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Home My WebLink About05172018 - packet CITY OF UKIAH DESIGN REVIEW BOARD AGENDA CONFERENCE ROOM 3 300 Seminary Avenue Ukiah, CA 95482 Thursday, May 17, 2018 3:00 p.m. The Design Review Board encourages applicants and/or their representatives to be available at the meeting to answer questions so that no agenda item need be deferred to a later date due to a lack of pertinent information. 1. CALL TO ORDER 2. ROLL CALL 3. CORRESPONDENCE 4. APPROVAL OF MINUTES The minutes of the April 26, 2018 meeting. 5. COMMENTS FROM AUDIENCE ON NON-AGENDA ITEMS The City of Ukiah Design Review Board welcomes input from the audience. In order for everyone to be heard, please limit your comments to three (3) minutes per person and not more than ten (10) minutes per subject. The Brown Act regulations do not allow action to be taken on audience comments. 6. NEW BUSINESS a. Brown Act Refresher and Discussion Regarding Roles and Responsibilities of City of Ukiah Design Review Board Members. 7. MATTERS FROM THE BOARD 8. MATTERS FROM STAFF 9. ADJOURNMENT ADA ACCOMODATION: If you plan on attending the public hearing and need a special accommodation because of a sensory or mobility impairment/disability, or have a need for an interpreter, please call Cathy Elawadly at the City of Ukiah at (707)463-6752 to arrange for those accommodations to be made. Page 1 of 1 CITY OF UKIAH DESIGN REVIEW BOARD MINUTES Conference Room #3 300 Seminary Avenue Ukiah, CA 95482 April 26, 2018 3:00 p.m. 1. CALL TO ORDER Chair Liden called the Design Review Board meeting to order at 3:00 p.m. in Conference Room No. 3, Ukiah Civic Center, 300 Seminary Avenue, Ukiah, California. 2. ROLL CALL Present: Member Hise, Nicholson, Morrow and Chair Liden Absent: Member Hawkes Staff Present: Craig Schlatter, Community Development Director Shannon Riley, Deputy City Manager Kerry Randall, Facilities Administrator Cathy Elawadly, Recording Secretary Others present: Alyssum Wier, Executive Director, Arts Council of Mendocino County Lauren Sinnott, Artist Lisa Alexander, Ukiah Main Street Program David Burton, Museum Director 3. CORRESPONDENCE None was received. 4. APPROVAL OF MINUTES The Minutes from the January 25, 2018 meeting are available for review and approval. Motion/Second Hise/Nicholson to approve January 25, 2018 meeting minutes, as submitted. Motion carried by the following roll call vote: AYES: Member Hise, Nicholson, and Chair Liden. NOES: None. ABSTAIN: Member Morrow. ABSENT: Member Hawkes. 5. COMMENTS FROM AUDIENCE ON NON-AGENDA ITEMS Note: The DRB is required by the City Code to review and make a recommendation on all Site Development Permit applications. 6. NEW BUSINESS Chair Tom Liden recused himself and left the room. Member Tom Hise is Acting Chair. a. Request for Review and Recommendation regarding an Offer of Public Artwork to be located at the Ukiah Valley Conference Center, 200 South School Street. Page 1 of 3 Minutes of the Design Review Board, Apri126, 2018, Continued: Community Development Director Craig Schlatter presented the project as provided for in his planning Memorandum dated April 26, 2018 and drew attention to City Resolution 2016-45 that establishes a Public Art Policy for the City of Ukiah. DRB requested the Applicant provide additional project details or comments. Alyssum Weir, Executive Director of Arts Council of Mendocino County: x Introduced the Offer of Public Artwork proposed for the Ukiah Conference Center and provided background information about the Arts Council of Mendocino County. x Noted the arts committee identified three desired themes for the Ukiah Conference to include: 1) Pride in our unique and diverse community; 2) Ukiah's characteristic landscape of agriculture and beautiful natural scenery; 3)A positive sense of future. x Explained the process for selection of the artist and the art council's business and professional relationship with the artist. x The theme selected for the proposed public display mural is the artist's representation/consideration of Ukiah, past, present, and future. Lauren Sinnott, Artist: x Introduced proposed public art mural and provided information about her education, experience, and form as an artist, materials chosen, color scheme and the reason for selection thereof, application techniques/tools of the trade and preservation/maintenance of the mural overtime, description of the proposed project theme as addressed in the project narrative and corresponding resume included in the staff report for references purposes, and documentation of the project by way of the media or otherwise as the mural progresses to fruition. x At the bottom of each panel will be an architectural element using the colors of the building's existing decoration having one inspirational or descriptive word on each element. These words relate to that particular scene and to other parts of the story as it progresses through time to present. Public Comment: Kerry Randall, Shannon Riley, Lisa Alexander, David Burton. DRB Consensus: x The proposed mural is an exciting `destination' for so many people to review, talk about, and admire. x Appreciates the style, content, and theme of the proposed public art mural. x During discussion, artist Lauren Sinnott commented that the proposed mural had been changed slightly since application submission- the written material would be located above the painted mural rather than below. The DRB accepted this change. x Recommends the Planning Commission approve the proposed project. Motion/Second 1 LFKROVR�RUURZto recommend Planning Commission approve the `Offer Public Artwork', Ukiah—Past, Present, and Future a mural by Lauren Sinott. Motion carried by the following roll call vote: AYES: Member Nicholson, Morrow and Acting Chair Hise. NOES: None. ABSENT: Member Hawkes. ABSTAIN: None. Page 2 of 3 Minutes of the Design Review Board, Apri126, 2018, Continued: 7. MATTERS FROM THE BOARD None. 8. MATTERS FROM STAFF None. 9. ADJOURNMENT There being no further business, the meeting adjourned at 4:07 p.m. Cathy Elawadly, Recording Secretary Page 3 of 3 AGENDA ITEM NO. 6A DATE: Mav 17, 2018 Department of Community Development 300 Seminary Ave. �rty Qf UkIQh Ukiah, CA 95482 planning@cityofukiah.com MEMORANDUM TO: Design Review Board DATE: May 9, 2018 FROM: Craig Schlatter, Community Development Director SUBJECT: Brown Act Refresher and Discussion Regarding Roles and Responsibilities of City of Ukiah Design Review Board Members Division 1, Chapter 4, Article 4B (Attachment 1) of the Ukiah City Code establishes the purpose and function of the Design Review Board, as well as describing the roles and responsibilities of its Members. As an advisory body appointed by the City Council, the Design Review Board is considered an "Appointed Body" under the Ralph M. Brown Act. Over the last 6-8 months the Planning Division of the Community Development Department has seen an increase in the amount of new planning project applications for which the Design Review Board (DRB) may review. Given the potential for an expanding amount of projects for DRB review, plus new technological improvements that will allow videotaping of future meetings, Staff feels it appropriate to conduct a refresher training on both the Brown Act (Attachment 2) and roles and responsibilities expected of Members. Staff will give a presentation on the Brown Act and roles and responsibilities. Staff will also discuss videotaping and action minutes. The meeting will operate similar to normal meetings of the DRB, with opportunity for discussion and public comment. ATTACHMENTS: Attachment 1 — Ukiah City Code Article 4B Design Review Board Attachment 2 — League of CA Cities-A Guide to the Ralph M. 