the Commission on which Brown serves is a permanent entity created by
the Board of Supervisors, whose membership and operations are defined by law, and
whose meetings have published public agendas subject to the Brown Act, with public
comment periods, and that the office Brown currently occupies is permanent and
continuing.” The trial court failed to recognize, however, that this same evidence
distinguishes the Commission from the hired staff in its hypothetical example, who do
not hold a tenured office created by law.
Because of the court’s legal errors, it failed to assess the significance of
undisputed evidence regarding the intent behind the bylaw provisions precluding a
Delegate or Director from holding a public office. “In order to determine initially
whether the terms of any written instrument are clear, definite and free from ambiguity
the court must examine the instrument in the light of the circumstances surroundings its
execution so as to ascertain what the parties meant by the words used.” (Estate of Russell
(1968) 69 Cal.2d 200, 208–209, italics omitted; see also Civ. Code, § 1647 [“A contract
may be explained by reference to the circumstances under which it was made, and the
matter to which it relates”].) In this case, Pacifica produced a declaration from Carol
Spooner, the former Chair of the Pacifica National Bylaws Committee, who explained
that the public office ban was intended to apply broadly to “any elected or appointed
position that was political in nature [as opposed to a civil service job], and that would
involve loyalties to any political incumbent or administration—such as political
appointment to a commission, committee, advisory board, task force, for example.” This
declaration and other evidence produced by Pacifica indicates strongly that the term
16
public office as used in the Pacifica bylaws was intended to include a position on the Los
Angeles County Small Business Commission.
On appeal, Brown maintains that even if her position on the Commission
constitutes a public office under the bylaws, her removal was not authorized for two other
reasons. First, she argues, the bylaws also state that local and national “elections
supervisors” are responsible for reviewing candidate materials to ensure they meet
eligibility requirements, and in this case local elections officials approved Brown’s
candidacies notwithstanding the fact that she disclosed she was a Small Business
Commissioner. The trial court properly rejected this argument. Pacifica’s bylaws do not
state or intimate that eligibility requirements can only be enforced by elections
supervisors. Moreover, Brown did not allege facts or produce evidence to show that
Pacifica was estopped from enforcing the public office ban against her.
Brown’s second theory, presented for the first time on appeal, is that a careful
reading of the bylaws compels the conclusion that, assuming she held a public office
when she was elected to a board position, that fact would not be a ground justifying her
removal. According to this argument, a sitting Delegate or Director who becomes a
candidate for or accepts a public office may be deemed to have resigned or may be
removed from a board position. However, no provision explicitly authorizes the forced
removal of a Delegate or Director who already held a public office at the time s/he was
elected to a board position. Even if this argument had been made below, it would fail.
“ ‘When a dispute arises over the meaning of contract language, the first question to be
decided is whether the language is “reasonably susceptible” to the interpretation urged by
the party. If it is not, the case is over.’ ” (Oceanside 84, Ltd. v. Fidelity Federal Bank
(1997) 56 Cal.App.4th 1441, 1448.) Here, the bylaw provisions pertaining to the public
office ban are not reasonably susceptible to Brown’s interpretation, which would give her
an end-run around explicit eligibility requirements for Delegates and Directors.
The crux of the trial court’s finding that Brown has a strong chance of success on
the merits of her petition is that her advisory position on the Los Angeles Small Business
Commission does not constitute a public office as a matter of law. For all the reasons
17
outlined above, this finding must be reversed. Our conclusion makes it unnecessary for
us to address other material issues raised in the appellate briefs.
IV. DISPOSITION
The October 2017 order is reversed to the extent it grants Brown a preliminary
injunction and this case is remanded for further proceedings consistent with this opinion.
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_________________________
TUCHER, J.
WE CONCUR:
_________________________
POLLAK, P. J.
_________________________
BROWN, J.
Brown v. Pacifica Foundation (A152824)
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Trial Court: Alameda County Superior Court
Trial Judge: Hon. Julia Spain
Counsel for Appellant: Ford Greene, III
Counsel for Respondent: Harold P. Smith
20