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F - Guide to the Ralph M. Brown Act
I� \� ���� »© 6. * \!: �< \\ / \.; .yam y }yyy�m �� >. ���� ity� • ACKNOWLEDGEMENTS The League thanks the following individuals for their work on this publication: Brown Act Committee Michael Jenkins, Committee Chair CityAttorney, Hermosa Beach, Rolling Hills and west Hollywood Michael W. Barrett City Attorney, Napa Damien Brower CityAttorney, Brentwood Ariel Pierre Calonne • CityAttorney, Santa Barbara Veronica Ramirez Assistant City Attorney, Redwood City Malathy Subramanian CityAttorney, Clayton and Lafayette Best Best & Krieger, LLP Paul Zarefsky Deputy CityAttorney, San Francisco Gregory W. Stepanicich 1st Vice President, City Attorneys' Department City Attorney Fairfield, Mill Valley, Town of Ross League Staff Patrick Whitnell, General Counsel Korean Kelleher, Assistant General Counsel Come Manning, Senior Deputy General Counsel Alison Leary, Deputy General Counsel Janet Leonard, Legal Assistant 11 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT • Open &PublicV A GUIDE TO THE RALPH M. BROWN ACT REVISED APRIL 2016 CHAPTER 1: IT IS THE PEOPLE'S BUSINESS ...................... ..............................5 CHAPTER 2: LEGISLATIVE BODIES .................................... .............................11 CHAPTER 3: MEETINGS .................................................... .............................17 CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION ...................29 CHAPTER 5: CLOSED SESSIONS ....................................... .............................41 CHAPTER 6: REMEDIES .................................................... .............................55 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 1 TABLE OF CONTENTS • TABLE OF CONTENTS CHAPTER 2: LEGISLATIVE BODIES ........................ ............................... 11 What is a "legislative body" of a local agency? ......................................... .............................12 What is not a "legislative body' for purposes of the Brown Act? ............ .............................14 CHAPTER 3: MEETINGS ........................................... .............................17 • BrownAct meetings .................................................................................. .............................18 Six exceptions to the meeting definition .................................................. .............................18 Collectivebriefings .................................................................................... .............................21 Retreats or workshops of legislative bodies ............................................. .............................21 Serialmeetings .......................................................................................... .............................21 Informalgatherings ................................................................................... .............................24 Technological conferencing ...................................................................... .............................24 Locationof meetings ................................................................................. .............................25 CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION ......29 Agendas for regular meetings ................................................................... .............................30 mailed agenda upon written request ........................................................ .............................31 Notice requirements for special meetings ............................................... .............................32 Notices and agendas for adjourned and continued meetings and hearings ........................32 Notice requirements for emergency meetings ........................................ .............................32 Notice of compensation for simultaneous or serial meetings ................. .............................33 Educational agency meetings ................................................................... .............................33 Notice requirements for tax or assessment meetings and hearings ....... .............................33 • 2 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 0 i Non - agenda items ..................................................................................... .............................34 Respondingto the public .......................................................................... .............................34 The right to attend and observe meetings ............................................... .............................35 Recordsand recordings ............................................................................ .............................36 The public's place on the agenda ............................................................. .............................37 CHAPTER 5: CLOSED SESSIONS ............................. .............................41 Agendasand reports ................................................................................. .............................42 Litigation.................................................................................................. ............................... 43 Real estate negotiations ........................................................................... .............................45 Publicemployment. ............................................................................................................... 46 Labornegotiations .................................................................................... .............................47 Labor negotiations — school and community college districts ............... .............................48 Other Education Code exceptions ............................................................ .............................48 JointPowers Authorities ........................................................................... .............................48 License applicants with criminal records ................................................. .............................49 Publicsecurity ........................................................................................... .............................49 multijurisdictional law enforcement agency ............................................ .............................49 Hospital peer review and trade secrets .................................................... .............................49 Other legislative bases for closed session ................................................ .............................50 Who may attend closed sessions ............................................................. .............................50 The confidentiality of Closed session discussions .................................... .............................50 CHAPTER 6: REMEDIES ........................................... .............................55 Invalidation.............................................................................................. ............................... 56 Applicability to Past Actions ................................................................... ............................... 57 Civil action to prevent future violations .................................................... .............................57 Costsand attorney's fees ......................................................................... .............................58 Criminalcomplaints .................................................................................. .............................58 Voluntaryresolution .................................................................................. .............................59 E OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 3 • • • 4 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT m CHAPTER 1: IT IS THE PEOPLE'S BUSINESS Chapter 1 IT IS THE PEOPLE'S BUSINESS PRACTICE TIP: The key to the Brown Act is a single sentence. In summary, all meetings shall be open and public except when the Brown Act authorizes otherwise. The right of access Two key parts of the Brown Act have not changed since its adoption in 1953. One is the Brown Act's initial section, declaring the Legislature's intent: "In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State 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 people reconfirmed that intent 50 years later in the November 2004 election by adopting Proposition 59, amending the California Constitution to include a public right of access to government information: "The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny. 2 The Brown Act's other unchanged provision is a single sentence: 'All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter. 3 That one sentence is by far the most important of the entire Brown Act. If the opening is the soul, that sentence is the heart of the Brown Act. Broad coverage The Brown Act covers members of virtually every type of local government body, elected or appointed, decision - making or advisory. Some types of private organizations are covered, as are newly - elected members of a legislative body, even before they take office. Similarly, meetings subject to the Brown Act are not limited to face -to -face gatherings. They also include any communication medium or device through which a majority of a legislative body 6 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT U • • discusses, deliberates or takes action on an item of business outside of a noticed meeting. They include meetings held from remote locations by teleconference. New communication technologies present new Brown Act challenges. For example, common email practices of forwarding or replying to messages can easily lead to a serial meeting prohibited by the Brown Act, as can participation by members of a legislative body in an internet chatroom or blog dialogue. Communicating during meetings using electronic technology (such as laptop computers, tablets, or smart phones) may create the perception that private communications are influencing the outcome of decisions, some state legislatures have banned the practice. On the other hand, widespread cablecasting and web streaming of meetings has greatly expanded public access to the decision - making process. Narrow exemptions The express purpose of the Brown Act is to assure that local government agencies conduct the public's business openly and publicly. Courts and the California Attorney General usually broadly construe the Brown Act in favor of greater public access and narrowly construe exemptions to its general rules.° Generally, public officials should think of themselves as living in glass houses, and that they may only draw the curtains when it is in the public interest to preserve confidentiality. Closed sessions may be held only as specifically authorized by the provisions of the Brown Act itself. ®The Brown Act, however, is limited to meetings among a majority of the members of multi- member government bodies when the subject relates to local agency business. It does not apply to independent conduct of individual decision - makers. It does not apply to social, ceremonial, educational, and other gatherings as long as a majority of the members of a body do not discuss issues related to their local agency's business. Meetings of temporary advisory committees — as distinguished from standing committees — made up solely of less than a quorum of a legislative body are not subject to the Brown Act. The law does not apply to local agency staff or employees, but they may facilitate a violation by acting as a conduit for discussion, deliberation, or action by the legislative body.' The law, on the one hand, recognizes the need of individual local officials to meet and discuss matters with their constituents. On the other hand, it requires — with certain specific exceptions to protect the community and preserve individual rights — that the decision- making process be public. sometimes the boundary between the two is not easy to draw. Public participation in meetings In addition to requiring the public's business to be conducted in open, noticed meetings, the Brown Act also extends to the public the right to participate in meetings. Individuals, lobbyists, and members of the news media possess the right to attend, record, broadcast, and participate in public meetings. The public's participation is further enhanced by the Brown Act's requirement that a meaningful agenda be posted in advance of meetings, by limiting discussion and action to matters listed on the agenda, and by requiring that meeting materials be made available. ® Legislative bodies may, however, adopt reasonable regulations on public testimony and the conduct of public meetings, including measures to address disruptive conduct and irrelevant speech. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT PRACTICE TIP: Think of the government's house as being made of glass. The curtains may be drawn only to further the public's interest. A local policy on the use of laptop computers, tablets, and smart phones during Brown Act meetings may help avoid problems. Controversy Not surprisingly, the Brown Act has been a source of confusion and controversy since its inception. News media and government watchdogs often argue the law is toothless, pointing out that there has never been a single criminal conviction for a violation. They often suspect that closed sessions are being misused. Public officials complain that the Brown Act makes it difficult to respond to constituents and requires public discussions of items better discussed privately — such as why a particular person should not be appointed to a board or commission. Many elected officials find the Brown Act inconsistent with their private business experiences. Closed meetings can be more efficient, they eliminate grandstanding and promote candor. The techniques that serve well in business — the working lunch, the sharing of information through a series of phone calls or emails, the backroom conversations and compromises — are often not possible under the Brown Act. �— --1 As a matter of public policy, California (along with many other states) has concluded that there is more to be gained than lost by conducting public business in the open. Government behind PRACTICE TIP: Transparency closed doors may well be efficient and business -like, but it may Lie perceived as unresponsive and is a foundational value for untrustworthy. ethical government practices. The Brown Act is a floor, not a Beyond the law — good business practices ceiling, for conduct. Violations of the Brown Act can lead to invalidation of an agency's action, payment of a 11 u challenger's attorney fees, public embarrassment, even criminal prosecution. But the Brown Act • is a floor, not a ceiling for conduct of public officials. This guide is focused not only on the Brown Act as a minimum standard, but also on meeting practices or activities that, legal or not, are likely to create controversy. Problems may crop up, for example, when agenda descriptions are too brief or vague, when an informal get - together takes on the appearance of a meeting, when an agency conducts too much of its business in closed session or discusses matters in closed session that are beyond the authorized scope, or when controversial issues arise that are not on the agenda. The Brown Act allows a legislative body to adopt practices and requirements for greater access to meetings for itself and its subordinate committees and bodies that are more stringent than the law itself requires.° Rather than simply restate the basic requirements of the Brown Act, local open meeting policies should strive to anticipate and prevent problems in areas where the Brown Act does not provide full guidance. As with the adoption of any other significant policy, public comment should be solicited. A local policy could build on these basic Brown Act goals: • A legislative body's need to get its business done smoothly; • The public's right to participate meaningfully in meetings, and to review documents used in decision - making at a relevant point in time, • A local agency's right to confidentially address certain negotiations, personnel matters, claims and litigation, and • The right of the press to fully understand and communicate public agency decision - making. a OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT , r An explicit and comprehensive public meeting and information policy, especially if reviewed periodically, can be an important element in maintaining or improving public relations. Such a policy exceeds the absolute requirements of the law — but if the law were enough, this guide would be unnecessary. A narrow legalistic approach will not avoid or resolve potential controversies. An agency should consider going beyond the law, and look at its unique circumstances and determine if there is a better way to prevent potential problems and promote public trust. At the very least, local agencies need to think about how their agendas are structured in order to make Brown Act compliance easier. They need to plan carefully to make sure public participation fits smoothly into the process. Achieving balance The Brown Act should be neither an excuse for hiding the ball nor a mechanism for hindering efficient and orderly meetings. The Brown Act represents a balance among the interests of constituencies whose interests do not always coincide. It calls for openness in local government, yet should allow government to function responsively and productively. There must be both adequate notice of what discussion and action is to occur during a meeting as well as a normal degree of spontaneity in the dialogue between elected officials and their constituents. The ability of an elected official to confer with constituents or colleagues must be balanced against the important public policy prohibiting decision - making outside of public meetings. In the end, implementation of the Brown Act must ensure full participation of the public and preserve the integrity of the decision - making process, yet not stifle government officials and impede the effective and natural operation of government. Historical note In late 1951, San Francisco Chronicle reporter Mike Harris spent six weeks looking into the way local agencies conducted meetings. State law had long required that business be done in public, but Harris discovered secret meetings or caucuses were common. He wrote a 10 -part series on "Your Secret Government" that ran in May and June 1952. Out of the series came a decision to push for a new state open meeting law. Harris and Richard (Bud) Carpenter, legal counsel for the League of California Cities, drafted such a bill and Assembly Member Ralph M. Brown agreed to carry it. The Legislature passed the bill and Governor Earl Warren signed it into law in 1953. The Ralph M. Brown Act, known as the Brown Act, has evolved under a series of amendments and court decisions, and has been the model for other open meeting laws — such as the Bagley -Keene Act, enacted in 1967 to cover state agencies. Assembly Member Brown is best known for the open meeting law that carries his name. He was elected to the Assembly in 1942 and served 19 years, including the last three years as Speaker. He then became an appellate court justice. