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2008 01-16 Ralph M. Brown Act Purpose and Intent The Brown Act was adopted in the early 50's. The legislature declared that public boards exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. 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. The purpose is that the public has a right to know - use that as a balance and construe it broadly. There is a strong presumption in favor of the public's right to know, and how their decision makers are making their decisions. Even so, the legislature recognizes that under certain circumstances there is a legitimate government interest where the public is better served by decision-making in private - this can only happen if prescribed by statute and are known as closed sessions. Confidential closed sessions may be held but should be construed narrowly. (More on closed sessions later.) Legislative Body What Bodies and What Meetings? The Brown Act covers virtually every type of local governmental body, elected or appointed, decision-making or advisory, permanent or temporary. PUD's, Cities, Counties, Fire depts., cemetaries, etc. are all subject to the Brown Act. State Boards are governed by the Bagley Keene Act which is similar. School Boards are governed by the Education Code. And our Legislature is subject to none! (surprise!) The Brown Act applies to new members who have been elected or appointed but have not yet been seated. Permanent Committees (standing committees that meet on a continuing basis or have a continuing subject matter) are created by our Board must meet Brown Act requirements, but temporary (ad hoc) committees do not. Ad hoc's can't be in place for long periods of time. Standing committees have more constraints. Two member committees. A 3rd can now listen but since creates a majority, not allowed to participate. That 3rd board member has fewer rights than the public. When a committee is formed by other than the legislative body (e.g. the general manager), it is not subject to the Brown Act). A meeting subject to the Brown Act includes not only a formal gathering, but also communication by any other method involving a majority of the decision-making body. What is a meeting? Meetings are broadly defined. It is when "any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains." "Any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of a legislative body to develop a collective concurrence as to action to be taken on an item by the legislative body is prohibited." GC54952(b) Including Serial Meetings: One of the most frequently asked questions about the Brown Act involves serial meetings. Such meetings at anyone time involve only a portion of the Board, but eventually involve a majority. The problem with serial meetings is the process, which deprives the public of an opportunity for meaningful participation in decision-making. A meeting may occur even when a majority of the decision-making body is not in the same place at the same time. Although individual contacts or conversations are not prohibited between a member of a legislative body and any other person, it must be kept in mind that the Brown Act does. however prohibit a series of such individual contacts if they result in a so-called serial meetings (sometimes referred to as a "daisy-Chain") . These Serial meetings occur when Member A contacts Member B. Member B. then contacts Member C. Member C. then contacts Member D. and son on until a quorum is reached and a collective concurrence is established. For example - outside a noticed meeting Board Member A calls Member B re: item on agenda or to discuss any District business. Then director B in turn calls director C and says that Director A and I think this is a great idea, what do you think? This is a serial mtg. Even if Director C wasn't told of Director B's opinions, this is still a serial mtg. Because a collective concurrence was established. The proper response from Director C would be "Please don't call again because this violates the Brown Act." A board member also cannot use the attorney, GM or clerk to do polling of others and convey it back. You need to be aware of emails - if a majority either receive or reply to one, since the transmission of the member's ideas could result in a majority of the body reaching a collective concurrence. This can easily occur when a member selects "reply to all" instead of just the sender in response to a message from staff. Most people try to avoid the serial meeting rule but it's difficult given human nature. The Brown Act is violated every day just because of ooops! Just remember - communications, even through an intermediary, which involves a majority of the decision-making body discussing or taking action on the District's business, is a violation. Meetings Exceptions Individual Contacts - one way vertical contact, such as the GM calling all 5 board members to tell them about a sewer leak - that's ok. Imparting information to each of them is allowed and they can even express their opinions. Only when they share among the 5 of them is it a problem. When the GM is polling the board re: the sewer break that needs a $10,000 repair - he needs it now and can't wait for a meeting - this is marginal - the GM is trying to assess the opinions of the Board - instead the GM should send a memo stating what has happened, and what he's plans to do and state if I don't hear from you I'm going ahead. That's the most legal way to handle that. It is also ok for 1 Board member to distribute information to the other 4 - just no discussions. The Brown Act allows individual contacts between a member of the decision-making body and any other person. Thus a member of the public can have individual contact with directors A, B, C, D, and