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The p+��fi�Cor��.�.c# �S �_ � .�� y-- � �i�t��ti��_� r�r�s a��otte�d��'�� ti -� - � .�.,�Q� �.��:. .�- � - � � -- . � � �_ , � *'� . �• .: .. I ' �' " � '�' . �-� � � , � � - .... _. --- -_ _ � u �� " , � � — -- = — � . �• _ � ' � � � 4 _a ti ---�� - � �I * # . _ I' k � r - - - - - - - � �' � � - � oEA�GUE° CITIES � � � The League thanks the following individuals for their work on this publication: Brown Act Committee Michael lenkins,Committee Chair City Attorney,Hermosa Beach,Rolling Hills and West Hollywood Michael W. Barrett CityAttorney,Napa Damien Brower CityAttorney,erentwood Ariel Pierre Calonne CityAttorney,Santa earbara Veronica Ramirez Assistant CityAttorney,Redwood City Malathy Subramanian CityAttorney,Clayton and Lafayette Paul Zarefsky Deputy CityAttorney,San Francisco Gregory W.Stepanicich 1stVice President CityAttorneys'Department City Attorney Fairfield,Mill valley,Town of Ross League Staff Patrick Whitnell,General Counsel Koreen Kelleher,Assistant General Counsel Corrie Manning,Senior Deputy General Counsel Alison Leary,Deputy General Counsel Janet Leonard,Legal Assistant �� OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT r��• .. � '�� y - .�� '. + - - � '� � � � . - � � _ �� .�� , � � �` - * � � r . . en u ic A GUIDE TO THE RALPH M. BROWN ACT REVISED APRIL 2016 IT IS THE PEOPLE'S BUSINESS....................................................5 LEGISLATIVE BODIES.................................................................11 MEETINGS.................................................................................17 AGENDAS, NOTICES,AND PUBLIC PARTICIPATION...................29 CLOSED SESSIONS....................................................................41 REMEDIES.................................................................................55 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 7 � ' 1 I TABLE OF CONTENTS Theright of access...................................................................................................................b Broadcoverage........................................................................................................................6 Narrowexemptions .................................................................................................................7 Public participation in meetings..............................................................................................7 Controversy..............................................................................................................................8 Beyond the law—good business practices............................................................................8 Achievingbalance....................................................................................................................9 Historicalnote..........................................................................................................................9 What is a"legislative body"of a local agency?......................................................................12 What is not a"legislative body"for purposes of the Brown Act?.........................................14 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 ineetings..............................................................................................................25 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 Non-agenda items..................................................................................................................34 Respondingto the public.......................................................................................................34 The right to attend and observe meetings............................................................................35 Records and recordings.........................................................................................................36 The public's place on the agenda..........................................................................................37 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 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 Invalidation.............................................................................................................................56 Applicability to Past Actions ..................................................................................................57 Civil action to prevent future violations.................................................................................57 Costs and attorney's fees......................................................................................................58 Criminalcomplaints...............................................................................................................58 Voluntaryresolution...............................................................................................................59 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 3 4 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT �� I ..� } I ' � 4 i` � -� Y �'�**� i � �� N * i � � � .r. �� , �. + . . �� - . � * •�� .� �� ,� + � , � ,� �� . .�, � r�' �_ � "� r�;� IT IS THE PEOPLE'S BUSINESS Theright of access..............................................................................................................b Broadcoverage...................................................................................................................b Narrowexemptions............................................................................................................7 Public participation in meetings.........................................................................................7 Controversy......................................................................................................................... 