Brown Act & BeyondFebruary 27, 2015

Association of California School Administrators

Brown Act Overview

• The Brown Act is California’s open meeting law.

Brown Act Basics

• Who is subject to the Brown Act?

– “Legislative bodies” of local agencies, including school boards• A member of a legislative body

includes someone who has been elected but not yet assumed office

• Committees and subordinate bodies

Brown Act Basics

• What does the Brown Act require?

– That actions and deliberations be taken openly and in public

– Meetings must be in public unless a closed session is specifically permitted by law

– Meeting agendas and board packets must be made available upon request in appropriate alternative formats to persons with disabilities

– Agenda must be posed on the district’s website

What is a Meeting?

• Any congregation of a majority of the members at the same time and place to hear, discuss, or deliberate on any item within the district’s jurisdiction

• It can be a meeting even if no action is taken and no concurrence reached

What is a Meeting?

• Prohibited meetings include attempts to reach a “collective concurrence” by:– Serial phone calls or conversations– Use of intermediaries to develop

“collective concurrence”– Board “polling”

Board Communications

• Email Communications:

Beware “Reply All” email communications to board members

Ensure email contains a confidentiality statement

Board Communications

• Email: a majority of members may not email each other to discuss agency matters, even if emails also sent to member’s secretary and chair of agency, the emails are posted on website and made available in printed form at next meeting.

(84 Ops.Cal.Atty.Gen. 30 (2001).)

Meetings can occur through the use of intermediaries (serial

meetings)

Serial Meetings

Serial Meetings

The Brown Act prohibits use of technology or intermediaries by a quorum of members to conduct a meeting

(Stockton Newspapers, Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95, 103)

Serial Meetings

• “[A] serial meeting is a series of communications, each of which involves less than a quorum of the legislative body, but which taken as a whole involves a majority of the body’s members.”

(Attorney General’s Brown Act Handbook)

Serial Meetings

Two types of meetings:– Linear meeting: A phones B; B phones C– “Hub and spokes”: A emails B; A emails C

Serial Meetings

• However, members may communicate about the following if a quorum is not involved:

• Time• Date• Matters to be placed on agenda

– Caution: encouraging this practice may lead to inadvertent Brown Act violations

– Best practice: Board president and Superintendent set agenda

What Doesn’t Constitute a Meeting?• The following scenarios are not

“meetings” under the Brown Act:– Individual Contact– Public Conferences – Community Meetings– Other Local Agency Meetings– Social Gatherings– Attendance at Standing Committees as

Observer Only– Staff Meetings, Provided a Majority of

Members Do Not Attend

Committees

• Subject to the Brown Act if they are created by resolution or other action by the governing board

(Gov. Code, § 54952 (b))

Committees

– Examples• School board’s authorization to the

superintendent to appoint a committee, under certain circumstances, qualifies as an advisory committee created by formal action of the board. (Frazer v. Dixon Unified School District (1993) 18 Cal.App.4th 781, 792-793.)

• City council took formal action by designating two council members to sit on an advisory committee and establishing the committee’s agenda. (Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 805.)

Standing Committees

• “A standing committee is a committee which has continuing jurisdiction over a particular subject matter (e.g., budget, finance, legislation) or if the committee’s meeting schedule is fixed by charter, ordinance, resolution or other action of the legislative body that created it.” (Attorney General’s Brown Act Handbook)

Ad Hoc Advisory Committees• Exempt from the Brown Act if:

– Must be purely advisory, with no decision-making authority

– Must be comprised solely of less than a quorum of the governing body

– Must not have continuing subject matter jurisdiction

– Must not have a meeting schedule fixed by formal action of the governing body

Time & Place of Meetings

• Regular Meetings– Governing boards set the TIME AND

PLACE by resolution, bylaw, or other rule• Usually set at the annual organizational

meeting

– Post agenda 72 hours in advance in a place that is freely accessible to the public and on the district’s website

Time & Place of Meetings

• Special Meetings– Special meetings may be called at any

time on 24-hour notice– May be called by the board president or

by a majority of the board by delivering written notice to:

• Each board member• Parties requesting notice

– Each local newspaper of general circulation and radio or television station(s) requesting such notice

– Notice posted in a location that is freely accessible to the public and posted on the district’s website