E. Another example: a developer can meet with two members to give them information, and then can meet with two more, but he cannot relay information from one to another. Board members can attend functions - conferences, social functions such as weddings, funerals, receptions, farewells, football games, etc. these aren't considered to be a meeting - just as long as a majority of the Board doesn't discuss specific matters relating to District business, except as part of the scheduled program. Similarly, all or a majority of the Board may attend a open and publicized community meeting organized to address a topic of local concern as long as the District did not organize the event and the members to not discuss among themselves, other than as part of the scheduled program, specific matters relating to District business. All or a majority of the Board may attend a properly noticed open meeting of another public entity, as long as the attendees do not discuss among themselves, other than as part of the scheduled meeting, specific District business. Retreats or Workshops - these are covered under the Brown Act whether they focus on long-range agency planning, discussion of critical local issues, or on team building and group dynamics. Video Teleconferencing and Conference Telephone Calls A teleconference is a meeting when the members are in different locations, connected by electronic means, through either audio or video, or both. The Brown Act must be complied with and contains the following specific requirements: Teleconferencing may be used for all purposes during any meeting. At least a quorum must participate from locations within our jurisdiction. Additional teleconference locations may be made available for the public. Each teleconference location must be specifically identified in the notice and agenda of the meeting, including a full address and room numbers, as may be applicable. Agendas must be posted at each teleconference location, even if a hotel room or a residence. Each location must be accessible to the public and have technology, such as a speakerphone, to enable the public to participate, and the agenda must provide the opportunity for the public to address the board directly at each location. All votes must be by roll call. 1/1 (, '2D:)~~ When is Action Taken? Action taken means a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or negative decision, or an actual vote by a majority of the members of a legislative body or entity, upon a motion, proposal, resolution, order or ordinance. (GC54952.6) Time and Place While staff can meet wherever they want, generally, a legislative body must hold its meetings within the agencies boundaries. There are exceptions in the Brown Act that allow the Board to meet outside its legislative boundaries. 1) To comply with a state or federal law or any court order, or to attend a judicial administrative proceeding as to which the District is a party. 2) To inspect real property located outside the District's jurisdiction or to inspect personal property which would be inconvenient to bring inside the jurisdiction. 3) To participate in meetings or discussions of multi-agency significance as long as the meetings are held within the jurisdiction of one of the agencies and proper notice is provided. 4) To meet at the nearest available facility if the legislative body has no meeting facility within its jurisdiction or at the principal office of the legislative body if that office is located outside the jurisdiction. 5) To meet with state or federal officials on legislative or regulatory issues affecting the District when a meeting within the District's boundaries would be impractical. 6) To meet in a nearby facility as long as the topic of the meeting relates directly to the facility. 7) To meet in the office of the District's legal counsel for a closed session when such a meeting would reduce legal fees or costs. 8) By teleconference or videoconference in compliance with the Brown Act. 9) Some entities, such as school districts and JPAs have additional exceptions. Access for the Disabled - Must meet in accessible location and must make accommodations to allow disabled persons to participate in open meetings. The time and location for all regular board meetings are set by ordinance. Notice and Agenda Requirements Regular Meetings Effective notice is essential for an open and public meeting. Whether a meeting is open or how the public may participate in that meeting is academic if no one knows about the meeting. The District must post an agenda prior to the regular meeting that contains a brief general description of each item of business to be conducted, and must specify the time and location of the regular meeting. The goal with the agenda is that a reasonable person who was not familiar with the matter would have an understanding of what the legislative body will be discussing and/or upon which action is being taken. Upon request, we have to mail or transmit a copy of the agenda to any person who has filed a written request for such materials. We have an "agenda subscription" process, where as a courtesy, we send reminder letters each year to those who have filed a standing request - each request is valid for one year and must be filed January 1 of each year. We establish a fee to recover the cost of providing the service. Most are now using emails, and result in no cost. The press are always included at no cost. Agendas for regular meetings must be posted at least 72 hours before the regular meeting in a location "freely accessible to members of the public 24 hours a day." (Posting on our website alone is not adequate since there is no universal access to the internet.) Note that the 72 hour noticing requirement pertains to the