8 Beyond the law—good business practices...................................................................... 8 Achievingbalance...............................................................................................................9 Historicalnote.....................................................................................................................9 . • . • -• , . . � . . a ter 1 p IT IS THE PEOPLE'S BUSINESS 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: � � � arit • - � � �• ;i�� '�i� � � � I � .�r�°� � -.. . s-S'�-= �-c.�: .�,.- - �-� ;.. ~�;..��Y.A - 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: PRACTICE TIP:The key to the Brown Act is a single sentence. In summary,all meetings shall The Brown Act's other unchanged provision is a single sentence: be open and public except when the Brown Act authorizes otherwise. 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 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 ineetings 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 PRACTICE TIP:Think of the public's business openly and publicly.Courts and the California Attorney General usually broadly government's house as being construe the Brown Act in favor of greater public access and narrowly construe exemptions to its made of glass.The curtains may general rules.' be drawn only to further the public's interest.A local policy Generally,public officials should think of themselves as living in glass houses,and that they may on the use of laptop computers, only draw the curtains when it is in the public interest to preserve confidentiality.Closed sessions tablets,and smart phones during may be held only as specifically authorized by the provisions of the Brown Act itself. Brown Act meetings may help The Brown Act,however,is limited to meetings among a majority of the members of multi- avoid problems. 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.s 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 ineetings,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 7 , . . � . . 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 misusetl. 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. 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 be 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 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 ��._ ��, � . �. .�� . �, ,•• wr.,> ��. - �., � -_ .,«• , �,�.�'� - � + . �. when controversial issues arise that are not on the agenda. �� : . �` __ ..�, -�.� • � The Brown Act allows a legislative body to adopt practices and � ,, t�� -�w� requirements for greater access to meetings for itself and its � *•� r subordinate committees and bodies that are more stringent r+ ' -� than the law itself requires.b Rather than simply restate the basic _�s:;;> . � �� requirements of the Brown Act,local open meeting policies should rt � strive to anticipate and prevent problems in areas where the Brown � � � : � t,' Act does not provide full guidance.As with the adoption of any other �. � .�.�� :�,`��:.�y�- 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. $ OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 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 PRACTICE TIP:The Brown Act efficient and orderly meetings.The Brown Act represents a balance among the interests of should be viewed as a tool constituencies whose interests do not always coincide.It calls for openness in local government, to facilitate the business of yet should allow government to function responsively and productively. local government agencies. There must be both adequate notice of what discussion and action is to occur during a meeting Local policies that go beyond as well as a normal degree of spontaneity in the dialogue between elected officials and their the minimum requirements constituents. of law may help instill public confidence and avoid problems. 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 9 , . . � . . 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(b)(2)and(c)(1);Wolfe v.City of Fremont(2006) 144 Ca1.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 .A current version of the Brown Act may be found at www.leginfo.ca.gov. 1O OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT .1 � �':Y .� �� M+ . 5 � � Y i _ - - �-' � �,e�,r,�-. _ �^- � i �_ _ ��- �"�' - - - �� `��—�'�" � � � _ _ . __._�,..�� : � LEGISLATIVE BODIES What is a"legislative body"of a local agency?................................................................ 12 What is not a"legislative body"for purposes of the Brown Act?.................................... 14 . - . • -• � � ' ll a ter 2 p LEGISLATIVE BODIES - -- -��-.—�— — � What is a "legislative body" of a local agency? ' A"legislative body"includes: I � :� � '� � The"governing body of a local agency"and certain of its subsidiary � bodies;"or an other local bod created b state or federal statute."z This F . �; Y Y Y � � �� . includes city councils,boards of supervisors,school boards and boards R •�f � �. � 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.s Entities created pursuant �� to joint powers agreements are also local agencies within the meaning of the Brown Act.b 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 PRACTICE TIP:The prudent the Brown Act. presumption is that an advisory committee or task force is On the morning following the election to a five-member legislative body of a local subject to the Brown Act.Even agency,two successful candidates,neither an incumbent,meet with an incumbent if one clearly is not,it may want member of the legislative body for a celebratory breakfast.Does this violate the to comply with the Brown Act. Brown Act? Public meetings may reduce the It might,and absolutely would if the conversation turns to agency business.Even possibility of misunderstandings though the candidates-elect have not officially been sworn in,the erown Act applies. and controversy. 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 ciry 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.B 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.9 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, pRACTICE TIP: It can be according to the California Attorney General,function over form controls.For example, difficult to determine whether a statement by the legislative body that the advisory committee"shall not exercise a subcommittee of a body falls continuing subject matter jurisdiction"or the fact that the committee does not have a fixed into the category of a standing meeting schedule is not determinative.10"Formal action"by a legislative body includes committee or an exempt authorization given to the agency's executive officer to appoint an advisory committee temporary committee.Suppose a pursuant to agency-adopted policy.