Time & Place of Meetings

• Special Meetings

– Notice must include the time, place and identify the business to be transacted or discussed

– Opportunity for public comment on agenda items

– No other business may be considered during the meeting

Time & Place of Meetings

• Emergency Meetings

– Emergency situation exists when prompt action is required due to the disruption or threatened disruption of public facilities and services

– No 24-hour notice requirement (but 1 hour notice must be provided to the media, unless telephones are not working)

– 1 hour notice is not required for “dire emergencies” (i.e. a crippling disaster, mass destruction, terrorist act, or threatened terrorist activity that poses an immediate and significant danger to the public). Attempts must still be made to contact the media

Where Can Governing Boards Meet?

• Meetings must be within school district boundaries except when:

– State or federal law or court order requires otherwise

– Attending a judicial or administrative proceeding

– Inspecting real or personal property– Participating in multiagency meetings

Where Can Governing Boards Meet?

– Meeting with state or federal officials

– Held at a facility owned by the district where the topic of the meeting is limited to items directly related to the facility

– Visiting offices of legal counsel for a closed session on pending litigation, provided the meeting reduces legal costs and meeting is notified as a special meeting

Where Can Governing Boards Meet?

• These additional exceptions relate specifically to school district governing boards:– Attending a conference on non-

adversarial collective bargaining techniques

– Interviewing members of the public regarding potential superintendent candidates

– Interviewing a potential employee from another district

Board Member Participation by Teleconference

• Teleconferencing is allowed when necessary if: – agendas are posted at each teleconference

location– teleconference location is identified in the

meeting notice and agenda – the teleconference location is accessible to the

public and the public is allowed to address the board at each teleconference location

– at least a quorum of the members must participate from locations that are within district boundaries.

– ALL votes are taken by roll call

Board Meeting Anatomy

Big-picture items• Do your bylaws and policies reflect

what you do as a board? • Review board bylaws (CSBA’s 9000

series)

Board Meeting Anatomy

Big-picture items

• Be welcoming

• Have agendas and items of interest available– Welcome letter– Brochure– Agenda / agenda packet– Speaker cards

• Ensure that people who wish to speak or present a complaint know what to do

Board Meeting Anatomy

• Review sample board agenda

• Remember: Every board meeting begins and ends with an open session

Board Meeting Anatomy

• Generally, 20 words or less for an agenda item

• Members of the public may place items on the agenda

• School district retains discretion to decide whether item is within their jurisdiction(Mooney v. Garcia (2012) 207 Cal.App.4th 229.)

Board Meeting Anatomy

Building the agenda:

• Do we want agenda time estimates?

• Do we label items “conference” or “action”?

• Brown Act requires brief description of business to be “transacted or discussed”

Board Meeting Anatomy

Every agenda item has• Staff presentation• Board discussion • Public comment• Action

Public comment must be “before or during” consideration of item

Board Meeting Anatomy

Consent agenda

• Law usually does not dictate whether items must appear on consent agenda or separately

• Exceptions:– Board’s preference – Transparency– Public hearings– Items specified by statute

Board Meeting Anatomy

Vote requirements• Action is taken by a

majority of all board members, not a majority of those present (Ed. Code, § 35164)

• Some items require super-majority vote – Emergency public

works projects– Adding items to

agenda

Meeting Tips

Handling public comment

• Board Bylaws – set limits on time per speaker and total per item

• Responding to complaints / charges

• Asking questions of staff • Referring matters to staff

Meeting Tips

Board meeting minutes

• Transcript or record? • Education Code only

requires that minutes be kept and official actions are recorded

• Record times, actions taken, persons present, persons who speak

Acting on Non-Agendized Items• Generally, the legislative body may not

discuss or take action on any item that does not appear on the posted agenda

• Four categories of exceptions

to this general rule:1. Emergency Situation2. “Subsequent Need” Items3. Held-over Items4. Announcements/

Responding to Public Comments and Questions

“Subsequent Need” Items

• “Subsequent Need”– The board may act upon an item not

appearing on a regular agenda upon a finding that there is a need for immediate action and the need for action came to the attention of the local agency after the agenda was posted

– The board must make that finding by a two-thirds (2/3) vote of the members present or by unanimous vote if less than two-thirds (2/3) of its members are present

Materials Distributed During Open Session

• If a writing relating to open session is distributed less than 72 hours prior to a regular meeting to all, or majority of board, a district must:

• make available for public inspection at a public office or designated location listed on agenda; and

• include the address of this designated location on the agendas for all board meetings

• The district may also post the writing on its website (clearly marked).