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT PRACTICE TIP: The Brown Act should be viewed as a tool to facilitate the business of local government agencies. Local policies that go beyond the minimum requirements of law may help instill public confidence and avoid problems. ENDNOTES: • 1 California Government Code section 54950 2 California Constitution, Art. 1, section 3(b)(1) 3 California Government Code section 54953(a) 4 This principle of broad construction when it furthers public access and narrow construction if a provision limits public access is also stated in the amendment to the State's Constitution adopted by Proposition 59 in 2004. California Constitution, Art. 1, section 3(b)(2). 5 California Government Code section 54952.2(6)(2) and (c)(I); Wolfe v. City of Fremont (2006) 144 Cal.App.4th 533 6 California Government Code section 54953.7 Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www .cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov. • • 10 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CHAPTER 1: IT IS THE PEOPLE'S BUSINESS ENDNOTES: • 1 California Government Code section 54950 2 California Constitution, Art. 1, section 3(b)(1) 3 California Government Code section 54953(a) 4 This principle of broad construction when it furthers public access and narrow construction if a provision limits public access is also stated in the amendment to the State's Constitution adopted by Proposition 59 in 2004. California Constitution, Art. 1, section 3(b)(2). 5 California Government Code section 54952.2(6)(2) and (c)(I); Wolfe v. City of Fremont (2006) 144 Cal.App.4th 533 6 California Government Code section 54953.7 Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www .cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov. • • 10 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT pear ..e u rjC(Y L1HIA mimwm OPEN & PUBLIC V:A.GUIDE TO THE RALPH M. BROWN ACT CHAPTER2: LEGISLATIVE'BODIES Chapter 2 LEGISLATIVE BODIES The Brown Act applies to the legislative bodies of local agencies. It defines 'legislative body' broadly to include just about every type of decision - making body of a local agency.I PRACTICE TIP: The prudent presumption is that an advisory committee or task force is subject to the Brown Act. Even if one clearly is not, it may want to comply with the Brown Act. Public meetings may reduce the possibility of misunderstandings and controversy. What is a "legislative body' of a local agency? A "legislative body" includes: ■ The "governing body of a local agency" and certain of its subsidiary bodies, "or any other local body created by state or federal statute. "2 This includes city councils, boards of supervisors, school boards and boards of trustees of special districts. A "local agency" is any city, county, city and county, school district, municipal corporation, successor agency to a redevelopment agency, district, political subdivision or other local public agency.3 A housing authority is a local agency under the Brown Act even though it is created by and is an agent of the state .^ The California Attorney General has opined that air pollution control districts and regional open space districts are also covered.= Entities created pursuant to joint powers agreements are also local agencies within the meaning of the Brown Act.° ■ Newly- elected members of a legislative body who have not yet assumed office must conform to the requirements of the Brown Act as if already in office.' Thus, meetings between incumbents and newly - elected members of a legislative body, such as a meeting between two outgoing members and a member -elect of a five- member body, could violate the Brown Act. Q. On the morning following the election to a five - member legislative body of a local agency, two successful candidates, neither an incumbent, meet with an incumbent member of the legislative body for a celebratory breakfast. Does this violate the Brown Act? A. It might, and absolutely would if the conversation turns to agency business. Even though the candidates -elect have not officially been sworn in, the Brown Act applies. If purely a social event, there is no violation but it would be preferable if others were invited to attend to avoid the appearance of impropriety. ■ Appointed bodies — whether permanent or temporary, decision - making or advisory — including planning commissions, civil service commissions and other subsidiary committees, boards, and bodies. Volunteer groups, executive search committees, task forces, and blue ribbon committees created by formal action of the governing body are legislative bodies. When the members of two or more legislative bodies are appointed to serve on an entirely separate advisory group, the resulting body may be subject to the 12 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT • • Brown Act. In one reported case, a city council created a committee of two members of the city council and two members of the city planning commission to review qualifications of prospective planning commissioners and make recommendations to the council. The court held that their joint mission made them a legislative body subject to the Brown Act. Had the two committees remained separate, and met only to exchange information and report back to their respective boards, they would have been exempt from the Brown Act.e ■ Standing committees of a legislative body, irrespective of their composition, which have either: (1) a continuing subject matter jurisdiction: or (2) a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body.' Even if it comprises less than a quorum of the governing body, a standing committee is subject to the Brown Act. For example, if a governing body creates long -term committees on budget and finance or on public safety, those are standing committees subject to the Brown Act. Further, according to the California Attorney General, function over form controls. For example, a statement by the legislative body that the advisory committee "shall not exercise continuing subject matter jurisdiction" or the fact that the committee does not have a fixed meeting schedule is not determinative. 10 "Formal action" by a legislative body includes authorization given to the agency's executive officer to appoint an advisory committee pursuant to agency- adopted policy." ■ The governing body of any private organization either: (1) created by the legislative body in order to exercise authority that may lawfully be delegated by such body to a ® private corporation, limited liability company or other entity, or (2) that receives agency funding and whose governing board includes a member of the legislative body of the local agency appointed by the legislative body as a full voting member of the private entity's governing board .'2 These include some nonprofit corporations created by local agencies." If a local agency contracts with a private firm for a service (for example, payroll, janitorial, or food services), the private firm is not covered by the Brown Act. 14 When a member of a legislative body sits on a board of a private organization as a private person and is not appointed by the legislative body, the board will not be subject to the Brown Act. Similarly, when the legislative body appoints someone other than one of its own members to such boards, the Brown Act does not apply. Nor does it apply when a private organization merely receives agency funding.'= Q: The local chamber of commerce is funded in part by the city. The mayor sits on the chamber's board of directors. Is the chamber board a legislative body subject to the Brown Act? A: Maybe. If the chamber's governing documents require the mayor to be on the board and the city council appoints the mayor to that position, the board is a legislative body. If, however, the chamber board independently appoints the mayor to its board, or the mayor attends chamber board meetings in a purely advisory capacity, it is not. Q: If a community college district board creates an auxiliary organization to operate a campus bookstore or cafeteria, is the board of the organization a legislative body? ® A: Yes. But, if the district instead contracts with a private firm to operate the bookstore or cafeteria, the Brown Act would not apply to the private firm. ■ Certain types of hospital operators. A lessee of a hospital (or portion of a hospital) el PRACTICE TIP: It can be difficult to determine whether a subcommittee of a body falls into the category of a standing committee or an exempt temporary committee. Suppose a committee is created to explore the renewal of a franchise or a topic of similarly limited scope and duration. Is it an exempt temporary committee or a non- exempt standing committee? The answer may depend on factors such as how meeting schedules are determined, the scope of the committee's charge, or whether the committee exists long enough to have "continuing jurisdiction." OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 13 CHAKE112: LEGISLATIVEBODIES' first leased under Health and Safety Code subsection 32121(p) after January 1, 1994, which exercises "material authority" delegated to it by a local agency, whether or not such lessee is organized and operated by the agency or by a delegated authority.16 What is not a "legislative body' for purposes of the Brown Act? ■ A temporary advisory committee composed solely of less than a quorum of the legislative body that serves a limited or single purpose, that is not perpetual, and that will be dissolved once its specific task is completed is not subject to the Brown Act." Temporary committees are sometimes called ad hoc committees, a term not used in the Brown Act. Examples include an advisory committee composed of less than a quorum created to interview candidates for a vacant position or to meet with representatives of other entities to exchange information on a matter of concern to the agency, such as traffic congestion.'a ■ Groups advisory to a single decision -maker or appointed by staff are not covered. The Brown Act applies only to committees created by formal action of the legislative body and not to committees created by others. A committee advising a superintendent of schools would not be covered by the Brown Act. However, the same committee, if created by formal action of the school board, would be covered." Q. A member of the legislative body of a local agency informally establishes an advisory committee of five residents to advise her on issues as they arise. Does • the Brown Act apply to this committee? A. No, because the committee has not been established by formal action of the legislative body. Q. During a meeting of the city council, the council directs the city manager to form an advisory committee of residents to develop recommendations for a new ordinance. The city manager forms the committee and appoints its members, the committee is instructed to direct its recommendations to the city manager. Does the Brown Act apply to this committee? A. Possibly, because the direction from the city council might be regarded as a formal action of the body notwithstanding that the city manager controls the committee. ■ Individual decision makers who are not elected or appointed members of a legislative body are not covered by the Brown Act. For example, a disciplinary hearing presided over by a department head or a meeting of agency department heads are not subject to the Brown Act since such assemblies are not those of a legislative body.20 ■ Public employees, each acting individually and not engaging in collective deliberation on a specific issue, such as the drafting and review of an agreement, do not constitute a legislative body under the Brown Act, even if the drafting and review process was established by a legislative body.21 ■ County central committees of political parties are also not Brown Act bodies 22 ENDNOTES: I Taxpayers for Livable Communities v. City of Malibu (2005) 126 Cal.AppAth 1123, 1127 14 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT ® 2 California Government Code section 54952(a) and (b) 3 California Government Code section 54951; Health and Safety Code section 34173(g) (successor agencies to former redevelopment agencies subject to the Brown Act). But see Education Code section 35147, which exempts certain school councils and school site advisory committees from the Brown Act and imposes upon them a separate set of rules. 4 Torres v. Board of Commissioners of Housing Authority of Tulare County (1979) 89 CaLApp.3d 545, 549- 550 5 71 Ops.Cal.Atty. Gen. 96 (1988); 73 Ops.Cal.Atty.Gen. 1 (1990) 6 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal. AppAth 354, 362 7 California Government Code section 54952.1 8 joiner v. City of Sebastopol (1981) 125 Cal.App,3d 799, 804 -805 9 California Government Code section 54952(6) 10 79 Ops.Cal.Atty.Gen. 69 (1996) 11 Frazer v. Dixon Unified School District (1993) 18 CaLApp.4th 781, 793 12 California Government Cade section 54952(c)(1). Regarding private organizations that receive local agency funding, the same rule applies to a full voting member appointed prior to February 9, 1996 who, after that date, is made a non - voting board member by the legislative body. California Government Code section 54952(c)(2) 13 California Government Code section 54952(c)(1)(A); International Longshoremen's and Warehousemen's Union v. Los Angeles Export Terminal, Inc. (1999) 69 CaLApp.4th 287,300; Epstein v. Hollywood Entertainment Dist. II Business Improvement District (2001) 87 CaLApp.4th 862, 876; see also 85 Ops.Cal.Atty.Gen. 55 (2002) 14 International Longshoremen's and Warehousemen's Union v. Los Angeles Export Terminal (1999) 69 Cal. App.4th 287, 300 fn. 5 15 "The Brown Act, Open Meetings for Local Legislative Bodies,' California Attorney Generals Office (2003), p. 7 16 California Government Cade section 54952(d) 17 California Government Cade section 54952(b); see also Freedom Newspapers, Inc. v. Orange County Employees Retirement System Board of Directors (1993) 6 Ca1.4th 821, 832. 18 Taxpayers for Livable Communities v. City of Malibu (2005) 126 Cat.App.4th 1123, 1129 19 56 Ops.Cal.Atty.Gen. 14, 16- 17(1973) 20 Wilson v. San Francisco Municipal Railway (1973) 29 CaLApp.3d 870,878-879 21 Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1513 22 59 Ops.Cal.Atty.Gen. 162, 164 (1976) Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org / opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 15 • 9 C 16 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Alk CHAPTER 3: MEETINGS Chapter 3 MEETINGS The Brown Act only applies to meetings of local legislative bodies. The Brown Act defines a meeting as: "... and any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location as permitted by 'Section 54953, to hear, discuss, deliberate, or take any action on any item that is within the subject matter jurisdiction of the legislative body. "' The term "meeting" is not limited to gatherings at which action is taken but includes deliberative gatherings as well. A hearing before an individual hearing officer is not a meeting under the Brown Act because it is not a hearing before a legislative body.2 Brown Act meetings Brown Act meetings include a legislative body's regular meetings, special meetings, emergency meetings, and adjourned meetings. ■ "Regular meetings" are meetings occurring at the dates, times, and location set by resolution, ordinance, or other formal action by the legislative body and are subject to 72- hour posting requirements .3 • "Special meetings" are meetings called by the presiding officer or majority of the legislative body to discuss only discrete items on the agenda under the Brown Act's notice requirements for special meetings and are subject to 24 -hour posting requirements." • "Emergency meetings" are a limited class of meetings held when prompt action is needed due to actual or threatened disruption of public facilities and are held on little notices ■ "Adjourned meetings" are regular or special meetings that have been adjourned or re- adjourned to a time and place specified in the order of adjournment, with no agenda required for regular meetings adjourned for less than five calendar days as long as no additional business is transacted.° Six exceptions to the meeting definition The Brown Act creates six exceptions to the meeting definition:' Individual Contacts The first exception involves individual contacts between a member of the legislative body and any other person. The Brown Act does not limit a legislative body member acting on his or her own. This exception recognizes the right to confer with constituents, advocates, consultants, news reporters, local agency staff, or a colleague. Individual contacts, however, cannot be used to do in stages what would be prohibited in one step. For example, a series of individual contacts that leads to discussion, deliberation, or action among a majority of the members of a legislative body is prohibited. Such serial meetings are discussed below. 