Ralph M. Brown Act
Mary Beth de Goede
de Goede, Dunne, and Martin
Professional Law Corporation
1725 N. Fine Ave. Fresno, CA 93727
Meetings Covered by the Brown Act
Brown Act Definition: 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
Updates and Informal Exchanges
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,
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
Also don‟t forget, written communication, including e-mails, are
more often than not public records.
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.
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.
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,
The Bottom Line: Except in very limited situations, the Board
MUST ALWAYS avoid 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.
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)
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
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
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
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.
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.
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.)
of the Board
must have a
Public Notice 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 hours in 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
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:
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
No Agenda Item, No Action
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
No Agenda Item, No Action
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.
are the only exceptions to the
requirement that the public‟s
business be conducted in
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.
More Closed Session
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
The Most Common Reasons for
1. Personnel Matters (§54957)
Public employee appointment or
Evaluation of employee performance
Discipline, Dismissal or Release
Complaints against employees
Pending Litigation §54956.9
Threatened or Anticipated 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.
Real Estate Negotiations
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
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
Adjourning or Continuing
section §54955 permits
the Board to adjourn a
regular, special or
meeting to a time and
place specified in the
order of 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
Where Can the Board Meet?
Although exception do exist,
Board meetings should
normally be held within the
boundaries of the District.
[Government Code section
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.
Exceptions To Staying Local
Meetings may be held outside District boundaries for
the following reasons:
To comply with state or federal law or attend a judicial or
administrative proceeding to which the agency is a party.
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.
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
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.
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)
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
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
The agenda must provide for public comment at each teleconference
The Public‟s Right to
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
However, it is still the Board‟s meeting and
Government Code §54957.9 does allow the Board
to exclude persons who willfully disrupt its
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.
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."