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HomeMy WebLinkAbout04.a. California Open Meeting Law - The Ralph M. Brown Act (Handout)Y. (Aandwi� CALIFORNIA OPEN MEETING LAW: THE RALPH M. BROWN ACT meyers nave professional law corporation 555 12`" Street Suite 1500 Oakland, CA 94607 510.808.2000 www.meyersnave.com With offices in: Oakland Los Angeles Sacramento Santa Rosa San Francisco Fresno CALIFORNIA OPEN MEETING LAW: THE RALPH M. BROWN ACT PURPOSE AND INTENT The Ralph M. Brown Act ( "The Brown Act "), Government Code Section 54950 et seq.,1 is California's local government open meeting law. In interpreting the Brown Act, the courts look to the Legislature's public policy statements, which are listed below. There is a strong presumption in favor of the public's "right to know" what and how decision - makers are making decisions. A. Brown Act Policy, Purpose and Intent. The Brown Act's public policy statement provides: 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. (Section 54950, emphasis added.) B. Scope of the Brown Act — What Bodies and What Meetings? The Brown Act covers virtually every type of local governmental body, elected or appointed, decision - making or advisory, permanent or temporary. A meeting subject to the Brown Act includes not only a formal gathering but also communication directly or through an intermediary involving a majority of the decision - making body. (Section 54951.) Il. DECISION - MAKING BODIES COVERED A. "Legislative bodies" under the Brown Act. (Section 54952.) I All statutory references are to the Government Code unless otherwise indicated. m e y e r s I nave 2 Copyright 2012 The Brown Act applies to "legislative bodies" of virtually all local agencies in California. This includes cities (whether general law or charter), counties, special districts (whether independent or dependent districts), joint powers authorities, school districts, and a variety of other entities created by statutes (e.g., local agency formation commissions). The Brown Act defines a "legislative body" to include the governing body of a local agency (e.g., the city council or board of directors) and any commission, committee, board, or other body of a local agency, whether permanent or temporary, decision - making or advisory, created by charter, ordinance, resolution, or formal action of the legislative body. B. Committees under the Brown Act. A standing committee is subject to the Brown Act. A standing committee is any committee that meets on a continuing basis or is created by charter, ordinance, resolution, or other formal action of the legislative body. A common example is when a city council or board of directors creates a finance committee which meets monthly to review the warrant list or the budget. Even a committee of short term duration is subject to the Brown Act, unless the committee is an ad hoc advisory committee and its members consist solely of less than a quorum of the decision - making body. However, a committee formed by other than the Legislative body, e.g. the manager, is not subject to the Brown Act. C. Private Organizations under the Brown Act. Also included as legislative bodies are any non - profit corporations created by the local entity legislative body to exercise delegated authority or any non - profit that receives funding from the local entity legislative body and to whose board the local entity legislative body appoints one or more of its members (Section 54952(c).) In addition, a limited liability company's board is a legislative body if the limited liability company was created by the local entity's legislative body to exercise delegated authority or the board receives funding from the local entity and its board contains a member appointed by the local entity legislative body. (Section 54952.) m e y e r s I nave 3 Copyright 2012 D. New Members. The Brown Act applies to new members who have been elected or appointed but have not yet taken their oath of office. III. MEETINGS SUBJECT TO THE BROWN ACT A. "Meeting" is Broadly Defined. The Brown Act broadly defines what constitutes a meeting as "any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains." (Section 54952.2(a) B. Serial Meetings. A meeting may occur even when a majority of the decision - making body is not in the same place at the same time. Although the Brown Act does not prohibit individual contacts or conversations between a member of a legislative body and any other person, it must be kept in mind that the Brown Act does, however, prohibit a series of such individual contacts if they result in a so- called "serial meeting." The Brown Act expressly prohibits serial meetings which are conducted through direct communications, intermediaries, or technological devices for the purpose of allowing the legislative body to "to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body." (Section 54952.2(b).) For example, a serial meeting occurs when Member A contacts Member B about a particular matter of agency business. Member B then contacts Member C. Member C then contacts Member D and so on until a quorum is reached and has discussed the matter. Another example of a serial meeting would be when a staff person telephones the members of the legislative body one -by -one for a decision on a proposed action or prior to a formal meeting and, in the process, reveals information about the members' respective views. The Brown Act does allow a staff member to provide information or answer questions to the members of the legislative body individually as long as the staff member does not m e y e r s I nave 4 copyright 2012 communicate the comments or position of the members to other members. Potential situations that may result in serial meetings include: 1. Individual Contacts Between Members of the Public and Members of the Legislative Body. Although the Brown Act allows for individual contacts or discussions between a member of a legislative body and another person, the member of the public should not be asked to act as an intermediary to relay what other members of the legislative body are considering. Additionally, if a person wishes to discuss opinions of other members with the member of the legislative body he or she has contacted, that member should decline. 