18 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 0 0 Conferences The second exception allows a legislative body majority to attend a conference or similar gathering open to the public that addresses issues of general interest to the public or to public agencies of the type represented by the legislative body. Among other things, this exception permits legislative body members to attend annual association conferences of city, county, school, community college, and other local agency officials, so long as those meetings are open to the public. However, a majority of members cannot discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within their local agency's subject matter jurisdiction. Community Meetings The third exception allows a legislative body majority to attend an open and publicized meeting held by another organization to address a topic of local community concern. A majority cannot discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the legislative body's subject matter jurisdiction. Under this exception, a legislative body majority may attend a local service club meeting or a local candidates' night if the meetings are open to the public. "I see we have four distinguished members of the city council at our meeting tonight," said the chair of the Environmental Action Coalition. "i wonder if they have anything to say about the controversy over enacting a slow growth ordinance ?" The Brown Act permits a majority of a legislative body to attend and speak at an open and publicized meeting conducted by another organization. The Brown act may nevertheless be violated if a majority discusses, deliberates, or takes action on an item during the meeting of the other organization. There is a fine line between what is permitted and what is not, hence, members should exercise caution when participating in these types of events. Q. The local chamber of commerce sponsors an open and public candidate debate during an election campaign. Three of the five agency members are up for re- election and all three participate. All of the candidates are asked their views of a controversial project scheduled for a meeting to occur just after the election. May the three incumbents answer the question? A. Yes, because the Brown Act does not constrain the incumbents from expressing their views regarding important matters facing the local agency as part of the political process the same as any other candidates. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 19 CHAPTER 3: MEETINGS Other Legislative Bodies The fourth exception allows a majority or a legislative body to attend an open and publicized meeting of: (1) another body of the local agency; and (2) a legislative body of another local agencya Again, the majority cannot discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within their subject matter jurisdiction. This exception allows, for example, a city council or a majority of a board of supervisors to attend a controversial meeting of the planning commission. Nothing in the Brown Act prevents the majority of a legislative body from sitting together at such a meeting. They may choose not to, however, to preclude any possibility of improperly discussing local agency business and to avoid the appearance of a Brown Act violation. Further, aside from the Brown Act, there may be other reasons, such as due process considerations, why the members should avoid giving public testimony or trying to influence the outcome of proceedings before a subordinate body. Q. The entire legislative body intends to testify against a bill before the Senate Local Government Committee in Sacramento. Must this activity be noticed as a meeting of the body? A. No, because the members are attending and participating in an open meeting of another governmental body which the public may attend. Q. The members then proceed upstairs to the office of their local Assembly member to discuss issues of local interest. Must this session be noticed as a meeting and be open to the public? A. Yes, because the entire body may not meet behind closed doors except for proper closed sessions. The same answer applies to a private lunch or dinner with the Assembly member. Standing Committees The fifth exception authorizes the attendance of a majority at an open and noticed meeting of a standing committee of the legislative body, provided that the legislative body members who are not members of the standing committee attend only as observers (meaning that they cannot speak or otherwise participate in the meeting).' Q. The legislative body establishes a standing committee of two of its five members, which meets monthly. A third member of the legislative body wants to attend these meetings and participate. May she? A. She may attend, but only as an observer, she may not participate. EJ 20 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT ® Social or Ceremonial Events The final exception permits a majority of a legislative body to attend a purely social or ceremonial occasion. Once again, a majority cannot discuss business among themselves of a specific nature that is within the subject matter jurisdiction of the legislative body. Nothing in the Brown Act prevents a majority of members from attending the same football game, party, wedding, funeral, reception, or farewell. The test is not whether a majority of a legislative body attends the function, but whether business of a specific nature within the subject matter jurisdiction of the body is discussed. So long as no such business is discussed, there is no violation of the Brown Act. Grand Jury Testimony In addition, members of a legislative body, either individually or collectively, may give testimony in private before a grand jurylp This is the equivalent of a seventh exception to the Brown Act's definition of a "meeting." Collective briefings None of these exceptions permits a majority of a legislative body to meet together with staff in advance of a meeting for a collective briefing. Any such briefings that involve a majority of the body in the same place and time must be open to the public and satisfy Brown Act meeting notice and ® agenda requirements. Retreats or workshops of legislative bodies Gatherings by a majority of legislative body members at the legislative body's retreats, study sessions, or workshops are covered under the Brown Act. This is the case whether the retreat, study session, or workshop focuses on long -range agency planning, discussion of critical local issues, or team building and group dynamics." Q. The legislative body wants to hold a team - building session to improve relations among its members. may such a session be conducted behind closed doors? A. No, this is not a proper subject for a closed session, and there is no other basis to exclude the public. council relations are a matter of public business. Serial meetings One of the most frequently asked questions about the Brown Act involves serial meetings. At any one time, such meetings involve only a portion of a legislative body, but eventually involve a majority. The Brown Act provides that "[a] majority of the members of a legislative body shall not, outside a meeting ... use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body. "12 The problem with serial meetings is the process, which deprives the public of an opportunity for meaningful observation of and participation in legislative body decision - making. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 21 CHAPTER3: MEETINGS The serial meeting may occur by either a "daisy chain" or a "hub and spoke" sequence. In the daisy chain scenario, Member A contacts Member B, Member B contacts Member C, Member C contacts Member D and so on, until a quorum has discussed, deliberated, or taken action on an item within the legislative body's subject matter jurisdiction. The hub and spoke process involves at least two scenarios. In the first scenario, Member A (the hub) sequentially contacts Members e, C, and D and so on (the spokes), until a quorum has been contacted. In the second scenario, a staff member (the hub), functioning as an intermediary for the legislative body or one of its members, communicates with a majority of members (the spokes) one -by -one for for discussion, deliberation, or a decision on a proposed action." Another example of a serial meeting is when a chief executive officer (the hub) briefs a majority of members (the spokes) prior to a formal meeting and, in the process, information about the members' respective views is revealed. Each of these scenarios violates the Brown Act. A legislative body member has the right, if not the duty, to meet with constituents to address their concerns. That member also has the right to confer with a colleague (but not with a majority of the body, counting the member) or appropriate staff about local agency business. An employee or official of a local agency may engage in separate conversations or communications outside of an open and noticed meeting "with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body "1' The Brown Act has been violated, however, if several one -on -one meetings or conferences leads to a discussion, deliberation, or action by a majority. In one case, a violation occurred when a quorum of a city council, by a letter that had been circulated among members outside of a formal meeting, directed staff to take action in an eminent domain proceeding." A unilateral written communication to the legislative body, such as an informational or advisory memorandum, does not violate the Brown Act. 16 Such a memo, however, may be a public record." The phone call was from a lobbyist. "Say, I need your vote for that project in the south area. How about it ?" "Well, I don't know," replied Board Member Aletto. "That's kind of a sticky proposition. You sure you need my vote ?" "Well, I've got Bradley and Cohen lined up and another vote leaning. With you I'd be over the top." Moments later, the phone rings again. "Hey, I've been hearing some rumbles on that south area project;' said the newspaper reporter. "I'm counting noses. How are you voting on it ?" Neither the lobbyist nor the reporter has violated the Brown,Act, but they are facilitating 22 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 1 F l� }`TL Fi;r Si 4 SJ4i,`�;x 'K ® a violation. The board member may have violated the Brown Act by hearing about the positions of other board members and indeed coaxing the lobbyist to reveal the other board members' positions by asking "You sure you need my vote? "The prudent course is to avoid such leading conversations and to caution lobbyists, staff, and news media against revealing such positions of others. The mayor sat down across from the city manager. "From now on;' he declared, "I want you to provide individual briefings on upcoming agenda items. Some of this material is very technical, and the council members don't want to sound like idiots asking about it in public. Besides that, briefings will speed up the meeting." Agency employees or officials may have separate conversations or communications outside of an open and noticed meeting "with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body "i8 Members should always be vigilant when discussing local agency business with anyone to avoid conversations that could lead to a discussion, deliberation or action taken among the majority of the legislative body. "Thanks for the information;" said Council Member Kim. "These zoning changes can be tricky, and now I think I'm better equipped to make the right decision:' is "Glad to be of assistance;' replied the planning director. "I'm sure Council Member Jones is OK with these changes. How are you leaning ?" "Well," said Council Member Kim, "I'm leaning toward approval. I know that two of my colleagues definitely favor approval." The planning director should not disclose Jones' prospective vote, and Kim should not disclose the prospective votes of two of her colleagues. Under these facts, there likely has been a serial meeting in violation of the Brown Act, u Q. The agency's website includes a chat room where agency employees and officials participate anonymously and often discuss issues of local agency business. Members of the legislative body participate regularly. Does this scenario present a potential for violation of the Brown Act? A. Yes, because it is a technological device that may serve to allow for a majority of members to discuss, deliberate, or take action on matters of agency business. Q. A member of a legislative body contacts two other members on a five - member body relative to scheduling a special meeting. Is this an illegal serial meeting? A. No, the Brown Act expressly allows a majority of a body to call a special meeting, though the members should avoid discussing the merits of what is to be taken up at the meeting. PRACTICE TIP: When briefing legislative body members, staff must exercise care not to disclose other members' views and positions. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 23 Particular care should be exercised when staff briefings of legislative body members occur by email because of the ease of using the "reply to all" button that may inadvertently result in a Brown Act violation. Informal gatherings Often members are tempted to mix business with pleasure — for example, by holding a post - meeting gathering. Informal gatherings at which local agency business is discussed or transacted violate the law if they are not conducted in conformance with the Brown Act.19 A luncheon gathering in a crowded dining room violates the Brown Act if the public does not have an opportunity to attend, hear, or participate in the deliberations of members. Thursday at 11:30 a.m., as they did every week, the board of directors of the Dry Gulch Irrigation District trooped into Pop's Donut Shoppe for an hour of talk and fellowship. They sat at the corner window, fronting on Main and Broadway, to show they had nothing to hide. whenever he could, the managing editor of the weekly newspaper down the street hurried over to join the board. A gathering like this would not violate the Brown Act if board members scrupulously avoided talking about irrigation district issues — which might be difficult. This kind of situation should be avoided. The public is unlikely to believe the board members could meet regularly without discussing public business. A newspaper executive's presence in no way lessens the potential for a violation of the Brown act. Q. The agency has won a major victory in the Supreme Court on an issue of importance. The presiding officer decides to hold an impromptu press conference in order to make a statement to the print and broadcast media. All the other members show up in order to make statements of their own and be seen by the media. Is this gathering illegal? A. Technically there is no exception for this sort of gathering, but as long as members do not state their intentions as to future action to be taken and the press conference is open to the public, it seems harmless. Technological conferencing Except for certain nonsubstantive purposes, such as scheduling a special meeting, a conference call including a majority of the members of a legislative body is an unlawful meeting. But, in an effort to keep up with information age technologies, the Brown Act specifically allows a legislative body to use any type of teleconferencing to meet, receive public comment and testimony, deliberate, or conduct a closed session 20 while the Brown Act contains specific requirements for conducting a teleconference, the decision to use teleconferencing is entirely discretionary with the body. No person has a right under the Brown Act to have a meeting by teleconference. "Teleconference" is defined as "a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either 24 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT ® audio or video, or both. "" In addition to the specific requirements relating to teleconferencing, the meeting must comply with all provisions of the Brown Act otherwise applicable. The Brown Act contains the following teleconferencing requirements? ■ Teleconferencing may be used for all purposes during any meeting, ■ At least a quorum of the legislative body must participate from locations within the local agency's 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 number, as may be applicable; ■ Agendas must be posted at each teleconference location, even if a hotel room or a residence; ■ Each teleconference location, including a hotel room or residence, must be accessible to the public and have technology, such as a speakerphone, to enable the public to participate, ■ The agenda must provide the opportunity for the public to address the legislative body directly at each teleconference location; and ■ All votes must be by roll call. Q. A member on vacation wants to participate in a meeting of the legislative body and vote by cellular phone from her car while driving from Washington, D.C. to New York. May she? is A. She may not participate or vote because she is not in a noticed and posted teleconference location. The use of teleconferencing to conduct a legislative body meeting presents a variety of issues beyond the scope of this guide to discuss in detail. Therefore, before teleconferencing a meeting, legal counsel for the local agency should be consulted. Location of meetings The Brown Act generally requires all regular and special meetings of a legislative body, including retreats and workshops, to be held within the boundaries of the territory over which the local agency exercises jurisdiction. 21 An open and publicized meeting of a legislative body may be held outside of agency boundaries if the purpose of the meeting is one of the following:24 ■ Comply with state or federal law or a court order, or attend a judicial conference or administrative proceeding in which the local agency is a party; ■ Inspect real or personal property that cannot be conveniently brought into the local agency's territory, provided the meeting is limited to items relating to that real or personal property, Q. The agency is considering approving a major retail mall. The developer has built other similar malls, and invites the entire legislative body to visit a mall outside the jurisdiction. May the entire body go? 0 A. Yes, the Brown act permits meetings outside the boundaries of the agency for specified reasons and inspection of property is one such reason. The field trip must be treated as a meeting and the public must be allowed to attend. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 25 CHAPTER3: MEETINGS . • Participate in multiagency meetings or discussions; however, such meetings must be held within the boundaries of one of the participating agencies, and all of those agencies must give proper notice; • Meet in the closest meeting facility if the local agency has no meeting facility within its boundaries, or meet at its principal office if that office is located outside the territory over which the agency has jurisdiction, • Meet with elected or appointed federal or California officials when a local meeting would be impractical, solely to discuss a legislative or regulatory issue affecting the local agency and over which the federal or state officials have jurisdiction; • Meet in or nearby a facility owned by the agency, provided that the topic of the meeting is limited to items directly related to the facility; or • Visit the office of its legal counsel for a closed session on pending litigation, when to do so would reduce legal fees or costs." In addition, the governing board of a school or community college district may hold meetings outside of its boundaries to attend a conference on nonadversarial collective bargaining techniques, interview candidates for school district superintendent, or interview a potential employee from another district 26 A school board may also interview members of the public residing in another district if the board is considering employing that district's superintendent. Similarly, meetings of a joint powers authority can occur within the territory of at least one of its member agencies, and a joint powers authority with members throughout the state may meet anywhere in the state .27 Finally, if a fire, flood, earthquake, or other emergency makes the usual meeting place unsafe, the presiding officer can designate another meeting place for the duration of the emergency News media that have requested notice of meetings must be notified of the designation by the most rapid means of communication available.28 26 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT kf ,ti+• ® Endnotes: I California Government Code section 54952.2(a) 2 Wilson v. San Francisco Municipal Railway (1973) 29 Cal.App.3d 870 3 California Government Code section 54954(a) 4 California Government Code section 54956 5 California Government Code section 54956.5 6 California Government Code section 54955 7 California Government Code section 54952.2(c) 8 California Government Code section 54952.2(c)(4) 9 California Government Code section 54952.2(c)(6) 10 California Government Code section 54953.1 11 "The Brown Act," California Attorney General (2003), p. 10 12 California Government Code section 54952 .2(6)(1) 13 Stockton Newspaper Inc. v Redevelopment Agency (1985) 171 Cal.App.3d 95 14 California Government Code section 54952.2(b)(2) 15 Common Cause v. Stirling (1983) 147 Cal.App.3d 518 16 Roberts v. City of Palmdale (1993) 5 Cal.4th 363 17 California Government Code section 54957.5(a) 18 California Government Code section 54952.2(b)(2) 19 California Government Code section 54952.2; 43 Ops.Cal.Atty.Gen. 36 (1964) 20 California Government Code section 54953(6)(1) 21 California Government Code section 54953(b)(4) 22 California Government Code section 54953 23 California Government Code section 54954(b) 24 California Government Code section 54954(b)(1) -(7) 25 94 Ops.Cal.Atty.Gen. 15 (2011) 26 California Government Code section 54954(c) 27 California Government Code section 54954(d) 28 California Government Code section 54954(e) Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www .cacities.orglopengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 27 1 28 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT MMIn �1 AGENDAS, NOTICES, AND PUBLIC PARTICIPATION Agendas for regular meetings ........................................................... ............................... 30 Mailed agenda upon written request ................................................ ............................... 31 Notice requirements for special meetings ........................................ ............................... 32 ® Notices and agendas for adjourned and continued meetings and hearings ................... 32 Notice requirements for emergency meetings ................................. ............................... 32 Notice of compensation for simultaneous or serial meetings .......... ............................... 33 Educational agency meetings... .... - .................................................................................. 33 Notice requirements for tax or assessment meetings and hearings ............................... 33 Non- agenda items .............................................................................. ............................... 34 Respondingto the public ................................................................... ............................... 34 The right to attend and observe meetings ........................................ ............................... 35 Recordsand recordings ..................................................................... ............................... 36 The public's place on the agenda ...................................................... ............................... 37 Chapter 4 AGENDAS, NOTICES, AND PUBLIC PARTICIPATION 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 nobody knows about the meeting. Agendas for regular meetings Every regular meeting of a legislative body of a local agency — including advisory committees, commissions, or boards, as well as standing committees of legislative bodies — must be preceded by a posted agenda that advises the public of the meeting and the matters to be transacted or discussed. The agenda must be posted at least 72 hours before the regular meeting in a location "freely accessible to members of the public.", The courts have not definitively interpreted the "freely accessible' requirement. The California Attorney General has interpreted this provision to require posting in a location accessible to the public 24 hours a day during the 72 -hour period, but any of the 72 hours may fall on a weekend.' This provision may be satisfied by posting on a touch screen electronic kiosk accessible without charge to the public 24 hours a day during the 72 -hour period 3 While posting an agenda on an agency's Internet website will not, by itself, satisfy the "freely accessible" requirement since there is no universal access to the internet, an agency has a supplemental obligation to post the agenda on its website if: (1) the local agency has a website; and (2) the legislative body whose meeting is the subject of the agenda is either (a) a governing body, or (b) has members that are compensated, with one or more members that are also members of a governing body.° Q. may the meeting of a governing body go forward if its agenda was either inadvertently not posted on the city's website or if the website was not operational during part or all of the 72 -hour period preceding the meeting? A. At a minimum, the Brown Act calls for "substantial compliance- with all agenda posting requirements, including posting to the agency website.5 Should website technical difficulties arise, seek a legal opinion from your agency attorney. The California Attorney General has opined that technical difficulties which cause the website agenda to become inaccessible for a portion of the 72 hours preceding a meeting do not automatically or inevitably lead to a Brown Act violation, provided the agency can demonstrate substantial compliance .6 This inquiry requires a fact- specific examination of whether the agency or its legislative body made "reasonably effective efforts to notiry interested persons of a public meeting" through online posting and other available means .7The Attorney General's opinion suggests that this examination would include an evaluation of how long a technical problem persisted, the efforts made to correct the problem or otherwise ensure that the public was informed, and the actual effect the problem had on public 30 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT • 0 n I`I awareness, among other factors. 8The City attorneys' Department has taken the position that obvious website technical difficulties do not require cancellation of a meeting, provided that the agency meets all other Brown Act posting requirements and the agenda is available on the website once the technical difficulties are resolved. The agenda must state the meeting time and place and must 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. "9 Special care should be taken to describe on the agenda each distinct action to be taken by the legislative body, and avoid overbroad descriptions of a "project" if the "project" is actually a set of distinct actions that must each be separately listed on the agenda.10 Q. The agenda for a regular meeting contains the following items of business: • Consideration of a report regarding traffic on Eighth Street; and • Consideration of contract with ABC Consulting. Are these descriptions adequate? A. If the first is, it is barely adequate. A better description would provide the reader with some idea of what the report is about and what is being recommended. The second is not adequate. A better description might read "consideration of a contract with ABC Consulting in the amount of $50,000 for traffic engineering services regarding traffic on Eighth Street." Q. The agenda includes an item entitled City Manager's Report, during which time the city manager provides a brief report on notable topics of interest, none of which are listed on the agenda. Is this permissible? A. Yes, so long as it does not result in extended discussion or action by the body. A brief general description may not be sufficient for closed session agenda items. The Brown Act provides safe harbor language for the various types of permissible closed sessions. Substantial compliance with the safe harbor language is recommended to protect legislative bodies and elected officials from legal challenges. Mailed agenda upon written request The legislative body, or its designee, must mail a copy of the agenda or, if requested, the entire agenda packet, to any person who has filed a written request for such materials. These copies shall be mailed at the time the agenda is posted. If requested, these materials must be made available in appropriate alternative formats to persons with disabilities. A request for notice is valid for one calendar year and renewal requests must be filed following January 1 of each year. The legislative body may establish a fee to recover the cost of providing the service. Failure of the requesting person to receive the agenda does not constitute grounds for invalidation of actions taken at the meeting.,, PRACTICE TIP: Putting together a meeting agenda requires careful thought. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 31 Notice requirements for special meetings There is no express agenda requirement for special meetings, but the notice of the special meeting effectively serves as the agenda and limits the business that may be transacted or discussed. Written notice must be sent to each member of the legislative body (unless waived in writing by that member) and to each local newspaper of general circulation, and radio or television station that has requested such notice in writing. This notice must be delivered by personal delivery or any other means that ensures receipt, at least 24 hours before the time of the meeting. The notice must state the time and place of the meeting, as well as all business to be transacted or discussed. It is recommended that the business to be transacted or discussed be described in the same manner that an item for a regular meeting would be described on the agenda — with a brief general description. As noted above, closed session items should be described in accordance with the Brown Act's safe harbor provisions to protect legislative bodies and elected officials from challenges of noncompliance with notice requirements. The special meeting notice must also be posted at least 24 hours prior to the special meeting using the same methods as posting an agenda for a regular meeting: (1) at a site that is freely accessible to the public, and (2) on the agency's website if: (1) the local agency has a website; and (2) the legislative body whose meeting is the subject of the agenda is either (a) a governing body, or (b) has members that are compensated, with one or more members that are also members of a governing body. 12 i. Notices and agendas for adjourned and continued meetings and hearings A regular or special meeting can be adjourned and re- adjourned to a time and place specified in the order of adjournment." If no time is stated, the meeting is continued to the hour for regular meetings. whoever is present (even if they are less than a quorum) may so adjourn a meeting; if no member of the legislative body is present, the clerk or secretary may adjourn the meeting. If a meeting is adjourned for less than five calendar days, no new agenda need be posted so long as a new item of business is not introduced 14 A copy of the order of adjournment must be posted within 24 hours after the adjournment, at or near the door of the place where the meeting was held. A hearing can be continued to a subsequent meeting. The process is the same as for continuing adjourned meetings, except that if the hearing is continued to a time less than 24 hours away, a copy of the order or notice of continuance must be posted immediately following the meeting.'s Notice requirements for emergency meetings The special meeting notice provisions apply to emergency meetings, except for the 24 -hour notice. 16 News media that have requested written notice of special meetings must be notified by telephone at least one hour in advance of an emergency meeting, and all telephone numbers provided in that written request must be tried. If telephones are not working, the notice requirements are deemed waived. However, the news media must be notified as soon as possible • of the meeting and any action taken. 32 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT News media may make a practice of having written requests on file for notification of special or emergency meetings. Absent such a request, a local agency has no legal obligation to notify news media of special or emergency meetings — although notification may be advisable in any event to avoid controversy. Notice of compensation for simultaneous or serial meetings A legislative body that has convened a meeting and whose membership constitutes a quorum of another legislative body, may convene a simultaneous or serial meeting of the other legislative body only after a clerk or member of the convened legislative body orally announces: (1) the amount of compensation or stipend, if any, that each member will be entitled to receive as a result of convening the meeting of the other legislative body; and (2) that the compensation or stipend is provided as a result of convening the meeting of that body. 17 No oral disclosure of the amount of the compensation is required if the entire amount of such compensation is prescribed by statute and no additional compensation has been authorized by the local agency. Further, no disclosure is required with respect to reimbursements for actual and necessary expenses incurred in the performance of the member's official duties, such as for travel, meals, and lodging. Educational agency meetings The Education Code contains some special agenda and special meeting provisions.18 However, ®they are generally consistent with the Brown Act. An item is probably void if not posted.19 A school district board must also adopt regulations to make sure the public can place matters affecting the district's business on meeting agendas and to address the board on those items 20 Notice requirements for tax or assessment meetings and hearings The Brown Act prescribes specific procedures for adoption by a city, county, special district, or joint powers authority of any new or increased tax or assessment imposed on businesses. 21 Though written broadly, these Brown Act provisions do not apply to new or increased real property taxes or assessments as those are governed by the California Constitution, Article xu C or XIIID, enacted by Proposition 218. At least one public meeting must be held to allow public testimony on the tax or assessment. In addition, there must also be at least 45 days notice of a public hearing at which the legislative body proposes to enact or increase the tax or assessment. Notice of the public meeting and public hearing must be provided at the same time and in the same document. The public notice relating to general taxes must be provided by newspaper publication. The public notice relating to new or increased business assessments must be provided through a mailing to all business owners proposed to be subject to the new or increased assessment. The agency may recover the reasonable costs of the public meetings, hearings, and notice. The Brown Act exempts certain fees, standby or availability charges, recurring assessments, and new or increased assessments that are subject to the notice and hearing isrequirements of the Constitution. 22 As a practical matter, the Constitution's notice requirements have preempted this section of the Brown Act. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 33 r r !o assessments, and new or increased assessments that are subject to the notice and hearing isrequirements of the Constitution. 22 As a practical matter, the Constitution's notice requirements have preempted this section of the Brown Act. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 33 PRACTICE TIP: Subject to very limited exceptions, the Brown Act prohibits any action or discussion of an item not on the posted agenda. Non - agenda items 0 The Brown Act generally prohibits any action or discussion of items not on the posted agenda. However, there are three specific situations in which a legislative body can act on an item not on the agenda :23 u When a majority decides there is an "emergency situation" (as defined for emergency meetings); ® When two- thirds of the members present (or all members it less than two- thirds are present) determine there is a need for immediate action and the need to take action "came to the attention of the local agency subsequent to the agenda being posted." This exception requires a degree of urgency. Further, an item cannot be considered under this provision if the legislative body or the staff knew about the need to take immediate action before the agenda was posted. A new need does not arise because staff forgot to put an item on the agenda or because an applicant missed a deadline; or ■ When an item appeared on the agenda of, and was continued from, a meeting held not more than five days earlier. The exceptions are narrow, as indicated by this list. The first two require a specific determination by the legislative body. That determination can be challenged in court and, if unsubstantiated, can lead to invalidation of an action. "I'd like a two- thirds vote of the board, so we can go ahead and authorize commencement of phase two of the East Area Project," said Chair Lopez. "It's not on the agenda. But we learned two days ago that we finished phase one ahead of schedule — believe it or not — and I'd like to keep it that way. Do I hear a motion ?" The desire to stay ahead of schedule generally would not satisfy "a need for immediate action. "Too casual an action could invite a court challenge by a disgruntled resident. The prudent course is to place an item on the agenda for the next meeting and not risk invalidation. "We learned this morning of an opportunity for a state grant;" said the chief engineer at the regular board meeting, "but our application has to be submitted in two days. We'd like the board to give us the go ahead tonight, even though it's not on the agenda" A legitimate immediate need can be acted upon even though not on the posted agenda by following a two -step process: ® First, make two determinations: 1) that there is an immediate need to take action, and 2) that the need arose after the posting of the agenda. The matter is then placed on the agenda. a Second, discuss and act on the added agenda item. Responding to the public The public can talk about anything within the jurisdiction of the legislative body, but the legislative body generally cannot act on or discuss an item not on the agenda. What happens when a member of the public raises a subject not on the agenda? 34 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 0 While the Brown Act does not allow discussion or action on items not on the agenda, it does allow members of the legislative body, or its staff, to "briefly respond" to comments or questions from members of the public, provide a reference to staff or other resources for factual information, or direct staff to place the issue on a future agenda. In addition, even without a comment from the public, a legislative body member or a staff member may ask for information, request a report back, request to place a matter on the agenda for a subsequent meeting (subject to the body's rules or procedures), ask a question for clarification, make a brief announcement, or briefly report on his or her own activities .24 However, caution should be used to avoid any discussion or action on such items. Council Member Jefferson: I would like staff to respond to Resident Joe's complaints during public comment about the repaving project on Elm Street — are there problems with this project? City Manager Frank: The public works director has prepared a 45- minute power point presentation for you on the status of this project and will give it right now. Council Member Brown: Take all the time you need; we need to get to the bottom of this. Our residents are unhappy. It is clear from this dialogue that the Elm Street project was not on the council's agenda, but was raised during the public comment period for items not on the agenda. Council MemberA properly asked staff to respond, the city manager should have given at most a brief response. If a lengthy report from the public works director was warranted, the city manager should have stated that it would be placed on the agenda for the next meeting. otherwise, both the long report and the likely discussion afterward will improperly embroil the council in a matter that is not listed on the agenda. The right to attend and observe meetings A number of Brown Act provisions protect the public's right to attend, observe, and participate in meetings. Members of the public cannot be required to register their names, provide other information, complete a questionnaire, or otherwise "fulfill any condition precedent" to attending a meeting. Any attendance list, questionnaire, or similar document posted at or near the entrance to the meeting room or circulated at a meeting must clearly state that its completion is voluntary and that all persons may attend whether or not they fill it out.25 No meeting can be held in a facility that prohibits attendance based on race, religion, color, national origin, ethnic group identification, age, sex, sexual orientation, or disability, or that is inaccessible to the disabled. Nor can a meeting be held where the public must make a payment or purchase in order to be present.26 This does not mean, however, that the public is entitled to free is entry to a conference attended by a majority of the legislative body.2J while a legislative body may use teleconferencing in connection with a meeting, the public must be given notice of and access to the teleconference location. Members of the public must be able to address the legislative body from the teleconference location .28 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 35 Action by secret ballot, whether preliminary or final, is flatly prohibited.29 All actions taken by the legislative body in open session, and the vote of each member thereon, must be disclosed to the public at the time the action is taken.30 Q: The agenda calls for election of the legislative body's officers. Members of the legislative body want to cast unsigned written ballots that would be tallied by the clerk, who would announce the results. Is this voting process permissible? A: No. The possibility that a public vote might cause hurt feelings among members of the legislative body or might be awkward — or even counterproductive — does not justify a secret ballot. The legislative body may remove persons from a meeting who willfully interrupt proceedings." Ejection is justified only when audience members actually disrupt the proceedings 32 If order cannot be restored after ejecting disruptive persons, the meeting room may be cleared. Members of the news media who have not participated in the disturbance must be allowed to continue to attend the meeting. The legislative body may establish a procedure to re -admit an individual or individuals not responsible for the disturbance.33 • 36 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Records and recordings _ The public has the right to review agendas and other writings distributed by any person to a J> majority of the legislative body in connection with a matter subject to discussion or consideration at a meeting. Except for privileged documents, those materials are public records and must be . made available upon request without delay.34 A fee or deposit as permitted by the California Public y - Records Act may be charged for a copy of a public record .35 -� Q: In connection with an upcoming hearing on a discretionary use permit, counsel for the legislative body transmits a memorandum to all members of the body outlining the "c litigation risks in granting or denying the permit. Must this memorandum be included in the packet of agenda materials available to the public? =. A: No. The memorandum is a privileged attorney- client communication. Q: In connection with an agenda item calling for the legislative body to approve a contract, staff submits to all members of the body a financial analysis explaining why the terms of the contract favor the local agency. Must this memorandum be included in the packet of agenda materials available to the public? A. Yes. The memorandum has been distributed to the majority of the legislative body, relates to the subject matter of a meeting, and is not a privileged communication. • 36 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT A legislative body may discuss or act on some matters without considering written materials. But if writings are distributed to a majority of a legislative body in connection with an agenda item, they must also be available to the public. A non - exempt or otherwise privileged writing distributed to a majority of the legislative body less than 72 hours before the meeting must be made available for inspection at the time of distribution at a public office or location designated for that purpose; and the agendas for all meetings of the legislative body must include the address of this office or location." A writing distributed during a meeting must be made public: ■ At the meeting if prepared by the local agency or a member of its legislative body; or o After the meeting if prepared by some other person." Any tape or film record of an open and public meeting made for whatever purpose by or at the direction of the local agency is subject to the California Public Records Act, however, it may be erased or destroyed 30 days after the taping or recording. Any inspection of a video or tape recording is to be provided without charge on a video or tape player made available by the local agency 38 The agency may impose its ordinary charge for copies that is consistent with the California Public Records Act." In addition, the public is specifically allowed to use audio or video tape recorders or still or motion picture cameras at a meeting to record the proceedings, absent a reasonable finding by the legislative body that noise, illumination, or obstruction of view caused by recorders or cameras would persistently disrupt the proceedings.40 Similarly, a legislative body cannot prohibit or restrict the public broadcast of its open and public meetings without making a reasonable finding that the noise, illumination, or obstruction of view would persistently disrupt the proceedings 41 The public's place on the agenda Every agenda for a regular meeting must allow members of the public to speak on any item of interest, so long as the item is within the subject matter jurisdiction of the legislative body. Further, the public must be allowed to speak on a specific item of business before or during the legislative body's consideration of it 42 Q. Must the legislative body allow members of the public to show videos or make a power point presentation during the public comment part of the agenda, as long as the subject matter is relevant to the agency and is within the established time limit? A. Probably, although the agency is under no obligation to provide equipment. Moreover, the legislative body cannot prohibit public criticism of policies, procedures, programs, or services of the agency or the acts or omissions of the legislative body itself. But the Brown Act provides no immunity for defamatory statements.43 PRACTICE TIP: Public speakers cannot be compelled to give their name or address as a condition of speaking. The clerk or presiding officer may request speakers to complete a speaker card or identify themselves for the record, but must respect a speaker's desire for anonymity. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 37 F-1 L Q. May the presiding officer prohibit a member of the audience from publicly criticizing an agency employee by name during public comments? A. No, as long as the criticism pertains to job performance. Q. During the public comment period of a regular meeting of the legislative body, a resident urges the public to support and vote for a candidate vying for election to the body. May the presiding officer gavel the speaker out of order for engaging in political campaign speech? A. There is no case law on this subject. Some would argue that campaign issues are outside the subject matter jurisdiction of the body within the meaning of Section 54954.3(a). Others take the view that the speech must be allowed under paragraph (c) of that section because it is relevant to the governing of the agency and an implicit criticism of the incumbents. The legislative body may adopt reasonable regulations, including time limits, on public comments. Such regulations should be enforced fairly and without regard to speakers' viewpoints. The legislative body has discretion to modify its regulations regarding time limits on public comment if necessary. For example, the time limit could be shortened to accommodate a lengthy agenda or lengthened to allow additional time for discussion on a complicated matter." The public does not need to be given an opportunity to speak on an item that has already been considered by a committee made up exclusively of members of the legislative body at a public meeting, if all interested members of the public had the opportunity to speak on the item before or during its consideration, and if the item has not been substantially changed 45 Notices and agendas for special meetings must also give members of the public the opportunity to speak before or during consideration of an item on the agenda but need not allow members of the public an opportunity to speak on other matters within the jurisdiction of the legislative body.46 Endnotes: 1 California Government Code section 54954.2(a)(1) 2 78 Ops.Cal.Atty.Gen. 327 (1995) 3 88 Ops.Cal.Atty.Gen. 218 (2005) 4 California Government Code sections 54954.2(a)(1) and 54954.2(d) 5 California Government Code section 54960.1(d)(1) 6 _ Ops.Cal.Atty.Gen. , No. 14 -1204 (January 19, 2016) 16 Cal. Daily Op. Serv. 937 (Cal.A.G.), 2016 W L 375262 7 North Pacifica LTC v. California Coastal Commission (2008) 166 CaLApp.4th 1416, 1432 S Ops.Cal.Atty.Gen._, No. 14 -1204 (January 19, 2016) 16 Cal. Daily Op. Sere. 937 (Cal.A.G.), 2016 W L 375262, Slip Op. at p. 8 9 California Government Code section 54954.2(a)(1) 10 San Joaquin Raptor Rescue v. County of Merced (2013) 216 Cal.AppAth 1167 (legislative body's approval of CEQA action (mitigated negative declaration) without specifically listing it on the agenda violates Brown Act, even if the agenda generally describes the development project that is the subject of the CEQA analysis.) 38 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Mr, x _; - �< OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 39 1 t California Government Code section 54954.1 12 California Government Code sections 54956(a) and (c) 13 California Government Code section 54955 14 California Government Code section 54954.2(b)(3) 15 California Government Code section 54955.1 16 California Government Code section 54956.5 17 California Government Code section 54952.3 18 Education Code sections 35144, 35145 and 72129 19 Carlson v. Paradise Unified School District (1971) 18 Cal.App.3d 196 20 California Education Code section 35145.5 21 California Government Code section 54954.6 22 See Cal.Const.Art.XHIC, MILD and California Government Code section 54954.6(h) 23 California Government Code section 54954.2(b) 24 California Government Code section 54954.2(a)(2) 25 California Government Code section 54953.3 26 California Government Code section 54961(a); California Government Code section 11135(a) 27 California Government Code section 54952.2(c)(2) 28 California Government Code section 54953(b) 29 California Government Code section 54953(c) 30 California Government Code section 54953(c)(2) 31 California Government Code section 54957.9. 32 Norse v. City of Santa Cruz (9th Cir. 2010) 629 F.3d 966 (silent and momentary Nazi salute directed towards mayor is not a disruption); Acosta v. City of Costa Mesa (9th Cir. 2013) 718 F.3d 800 (city council may not prohibit "insolent" remarks by members of the public absent actual disruption). 33 California Government Code section 54957.9 34 California Government Code section 54957.5 35 California Government Code section 54957.5(d) 36 California Government Code section 54957.5(b) 37 California Government Code section 54957.5(c) 38 California Government Code section 54953.5(6) 39 California Government Code section 54957.5(d) 40 California Government Code section 54953.5(a) 41 California Government Code section 54953.6 42 California Government Code section 54954.3(a) 43 California Government Code section 54954.3(c) 44 California Government Code section 54954.3(6); Chaffee v. San Francisco Public Library Core. (2005) 134 Cal.App.4th 109; 75 Ops.Cal.Atty.Gen. 89 (1992) 45 California Government Code section 54954.3(a) ®46 California Government Code section 54954.3(a) Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www .cacities.org/opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 39 0 E 40 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT CLOSED SESSIONS Agendasand reports .......................................................................... ............................... 42 Litigation............................................................................................. ............................... 43 Realestate negotiations .................................................................... ............................... 45 Publicemployment ............................................................................ ............................... 46 ® Labor negotiations ............................................................................. ............................... 47 Labor negotiations — school and community college districts ........ ............................... 48 Other Education Code exceptions ..................................................... ............................... 48 Joint Powers Authorities .................................................................... ............................... 48 License applicants with criminal records .......................................... ............................... 49 Publicsecurity .................................................................................... ............................... 49 Multijurisdictional law enforcement agency ..................................... ............................... 