California’s Open Meeting Laws Ralph M. Brown Act

1. California’s Open Meeting LawsRalph M. Brown Act Mary Beth de Goede de Goede, Dunne, and Martin Professional Law Corporation 1725 N. Fine Ave. Fresno, CA 93727

2. Meetings Covered by the Brown Act Brown ActDefinition: A meeting is a gathering of a majority of board members to hear, discuss or deliberate any item of District business or potential business.A meeting under the Brown Act does not have to include a vote or formal action, or a vote, and can occur simply through the exchange of information. There are three types of meetings: • Regular- The District must formally set the time and place for their regular meetings in Board Policy/Regulations, by resolution, or some similar formal rule. • Special– meetings called by the agreement of a majority of the Board to discuss a specific issue, such as an expulsion. • Emergency – meetings held, as allowed in Section 54956.5 of the Act, to deal with emergency situations

3. Updates and Informal Exchanges of Information • Even the collective acquisition of information, or the sharing information, regarding District business among a majority of the Board members is NOT permitted without satisfying the notice and agenda requirements specified in the Act. For example, it would be a violation of the Brown Act to specifically circulate a proposal among Board members for review [as opposed to including the proposal in the Board’s meeting packet], even though formal approval of the proposal is scheduled to take place at a noticed, public meeting. • The passive receipt of an individual Board member’s mail or the solitary review of a memorandum by an individual Board member will not amount to a meeting, even if all of the Board members receive the same correspondence or memo, as long as they review the information individually and any discussion occurs at noticed pubic meeting. • Also don’t forget, written communication, including e-mails, are more often than not public records.

4. Warnings About Meetings • The Board CAN NOT meet to discuss District business outside of a public meeting. • Example: In 1968 the Sacramento Newspaper Guild sued the Sacramento County Board of Supervisors because five county supervisors went to lunch with, the county counsel, a variety of county officers, and union representatives to discuss a strike. The court ruled in favor of the Newspaper, concluding that despite the social setting, the gathering constituted a meeting and in violation of the open meeting regiment.

5. Meeting Exceptions • Conferences– A majority of the Board may attend a conference together provided the members do not discuss District business. However, the Board may talk about issues within its subject matter jurisdiction as long as that discussion is generic in nature, part of the conference program, and the conference is open to the public.

6. Meeting Exceptions(Continued) • Community Meetings – A Board majority may attend community meetings together. For example, a Board majority may attend a meeting in the community held to discuss whether land should be dedicated for a new park. • Noticed Public Meetings of Other Legislative Bodies – For example, a meeting of the Fresno City Council. • Social or Ceremonial Events – There is nothing in the Act to prohibit Board members from attending purely social or ceremonial gathering. For example, funerals, weddings, etc. • The Bottom Line: Except in very limited situations, the Board MUST ALWAYSavoid talking about District business while at any of the above events. The only time Board members may can discuss District Business outside a noticed, public meeting is during closed session or as part of another public agency’s agenda and the agenda has been properly posted. For example, if the City Council requested that the Board attend a Council meeting to discuss District facilities and the Council had properly posted notice of the meeting.

7. Special Meetings Conditions for a special meeting: • Government Code section 54956 requires that written notice of a special meeting be delivered to each Board member and to each local newspaper of general circulation, and to any radio or television station that has requested such notice in writing. • The written notice must be delivered and posted at least 24 hours prior to the special meeting in a site freely accessible to the public. The notice must include the time and place of the meeting, and a brief description of all business to be transacted or discussed. (§54956) • The Board may not conduct any business other than what is listed on the agenda for the special meeting. • Notice is required even if no action is taken at the meeting. • As with regular meetings, every special meeting must allow the public an opportunity to comment on any item on the agenda. (§54954.3(b)

8. Subcommittees • The Brown Act also applies to meetings of all: • Standing committees – a committee that has continuing jurisdiction over a particular topic. For example: budgets, finance, school construction. [Government Code §54952(b)] • Advisory committees that include a majority of the Board and are not standing committees, e.g. do not have continuing jurisdiction over a particular topic. • Advisory committees that are standing committees (regardless of the number of Board members), e.g. have continuing jurisdiction over a particular topic. • Exception:The Brown Act does not apply to an advisory committee that is made up of less than a majority of Board members, AND, does not have continuing jurisdiction over an issue.