2. Writings as Meetings. Although the unilateral distribution of written documents (e.g. informational or advisory memos from staff) does not normally constitute a meeting under the Brown Act, at least one court has determined that the circulation of a proposal amongst board members for their review and signature did, in fact, constitute a meeting in violation of the Brown Act when a majority of the members of the legislative body signed the document. 3. E- mails. E -mails are yet another way in which a meeting can unintentionally occur. A board member may believe that a message to a colleague about a matter that will be before the board is entirely innocent and the recipient may well agree. Indeed, the recipient might well forward it yet to a second and third board member resulting in a serial meeting prohibited by the Brown Act. All may be acting with no intention to violate the Brown Act, and yet they have. This can easily occur when a member selects "reply to all" in response to a message from staff. m e y e r s I nave 5 Copyright 2012 4. Video Teleconferencing and Conference Telephone Calls. The prohibition against serial meetings specifically exempts video conferencing or teleconferencing meetings as long as they are conducted according to the procedures set forth in the Brown Act at Section 54953(b). Such procedures require that an agenda be posted at all teleconference locations. Each location must be identified in the notice and agenda of the meeting and must be accessible to the public. In addition, a quorum of the members of the legislative body must participate from within the boundaries of the agency's jurisdiction. C. Express Exceptions to Definition of "Meeting" under the Brown Act. (Section 54952.2(c).) Individual Contacts The Brown Act allows individual contacts between a member of the decision making body and any other person. Thus, a member of the public can have individual contact with members A, B, C, D, and E. 2. Conferences The Brown Act allows all or a majority of a legislative body to attend a conference as long as a majority of the members does not discuss among themselves, except as part of the scheduled program, specific matters relating to the body's business. 3. Open Public Community Meeting. Similarly, all or a majority of the legislative body may attend an open and publicized community meeting organized to address a topic of local concern as long as the agency did not organize the event and a majority of the members do not discuss among themselves, other than as part of the scheduled program, specific matters relating to the agency's business. 4. Meeting of Another Public Entity. All or a majority of the legislative body may attend an open and noticed meeting of another public entity, as long as a meyersInave 6 Copyright 2012 majority of the members do not discuss among themselves, other than as part of the scheduled meeting, specific matters relating to the agency's business. 5. Social Function All or a majority of a decision - making body may attend a social function, as long as a majority of the members do not discuss specific matters relating to the agency's business among themselves. 6. Standing Committee A majority of the members of a decision - making body may attend an open and noticed meeting of a standing committee, even when the attendees are not members of the committee, as long as the attendees merely observe and do not make any comments during the committee meeting. IV. LOCATION OF MEETINGS UNDER THE BROWN ACT (Section 54954) A. Meetings Inside Boundaries. Generally, a legislative body must hold its meetings within the agency's boundaries. B. Exceptions. A legislative body may meet outside its legislative boundaries in the following situations: To comply with state or federal law or any court order, or to attend a judicial administrative proceeding as to which the local agency is a party. 2. To inspect real property located outside the agency's jurisdiction or to inspect personal property which would be inconvenient to bring inside the jurisdiction. 3. To participate in meetings or discussions of multi- agency significance as long as the meetings are held within the jurisdiction of one of the agencies and proper notice is provided. 4. To meet at the nearest available facility if the legislative body has no meeting facility within its jurisdiction or at the principal m e y e r s I nave % Copyright 2012 office of the legislative body if that office is located outside the jurisdiction. 5. To meet with state or federal officials on legislative or regulatory issues affecting the agency when a meeting within the agency's boundaries would be impractical. 6. To meet in a nearby facility as long as the topic of the meeting relates directly to the facility. 