1. The Brown Act and You February 19, 2015 CCSESA CBO Conference

2. Open Meeting Law

3. Who?

4. What does the Brown Act require? 1.That actions and deliberations be taken openly and in public – unless there is a specific exception. 2.Meeting agendas and board packets must be made available upon request in appropriate alternative formats to persons with disabilities.

5. 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.

6. Prohibited Meetings Attempts to reach a “collective concurrence” outside a properly noticed meeting. –Serial phone calls or conversations –Use of intermediaries to develop “collective concurrence” –Board “polling”

7. Email Communications Beware “Reply All” email communications with board members. Ensure email contains a confidentiality statement.

8. Email Communications 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).)

9. Meetings can occur through the use of intermediaries. Serial Meetings

10. 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)

11. 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)

12. Serial Meetings Two types of meetings: –Linear meeting: A phones B; B phones C –“Hub and spokes”: A emails B; A emails C ABAB BCBC Linear

13. 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

14. What Doesn’t Constitute a Meeting? –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

15. Committees Subject to the Brown Act if they are created by resolution or other formal action by the governing board. (Gov. Code, § 54952 (b))

16. Committees The California Attorney General has opined that “formal action of a legislative body” is not limited to formal resolution or formal vote. 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.)

17. 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 formal action of the legislative body that created it.” (Attorney General’s Brown Act Handbook)

18. Ad Hoc Advisory Committees –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

19. Brown Act Committee or Not? 7-11 Committee Facilities Subcommittee Architect Hiring Committee Interview Panel for Deputy Superintendent Position Bond Oversight Committee

20. Time & Place of Meetings

21. Regular Meetings –Governing boards set the TIME AND PLACE by resolution, bylaw, or other rule –72 Hour Notice

22. Special Meetings –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 Posting in a location that is freely accessible to the public and posted on the district’s website

23. Emergency Meetings Emergency situation exists when prompt action is required due to the disruption or threatened disruption of public facilities and services 1 Hour Notice Attempts must still be made to contact the media

24. Where Can Governing Boards Meet? Meetings must be within school district boundaries except under limited circumstances.

25. Board Member Participation by Teleconference

26. Building an 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.”

27. 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

28. Public Comment Public comment must occur “before or during” consideration of item.

29. 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

30. Voting No secret ballots 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.

31. 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 Situation 2. “Subsequent Need” Items 3. Held-over Items 4. Announcements/ Responding to Public Comments and Questions

32. “Subsequent Need” Items –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

33. Materials Distributed During Open Session

34. Meeting Tips – Addressing Public Comment Work with your Board on Bylaws – consider set limits on time per speaker and total per item. Work with your Board on asking questions of staff and be prepared to provide information to the Board. Sometimes follow up is the best course.

35. Meeting Tips - Contracts Agree on policy and procedure for contract approval. Separate agenda item? Place on consent agenda? Has the board delegated authority to staff? Ed. Code §§ 17604-17605 allow staff to make contracts for supplies / services up to bid limit.

36. 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

37. 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

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

39. Closed session items must be identified on the agenda

40. Allowable Closed Session Topics Real property negotiations Litigation – pending or threatened Appointment, employment, evaluation of performance, employee discipline or dismissal Labor negotiations Public building security

41. Use “Safe Harbor” Language CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION (Subdivision (a) of Section 54956.9) Name of Case: Best School District v. Worst Defendant, Sacramento Superior Case No. 04-2014-000000

42. 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. –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.

43. Reporting Out Actions Taken in Closed Session Reports may be oral or written Copies of agreements must be made available to the public.

44. 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.

45. Who May Attend the Closed Session Only board members and necessary support staff may attend a closed session. Limited exceptions may exist in student and employee discipline context.

46. Information acquired in closed session is confidential. Attendees must not speak publically about matters discussed in closed session. Possible negative consequences for revealing information discussed in closed session. Confidentiality

47. Breach of Confidentiality –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

48. 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.)

50. Questions?

51. Thank You!

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