Materials Distributed During Closed Session

• Writings distributed for closed session are exempt from public disclosure if otherwise exempt under the Public Records Act

• The board has the right to control the conduct of its meetings, including placing reasonable time limitations on public comment.

Conduct of the Meeting

Public Participation

• Must provide time for public input

• Respectful treatment of every person

• Fair, equitable treatment– Same time limits

Public Comment • Two kinds of public comments:

– At regular meeting, allow general public comments on any item within the agency’s jurisdiction

– At every meeting (general or special) must allow public comments before or during the consideration of each agenda item

Public Participation

• Board may not prohibit public from criticizing the policies, procedures, programs, or services of the agency, or the acts or omissions of the legislative body even if criticism is about the performance of its employees.(Gov. Code, § 54954.3 (c); Baca v. Moreno Valley Unified Sch. Dist. (1996) 936 F.Supp.719.)

Responding During Public Comments

In response to public comments, the board may:

• Briefly respond to statements made or questions for clarification

• Request staff to report back at a subsequent meeting

• Direct staff to place the matter on a future agenda

Recording/Broadcasting Meetings• Media and public may record and broadcast

meetings (Audio, video, motion)

• Radio and TV are expressly permitted to broadcast & telecast open meetings

• Board cannot prohibit recording or broadcasting unless it makes a finding of persistent disruption

• Any district recording becomes a public record, must be kept for 30 days

Disruption• Board has right to order disruptive

persons to be removed from meeting, and if order cannot be restored, can order the room cleared and then continue with meeting

• Caveat: Actions that constitute disruption are highly fact-specific

Example: holding signs v. yelling or interrupting speaker

Voting

• No secret ballots

• New - Senate Bill 751 – Requires the board publicly report

any action taken in open session and each member’s vote or abstention on that action• The minutes should include each

member’s vote or abstention on an action

• Closed sessions are permitted for certain matters where it is necessary to conduct business in private

Closed Sessions

Closed Sessions

• Closed session items must be identified on the agenda

Closed Sessions

• Governing boards must announce in open session the basis for closed session– Announce orally by

referring to agenda items for closed session

• No legal obligation to take or keep minutes

Common Closed Session Topics

• Real property negotiations• Litigation – pending or threatened• Appointment, employment,

evaluation of performance, employee discipline or dismissal

• Labor negotiations• Student discipline matters and

student record challenges• Public building security

Reporting Out Actions Taken in Closed Session

• Brown Act requires an open session report on some actions taken in closed session, and the vote by each member. Common reports include: – Approval for legal counsel to defend,

initiate, or settle litigation – Disposition of liability claims – Action to employ, dismiss, release, or

affect the status of any employee. Job title and any change in compensation must be reported. A decision to retain an employee is not a change

Reporting Out Actions Taken in Closed Session

• Reports may be oral or written• Copies of agreements must be made

available to the public

Reporting Out Actions Taken in Closed Session

• The timing of reporting out may in some circumstances be deferred to a subsequent meeting or upon inquiry

Who May Attend the Closed Session

• Generally, only board members and necessary support staff may attend a closed session

• Note: – If district staff are allowed to attend,

then parents, student, and student’s counsel must be allowed to attend a closed deliberation session regarding whether to expel a student

• Information acquired in closed session is confidential

• Board members must not speak publically about matters discussed in closed session

• Possible negative consequences for revealing information discussed in closed session

Closed Session Confidentiality

Closed Session Confidentiality• Negative consequences include:

– Injunction to prevent disclosure of confidential information

– Disciplinary action against an employee who willfully disclosed confidential information

– Referral of a member of the board who willfully disclosed confidential information to the grand jury

Intentional Violations of the Brown Act Are Misdemeanors

• A member of the board who attends a meeting where action is taken in violation of the Brown Act and where the member intends to deprive the public of information that the member knows the public is entitled to is guilty of a misdemeanor

(Gov. Code, § 54959.)

Questions?

Thank You!

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