9. Do Not Succumb to the Serial Meeting Trap • Serial meetings are forbidden. • Serial meetings occur when substantive conversations take place among a majority of the Board members outside of a public meeting concerning an item on an agenda, or likely to be placed on an agenda, and those conversations contribute to the development of a collective concurrence. • Ways to Develop a Collective Concurrence: • Conversation to advance or clarify a Board member’s understanding of an issue. • Conversations to facilitate an agreement or compromise among Board members. • Conversations that advance the ultimate resolution of an issue.

10. How Serial Meetings Happen • “And Then He Said” : • Example: Board member Jones calls Board member Smith to discuss the disposal of certain surplus equipment. When Board member Flores calls Smith to get the Superintendent’s cell number, Smith talks to Flores about the surplus equipment. Board member Flores happens to see Board member Vang at Save Mart and mentions the surplus equipment to him and they talk about its disposal. A majority of the Board members have now had substantive talks about the topic which have contributed to, or will most certainly be perceived as contributing to, the development of a collective concurrence. • Hub and spoke meeting: • Example: The Director of Transportation talks to a Board member about purchasing energy efficient buses and then calls several other Board members to see what they think about the purchase. When the Director tells each member what the other members have said, the Transportation Director has become the “hub” of an illegal serial meeting.

11. E-mail: The Perfect Medium for a Serial Meeting • The Brown Act prohibits the use of any direct communication, personal intermediaries, or technological devices by a majority of Board members to discuss, deliberate or develop a collective concurrence as to action to be taken on any item. [Government Code § 54952.2(b)] • California’s Attorney General has concluded that technological devices include e-mail. In fact, the Attorney General said that a violation of the Brown Act would still exist even if after a majority of the board e-mailed each other about a current issue within the District’s jurisdiction, those e-mails were posted on the web and printed versions were reported at the next public meeting. The Attorney General said that the e-mails constituted deliberations among the Board members outside the purview of the public. • The opinion also states, “The term ‘deliberation’ has been broadly construed to connote ‘not only collective discussion, but the collective acquisition and exchange of facts preliminary to the ultimate decision.’ [Citation.]” (Rowen v. Santa Clara Unified School Dist. (1981) 121 Cal.App.3d 231, 234; see Roberts v. City of Palmdale, supra, 5 Cal.4th at p. 376.)

12. Meeting Agendas All meetings of the Board must have a properly prepared and posted agenda.

13. Agenda Requirements: Posting– Agendas must be posted at least 72 hours before a regular meeting in a location freely accessible to the members of the public.Special meeting agendas must be posted 24 hoursin advance. Contents –An agenda should contain a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. Agendas must have enough information to enable members of the general public to determine the general nature of subject matter of each agenda item to be discussed. With the exception of three distinct situations outline below, the Board can not discuss or take action on any item that is not on the agenda. Please note that the general prohibition against discussing items not listed on the agenda does not apply when either a Board member or staff member, on his/her own initiative , or in response to a question from the public, asks for r clarification, makes a brief announcement ,or presents a brief report on his/her own activities. Public Notice Requirements

14. Action On An Item Not Listed on the Agenda is Permitted in Three Situations • Three exceptions exist to the rule that the Board may only act on those items specifically listed on its agenda: Emergency situations A need for immediate action Items posted on a previous agenda • Exception No. 1: Emergency.An emergency exists if the Board decides that a work stoppage, crippling disaster, or other activity has severely impaired public health, safety or both. • This exception would generally only apply on very rare occasions. • For example, a newly constructed, but still unoccupied, two story classroom building collapses right before the regular board meeting and well after the agenda’s posting. The Board President initiates a discussion of whether to hire emergency personnel to barricade the area around the collapsed building and clean up the debris. The Board would be permitted to vote on the issue because of the danger to health and safety.

