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Home My WebLink About07. District Counsel memo re Standing Committee alternates and the Brown Actmeyers DATE: TO: FROM: BY: RE: nave 55512 th Street, Suite 1500 Oakland, California 94607 tel (510) 808-2000 fax(510)444 -1108 www.meyersnave.com MEMORANDUM Kenton L. Alm Attorney at Law Direct Dial: (510) 808 -2081 kalm @meyersnave.com ATTORNEY- CLIENT PRIVILEGED & CONFIDENTIAL February 4, 2014 Elaine Boehme Kenton L. Alm Sarah N. Olinger Standing Committee Alternates and the Brown Act Issue Does an alternate's attendance at a standing committee meeting have the potential of violating the Brown Act's proscription against serial meetings, especially when both members and their alternates preside, at different meetings, over the same subject matter /agenda item that has been continued over multiple meetings? Brief Answer No, as long as the alternate does not privately discuss or deliberate with any other standing committee member or alternate the subject matter of the meeting. Applicable Law The Brown Act neither mentions nor expressly prohibits serial meetings. However, Government Code section 54952.2(b)(1) states that "[a] majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, 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." The intent of this statutory provision is to prevent the occurrence of serial or seriatim meetings, which are non- public meetings where an eventual majority of the members of the legislative body have communicated about an issue and have developed a collective concurrence. A collective concurrence is developed when the members have either directly or indirectly heard each other's A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA FRESNO To: Memo to Elaine Boehme From: Kenton L. Alm Re: Standing Committee Alternates and the Brown Act Date: February 4, 2014 Page: 2 opinions on a topic enough to collectively develop or begin to develop an agreement on an issue. The Court of Appeal has observed, "[t]he term `deliberation' has been broadly construed to connote `not only collective discussion, but the collective acquisition and exchange of facts preliminary to the ultimate decision."" The League of California Cities explains that a 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, for example, a staff member (the hub) communicating with members of a legislative body (the spokes) one -by -one for a decision on a proposed action, or a chief executive officer briefing a majority of redevelopment agency members 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, because an eventual quorum of the legislative body discussed or deliberated local agency business privately (i.e. outside of an open and noticed meeting). Courts have found that serial meetings can occur not only through direct communication between the members of the legislative body, but also through personal intermediaries, telephone calls, and email.3 Surprisingly, there are no cases or attorney general opinions that discuss serial or seriatim meetings in the context of the attendance of alternates. Therefore, it is necessary to rely on California law and Attorney General opinions that discuss serial meetings generally, to inform the conclusions in this memorandum. I Bowen P. Santa Clara Unified Sch. Dist. (1981) 121 Ca1.App.3d 231, 234 (internal citation omitted). 2 League of California Cities, Open & Public IV.• A Guide to the Balph M. Brown Act, 2nd ed., July 2010, p.17. s See, e.g., Page a MiraCosta Community College Dist. (209) 180 Ca1.App.4th 471; Wolfe v. City of Frrmont (2006) 144 Cal. App. 4th 533; Stockton Newspapers P. Bedewlopment Agency (1985) 171 Cal.App.3d 95,104; see also 84 Cal.Ops.Atty.Gen. 30, 31, 32 (2001) [use of a -mails by a majority of board members to exchange facts or advance or clarify a member's understanding of an issue regarding an agenda item violates the Brown Act]. A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA FRESNO To: Memo to Elaine Boehme From: Kenton L. Alm Re: Standing Committee Alternates and the Brown Act Date: February 4, 2014 Page: 3 Analysis A alternate's attendance at a standing committee meeting, which is an open and public meeting, does not violate Government Code section 54952.2(b) as long as the alternate does not privately discuss or deliberate items on the standing committee meeting agenda with other members or alternates of the standing committee. In other words, the alternate cannot engage in any "fact- finding" with the regularly scheduled standing committee member to determine the member's opinions on a given action item. The alternate can certainly attend a standing committee meeting and vote on an agenda item that was continued from a previous board meeting without violating the Brown Act. However, if the alternate attends the standing committee meeting having informally discussed or deliberated any of the meeting's subject matter with another member or alternate, then a Brown Act violation is likely to be present. Any informal or private discussion, pre - meeting, or gathering between the alternate and another member or alternate of the standing committee for the avowed purpose of discussing the public's business, irrespective of whether they develop a "collective concurrence" or intend to take any action at the meeting, would run afoul of Government Code section 54952.2(b).4 The same analysis would apply even if both members and both alternates of a standing committee have each considered the same continued agenda item. Even though more than a quorum of the legislative body will have discussed the matter at any given time, all of these discussions will have occurred during the open and public standing committee meetings, so the public will have had an opportunity to hear these discussions and deliberations in an open forum. Furthermore, each member and alternate's consideration of the same continued agenda item during a standing committee meeting would not constitute the "collective concurrence" that the Brown Act seeks to prohibit, as long as the members and alternates do not meet privately to develop or begin to develop a collective concurrence. Conclusion Alternates of the District's standing committees may continue to attend standing committee meetings without fear of violating the Brown Act, even if both members and both alternates have considered the same continued agenda item over a series of standing committee meetings. Any member or alternate of the standing committee must only be careful to avoid the temptation of participating in any private discussion, pre - meeting, or gathering with other members or alternates where the public's business is discussed. 2235005.1 4 See, e.g., Wolfe v. City of Fremont (2006) 144 Cal. App. 4th 533, 545; Frazer v. Dixon Unified School Dist. (1993) 18 Cal.App.4th 781; Stockton Newspapers P. BedevelopmentAgeng (1985) 171 Ca1.App.3d 95, 101. A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA FRESNO