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Brown Act Training

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PRESENTED BY: JENNIFER MCQUARRIE

THE LAW OFFICES OF JENNIFER MCQUARRIE

MCQUARRIELAW@GMAIL.COM

805-252-1080

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Workshop Goals

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

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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

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Brown Act Triggers

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

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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

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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

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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

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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

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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

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What is a Meeting?

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

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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

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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

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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

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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

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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)

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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

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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

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Teleconferencing

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

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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

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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)

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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Compliance – Permissible Closed Session

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

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