�� committee is created to explore The governing body of any private organization either:(1)created by the legislative the renewal of a franchise or a body in order to exercise authority that may lawfully be delegatetl by such body to a topic of similarly limited scope private corporation,limited liabiliry company or other entity;or(2)that receives agency and duration. Is it an exempt funding and whose governing board includes a member of the legislative body of the local temporary committee or a non- agency appointed by the legislative body as a full voting member of the private entity's exempt standing committee?The governing board.12 These include some nonprofit corporations created by local agencies.13 answer may depend on factors If a local agency contracts with a private firm for a service(for example,payroll,janitorial, such as how meeting schedules or food services),the private firm is not covered by the Brown Act.14 When a member of are determined,the scope of the a legislative body sits on a board of a private organization as a private person and is not committee's charge,or whether appointed by the legislative body,the board will not be subject to the Brown Act.Similarly, the committee exists long enough when the legislative body appoints someone other than one of its own members to such to have"continuing jurisdiction." boards,the Brown Act does not apply. Nor does it apply when a private organization merely receives agency funding.15 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? 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. 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? Yes.eut,if the district instead contracts with a private firm to operate the bookstore or cafeteria,the erown Act would not apply to the private firm. Certain types of hospital operators.A lessee of a hospital (or portion of a hospital) OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 13 � � ' ll first leased under Health and Safety Code subsection 32121(p)after lanuary 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 authoriry.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.'$ 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.19 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? No,because the committee has not been established by formal action of the legislative body. 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? 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 1 Taxpayers for Livable Communities v.City of Malibu(2005) 126 Ca1.App.4th 1123,1127 14 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 2 Califarnia 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 u Board of Commissioners of HousingAuthority of Tulare County(1979)89 Ca1.App.3d 545,549- 550 5 71 Ops.Cal.Atty.Gen.96(1988);73 Ops.Cal.Atty.Gen.1 (1990) 6 McKee u Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force(2005) 134 Cal. App.4th 354,362 7 California Government Code section 54952.1 8 Joiner v.City of Sebastopol(1981) 125 Ca1.App3d 799,804-805 9 California Government Code section 54952(b) 10 79 Ops.Cal.Atty.Gen.69(1996) 11 Frazer v.Dixon Unified School District(1993) 18 Ca1.App.4th 781,793 12 California Government Code section 54952(c)(1).Regarding private organizations that receive local agency funding,the same rule applies to a full voting member appointed priar 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 Califarnia Government Code section 54952(c)(1)(A);International Longsharemen's and Warehousemen's Union v.Los Angeles Export Terminal,Inc.(1999)69 Ca1.App.4th 287,300;Epstein v.Hollywood Entertainment Dist.II Business Improvement District(2001)87 Ca1.App.4th 862,876; see also 85 Ops.Cal.Atty.Gen.55(2002) 14 International Longshoremen's and Warehousemen's Union v.Los Angeles ExportTerminal(1999)69 Cal. App.4th 287,300 fn.5 15 "The Brown Act,Open Meetings for Local Legislative Bodies,"California Attorney GeneraPs Office (2003),p.7 16 California Government Code section 54952(d) 17 California Government Code 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 Ca1.App.4th 1123,1129 19 56 Ops.Cal.Atty.Gen.14,16-17(1973) 20 Wilson v.San Francisco Municipal Railway(1973)29 Ca1.App.3d 870,878-879 21 Golightly v.Molina(2014)229 Ca1.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 .A current version of the Brown Act may be found at . OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 15 16 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT i ,�".x � I� t .� � + � 5 �� ' 1 MEETINGS BrownAct meetings......................................................................................................... 18 Six exceptions to the meeting definition.......................................................................... 18 Collectivebriefings............................................................................................................21 Retreats or workshops of legislative bodies.....................................................................21 Serialmeetings .................................................................................................................21 Informalgatherings...........................................................................................................24 Technologicalconferencing..............................................................................................24 Locationof ineetings........................................................................................................25 . • . • -• a ter p MEETINGS � The Brown Act only applies to meetings of local legislative bodies.The � � Brown Act defines a meeting as:"... antl 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 � � w *;,, � ,,. ,� � , jurisdiction of the legislative body."'The term"meeting"is not limited to '�, •�r J -- gatherings at which action is taken but includes deliberative gatherings as � - # �n - 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 ineetings held when prompt action is needed due to actual or threatened disruption of public facilities and are held on little notice.s "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.b Six exceptions to the meeting definition The Brown Act creates six exceptions to the meeting definition:' 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 _. �� t 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 � � 5'.i represented by the legislative body. R, k Among other things,this exception permits legislative body members to � �`" - f �� *Y f� � { ,-.-� attend annual association conferences of ciry,county,school,community � , � . i ,_ college,and other local agency officials,so long as those meetings are � .