Advisory Bodies: The Brown Act, the First Amendment and Other Issues California Council of School Attorneys May 15, 2009 Burlingame, California © 2009 by the Orange County Superintendent of Schools

Purpose and Scope of the Brown Act To give the citizens of California access to government agencies and prohibit governmental decisions from being made in secret. To require that the actions and deliberations of the governing boards of local public agencies shall be taken openly and in public.

Purpose and Scope of the Brown Act To require that all meetings and deliberations, including discussion, debate and acquisition of information are conducted in public and subject to public scrutiny except when the closed meeting exceptions apply. The Brown Act does not apply to meetings of employees of public agencies (e.g. staff meetings).

Legislative Body The governing body of a local agency. A commission, committee, board, or other body of a local agency, whether permanent or temporary, decisionmaking or advisory, created by a resolution or formal action of the legislative body.

Legislative Body Advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body, are not legislative bodies except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by resolution or formal action of the legislative body, are legislative bodies for purposes of the Brown Act.

Legislative Body In Frazer v. Dixon Unified School District, the Court of Appeal held that meeting of a committee created by the adoption of a board policy to establish a committee appointed by the superintendent was subject to the Brown Act because the policy was created by formal action of the board. The court held that the creation of the committee pursuant to a standing policy is sufficient to constitute formal action by the board.

Legislative Body In a 1996 opinion, the Attorney General stated that under the Brown Act, a committee made up solely of less than a quorum of the members of a public water district was subject to the Brown Act since it was a standing committee with continuing subject matter jurisdiction over providing advice concerning budgets, audits, contracts, and personnel matters to the entire board.

Advisory Bodies Advisory bodies may include the Community Advisory Council for Special Education, advisory committees for English language learners, school site councils and other similar advisory committees.

USE OF PUBLIC FUNDS In general, public funds may not be used for partisan election campaigning, but may be used to disseminate objective information. Public funds may be used to engage in lobbying activities directed toward the members of the Legislature or Congress, because these expenditures are specifically authorized by statute.

USE OF PUBLIC FUNDS The courts have held that public funds belong equally to the proponents and opponents of a particular candidate or ballot measure. The use of public funds to aid one side or another in a partisan election would be unfair and unjust to the other side, and would be damaging to the democratic process.

Dissemination of Objective Information Education Code section authorizes the governing boards of school districts to inform and make known to the citizens of the district educational programs and activities of the schools.

Dissemination of Objective Information Pursuant to Section 35172, districts may provide the public with objective data and factual information with respect to school finance and changes in educational programs likely to result from proposed initiatives, but may not use public funds to promote the passage or urge the defeat of proposed initiatives.

Legislative Lobbying Various provisions of the Government Code authorize the legislative body of a local agency to lobby members of the Legislature and Congress. The courts have recognized the distinction between election campaigning and legislative lobbying.

Legislative Lobbying The courts have held that the legislative process contemplates that interested parties will naturally attend legislative hearings to explain the potential benefits or detriments of proposed legislation on local agencies.

Legislative Lobbying Therefore, public agency lobbying within the limits authorized by statute, in no way undermines or distorts the legislative process.

Legislative Lobbying By contrast, the use of the public treasury to mount an election campaign which attempts to influence the resolution of issues left to the people to decide at an election does present a serious threat to the integrity of the electoral process.

Legislative Lobbying The courts will look at the audience promotional activities are directed to. The courts have held that it is one thing for a public agency to present its views to the legislature and quite another for it to use the public treasury to finance and appeal to the voters to lobby their Legislature in support of the agency’s point of view.

Distinguishing Between Election Campaigning and Objective Information The courts have not drawn a clear line between prohibited election campaigning and permissible objective information. Public agencies may generally publish a fair presentation of facts relevant to an election matter.

Distinguishing Between Election Campaigning and Objective Information The determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor, and timing of the publication.

First Amendment Rights of Public Employees Generally, district officers and employees should not engage in political activities during working hours and on the premises of the local agency in the presence of students.

First Amendment Rights of Public Employees Districts may adopt policies with respect to officers and employees engaging in political activity during working hours and engaging in political activities on the premises of the school district.

First Amendment Rights of Public Employees The courts have held that public officers and employees have a First Amendment right to speak freely, so long as it does not result in any disruption or impairment of discipline or materially interfere with school activities.

Political Activities in the Classroom The courts have held that a school district may prohibit the wearing of political buttons by teachers in the classroom during instructional time. The courts have also held that a district could not prohibit employees from wearing political buttons when the employees were not engaged in instructional activities.

Political Activities in the Classroom The California Attorney General has issued an opinion that teachers could wear political buttons at a back-to-school night since students were not present.

Political Activities in the Classroom Based on court cases and the Attorney General’s opinion, it appears that a school district may prohibit employees from passing out literature, wearing political buttons, or engaging in other political activities in the classroom during working hours or when students are present.

Political Activities Outside the Classroom A school district may not prohibit employees from engaging in political activities on school property outside of the classroom during nonduty hours to nonstudents. A school district may not prohibit an employee from discussing political issues with other employees during nonduty hours.

Political Activities Outside the Classroom It is unclear whether teachers may wear political buttons when students and parents are present at an event, such as open house.

School Board Members Members of the governing board may privately, as individuals, participate in the political process and campaign for the passage or defeat of a ballot measure. School district employees may campaign outside of working hours as private individuals.

School Board Members School officials should make it clear to the public that when they are contributing money or working on campaigns, that they are doing so as private individuals and that they are not acting on behalf of the district or spending district funds.

School Board Members Public officials have the right to speak out on partisan matters as long as there is no improper expenditure of public funds by such officials.

School Board Members A school board or advisory body may go on record at a public meeting as being in favor of or opposed to a particular measure.

Advisory Bodies Advisory committees are subject to the Brown Act and supported with public funds. Advisory committees are subject to the same laws and regulations as public officers and employees.