agenda, but nothing requires the "board packet" to be ready prior to any board meeting. Once you give backup items to the Board, it becomes public record, and a public copy should be made available for review (which is our audience binder) but we don't have to provide each public with a free packet. A new law (SB343, effective 7/1/08) means the agenda must identify the public location where members of the public may obtain any non-confidential materials which relate to a regular meeting agenda item and are distributed to all or a majority of the members of the legislative body less than 72 hours before the meeting. The public can comment both on items on the agenda and items that are not on the agenda. Every agenda for regular meetings must include an opportunity for members of the public to address the Board on any item as long as their issue is related to District business (a subject matter within the District's jurisdiction) and should be kept to the actual five minutes allowed. If they try to talk on an unrelated matter, you don't have to let them speak, but you can if you want. Generally, the Brown Act prohibits the Board from discussing or taking action on any non-agendized item, with the following exceptions: 1) You may briefly respond to statements made or questions posed by a member of the public. 2) You may ask questions for clarification, make a brief announcement, or make a report of your activities. 3) You may refer a matter to staff, request staff report back, or direct staff to place a matter on a future agenda. In addition, even without a comment from the public, the Board or staff may ask for information, request a report back or to place a matter of business on the agenda for a subsequent meeting (subject to its own rules or procedures), ask a question for clarification, make a brief announcement, or briefly report on his or her own activities. However, caution should be used to avoid any discussion or action on such items. If the public is commenting on an agenda item - allow this to happen before the Board takes action. The public has the right to comment before the vote is taken - you can't cut them off by asking for the question. Time limits can be established if there are lots of public wishing to comment. Speaker cards can't be required but you can encourage them (you also can't require the public to sign in, but you can encourage them. It's all voluntary). The Board can adopt reasonable regulations limiting the amount of time for public comment on particular issues, as well as for individual speakers. If a person speaks for one minute, and then wants another minute for rebuttal, you can say no, or you can allow it if you want to. The President should say we understand this is a hotly debated issue and people are repeating the same type of comments over and over - does anyone have any different comments to make? If someone wants to give a huge presentation and say you've set a 3 minute time limit - too bad - 3 minutes is 3 minutes - can't pick and choose who gets more. They also are not allowed to "donate the time" to another speaker. No action may be taken on any item not appearing on the agenda, with exceptions: The Board, under limited circumstances, may: - Take action to direct staff to place a matter of business on a future agenda. - Add a matter to its agenda for discussion and action if the Board identifies the item and either (a) determines by majority vote that an emergency situation exists (as defined by the Br. Act); (b) determines by two-thirds vote that a need exists to take immediate action on the matter and the matter came to the attention of the District after the agenda was posted; or (c) the item was previously posted for a prior meeting of the legislative body, which occurred not more than five calendar days prior to the date of the current meeting and, at the prior meeting the legislative body continued the item to the current meeting. Requests to Appear Before the Board - The public should be able to present their case succinctly. The Board will devote a huge amount of time listening. While everyone should have the right to appear, it is usually to overturn a staff decision or admin. Code. Our decisions are well thought out and usually based upon long-standing procedures and uniformity of enforcement of the Administrative Code. Board members should not be compelled to "speak their mind" on each issue, nor should the Board president solicit input from each member. If they have something to say, they'll say it. If each member were addressed, each would feel compelled to speak, and often ends up reiterating what each other has been saying. Notice and Agenda Requirements Special Meetings Either the Board President or a majority of the Board may call a special meeting at any time. The agency may call a special meeting by delivering written notice to each member of the Board so that each member receives the notice at least 24 hours before the time of the meeting specified in the notice. The notice must also include an agenda that identifies each item to be discussed, as well as the time and place of the special meeting. No other business than what is listed on the agenda shall be considered (no exceptions). Unlike a regular meeting, the Board may not add anything to the agenda for the special meeting. In addition, the Board may restrict public comment solely to those matters on the agenda, and not necessarily hear any matter within the District's jurisdiction. Notice and Agenda Requirements Emergency Meeting Emergency meetings are rarely needed. If they are, the Board Clerk or Board President should contact any press or media who have requested notice at least one hour prior to the emergency meeting by telephone, unless telephone services