� � .. �- �� - open to the public.However,a majority of inembers cannot discuss �� * • ,f ..* among themselves,other than as part of the scheduled program, � � business of a specific nature that is within their local agency's subject �� # r.+� - matter jurisdiction. �`�� • ,� . . sd ' . ` �� 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 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? Yes,because the erown 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 The fourth exception allows a majority of 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 agency.$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 su ervisors to attend a controversial meetin of the lannin �y, �.-�t.,.- - �--=r�� - _�; p g p g �� - commission. Nothing in the Brown Act prevents the majoriry 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. 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? No,because the members are attending and participating in an open meeting of another governmental body which the public may attend. 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? 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. 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).9 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? She may attend,but only as an observer,�she may not participate. 20 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 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 inembers 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. In addition,members of a legislative body,either individually or collectively,may give testimony in private before a grand jury.10 This is the equivalent of a seventh exception to the Brown Act's definition of a"meeting." Collective briefings -�,t � i 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 � y 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 J �� . c. 'F, . �L . � agenda requirements. � ti Retreats or workshops of legislative bodies .ti � �� - 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." 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? 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."1z 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 27 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 B, 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 inembers(the spokes) * :� � ` one-by-one for for discussion,deliberation,or a decision on s�+ � a proposed action.13 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."14 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.15 A unilateral written communication to the legislative body,such as an informational or advisory memorandum,does not violate the Brown Act.�b 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?" 22 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 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 PRACTICE TIP:When briefing speed up the meeting." legislative body members, staff must exercise care not to disclose other members'views and positions. "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." "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 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? 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. 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? 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. 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 inembers. 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. 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? 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."21 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?z 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. 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? 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 ineetings 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.23 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:z4 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; 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? Yes,the erown 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 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.25 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 4 meeting place unsafe,the presiding officer can designate another meeting place for the duration of the emergency.News media that have ; requested notice of ineetings 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 Endnotes: 1 Califarnia Government Code section 54952.2(a) 2 Wilson u San Francisco Municipal Railway(1973)29 Ca1.App3d 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 Califarnia Government Code section 54952.2(c) 8 Califarnia 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(b)(1) 13 Stockton Newspaperinc.u RedevelopmentAgency(1985) 171 Ca1.App.3d 95 14 California Government Code section 54952.2(b)(2) 15 Common Cause v.Stirling(1983) 147 Ca1.App.3d 518 16 Roberts u City of Palmdale(1993)5 Ca1.4th 363 17 California Government Code section 549575(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 Califarnia Government Code section 54953(b)(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 .A current version of the Brown Act may be found at . OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 27 2$ OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT � , ;, - , , . � � C ,�� . , �'ra�t�'.�',�'+* `".�� . w*� k - � � � ."} ��{} x r 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 Records and recordings....................................................................................................36 The public's place on the agenda.....................................................................................37 . - . . -. � . . � � ' � , � ' � � �� a ter 4 p 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. 5r r. � � � L L. ' � f Agendas for regular meetings ##yF • i �' - Every regular meeting of a legislative body of a local agency— k'� L i �� r �� ,b including advisory committees,commissions,or boards,as well as standing committees of legislative bodies—must be preceded ,i�,; �'�� '� ';� � by a posted agenda that advises the public of the meeting and the `, � ��', � '` �t matters to be transacted or discussed. A� � . , G � � � The agenda must be posted at least 72 hours before the regular � `� � �� meeting in a location"freely accessible to members of the public."� �� ,f 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.z 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.4 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? At a minimum,the erown Act calls for"substantial compliance"with all agenda posting requirements,including posting to the agency website.s 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 erown Act violation,provided the agency can demonstrate substantial compliance.b This inquiry requires a fact-specific examination of whether the agency or its legislative body made"reasonably effective efforts to notify interested persons of a public meeting"through online posting and other available means.'The 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 awareness,among other factors.