15. No Agenda Item, No Action EXCEPT: • Exception No. 2: Need to Take Immediate Action, • The Board my act on an item that is not on the agenda if the Board decides by a 2/3rds vote that there is a need for immediate action that cannot reasonably wait until the next meeting. (§54954.2(b)(2)) • Requirements to use this exception: The issue must have come to the attention of the board after the agenda was posted. The board must openly discuss the issue during the meeting. • Example: The day before the regular board meeting, the Superintendent advises the Board President that a report to the State Department of Education is due at the end of the week and while an extension of time can be obtained, there is a very steep financial penalty. The Superintendent recommends the hiring of an expert to assist with the completion of the report. The Board President discusses the matter in open session, telling the Board that this issue arose after the agenda was posted and it will be too late to avoid the financial penalty if the Board waits until its next meeting to consider hiring the expert. In this situation the Board could, by 2/3rds vote, add the item to the agenda and act on it.

16. No Agenda Item, No Action EXCEPT: • Exception No. 3: Item On Previous Agenda. When an item appeared on a previous agenda and was continued from a meeting held pursuant to that agenda not more than five days earlier, then the Board can take action on the continued item even though it is not specifically listed on the new agenda. • Example: After a healthy debate in open session, the Board cannot agree on whether to drug test all athletes and so the members continue the matter to their next scheduled board meeting which happens to be two days later when the Board is set to review the budget. The Board may consider and act on the drug testing issue at the budget meeting.

17. Closed Sessionsare the only exceptions to the requirement that the public’s business be conducted in public.

18. Closed Session Requirements • The Attorney General has stated, “If a specific statutory exception authorizing a closed session cannot be found, the matter must be conducted in public regardless of its sensitivity.” [Government Code § 54962; Rowen v. Santa Clara Unified School District (1981) 121 Cal.App.3d 231, 234; 68 Ops.Cal.Atty.Gen. 34, 41-42 (1985).] • Items to be discussed in closed sessions must be on the agenda and must be orally announced before going into closed session. The agenda must include the reason for the closed session and a brief description. It is always a good idea to cite the section of the Brown Act that allows for the closed session. • Meetings are either open or closed and the Board does not have the discretion to invite only certain members of the public into closed session while excluding others. Closed sessions should include only Board members, the Superintendent, legal counsel, and depending on the nature the item to be considered in the closed session, the administrative/managerial staff appropriate to the issue.

19. More Closed Session Requirements • Public comment on closed session business In its guide to the Brown Act, the Office of the Attorney General has stated, “it would be prudent for legislative bodies to afford the public an opportunity to comment on closed session items prior to the body’s adjournment into closed session.” (CA Attorney General’s Office, pg. 19) • Decisions reached in closed sessions must be discussed in public immediately after the closed session.

20. The Most Common Reasons for Closed Sessions1. Personnel Matters (§54957) • Public employee appointment or employment • Evaluation of employee performance • Discipline, Dismissal or Release • Complaints against employees

21. Pending Litigation §54956.9 • Existing Litigation • Threatened or Anticipated Litigation • Potential Litigation • The Attorney General states that the Board’s attorney must be present either in person or by teleconference means in order to use this exception.

22. Real Estate Negotiations (§54956.8) • Closed session are authorized if the Board is meeting with its negotiator to discuss the purchase, sale, exchange or lease of real property. • But, please note, that before going into closed session, the Board must name its negotiator (who may be an employee of the District), describe the property, and name the parties the District is negotiating with.

