Brown Act Training

​

​

​

PRESENTED BY: JENNIFER MCQUARRIE

THE LAW OFFICES OF JENNIFER MCQUARRIE

MCQUARRIELAW@GMAIL.COM

805-252-1080

​

1

Workshop Goals

• Gain an understanding of the Brown Act
• What is the Brown Act?
• Brown Act triggers
• Brown Act compliance

​

2

What is the Brown Act?

• Ralph M. Brown Act (CA Gov. Code sections 54950, et seq.)
• Open meeting requirement for local legislative bodies
• Includes, among other things:
• Notice
• Agenda
• Public comment
• Closed session
• Many other rules
• Useful guide on Attorney General’s website: www.oag.ca.gov

3

Brown Act Triggers

• Who: Local agencies and legislative bodies
• Charter School Board of Directors
• What: “Meetings”

4

Who Must Comply

• Legislative body means:
• Committee, commission, etc., of the charter school governing board
• Permanent or temporary
• Decision-making or advisory
• Created by formal action of a legislative body
• Standing committees of charter school governing board:
• Continuing subject matter jurisdiction or
• Meeting schedule fixed by formal action
• Not included:
• Advisory committees whose entire membership are board members (but cannot be a standing committee)
• Less than quorum of board

​

5

What is a Meeting?

• Broadly defined
• Congregation of board majority at the same time and place to hear, discuss or deliberate upon any item within its subject matter jurisdiction
• Includes collective acquisition and exchange of facts before making a decision
• Includes informal and inadvertent meetings

6

What is a Meeting?

• Serial meetings prohibited
• Board majority uses
• direct communication
• personal intermediaries
• technology and social media
• To discuss, deliberate or take action or develop collective concurrence for an item to be decided by the board
• Prohibition does not prevent employee/official from engaging in separate conversations or communications with board members to answer questions/provide information
• So long as does not communicate to members the comments or position of other board members

​

​

​

7

Social Media

• Board members are not prevented from engaging in separate conversations or communications on an internet-based social media platform to answer questions, provide information to the public, or to solicit information from the public
• Majority of members do not use the social media platform to discuss among themselves business of a specific nature that is within the subject matter jurisdiction
• Board member shall not respond directly to any communication on social media within smj that is made, posted or shared by another board member

​

​

8

What is a Meeting?

• Exceptions:
• Individual conversations between a board member and another individual
• Attendance of a majority members at:
• Open conferences (or similar meetings)
• Open meetings of other organizations
• Open meetings of other legislative bodies
• Purely social or ceremonial gatherings

9

What is a Meeting?

• Exceptions continued:
• Provided they don’t discuss amongst themselves school business, other than as part of a program

10

Compliance - Notice

• Three types of meetings:
• Regular meetings
• Usually designated by resolution or bylaws
• 72-hours notice
• Special meetings
• Called at any time (presiding officer or board majority)
• 24-hours notice
• Emergency meetings
• Very rare
• 1-hour notice to media outlets that previously requested notice

11

Compliance - Agenda

• Regular and Special Meetings: Content
• Time/location, including any teleconference locations (not during COVID-19)
• Brief general description of each item of business to be transacted or discussed
• Including closed session matters (further discussion later in slides)
• Need not exceed 20 words
• Rules on how to access the agenda and meeting if needing an accommodation under the ADA
• Public comment rules
• If it’s not on the agenda, the board cannot discuss the item

​

​

12

Compliance - Agenda

• Cannot discuss items not appearing on the agenda, exceptions:
• Member, on own initiative or in response to a question, may ask for clarification, may make a brief announcement or report on his/her own activities
• Make a reference to staff or other resources for factual information, request a report back at a subsequent meeting or direct staff to place an item on the agenda
• 2/3rds vote of members or unanimous vote if less than 2/3rds present that there is a need to take immediate action
• Came to the attention of the of the school subsequent to the agenda being posted
• Majority vote that an emergency exists

13

Compliance – Limits at Special Meetings

• Salaries, salary schedules, compensation in the form of fringe benefits of high level employees may not be discussed in special meetings
• Does not preclude discussion of the budget in a special meeting
• At regular meetings, must orally announce summary of salary recommendations for high level employees

14

Compliance - Posting

• Post in a location that is freely accessible to the public 24-hours a day and compliant with ADA
• Cannot be behind locked gates
• Website
• Post to homepage through prominent direct link in a certain format
• Integrated agenda management platform ok
• If teleconference participation, at each teleconference location (not during COVID-19, follow AB 361)

15

Minutes

• No specific mention of minutes, but must record how each board member voted, including any recusals
• Corporations code requires minutes for nonprofits
• Many authorizers require that the school post on the website, but not required by law

16

Meeting Locations

• Nonclassroom based programs without a facility or that operate one or more resource centers
• County where the greatest number of students enrolled reside
• During COVID-19, not required to meet physically

​

​

17

Teleconferencing

• 3 different sets of rules
• Original teleconferencing
• AB 361 – State of emergency
• AB 2449 – January 1, 2023

​

​

18

Original Teleconferencing

• Votes taken by roll call (applicable for all teleconferencing)
• Agendas posted at each teleconferenced location
• Each location must meet the ADA
• Quorum must be located within geographical boundaries of school
• Public may participate from each location