$The CityAttorneys'Department has taken the position that obvious website technical difficulties do not repuire cancellation of a meeting, provided that the agency meets all other erown 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" PRACTICE TIP: Putting together if the"project"is actually a set of distinct actions that must each be separately listed on the a meeting agenda requires agenda.10 careful thought. 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? 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." 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? 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." OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 37 � . . � � ' � , � ' � � �� 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 , � .�. h,_ _,�— . that member)and to each local newspaper of general circulation,and radio or television � - �,�i► � .. ,' .��. " ,.� � � 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. . t`�� ,�-. . ; +f#� - .! �y 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, � �- y closed session items should be described in accordance with the Brown Act's safe � �:� � , t 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 . . 5� 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.13 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.�' 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.�$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 =�_��a�,�� The Brown Act prescribes specific procedures for adoption by a city,county,special ' � �� _ �� _i 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 �� ,. I r �, � � not apply to new or increased real property taxes or assessments as those are � � F " °� � . governed by the California Constitution,Article XIIIC or XIIID,enacted by Proposition �-� 218.At least one public meeting must be held to allow public testimony on the tax ` � � a i �. or assessment.In addition,there must also be at least 45 days notice of a public '� �' �y 4 # 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 , rt t ;I r•�•=" � 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 �� +� .�� :�� ,�'��;��y�, '{ increased business assessments must be provided through a mailing to all business �� - t � � , r �.f �� .•1`�,i � t�• � ,�_� ; y� �.' ;� owners proposed to be subject to the new or increased assessment.The agency ` I� �- .:.=�: ,� � t��`k �I 1 �.;�'��i��';� may recover the reasonable costs of the public meetings,hearings,and notice. _ � �' .� �,�_t ,h. .�';I'�r� 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 requirements 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 � . . � � ' � , � ' � � �� Non-agenda items 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 When a majority decides there is an"emergency situation"(as defined for emergency meetings); When two-thirds of the members present(or all members if 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 PRACTICE TIP:Subject to very lead to invalidation of an action. limited exceptions,the Brown Act prohibits any action or "I'd like a two-thirds vote of the board,so we can go ahead and authorize discussion of an item not on the commencement of phase two of the East Area Project,"said Chair Lopez. posted agenda. "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?" "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 iYs not on the agenda." 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. 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 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 inember may ask for - , ��_� information,request a report back,request to place a matter on the agenda r for a subsequent meeting(subject to the body's rules or procedures),ask a # �x *- .�- question for clarification,make a brief announcement,or briefly report on ��+ � + '� .a • �'. ; 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 � m - 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. 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.zs 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 entry to a conference attended by a majority of the legislative body.27 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 Iocation.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 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? 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.31 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 Records and recordings � . The public has the right to review agendas and other writings distributed by any person to a majority of the legislative body in connection with a matter subject to discussion or consideration � �' •�,�!y_ 5 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 � Records Act may be charged for a copy of a public record.35 �� 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 � litigation risks in granting or denying the permit.Must this memorandum be included in � the packet of agenda materials available to the public? �� No.The memorandum is a privileged attorney-client communication. 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? 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.36 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 After the meeting if prepared by some other person.37 � r�1 � 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 r � � - _ � -. s• - 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.39 � 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 PRACTICE TIP: Public speakers The public's place on the agenda cannot be compelled to give Every agenda for a regular meeting must allow members of the public to speak on any item of their name or address as a interest,so long as the item is within the subject matter jurisdiction of the legislative body.Further, condition of speaking.The clerk the public must be allowed to speak on a specific item of business before or during the legislative or presiding officer may request body's consideration of it.4z speakers to complete a speaker card or identify themselves for the record,but must respect a Must the legislative body allow members of the public to show videos or make a power speaker's desire for anonymity. 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? 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 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 37 � . . � � ' � , � ' � � �� May the presiding officer prohibit a member of the audience from publicly criticizing an agency employee by name during public comments? No,as long as the criticism pertains to job performance. 