are not functioning. There is no agenda requirement, and you don't have to take public comments. An emergency meeting may be called when there is an emergency requiring prompt attention due to disruption or threatened disruption of public facilities without having to comply with the 24-hour notice requirement of the special meeting. An "emergency situation" is defined as: (a) work stoppage or other activity which severely impairs public health, safety, or both, as determined by a majority of the Board, or (b) a crippling disaster which severely impairs public health, safety, or both, as determined by majority of the Board. The Board may not meet in closed session during an emergency meeting. Minutes must be posted in a public place for a minimum of 10 days after the meeting. Closed Sessions Closed sessions - Where the public is excluded from a board meeting - are permitted under limited circumstance in order to 1) To protect the public - where disclosure in open session would be detrimental to the district in negotiations or the ability of the district to carry out its functions. 2) To protect individual privacy rights - their right to privacy outweighs the public's interest in disclosure. Agenda requirements - The Brown Act provides certain "safe harbor" provisions which are proposed model formats for agenda descriptions of closed matters. Using these "safe harbor" descriptions avoids a violation of the Brown Act, as long as used correctly. Authorizations for closed sessions are narrow - they are allowed to discuss the following topics only: real property negotiations, litigation (pending, and current), public employee performance evaluation, threats to public security, and a few others the district hasn't used pertaining to JPAs, drug law enforcement, and licenses for persons with criminal records. With limited exceptions the legislative body can take action on any item which is properly agendized for closed session. All actions taken in closed session are not reportable. It is important to distinguish between the two (reportable action vs. action taken). Different types of closed sessions have different reporting requirements. It's best to rely on the advice of staff or legal counsel when in doubt. Following a closed session, the Board must report on certain actions taken and the vote of every elected member present, including abstensions. Attendance - Legal counsel is only required to be present for litigation-related discussions. Other than that requirement, it is up to the board to decide which staff members should be in attendance. (The GM is not required to attend any.) Brown Act Enforcement Misdemeanor Penalties Any Board member who attends a meeting where action is taken in violation of the Act and where the member "intends to deprive the public of information to which the member knows or has reason to know the public is entitled" is guilty of a misdemeanor, and is punishable with six months in jail, $1,000 fine or both (Penal Code 19). (If you knew or should have known a violation took place.) The district attorney or any interested person may file suit for an order declaring certain actions to be in violation of the Brown Act, to prevent future violations, to determine the applicability of the Brown Act to any meeting or action, to invalidate a rule or action intended to discourage expression by a member of the legislative body, to compel the legislative body to tape record closed sessions. Civil Penalties As a prerequisite to bringing a lawsuit, the challenging party must demand that the agency correct the violation and give the agency the chance to cure by providing a written demand within 30 days to the Board to "cure and correct" the alleged violation. The board has thirty days within which to cure and correct. If the Board does not take action during this period, the requesting party has 15 days to initiate litigation. Basically, if there is no downside, rescind the action and redo it, then do it properly. Over-noticing on the agenda is ok too - especially with an oops - recognize it, fix it and move on' Attorneys' Fees - A court may award court costs and reasonable attorneys' fees to a successful plaintiff in a lawsuit alleging Brown Act violations. Similarly, the court may award court costs and attorneys' fees to a defendant legislative body where the legislative body has prevailed and the court finds the lawsuit was clearly frivolous and totally lacking in merit. Disclosure of confidential information - A director is not authorized to disclose information that qualifies as confidential information to a person not authorized to receive it, that (1) has been received for, or during, a closed session meeting of the board; (2) is protected from disclosure under the attorney/client or other evidentiary privilege, or (3) is not required to be disclosed under the Ca. Public Records Act. What you hear or receive during closed sessions, stays in closed sessions. Rights of the Public No conditions can be placed on attendance at a public meeting. No admission fee, payment, or purchase requirements allowed. No sign-in requirements - it is voluntary. (they don't even have to identify themselves as a condition of speaking). No limitations on attendance based upon race, religion, creed, color, national origin, ancestry, or sex. Must be handicapped accessible. Any person attending and open and public meeting of the Board has the right to record the proceedings with an audio or video tape recorder of a still motion picture camera in the absence of a reasonable finding by the Board that the recording cannot continue without noise, illumination, or obstruction of view that constitutes, or would constitute, a persistent disruption of the proceedings. (GC54953.5) The End!