23. Labor Negotiations (§54957.6) • The Board may use closed sessions to meet with its negotiator regarding the Board’s position on any matter within the scope of representation when related to employees represented by an employee organization. For unrepresented employees, the Board’s discussion in closed session with its negotiator is limited to salaries, salary schedules, and fringe benefits. • But as with closed sessions regarding real property, the Board must identify its labor negotiators during the public meeting before moving into closed session

24. Adjourning or Continuing Meetings • Government Code section §54955 permits the Board to adjourn a regular, adjourned regular, special or adjourned special meeting to a time and place specified in the order of adjournment.

25. Adjournment • If less than a quorum is present, the directors who are present can adjourn the meeting. • If no directors are present, the clerk or secretary of the legislative body may declare the meeting adjourned to a stated time and place. The clerk or secretary must create a written notice. • The Act gives very specific instructions on posting notice of the adjournment. §54955 states, “A copy of the order or notice of adjournment shall be conspicuously posted on or near the door of the place where the regular, adjourned regular, special or adjourned special meeting was held within 24 hours after the time of the adjournment”.

26. Where Can the Board Meet? • Although exception do exist, Board meetings should normally be held within the boundaries of the District. [Government Code section §54954(b)]. • Meetings must be held in facilities that permit admittance of any person regardless of race, religious creed, color, national origin, ancestry, or sex; which are accessible to disabled persons; and where no one is required to make a payment or purchase to enter.

27. Exceptions To Staying Local • Meetings may be held outside District boundaries for the following reasons: • To comply with state or federal law orattend a judicial or administrative proceeding to which the agency is a party. §54954(b)(1) • To inspect real property that can not be easily brought within the district boundaries. The meeting discussion is limited to the property under inspection. §54954(b)(2) • To participate as a body in a multi-agency meeting held in another jurisdiction as long as the meeting takes place within the boundaries of one of the agencies involved in the meeting. §54954(b)(3) • If the District does not have a facility within its boundaries, then a meeting can be located in the closest facility or at the principal office of the District if the office is located outside the district boundaries. §54954(b)(4)

28. Exceptions Continued • To meet with elected or appointed federal or state officials when a local meeting would be impractical. However, discussion must be limited to a legislative or regulatory issue affecting the district that the federal or state officials have jurisdiction over. §54954(b)(5) • To meet at or nearby a facility owned by the District that is outside its boundaries, if the topic of the meeting is limited to items related directly to that facility. §54954(b)(6) • To visit the office of the District’s legal counsel for a closed session on pending litigation when doing so would reduce legal fees or costs. §54954(b)(7) • Finally, if there is an emergency that makes the regular meeting location unsafe, the meetings can be held elsewhere until the emergency is over, as long as the Board President designates alternative meeting site and sends written notice to the media by the most rapid means of communication at that time. §54954(e)

29. The Brown Act Permits Attendance At Meetings By Teleconference • Government Code § 54953(b)(1) permits the use of teleconferencing to enable a Board member to participate from a remote location via electronic means.. • Requirements for teleconference attendance include: • Teleconferences must comply with the rest of the Act • All votes taken during a teleconference must be taken by roll call. • Agendas must be posted at all teleconference locations. • Each teleconference location must be identified in the agenda. • Each teleconference location must be accessible to the public. • At least a quorum of the board must participate from locations within the district boundaries. • The agenda must provide for public comment at each teleconference location.

30. The Public’s Right to Criticize • The Board must allow the public to criticize District policy, procedure, programs, services, and even Board members or District staff. Restricting negative commentary can be a First Amendment violation. • However, it is still the Board’s meeting and Government Code §54957.9 does allow the Board to exclude persons who willfully disrupt its meeting. • The Board may clear the room and continue the meeting, as long as the press and non-disruptive members of the audience are permitted to stay.

31. Conclusion • In enacting the Ralph M Brown Act, the Legislature declared that the public boards, councils and the other public agencies in California exist to aid in the conduct of the people's business. The intent of the Act is that the meetings, actions and deliberations of public agencies be conducted in public. • "The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created."