49 Hospital peer review and trade secrets ............................................ ............................... 49 Other legislative bases for closed session ........................................ ............................... 50 who may attend closed sessions ...................................................... ............................... 50 The confidentiality of closed session discussions ............................. ............................... 50 CHAPTER 5: CLOSED SESSIONS Chapter 5 CLOSED SESSIONS A closed session is a meeting of a legislative body conducted in private without the attendance of the public or press. A legislative body is authorized to meet in closed session only to the extent expressly authorized by the Brown Act.' PRACTICE TIP: Some problems over closed sessions arise because secrecy itself breeds distrust. The Brown Act does not require closed sessions and legislative bodies may do well to resist the tendency to call a closed session simply because it may be permitted. A better practice is to go into closed session only when necessary. As summarized in Chapter 1 of this Guide, it is clear that the Brown Act must be interpreted liberally in favor of open meetings, and exceptions that limit public access (including the exceptions for closed session meetings) must be narrowly construed.' The most common purposes of the closed session provisions in the Brown Act are to avoid revealing confidential information (e.g., prejudicing the city's position in litigation or compromising the privacy interests of employees). Closed sessions should be conducted keeping those narrow purposes in mind. It is not enough that a subject is sensitive, embarrassing, or controversial. Without specific authority in the Brown Act for a closed session, a matter to be considered by a legislative body must be discussed in public. As an example, a board of police commissioners cannot meet in closed session to provide general policy guidance to a police chief, even though some matters are sensitive and the commission considers their disclosure contrary to the public interest' In this chapter, the grounds for convening a closed session are called "exceptions" because they are exceptions to the general rule that meetings must be conducted openly. In some circumstances, none of the closed session exceptions apply to an issue or information the legislative body wishes to discuss privately. In these cases, it is not proper to convene a closed session, even to protect confidential information. For example, although the Brown Act does authorize closed sessions related to specified types of contracts (e.g., specified provisions of real property agreements, employee labor agreements, and litigation settlement agreements),4 the Brown Act does not authorize closed sessions for other contract negotiations. Agendas and reports Closed session items must be briefly described on the posted agenda and the description must state the specific statutory exemptions An item that appears on the open meeting portion of the agenda may not be taken into closed session until it has been properly agendized as a closed session item or unless it is properly added as a closed session item by a two - thirds vote of the body after making the appropriate urgency findings.° The Brown Act supplies a series of fill in the blank sample agenda descriptions for various types of authorized closed sessions, which provide a "safe harbor' from legal attacks. These sample 42 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT • • agenda descriptions cover license and permit determinations, real property negotiations, existing or anticipated litigation, liability claims, threats to security, public employee appointments, evaluations and discipline, labor negotiations, multi - jurisdictional law enforcement cases, hospital boards of directors, medical quality assurance committees, joint powers agencies, and audits by the California State Auditor's office .7 If the legislative body intends to convene in closed session, it must include the section of the Brown Act authorizing the closed session in advance on the agenda and it must make a public announcement prior to the closed session discussion. In most cases, the announcement may simply be a reference to the agenda item.a Following a closed session, the legislative body must provide an oral or written report on certain actions taken and the vote of every elected member present. The timing and content of the report varies according to the reason for the closed session and the action taken.' The announcements may be made at the site of the closed session, so long as the public is allowed to be present to hear them. PRACTICE TIP: Pay close If there is a standing or written request for documentation, any copies of contracts, settlement attention to closed session agreements, or other documents finally approved or adopted in closed session must be provided agenda descriptions. Using to the requestor(s) after the closed session, if final approval of such documents does not rest the wrong label can lead with any other party to the contract or settlement. If substantive amendments to a contract or to invalidation of an action settlement agreement approved by all parties requires retyping, such documents may be held until taken in closed session if not retyping is completed during normal business hours, but the substance of the changes must be substantially compliant. summarized for any person inquiring about them.i0 The Brown Act does not require minutes, including minutes of closed sessions. However, a legislative body may adopt an ordinance or resolution to authorize a confidential "minute book" be kept to record actions taken at closed sessions." If one is kept, it must be made available to members of the legislative body, provided that the member asking to review minutes of a particular meeting was not disqualified from attending the meeting due to a conflict of interest. 12 A court may order the disclosure of minute books for the court's review if a lawsuit makes sufficient claims of an open meeting violation. Litigation There is an attorney /client relationship, and legal counsel may use it to protect the confidentiality of privileged written and oral communications to members of the legislative body — outside of meetings. But protection of the attorney /client privilege cannot by itself be the reason for a closed session.13 The Brown Act expressly authorizes closed sessions to discuss what is considered pending litigation. The rules that apply to holding a litigation closed session involve complex, technical definitions and procedures. The essential thing to know is that a closed session can be held by the body to confer with, or receive advice from, its legal counsel when open discussion would prejudice the position of the local agency in litigation in which the agency is, or could become, a party. 10 The litigation exception under the Brown Act is narrowly construed and does not permit •activities beyond a legislative body's conferring with its own legal counsel and required support staff.'= For example, it is not permissible to hold a closed session in which settlement negotiations take place between a legislative body, a representative of an adverse party, and a mediator. 16 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 43 CHAPTER 5: CLOSED SESSIONS The California Attorney General has opined that if the agency's attorney is not a participant, a 19 litigation closed session cannot be held." In any event, local agency officials should always consult the agency's attorney before placing this type of closed session on the agenda in order to be certain that it is being done properly. Before holding a closed session under the pending litigation exception, the legislative body must publicly state the basis for the closed session by identifying one of the following three types of matters: existing litigation, anticipated exposure to litigation, or anticipated initiation of litigation.ie Existing litigation Q. May the legislative body agree to settle a lawsuit in a properly- noticed closed session, without placing the settlement agreement on an open session agenda for public approval? A. Yes, but the settlement agreement is a public document and must be disclosed on request. Furthermore, a settlement agreement cannot commit the agency to matters that are required to have public hearings. Existing litigation includes any adjudicatory proceedings before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator. The clearest situation in which a closed session is authorized is when the local agency meets with its legal counsel to discuss a pending matter that has been filed in a court or with an administrative agency and names the local agency as a party. The legislative body may meet under these circumstances to receive updates on the case from attorneys, participate in developing strategy as the case develops, or consider alternatives for resolution of the case. Generally, an agreement to settle litigation may be approved in closed session. However, an agreement to settle litigation cannot be approved in closed session if it commits the city to take an action that is required to have a public hearing.'° Anticipated exposure to litigation against the local agency Closed sessions are authorized for legal counsel to inform the legislative body of a significant exposure to litigation against the local agency, but only if based on "existing facts and circumstances' as defined by the Brown Act 20 The legislative body may also meet under this exception to determine whether a closed session is authorized based on information provided by legal counsel or staff. In general, the "existing facts and circumstances" must be publicly disclosed unless they are privileged written communications or not yet known to a potential plaintiff. Anticipated initiation of litigation by the local agency A closed session may be held under the exception for the anticipated initiation of litigation when the legislative body seeks legal advice on whether to protect the agency's rights and interests by initiating litigation. • Certain actions must be reported in open session at the same meeting following the closed 44 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT session. Other actions, as where final approval rests with another party or the court, may be announced when they become final and upon inquiry of any person 21 Each agency attorney should be aware of and make the disclosures that are required by the particular circumstances. Real estate negotiations A legislative body may meet in closed session with its negotiator to discuss the purchase, sale, exchange, or lease of real property by or for the local agency. A "lease" includes a lease renewal or renegotiation. The purpose is to grant authority to the legislative . body's negotiator on price and terms of payment 22 Caution should be exercised to limit discussion to price and terms of payment without straying to other related issues such as site design, architecture, or other aspects of the project for which the transaction is contemplated. 23 Q. May other terms of a real estate transaction, aside from price and terms of payment, be addressed in closed session? A. No. However, there are differing opinions over the scope of the phrase "price and terms of payment " in connection with real estate closed sessions. Many agency attorneys argue that any term that directly affects the economic value of the transaction falls within the ambit of "price and terms of payment." Others take a narrower, more literal view of the phrase. The agency's negotiator may be a member of the legislative body itself. Prior to the closed session, or on the agenda, the legislative body must identify its negotiators, the real property that the negotiations may concern 24 and the names of the parties with whom its negotiator may negotiate.25 After real estate negotiations are concluded, the approval and substance of the agreement must be publicly reported. If its own approval makes the agreement final, the body must report in open session at the public meeting during which the closed session is held. If final approval rests with another parry, the local agency must report the approval and the substance of the agreement upon inquiry by any person, as soon as the agency is informed of it 26 "Our population is exploding, and we have to think about new school sites," said Board Member Jefferson. "Not only that;" interjected Board Member Tanaka, "we need to get rid of a couple of our older facilities." "Well, obviously the place to do that is in a closed session," said Board Member O'Reilly. "Otherwise we're going to set off land speculation. And if we even mention closing a school, parents are going to be in an uproar." ® A closed session to discuss potential sites is not authorized by the Brown Act. The exception is limited to meeting with its negotiator over specific sites — which must be identified at an open and public meeting. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 45 CHAPTER 5: CLOSED SESSIONS PRACTICE TIP: Discussions of who to appoint to an advisory body and whether or not to censure a fellow member of the legislative body must be held in the open. Public employment The Brown Act authorizes a closed session "to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee." 2' The purpose of this exception -- commonly referred to as the "personnel exception" — is to avoid undue publicity or embarrassment for an employee or applicant for employment and to allow full and candid discussion by the legislative body; thus, it is restricted to discussing individuals, not general personnel policies 28 The body must possess the power to appoint, evaluate, or dismiss the employee to hold a closed session under this exception." That authority may be delegated to a subsidiary appointed body 30 An employee must be given at least 24 hours notice of any closed session convened to hear specific complaints or charges against him or her. This occurs when the legislative body is reviewing evidence, which could include live testimony, and adjudicating conflicting testimony offered as evidence. A legislative body may examine (or exclude) witnesses," and the California Attorney General has opined that, when an affected employee and advocate have an official or essential role to play, they may be permitted to participate in the closed session." The employee has the right to have the specific complaints and charges discussed in a public session rather than closed session.33 If the employee is not given the 24 -hour prior notice, any disciplinary action is null and void.'° However, an employee is not entitled to notice and a hearing where the purpose of the closed session is to consider a performance evaluation. The Attorney General and the courts have determined that personnel performance evaluations do not constitute complaints and charges, which are more akin to accusations made against a person 31 Q. Must 24 hours notice be given to an employee whose negative performance evaluation is to be considered by the legislative body in closed session? A. No, the notice is reserved for situations where the body is to hear complaints and charges from witnesses. Correct labeling of the closed session on the agenda is critical. A closed session agenda that identified discussion of an employment contract was not sufficient to allow dismissal of an employee. 16 An incorrect agenda description can result in invalidation of an action and much embarrassment. For purposes of the personnel exception, "employee" specifically includes an officer or an independent contractor who functions as an officer or an employee. Examples of the former include a city manager, district general manager or superintendent. Examples of the latter Include a legal counsel or engineer hired on contract to act as local agency attorney or chief engineer. Elected officials, appointees to the governing body or subsidiary bodies, and independent contractors other than those discussed above are not employees for purposes of the personnel exception 31 Action on individuals who are not "employees" must also be public — including discussing and voting on appointees to committees, or debating the merits of independent contractors, or considering a complaint against a member of the legislative body itself. 46 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT • 11 ® The personnel exception specifically prohibits discussion or action on proposed compensation in closed session, except for a disciplinary reduction in pay. Among other things, that means there can be no personnel closed sessions on a salary change (other than a disciplinary reduction) between any unrepresented individual and the legislative body. However, a legislative body may address the compensation of an unrepresented individual, such as a city manager, in a closed session as part of a labor negotiation (discussed later in this chapter), yet another example of the importance of using correct agenda descriptions. Reclassification of a job must be public, but an employee's ability to fill that job may be considered in closed session. Any closed session action to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee must be reported at the public meeting during which the closed session is held. That report must identify the title of the position, but not the names of all persons considered for an employment position.'a However, a report on a dismissal or non - renewal of an employment contract must be deferred until administrative remedies, if any, are exhausted?' "I have some important news to announce," said Mayor Garcia. "We've decided to terminate the contract of the city manager, effective immediately. The council has met in closed session and we've negotiated six months severance pay." ® "Unfortunately, that has some serious budget consequences, so we've had to delay phase two of the East Area Project." This may be an improper use of the personnel closed session if the council agenda described the item as the city manager's evaluation. In addition, other than labor negotiations, any action on individual compensation must be taken in open session. Caution should be exercised to not discuss in closed session issues, such as budget impacts in this hypothetical, beyond the scope of the posted closed session notice. Labor negotiations The Brown Act allows closed sessions for some aspects of labor negotiations. Different provisions (discussed below) apply to school and community college districts. A legislative body may meet in closed session to instruct its bargaining representatives, which may be one or more of its members,40 on employee salaries and fringe benefits for both represented ( "union ") and non - represented employees. For represented employees, it may also consider working conditions that by law require negotiation. For the purpose of labor negotiation closed sessions, an "employee" includes an officer or an independent contractor who functions as an officer or an employee, but independent contractors who do not serve in the capacity of an officer or employee are not covered by this closed session exception." These closed sessions may take place before or during negotiations with employee representatives. Prior to the closed session, the legislative body must hold an open and public ® session in which it identifies its designated representatives. PRACTICE TIP: The personnel exception specifically prohibits discussion or action on proposed compensation in closed session except for a disciplinary reduction in pay. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 47 CHAPTER 5: CLOSED SESSIONS PRACTICE TIP: Prior to the closed session, the legislative body must hold an open and public session in which it identifies its designated representatives. PRACTICE TIP: Attendance by the entire legislative body before a grand jury would not constitute a closed session meeting under the Brown Act. During its discussions with representatives on salaries and fringe benefits, the legislative body may also discuss available funds and funding priorities, but only to instruct its representative. The body may also meet in closed session with a conciliator who has intervened in negotiations. 42 The approval of an agreement concluding labor negotiations with represented employees must be reported after the agreement is final and has been accepted or ratified by the other party. The report must identify the item approved and the other party or parties to the negotiation 63 The labor closed sessions specifically cannot include final action on proposed compensation of one or more unrepresented employees. Labor negotiations — school and community college districts Employee relations for school districts and community college districts are governed by the Rodda Act, where different meeting and special notice provisions apply. The entire board, for example, may negotiate in closed sessions. Four types of meetings are exempted from compliance with the Rodda Act: 1. A negotiating session with a recognized or certified employee organization; 2. A meeting of a mediator with either side, 3. A hearing or meeting held by a fact finder or arbitrator; and 4. A session between the board and its bargaining agent, or the board alone, to discuss its position regarding employee working conditions and instruct its agent.°° Public participation under the Rodda Act also takes another form 45 All initial proposals of both • sides must be presented at public meetings and are public records. The public must be given reasonable time to inform itself and to express its views before the district may adopt its initial proposal. In addition, new topics of negotiations must be made public within 24 hours. Any votes on such a topic must be followed within 24 hours by public: disclosure of the vote of each member .46 The final vote must be in public. Other Education Code exceptions The Education Code governs student disciplinary meetings by boards of school districts and community college districts. District boards may hold a closed session to consider the suspension or discipline of a student, if a public hearing would reveal personal, disciplinary, or academic information about the student contrary to state and federal pupil privacy law. The student's parent or guardian may request an open meeting.41 Community college districts may also hold closed sessions to discuss some student disciplinary matters, awarding of honorary degrees, or gifts from donors who prefer to remain anonymous.48 Kindergarten through 12th grade districts may also meet in closed session to review the contents of the statewide assessment instrument 49 Joint Powers Authorities The legislative body of a joint powers authority may adopt a policy regarding limitations on disclosure of confidential information obtained in closed session, and may meet in closed session • to discuss information that is subject to the policy.50 48 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT ® License applicants with criminal records A closed session is permitted when an applicant, who has a criminal record, applies for a license or license renewal and the legislative body wishes to discuss whether the applicant is sufficiently rehabilitated to receive the license. The applicant and the applicant's attorney are authorized to attend the closed session meeting. If the body decides to deny the license, the applicant may withdraw the application. If the applicant does not withdraw, the body must deny the license in public, immediately or at its next meeting. No information from the closed session can be revealed without consent of the applicant, unless the applicant takes action to challenge the denial.51 Public security Legislative bodies may meet in closed session to discuss matters posing a threat to the security of public buildings, essential public services, including water, sewer, gas, or electric service, or to the public's right of access to public services or facilities over which the legislative body has jurisdiction. Closed session meetings for these purposes must be held with designated security or law enforcement officials including the Governor, Attorney General, district attorney, agency attorney, sheriff or chief of police, or their deputies or agency security consultant or security operations manage r.12 Action taken in closed session with respect to such public security issues is not reportable action. Multijurisdictional law enforcement agency A joint powers agency formed to provide law enforcement services (involving drugs; gangs, sex crimes, firearms trafficking, felony possession of a firearm, high technology, computer, or identity theft; human trafficking; or vehicle theft) to multiple jurisdictions may hold closed sessions to discuss case records of an on -going criminal investigation, to hear testimony from persons involved in the investigation, and to discuss courses of action in particular cases. 13 The exception applies to the legislative body of the joint powers agency and to any body advisory to it. The purpose is to prevent impairment of investigations, to protect witnesses and informants, and to permit discussion of effective courses of action.^ Hospital peer review and trade secrets Two specific kinds of closed sessions are allowed for district hospitals and municipal hospitals, under other provisions of law15 1. A meeting to hear reports of hospital medical audit or quality assurance committees, or for related deliberations. However, an applicant or medical staff member whose staff privileges are the direct subject of a hearing may request a public hearing. 2. A meeting to discuss "reports involving trade secrets" — provided no action is taken. A "trade secret" is defined as information which is not generally known to the public or competitors and which: 1) "derives independent economic value, actual or potential" by virtue of its restricted knowledge; 2) is necessary to initiate a new hospital service or program or facility, ®and 3) would, if prematurely disclosed, create a substantial probability of depriving the hospital of a substantial economic benefit. The provision prohibits use of closed sessions to discuss transitions in ownership or management, or the district's dissolution 56 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 49 CHAPTER 5: CLOSED SESSIONS M1 PRACTICE TIP: Meetings are either open or closed. There is nothing "in between "62 Other legislative bases for closed session Since any closed session meeting of a legislative body must be authorized by the Legislature, it is important to carefully review the Brown Act to determine if there is a provision that authorizes a closed session for a particular subject matter. There are some less frequently encountered topics that are authorized to be discussed by a legislative body in closed session under the Brown Act, including: a response to a confidential final draft audit report from the Bureau of State Audits,51 consideration of the purchase or sale of particular pension fund investments by a legislative body of a local agency that invests pension funds,sa hearing a charge or complaint from a member enrolled in a health plan by a legislative body of a local agency that provides Medi -Cal services," discussions by a county board of supervisors that governs a health plan licensed pursuant to the Knox -Keene Health Care Services Plan Act related to trade secrets or contract negotiations concerning rates of payment,60 and discussions by an insurance pooling joint powers agency related to a claim filed against, or liability of, the agency or a member of the agency.°' Who may attend closed sessions Meetings of a legislative body are either fully open or fully closed, there is nothing in between. Therefore, local agency officials and employees must pay particular attention to the authorized attendees for the particular type of closed session. As summarized above, the authorized attendees may differ based on the topic of the closed session. Closed sessions may involve only the members of the legislative body and only agency counsel, management and support staff, and consultants necessary for consideration of the matter that is the subject of closed session, with very limited exceptions for adversaries or witnesses with official roles in particular types of hearings (e.g., personnel disciplinary hearings and license hearings). In any case, individuals who do not have an official role in the closed session subject matters must be excluded from closed sessions.63 Q. May the lawyer for someone suing the agency attend a closed session in order to explain to the legislative body why it should accept a settlement offer? A. No, attendance in closed sessions is reserved exclusively fer the agency's advisors. The confidentiality of closed session discussions The Brown Act explicitly prohibits the unauthorized disclosure of confidential information acquired in a closed session by any person present, and offers various remedies to address breaches of confidentiality66 It is incumbent upon all those attending lawful closed sessions to protect the confidentiality of those discussions. One court has held that members of a legislative body cannot be compelled to divulge the content of closed session discussions through the discovery process.66 Only the legislative body acting as a body may agree to divulge confidential closed session information, regarding attorney /client privileged communications, the entire body is the holder of the privilege and only the entire body can decide to waive the privilege 66 50 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT • • • ® Before adoption of the Brown Act provision specifically prohibiting disclosure of closed session communications, agency attorneys and the Attorney General long opined that officials have a fiduciary duty to protect the confidentiality of closed session discussions. The Attorney General issued an opinion that it is "improper" for officials to disclose information received during a closed session regarding pending litigation, °J though the Attorney General has also concluded that a local agency is preempted from adopting an ordinance criminalizing public disclosure of closed session discussions 68 In any event, in 2002, the Brown Act was amended to prescribe particular remedies for breaches of confidentiality. These remedies include injunctive relief; and, if the breach is a willful disclosure of confidential information, the remedies include disciplinary action against an employee, and referral of a member of the legislative body to the grand juryB9 The duty of maintaining confidentiality, of course, must give way to the responsibility to disclose improper matters or discussions that may come up in closed sessions. In recognition of this public policy, under the Brown Act, a local agency may not penalize a disclosure of information learned during a closed session if the disclosure: 1) is made in confidence to the district attorney or the grand jury due to a perceived violation of law, 2) is an expression of opinion concerning the propriety or legality of actions taken in closed session, including disclosure of the nature and extent of the illegal action; or 3) is information that is not confidential 10 The interplay between these possible sanctions and an official's first amendment rights is complex and beyond the scope of this guide. Suffice it to say that this is a matter of great sensitivity and controversy. "1 want the press to know that I voted in closed session against filing the eminent domain action;' said Council Member Chang. "Don't settle too soon;" reveals Council Member Watson to the property owner, over coffee. "The city's offer coming your way is not our bottom line." The first comment to the press may be appropriate if it is a part of an action taken by the City Council in closed session that must be reported publicly." The second comment to the property owner is not — disclosure of confidential information acquired in closed session is expressly prohibited and harmful to the agency. PRACTICE TIP: There is a strong interest in protecting the confidentiality of proper and lawful closed sessions. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 51 CHAPTER 5: CLOSED SESSIONS ENDNOTES: 1 California Government Code section 54962 2 California Constitution, Art. 1, section 3 3 61 Ops.Cal.Atty.Gen. 220 (1978); but see California Government Code section 54957.8 (multijurisdictional law enforcement agencies are authorized to meet in closed session to discuss the case records of ongoing criminal investigations, and other related matters). 4 California Government Code section 54957.1 5 California Government Code section 54954.5 6 California Government Code section 54954.2 7 California Government Code section 54954.5 8 California Government Code sections 54956.9 and 54957.7 9 California Government Code section 54957.1(a) 10 California Government Code section 54957.1(b) I 1 California Government Code section 54957.2 12 Hamilton v. Town of Los Gatos (1989) 213 Cal.App.3d 1050; 2 Cal!Code Regs. section 18707 13 Roberts v. City of Palmdale (1993) 5 Cal.4th 363 14 California Government Code section 54956.9; Shapiro v. Board of Directors of Center City Development Corp. (2005) 134 Cal.App.4th 170 (agency must be a party to the litigation). 15 82 Ops.Cal.Atty.Gen. 29 (1999) 16 Page v. Miracosta Community College District (2009) 180 Cal.AppAth 471 17 "The Brown Act," California Attorney General (2003), p. 40 18 California Government Code section 54956.9(8) 19 Trancas Property Owners Association v. City of Malibu (2006) 138 Cal.App.4th 172 20 Government Code section 54956.9(e) 21 California Government Code section 54957.1 22 California Government Code section 54956.8 23 Shapiro v. San Diego City Council (2002) 96 Cal.AppAth 904; see also 93 Ops.Cal.Atty.Gen. 51 (2010) (redevelopment agency may not convene a closed session to discuss rehabilitation loan for a property already subleased to a loan recipient, even if the loan Incorporates some of the sublease terms and includes an operating covenant governing the property); 94 Ops.CaLAttyGen. 82 (2011) (real estate closed session may address form, manner and timing of consideration and other items that cannot be disclosed without revealing price and terms). 24 73 Ops.Cal.Atty.Gen. 1 (1990) 25 California Government Code sections 54956.8 and 54954.5(6) 26 California Government Code section 54957.1(a)(1) 27 California Government Code section 54957(b) 40 28 63 Ops.Cal.Atty.Gen. 153 (1980); but see Duvall v. Board of Trustees (2000) 93 Cal.App.4th 902 (board may discuss personnel evaluation criteria, process and other preliminary matters in closed session but only if related to the evaluation of a particular employee). 29 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.AppAth 1165; 85 Ops.Cal.Atty.Gen. 77(2002) 30 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165; 80 Ops.Cal.Atty. • Gen. 308 (1997). Interviews of candidates to fill a vacant staff position conducted by a temporary committee appointed by the governing body may be done in closed session. 52 OPEN & PUBLIC V; A GUIDE TO THE RALPH M. BROWN ACT 31 California Government Code section 54957(6)(3) 32 88 Ops.Cal.Atty.Gen. 16 (2005) 33 Morrison v. Housing Authority of the City of Los Angeles (2003) 107 Cal.AppAth 860 34 California Government Code section 54957(6); but see Bollinger v. San Diego Civil Service Commission (1999) 71 Cal.App.4th 568 (notice not required for closed session deliberations regarding complaints or charges, when there was a public evidentiary hearing prior to closed session). 35 78 Ops.Cal.Atty.Gen. 218 (1995); Bell v. Vista Unified School District (2000) 82 Cal.App.4th 672; Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876; Fischer v. Los Angeles Unified School District (1999) 70 Cal.App.4th 87 36 Moreno v. City of King (2005) 127 Cal.AppAth 17 37 California Government Code section 54957 38 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.AppAth 1165 39 California Government Code section 54957.1(a)(5) 40 California Government Code section 54957.6 41 California Government Code section 54957.6(6); see also 98 Ops.Cal.Atty.Gen. 41 (2015) (a project labor agreement between a community college district and workers hired by contractors or subcontractors is not a proper subject of closed session for labor negotiations because the workers are not "employees" of the district). 