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? 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, #f - 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 �;��'� ��y lengthened to allow additional time for discussion on a complicated matter.44 �� `rt�Fl�.�.. ��`' �r*� `� •* .�� ,, The public does not need to be given an opportunity to speak on an item that has s� already been considered by a committee made up exclusively of inembers 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 opportuniry 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 549601(d)(1) 6 _Ops.Cal.Atty.Gen._,No.14-1204(January 19,2016) 16 Cal.Daily Op.Serv.937(Ca1.A.G.), 2016 WL 375262 7 North Pacifica LLC v. California Coastal Commission(2008) 166 Ca1.App.4th 1416,1432 8 _Ops.Cal.Atty.Gen._,No.14-1204(January 19,2016) 16 Cal.Daily Op.Serv.937(Ca1.A.G.), 2016 WL 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 Ca1.App.4th ll67(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 11 California Government Code section 549541 12 California Government Code sections 54956(a)and(c) 13 California Government Code section 54955 14 Califarnia 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 549523 18 Education Code sections 35144,35145 and 72129 19 Carlson v.Paradise Unified School District(1971) 18 Ca1.App.3d 196 20 California Education Code section 35145.5 21 California Government Code section 54954.6 22 See Ca1.Const.Art.XIIIC,XIIID and California Government Code section 54954.6(h) 23 Califarnia 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 u City of Santa Cruz(9th Cir.2010)629 F3d 966(silent and momentary Nazi salute directed towards mayor is not a disruption);Acosta u City of Costa Mesa(9th Cir.2013)718 F3d 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 549575(c) 38 California Government Code section 54953.5(b) 39 California Government Code section 54957.5(d) 40 California Government Code section 549535(a) 41 California Government Code section 54953.6 42 California Government Code section 54954.3(a) 43 Califarnia Government Code section 54954.3(c) 44 California Government Code section 549543(b);Chaffee v.San Francisco Public Library Com.(2005) 134 Ca1.App.4th 109;75 Ops.Cal.Atty.Gen.89(1992) 45 California Government Code section 54954.3(a) 46 Califarnia Government Code section 549543(a) Updates to this publication responding to changes in the Brown Act or new court interpretations are available at .A current version of the Brown Act may be found at . OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 39 40 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT � �' . �. � ' . � 4 ` � . ��t� 1 f �+ � - ' Y ! � � � CLOSED SESSIONS 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 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 . - . . -. � ' 1 1 1 a ter 5 p 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.' 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.Z The most common purposes of the closetl 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.3 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 PRACTICE TIP: Some problems legislative body wishes to discuss privately. In these cases,it is not proper to convene a closed over closed sessions arise session,even to protect confidential information.For example,although the Brown Act does because secrecy itself breeds authorize closed sessions related to specified types of contracts(e.g.,specified provisions of real distrust.The Brown Act does property agreements,employee labor agreements,and litigation settlement agreements),4 the not require closed sessions and Brown Act does not authorize closed sessions for other contract negotiations. legislative bodies may do well to resist the tendency to call a Agendas and reports closed session simply because Closed session items must be briefly described on the posted agenda and the description must it may be permitted.A better state the specific statutory exemption.s An item that appears on the open meeting portion of the practice is to go into closed agenda may not be taken into closed session until it has been properly agendized as a closed session only when necessary. 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.b 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.' 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.8 Following a closed session,the legislative body must provide an oral or written report on certain actions taken and the vote of every electetl member present.The timing and content of the report varies according to the reason for the closed session and the action taken.9 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 parry 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.10 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.1z 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.14 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.�s 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 � ' 1 1 1 The California Attorney General has opined that if the agency's attorney is not a participant,a litigation closetl 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.'$ 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? 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 . k 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.19 � �� 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. 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 announcetl 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. LL� � _ '-."' �, ' �' � -� ��. s r�� Real estate negotiations � ,. � ;;;�r;' � � �:,; � � ��.a:••:� ��_ � A legislative body may meet in closed session with its negotiator _ � ^�t 7 --rt�:; � - f ' i , k i *' .F � . to discuss the purchase,sale,exchange,or lease of real property � ��;: � � - r ��F +r by or for the local agency.A"lease"includes a lease renewal or � � � �.�*_" "� .,iy , renegotiation.The purpose is to grant authority to the legislative i �� . � ; body's negotiator on price and terms of payment.22 Caution M _ � should be exercised to limit discussion to price and terms of � �r � 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 � � May other terms of a real estate transaction,aside from price and terms of payment, be addressed in closed session? 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 concern24 and the names of the parties with whom its negotiator may negotiate.zs 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 party,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.zb "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 0'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." OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 45 � ' 1 1 1 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.