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					 California‟s Open
  Meeting Laws
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
           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.
     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.
        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.
             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 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.
                  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)
                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.
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.
   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.)
    Meeting Agendas

All meetings
of the Board
must have a
properly
prepared and
posted
agenda.
      Public Notice Requirements
 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 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
      own activities.
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.
         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.
      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.
     Closed Sessions
are the only exceptions to the
requirement that the public‟s
  business be conducted in
           public.
  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
           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.
The Most Common Reasons for
       Closed Sessions
 1. Personnel Matters (§54957)

Public employee appointment or
 employment
Evaluation of employee performance
Discipline, Dismissal or Release
Complaints against employees
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.
       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.
 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
     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.
                     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”.
 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.
    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.
     §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)
        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)
 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.
     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.
                    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."

				
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