7. To meet in the office of the agency's legal counsel for a closed session when such meeting would reduce legal fees or cost. 8. Some entities, such as School Districts and Joint Powers Agencies, enjoy additional exceptions. C. Access for the Disabled. (Section 54961(a).) The Brown Act and the American with Disabilities Act (the "ADA ") require that legislative bodies meet at an accessible location. The ADA requires that a public entity make accommodation to allow disabled persons' participation in open meetings unless the public entity can show that this causes an undue burden. This means that public entities need to be prepared to respond to requests for listening devices, sign language interpreters, and other accommodations. V. NOTICE AND AGENDA REQUIREMENTS UNDER THE BROWN ACT A. Regular Meeting. (Section 54954.) Each legislative body, excluding advisory and standing committees, must specify by ordinance, resolution, or bylaws the time and place for its regular meeting. A regular meeting can be as infrequent as once a year. 1. Agenda Requirements The agency must post the agenda at least 72 hours prior to the meeting. The agenda must be posted on the local agency's website, if the agency has a website. m e y e r s I nave $ Copyright 2012 The agenda must contain a brief general description of each item of business to be conducted, and must specify the time and location of the regular meeting. The agenda should allow a reasonable person, who was not familiar with the matter, to understand on what the legislative body will be taking action or discussing. (Section 54954.2 (a ). ) If requested, agendas and agenda packets must be made available in appropriate alternative formats (e.g. Braille or audio) to disabled persons. (Section 54954.1.) 2. Non - agendized matters (Section 54954.2.) Generally, the Brown Act prohibits the legislative body from discussing or taking action on any non - agendized item, with the following exceptions: i. Member of the legislative staff may briefly respond to statements made or questions posed by a member of the public. ii. A member of the legislative body may ask questions for clarification, make a brief announcement, or make a report of his /her activities. iii. A member of the legislative body may refer a matter to staff, request staff to report back, or take action to direct staff to place a matter on a future agenda. iv. The legislative body, under limited circumstances, may add a matter to its agenda for discussion and action if the legislative body identifies the item and either (i) determines by majority vote that an emergency situation exists, as defined by Section 54956.5, (ii) determines by two - thirds vote (or a unanimous vote in the event that less than two - thirds of the members are present) that a need exists to take immediate action on the matter and the matter came to the attention of the local agency after the agenda was posted, or (iii) the item was previously posted for a prior meeting of the legislative body, which occurred not more than five calendar days prior to the date of the current meeting and, at the prior meeting the legislative body continued the item to the current meeting. m e y e r s I nave 9 Copyright 2012 3. Public Comment (Section 54954.3.) Every agenda for a regular meeting must include an opportunity for members of the public to address the legislative body on any item within the subject matter jurisdiction of the body. In addition, the public must be allowed to comment on any item on the agenda before or during its consideration by the legislative body unless such opportunity has already been provided and the item has not been subsequently changed substantially. The legislative body may adopt reasonable regulations limiting the amount of time for public comment on particular issues, as well as for individual speakers. B. Special Meeting. (Section 54956.) Either the presiding officer or a majority of the members of the legislative body may call a special meeting at any time. The agency may call a special meeting by delivering written notice to each member of the legislative body so that each member receives the notice at least 24 hours before the time of the meeting specified in the notice. The notice of the meeting must also include an agenda that identifies each item to be discussed, as well as the time and place of the special meeting. The agenda must be posted on the local agency's website, if the agency has a website. Unlike a regular meeting, a legislative body may not add anything to the agenda for the special meeting. In addition, the legislative body may restrict public comment solely to those matters on the agenda. Special meetings to consider local agency salary, salary schedule or fringe benefits of the chief executive office (e.g. the general manager or department heads) are prohibited. m e y e r s I nave 10 Copyright 2012 C. Emergency Meeting. (Section 54956.5.) A legislative body may call an emergency meeting when there is an emergency requiring prompt attention due to disruption or threatened disruption of public facilities without having to comply with the 24 -hour notice requirement of the special meeting. An "emergency situation" is (1) work stoppage or other activity which severely impairs public health, safety, or both, as determined by a majority of the legislative body, or (2) a crippling disaster which severely impairs public health, safety, or both, as determined by majority of the legislative body. The legislative body may only meet in closed session during an emergency meeting for law enforcement or security matters. D. Mailed Notice of Emergency Meeting. Normally, the public entity must send notice of its meetings to any member of the public who files a written request to receive such written notice. The Brown Act does not require mailed notice for emergency meetings, but the legislative body's presiding officer or designee must contact any newspapers, radio stations, or televisions stations which have requested notice at least one hour prior to the emergency meeting by telephone, unless telephone services are not functioning. VI. WRITINGS DISTRIBUTED TO THE LEGISLATIVE BODY Section 54957.5 requires that any writings relating to matters on the agenda distributed to a majority of the members of the legislative body less than 72 hours before the start of the meeting must be made available to the public for inspection at the same time the writings are distributed to a majority of the members of the legislative body. Also, the agency must list the address of the location where the writings will be available on the agenda for meetings of the legislative body. (Section 54957.5(b).) VII. CLOSED SESSIONS A. Notice and Agenda. 