​

19

AB 361 - Teleconferencing

• Schools may use teleconferencing without complying with teleconferencing rules if certain procedures are followed:
• Notice and posting as usual
• Agenda provides the opportunity for the public to address the board directly
• Agenda identifies and includes options for persons to attend via call-in or an internet-based service (no physical location required)

20

AB 361 - Teleconferencing

• Only allowed if a proclaimed state of emergency exists and:
• State/local officials have imposed or recommended measures to promote social distancing
• A meeting is held for the purpose of determining, by majority vote, whether meeting in person would present an imminent risk to the health or safety of attendees
• Board has determined, by majority vote, that meeting in person would present imminent risks to the health or safety of attendees

​

21

AB 361 - Teleconferencing

• Cannot require public comments to be submitted in advance of the meeting, must offer in real time
• If not timed public comment period, board should allow a reasonable amount of time for the public to comment

22

AB 361 - Teleconferencing

• In order to continue using COVID teleconferencing rules, the board must:
• Within 30 days of the first teleconferenced meeting, and every 30 days thereafter, make the following findings by majority vote:
• The board has reconsidered the circumstances of the state of emergency
• Any of the following circumstances exist:
• The state of emergency continues to directly impact the ability of the members to meet safely in person
• State or local officials continue to impose or recommend measures to promote social distancing
• Expires 1/1/24

23

New in 2023

• AB 2449 signed into law, effective January 1, 2023
• Physical location: quorum of members must participate in person from a singular physical location clearly identified on the agenda, open to the public and within the location limitations required of charters
• Must provide at least one of the following so the public may remotely hear, visually observe the meeting, and remotely address the board:
• Two-way audiovisual platform
• Two-way telephonic service and a live webcasting of the meeting

​

24

New in 2023

• Agenda provides notice of the means by which they may access the meeting and offer public comment
• Agenda identifies and includes an opportunity for all persons to attend via a call-in option, via an internet-based option, and at the in-person location of the meeting

​

25

New in 2023

• May only allow a member to participate remotely if:
• The member notifies the board asap, including at the start of a regular meeting, of the need to participate remotely for just cause, including a description of the circumstances relating to their need to appear remotely. Cannot be used more than 2 meetings per calendar year.
• Member requests a remote appearance due to emergency circumstances and the board votes to approve the request. The board shall request a general description of the circumstances, which need not exceed 20 words and need not disclose any medical diagnosis or disability or personal medical information already exempt

​

​

26

New in 2023

• To use emergency circumstance:
• Member requests remote participation asap
• Must request for each meeting in which remote participation sought
• Board may take action at the earliest opportunity; if not on posted agenda, take action at the beginning of the meeting to add it to the agenda if not enough time to post
• Member to announce if there are other individuals 18+ in the room and the general nature of the member’s relationship with the individuals
• Member to participate through audio and visual technology
• May only use for 3 consecutive months/20% of regular meetings for calendar year or no more than 2 meetings if the board meets fewer than 10 times per calendar year

​

27

New in 2023

• Emergency circumstance includes:
• Physical or family medical emergency that prevents a member from attending in person
• Just cause means:
• Childcare or caregiving need of a child, parent, grandparent, grandchild, sibling, spouse, domestic partner that requires them to participate remotely
• Contagious illness
• A need related to a physical or mental disability as defined
• Travel on official business of the board or another state/local agency
• Additional changes to the requirements beginning 1/1/24

​

​

28

Compliance – Public Participation

• Regular meetings:
• Options
• One public comment period for items not on the agenda; public comment before each item
• One public comment period for all public comment at one time in the beginning of the meeting, including agenda items and non-agenda items
• Special meetings
• Testimony only for items described in the agenda
• Before or during consideration of the item

​

29

Compliance – Rights of the Public

• Participate at each teleconferenced location
• Reasonable accommodations per ADA
• For the agenda as well as at the meeting
• Agenda must identify how to request accommodations
• Cannot be required to sign in (unless speaking)
• May record or broadcast meetings
• May not be censored
• If no simultaneous translation provided, provide at least twice the allotted time for persons utilizing a translator

​

30

Compliance – Rights of the Public

• Access board materials (with limited exceptions)
• Available upon request without delay
• If provided to the board less than 72 hours before an open meeting, must be made available at that time. If school provides to board on Friday at 6 p.m., and school is not open to the public, does not comply.
• If a person requests a copy of the agenda or board packet, may be mailed or send an email with a copy of the board agenda/packet or a weblink to it

31

Board Action

• Legislative action is only valid if it has been approved by a majority of members of the board
• If only a majority of the board is in attendance, all board members will need to vote unanimously in order for valid board action
• This may conflict with bylaws

32

Compliance – Closed Session

• Closed Sessions Generally
• Sessions must be expressly authorized by statute
• Narrowly construed
• Strong bias in favor of open meetings
• Sensitive, embarrassing or controversial content does not justify application unless expressly allowed
• Semi-closed meetings not allowed
• Confidentiality of Closed Sessions
• Person attending may not disclose to a non-attendee

​

33

Compliance – Closed Session

• Agenda detail
• Government Code section 54954.5 provides agenda descriptions for all permissible closed session meetings, except for student discipline
• Before convening into closed session, announce what will be discussed – only read the agenda description
• After returning from closed session, may be required to report out action taken

​

34

Compliance – Permissible Closed Session

• Personnel
• Litigation
• Real property negotiations
• Labor negotiations
• Public security
• Student discipline
• Others likely not applicable

​

​

35