42 California Government Code section 54957.6; and 51 Ops.Cal.Atty.Gen. 201 (1968) 43 California Government Code section 54957.1(a)(6) 44 California Government Code section 3549.1 ® 45 California Government Code section 3540 46 California Government Code section 3547 47 California Education Code section 48918; but see Rim of the World Unified School District v. Superior Court (2003) 104 Cal.AppAth 1393 (Section 48918 preempted by the Federal Family Educational Right and Privacy Act in regard to expulsion proceedings). 48 California Education Code section 72122 49 California Education Code section 60617 50 California Government Code section 54956.96 51 California Government Code section 54956.7 52 California Government Code section 54957 53 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force(2005)134 Cal. AppAth 354 54 California Government Code section 54957.8 55 California Government Code section 54962 56 California Health and Safety Code section 32106 57 California Government Code section 54956.75 58 California Government Code section 54956.81 59 California Government Code section 54956.86 60 California Government Code section 54956.87 61 California Government Code section 54956.95 ® 62 46 Ops.Cal.Atty.Gen. 34 (1965) 63 82 Ops.Cal.Atty.Gen. 29 (1999) OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 53 CHAPTER 5: CLOSED SESSIONS 64 Government Code section 54963 • 65 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 327; see also California Government Code section 54963. 66 Roberts v. City of Palmdale (1993) 5 Cal.4th 363 67 80 Ops.Cal.Atty.Gen. 231 (1997) 68 76 Ops.Cal.Atty.Gen. 289 (1993) 69 California Government Cade section 54963 70 California Government Code section 54963 71 California Government Code section 54957.1 Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.Org /opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov. • u 54 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT a a, i c- OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN. ACT CHAPTER 6: REMEDIES Chapter 6 REMEDIES Certain violations of the Brown Act are designated as misdemeanors, although by far the most commonly used enforcement provisions are those that authorize civil actions to invalidate specified actions taken in violation of the Brown Act and to stop or prevent future violations. Still, despite all the safeguards and remedies to enforce them, it is ultimately impossible for the public to monitor every aspect of public officials' interactions. Compliance ultimately results from regular training and a good measure of self - regulation on the part of public officials. This chapter discusses the remedies available to the public when that self - regulation is ineffective. Invalidation Any interested person, including the district attorney, may seek to invalidate certain actions of a legislative body on the ground that they violate the Brown Act.' violations of the Brown Act, however, cannot be invalidated if they involve the following types of actions: • Those taken in substantial compliance with the law. No Brown Act violation is found when the given notice substantially complies with the Brown Act, even when the notice erroneously cites to the wrong Brown Act section, but adequately advises the public that the Board will meet with legal counsel to discuss potential litigation in closed session,2 • Those involving the sale or issuance of notes, bonds or other indebtedness, or any related contracts or agreements; a Those creating a contractual obligation, including a contract awarded by competitive bid for other than compensation for professional services, upon which a party has in good faith relied to its detriment; ® Those connected with the collection of any tax; or e Those in which the complaining party had actual notice at least 72 hours prior to the regular meeting or 24 hours prior to the special meeting, as the case may be, at which the action is taken. is LJ Before filing a court action seeking invalidation, a person who believes that a violation has occurred must send a written "cure or correct" demand to the legislative body. This demand must clearly describe the challenged action and the nature of the claimed violation. This demand must be sent within 90 days of the alleged violation or 30 days if the action was taken in open session but in violation of Section 54954.2, which requires (subject to specific exceptions) that only properly agendized items are acted on by the governing body during a meeting.3 The legislative body then has up to 30 days to cure and correct its action. If it does not act, any lawsuit must be filed within the next 15 days. The purpose of this requirement is to offer the body an opportunity to • consider whether a violation has occurred and to weigh its options before litigation is filed. 56 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 40 } k Although just about anyone has standing to bring an action for invalidation ,° the challenger must show prejudice as a result of the alleged violation .= An action to invalidate fails to state a cause of action against the agency if the body deliberated but did not take an action .° Applicability to Past Actions Any interested person, including the district attorney, may file a civil action to determine whether past actions of a legislative body occurring on or after January 1, 2013 constitute violations of the Brown Act and are subject to a mandamus, injunction, or declaratory relief action 7 Before filing an action, the interested person must, within nine months of the alleged violation of the Brown Act, submit a "cease and desist' letter to the legislative body, clearly describing the past action and the nature of the alleged violation .8 The legislative body has 30 days after receipt of the letter to provide an unconditional commitment to cease and desist from the past action.° If the body fails to take any action within the 30 -day period or takes an action other than an unconditional commitment, a lawsuit may be filed within 60 days.10 The legislative body's unconditional commitment must be approved at a regular or special meeting as a separate item of business and not on the consent calendar.11 The unconditional commitment must be substantially in the form set forth in the Brown Act. 12 No legal action may thereafter be commenced regarding the past action.t3 However, an action of the legislative body in violation of its unconditional commitment constitutes an independent violation of the Brown Act and a legal action consequently may be commenced without following the procedural requirements for challenging past actions. 14 The legislative body may rescind its prior unconditional commitment by a majority vote of its membership at a regular meeting as a separate item of business not on the consent calendar. At least 30 days written notice of the intended rescission must be given to each person to whom the unconditional commitment was made and to the district attorney. Upon rescission, any interested person may commence a legal action regarding the past actions without following the procedural requirements for challenging past actions." Civil action to prevent future violations The district attorney or any interested person can file a civil action asking the court to: ® Stop or prevent violations or threatened violations of the Brown Act by members of the legislative body of a local agency, ■ Determine the applicability of the Brown Act to actions or threatened future action of the legislative body; n Determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid under state or federal law; or e Compel the legislative body to tape record its closed sessions. PRACTICE TIP: A lawsuit to invalidate must be preceded by a demand to cure and correct the challenged action in order to give the legislative body an opportunity to consider its options. The Brown Act does not specify how to cure or correct a violation; the best method is to rescind the action being complained of and start over, or reaffirm the action if the local agency relied on the action and rescinding the action would prejudice the local agency. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 57 It is not necessary for a challenger to prove a past pattern or practice of violations by the local agency in order to obtain injunctive relief. A court may presume when issuing an injunction that a single violation will continue in the future where the public agency refuses to admit to the alleged violation or to renounce or curtail the practice.16 Note, however, that a court may not compel elected officials to disclose their recollections of what transpired in a closed session 17 Upon finding a violation of the Brown Act pertaining to closed sessions, a court may compel the legislative body to tape record its future closed sessions. In a subsequent lawsuit to enforce the Brown Act alleging a violation occurring in closed session, a court may upon motion of the plaintiff review the tapes if there is good cause to think the Brown Act has been violated, and make public the relevant portion of the closed session recording. Costs and attorney's fees Someone who successfully invalidates an action taken in violation of the Brown Act or who successfully enforces one of the Brown Act's civil remedies may seek court costs and reasonable attorney's fees. Courts have held that attorney's fees must be awarded to a successful plaintiff unless special circumstances exist that would make a fee award against the public agency unjust." When evaluating how to respond to assertions that the Brown Act has been violated, elected officials and their lawyers should assume that attorney's fees will be awarded against the agency if a violation of the Act is proven. An attorney's fee award may only be directed against the local agency and not the individual members of the legislative body. If the local agency prevails, it may be awarded court costs and attorney's fees if the court finds the lawsuit was clearly frivolous and lacking in merit.'' Criminal complaints PRACTICE TIP: Attorney's CHAPTER 6: REMEDIES fees will likely be awarded if intent described below is punishable as a misdemeanor .20 a violation of the Brown Act is It is not necessary for a challenger to prove a past pattern or practice of violations by the local agency in order to obtain injunctive relief. A court may presume when issuing an injunction that a single violation will continue in the future where the public agency refuses to admit to the alleged violation or to renounce or curtail the practice.16 Note, however, that a court may not compel elected officials to disclose their recollections of what transpired in a closed session 17 Upon finding a violation of the Brown Act pertaining to closed sessions, a court may compel the legislative body to tape record its future closed sessions. In a subsequent lawsuit to enforce the Brown Act alleging a violation occurring in closed session, a court may upon motion of the plaintiff review the tapes if there is good cause to think the Brown Act has been violated, and make public the relevant portion of the closed session recording. Costs and attorney's fees Someone who successfully invalidates an action taken in violation of the Brown Act or who successfully enforces one of the Brown Act's civil remedies may seek court costs and reasonable attorney's fees. Courts have held that attorney's fees must be awarded to a successful plaintiff unless special circumstances exist that would make a fee award against the public agency unjust." When evaluating how to respond to assertions that the Brown Act has been violated, elected officials and their lawyers should assume that attorney's fees will be awarded against the agency if a violation of the Act is proven. An attorney's fee award may only be directed against the local agency and not the individual members of the legislative body. If the local agency prevails, it may be awarded court costs and attorney's fees if the court finds the lawsuit was clearly frivolous and lacking in merit.'' 58 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT • E Is Criminal complaints PRACTICE TIP: Attorney's A violation of the Brown Act by a member of the legislative body who acts with the improper fees will likely be awarded if intent described below is punishable as a misdemeanor .20 a violation of the Brown Act is A criminal violation has two components. The first is that there must be an overt act — a member proven. of a legislative body must attend a meeting at which action is taken in violation of the Brown Act 21 "Action taken" is not only an actual vote, but also a collective decision, commitment or promise by a majority of the legislative body to make a positive or negative decision .22 If the meeting involves mere deliberation without the taking of action, there can be no misdemeanor penalty. A violation occurs for a tentative as well as final decision .23 In fact, criminal liability is triggered by a member's participation in a meeting in violation of the Brown Act — not whether that member has voted with the majority or minority, or has voted at all. The second component of a criminal violation is that action is taken with the intent of a member "to deprive the public of information to which the member knows or has reason to know the public is entitled" by the Brown Act 2' 58 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT • E Is N. As with other misdemeanors, the filing of a complaint is up to the district attorney. Although criminal prosecutions of the Brown Act are uncommon, district attorneys in some counties aggressively monitor public agencies' adherence to the requirements of the law. Some attorneys and district attorneys take the position that a Brown Act violation may be pursued criminally under Government Code section 1222.15 There is no case law to support this view, if anything, the existence of an express criminal remedy within the Brown Act would suggest otherwise. 26 Voluntary resolution Arguments over Brown Act issues often become emotional on all sides. Newspapers trumpet relatively minor violations, unhappy residents fume over an action, and legislative bodies clam up about information better discussed in public. Hard lines are drawn and rational discussion breaks down. The district attorney or even the grand jury occasionally becomes involved. Publicity surrounding alleged violations of the Brown Act can result in a loss of confidence by constituents in the legislative body. There are times when it may be preferable to consider re- noticing and rehearing, rather than litigating, an item of significant public interest, particularly when there is any doubt about whether the open meeting requirements were satisfied. At bottom, agencies that regularly train their officials and pay close attention to the requirements of the Brown Act will have little reason to worry about enforcement. ENDNOTES: 1 California Government Code section 54960.1. Invalidation is limited to actions that violate the following sections of the Brown Act: section 54953 (the basic open meeting provision); sections 54954.2 and 54954.5 (notice and agenda requirements for regular meetings and closed sessions); 54954.6 (tax hearings); 54956 (special meetings); and 54596.5 (emergency situations). Violations of sections not listed above cannot give rise to invalidation actions, but are subject to the other remedies listed in section 54960.1. 2 Castaic Lake Water Agency v. Newhall County Water District (2015) 238 Cal.App.4th 1196, 1198 3 California Government Code section 54960.1 (b) and (c)(1) 4 5 6 McKee v. Orange Unified School District (2003) 110 Cal. AppAth 1310, 1318 -1319 Cohan v. City of Thousand Oaks (1994) 30 Cal.AppAth 547, 556, 561 Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1 1 16 -17, 1 118 7 Government Code Section 54960.2(a); Senate Bill No. 1003, Section 4 (2011 -2012 Session) 8 Government Code Sections 54960.2(a)(1),(2) ® 9 Government Code Section 54960.2(6) OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 59 CHAPTERS: REMEDIES ' 10 Government Code Section 54960.2(a)(4) E 60 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 10 Government Code Section 54960.2(a)(4) 11 Government Code Section 54960.2(c)(2) 12 Government Code Section 54960.2(c)(1) 13 Government Code Section 54960.2(c)(3) 14 Government Code Section 54960.2(d) 15 Government Code Section 54960.2(e) 16 California Alliance far Utility Safety and Education (CAUSE) v. City of San Diego (1997) 56 Cal.AppAth 1024; Common Cause v. Stirling (1983) 147 Cal.App.3d 518, 524; Accord Shapiro v. San Diego City Council (2002) 96 Cal. App. 4th 904, 916 & fn.6 17 Meitman v. Superior Court (1999) 74 Cal.App.4th 324, 334 -36 18 Los Angeles Times Communications, LLC v. Los Angeles County Board of Supervisors (2003) 112 Cal. AppAth 1313, 1327 -29 and cases cited therein 19 California Government Code section 54960.5 20 California Government Code section 54959. A misdemeanor is punishable by a fine of up to $1,000 or up to six months in county jail, or both. California Penal Code section 19. Employees of the agency who participate in violations of the Brown Act cannot be punished criminally under section 54959. However, at least one district attorney instituted criminal action against employees based on the theory that they criminally conspired with the members of the legislative body to commit a crime under section 54949. 21 California Government Code section 54959 22 California Government Code section 54952.6 23 610ps.Cal.Atty.Gen.283(1978) 24 California Government Code section 54959 25 California Government Code section 1222 provides that "[elvery wilful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision is made for the punishment of such delinquency, is punishable as a misdemeanor.' 26 The principle of statutory construction known as expressio unius est exclusio alterius supports the view that section 54959 is the exclusive basis for criminal liability under the Brown Act. Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org /opengovernment. A current version of the Brown Act may be found at www.leginfo.ca.gov. E 60 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT L '� LFE AG IU E® CAL CITIES 1400 K Street, Suite 400, Sacramento, CA 95814 Phone: (916) 658-8200 1 Fax: (916) 658 -8240 www.cacities.org I www.cacities.orglevents [www- westerncitycom 1 j a t 0 1 I _ , r- - \ l ® Printed on Recycled Pape