1. Agenda Requirements. Although closed sessions not open to the public may be conducted at regular or special meetings, there must still be m e y e r s I nave 11 Copyright 2012 notice of the closed sessions even if no action is contemplated. The Brown Act provides certain "safe harbor" provisions or model formats for descriptions of closed session matters. Substantial compliance with these "safe harbor" provisions satisfies agenda description requirements. (See Section 54954.5. ) 2. Announcement of "Reportable Action" at the Conclusion of Closed Session The Brown Act requires that a legislative body reconvene in open session after conducting a closed session if there is "reportable action," as defined by the Brown Act, and the vote or abstension of any member present on the reportable action. (See Section 54957.1.) B. Permissible Closed Sessions. 1. Introduction. The basic purpose and reason for the Brown Act is to be sure that the public business is conducted in public. However, the Legislature has recognized those instances when discussion of certain types of matters in open session would not be in the best interest of the public. Narrow Construction. Closed sessions cannot be conducted unless expressly authorized by specific statutory provisions of the Brown Act. Since closed sessions are the exception to the open meeting requirements of the Brown Act, the provisions allowing closed sessions are narrowly construed. The fact that a matter is sensitive, controversial, cumbersome, embarrassing or could be handled in a much more expeditious manner in closed session, does not automatically allow the matter to be discussed in closed session. Permitted Attendance. Sessions of legislative bodies are either "closed" or "open." There should not be any so- called "semi- closed" meetings. In other words, a legislative body cannot invite selected members of the public to attend closed sessions. In general, closed sessions should only m e y e r s I nave 12 Copyright 2012 include those members of the legislative body and any additional support staff which may be necessary (e.g., legal counsel, supervisor in a disciplinary matter, consultants, real estate or labor negotiators). 2. Bases for Closed Sessions. Personnel Exception (Section 54957). The "personnel" exception allows a legislative body to meet in 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 an employee by another person or employee unless the employee requests a public session." The term "employee" is defined as including an officer or an independent contractor who functions as an officer or an employee, but does not include any elected official, member of a legislative body or other independent contractors. It is important to keep in mind that this particular closed session does not allow for discussion or action on proposed compensation except for possibly reducing compensation that results from imposition of discipline. A closed session under the personnel exception which involves specific complaints or charges brought against an employee requires that written notice be given to the employee of his or her rights to have complaints or charges aired in open session. The notice must be provided 24 hours before the meeting. ii. Pending Litigation Exception (Section 54956.9) a. The Brown Act provides that a legislative body may meet in closed session to meet with legal counsel so as to give direction to, or receive advice from, counsel as to "pending litigation." "Litigation" is defined to include any adjudicatory proceedings including eminent domain, before a court, administrative body exercising its adjudicatory authority, hearing officer or arbitrator. For purposes of the Brown Act, litigation is considered "pending" when any of the following circumstances exist: (a) Litigation to which the agency is a party has m e y e r s I nave 13 Copyright 2012 been initiated formally, (b) when it has been determined based on certain defined existing facts and circumstances that there exists a significant exposure to litigation (i.e., threatened or anticipated litigation against the agency) or (c) to discuss potential litigation to be initiated by the local agency. With respect to "existing litigation" the most obvious situation is when there has been an actual lawsuit filed in court or where another administrative agency names the local agency as a party. With respect to threatened or anticipated litigation against the local agency, there are six separate categories of facts and circumstances that need to be in place in order for a closed session to take place. The agency should consult with its attorney to determine whether or not these facts and circumstances exist in order to support a basis for a closed session. It should also be noted that 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. iii. Real Estate Negotiations Exception (Section 54956.8). The real estate negotiation exception allows a legislative body to have closed sessions to meet and grant authority to its negotiator regarding real property negotiations and the power to finalize any agreement so negotiated. This closed session item concerns the purchase, sale, lease or exchange of property by or for the agency, and the closed session must be preceded by an open session in which the body identifies both the real property and the persons with whom the negotiator may negotiate. If after negotiations for the purchase of property there is an impasse, and the legislative body wishes to consider eminent domain proceedings, such discussions can be under the pending litigation exception of the Brown Act rather than the real property negotiation exception. iv. Labor Negotiation Exception (Section 54957.6). A legislative body may meet in closed session with its labor negotiator regarding employment discussions with employee organizations and unrepresented employees regarding compensation. During such closed sessions, m e y e r s I nave 14 Copyright 2012 the legislative body may approve an agreement including labor negotiations with represented employees. However, closed sessions may not include final actions on proposed compensation for unrepresented employees. Prior to the closed session, the legislative body shall, in open and public session, identify the designated representatives and parties to the negotiation. V. Public Security Exception (Section 54957). Legislative bodies may meet in closed session with the Attorney General, District Attorney, Sheriff or Chief of Police on matters posing a threat to the security of public buildings or a threat to the public's right of access to public services or public facilities. Those who can meet with a legislative body in closed session include agency counsel and security consultants or security operation managers with respect to matters posing a threat to the security of essential public services, including water, drinking water, wastewater treatment, natural gas service and electric service. vi. License Application Exception (Section 54956.7. The Brown Act provides special provisions for consideration of license applications by persons with criminal records. vii. Other Authorized Exceptions. a. Joint power agencies (JPAs) may meet in closed session to discuss a claim for payment of a tort liability loss, public liability loss, or workers' compensation liability incurred by the point powers agency or local agency member of such a joint powers agency. (Section 54956.95.) JPAs may also adopt policies or bylaws allowing JPA board members, who are also members of the legislative body of a local agency member, to disclose information obtained in closed session that has direct financial or liability implications for that local agency to either: the local agency's legal counsel; or the other members of the legislative body of the local agency in closed session. (Section 54956.96.) m e y e r s I nave 15 Copyright 2012 b. Multi - jurisdictional drug law enforcement agencies: Such agencies may meet in closed session to discuss the case records of any ongoing criminal investigation of the multi - jurisdictional drug law enforcement agency. (Section 54957.8.) C. Section 54957.10 allows a legislative body to hold a closed session to discuss a local agency's employee's application for early withdrawal of funds in a deferred compensation plan when the application is based on financial hardship arising from an unforeseeable emergency due to illness, accident, casualty or other extraordinary event. d. County hospitals, hospital districts, school districts and community colleges may conduct additional closed sessions under certain statutory provisions including Health and Safety Code sections 1461, 1462, 32106, 32155 or Government Code sections 37606 and 37624.3 as they apply to hospitals, or any provisions of the Education Code pertaining to school districts and community college districts. e. The legislative body of a local agency may meet in closed session to discuss the agency's response to a confidential final draft audit report from the Bureau of State Audits. (Section 54956.75.) 3. Minute Book. The Brown Act does not require keeping of a minute book with respect to closed session. (See Section 54957.2.) However, it has the discretion to do so, and may designate a clerk or other officer or employee to attend the closed session to keep the minute book. Such a minute book is not a public record and therefore not subject to disclosure and shall be kept confidential. 4. Confidentiality of Closed Sessions. Section 54963 provides that a person may not disclose confidential closed session information without the consent of the legislative body holding the closed session. Violations can be addressed by injunction or disciplinary action. m e y e r s I nave 16 Copyright 2012 VIII. PENALTIES FOR VIOLATIONS OF THE BROWN ACT A. Criminal Penalties. (Section 54959.) Any member of a legislative body who attends a meeting of a legislative body where action is taken in violation of the Act and where the member "intends to deprive the public of information to which the member knows or has reason to know the public is entitled" is guilty of a misdemeanor. B. Civil Penalties. (Sections 54960, 54560.1.) Invalidating Action Taken The district attorney or any interested person may file suit to obtain a court order to invalidate actions taken in violation of the Brown Act. However, prior to filing such a lawsuit, the district attorney or interested person must provide a written demand to the legislative agency to "cure and correct" the alleged violation. The legislative body has thirty days within which to cure and correct. If the legislative body does not take action during this period, the requesting party may initiate litigation. 2. Injunctive Relief. (Section 54960.) The district attorney or any interested person may file suit for an order declaring certain actions to be in violation of the Brown Act. 3. Attorneys' Fees. (Section 54960.5.) A court may award court costs and reasonable attorneys' fees to a successful plaintiff in a lawsuit alleging Brown Act violations. Similarly, the court may award court costs and attorneys' fees to a defendant legislative body where the legislative body has prevailed and the court finds the lawsuit was clearly frivolous and totally lacking in merit. m e y e r s I nave 17 Copyright 2012