°27 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.29 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 PRACTICE TIP: Discussions of specific complaints or charges against him or her.This occurs when the legislative body is who to appoint to an advisory reviewing evidence,which could include live testimony,and adjudicating conflicting testimony body and whether or not to offered as evidence.A legislative body may examine(or exclude)witnesses,31 and the California censure a fellow member of Attorney General has opined that,when an affected employee and advocate have an official or the legislative body must be essential role to play,they may be permitted to participate in the closed session.32 The employee held in the open. 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.34 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.35 Must 24 hours notice be given to an employee whose negative performance evaluation is to be considered by the legislative body in closed session? No,the notice is reserved for situations where the body is to hear complaints and charges from witnesses. Correct labeling of the closetl session on the agentla is critical.A closed session agenda that identified discussion of an employment contract was not sufficient to allow dismissal of an employee.36 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.37 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 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) PRACTICE TIP:The personnel between any unrepresented individual and the legislative body. However,a legislative body may exception specifically prohibits address the compensation of an unrepresented individual,such as a city manager,in a closed discussion or action on session as part of a labor negotiation(discussed later in this chapter),yet another example of the proposed compensation in importance of using correct agenda descriptions. closed session except for a disciplinary reduction in pay. Reclassification of a job must be public,but an employee's abiliry 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.38 However,a report on a dismissal or non-renewal of an employment contract must be deferred until administrative remedies,if any,are exhausted.39 "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." 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.41 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. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 47 � ' 1 1 1 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 PRACTICE TIP: Prior to the may also meet in closed session with a conciliator who has intervened in negotiations.42 closed session,the legislative body must hold an open The approval of an agreement concluding labor negotiations with represented employees must and public session in which be reported after the agreement is final and has been accepted or ratified by the other party.The it identifies its designated report must identify the item approved and the other party or parties to the negotiation.43 The representatives. 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 ineetings 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.44 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 holtl 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." 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 PRACTICE TIP:Attendance of the statewide assessment instrument.49 by the entire legislative body before a grand jury would not Joint Powers Authorities constitute a closed session The legislative body of a joint powers authority may adopt a policy regarding limitations on meeting under the Brown Act. 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.s' � 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 manager.5z 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.53 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.s4 Hospital peer review and trade secrets Two specific kinds of closed sessions are allowed for district hospitals and municipal hospitals, under other provisions of law.ss 1. A meeting to hear reports of hospital medical audit or quality assurance committees,or for related deliberations. However,an applicant or medical staff inember 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 definetl 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.sb OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 49 � ' 1 1 1 ' � � � Other legislative bases for closed session I � � � Since any closed session meeting of a legislative body must be ` � � � � I authorized by the Legislature,it is important to carefully review the I i � � Brown Act to determine if there is a provision that authorizes a closed , session for a particular subject matter.There are some less frequently a . 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,s' � *� � consideration of the purchase or sale of particular pension fund � � � � � investments by a legislative body of a local agency that invests pension i ' funds,s$hearing a charge or complaint from a member enrolled in '=a r �- � � a health plan by a legislative body of a local agency that provides Medi-Cal services,59 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.b� Who may attend closed sessions PRACTICE TIP: Meetings are Meetings of a legislative body are either fully open or fully closed;there is nothing in between. either open or closed.There is Therefore,local agency officials and employees must pay particular attention to the authorized nothin in between."62 attendees for the particular type of closed session.As summarized above,the authorized g�� 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 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? No,attendance in closed sessions is reserved exclusively for 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 confidentiality.64 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.bs 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,bb 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 PRACTICE TIP:There is a issued an opinion that it is"improper"for officials to disclose information received during a closed strong interest in protecting the session regarding pending litigation,b'though the Attorney General has also concluded that a local confidentiality of proper and agency is preempted from adopting an ordinance criminalizing public disclosure of closed session lawful closed sessions. discussions.b$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 jury.69 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.70 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. "I 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." OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 57 � ' 1 1 1 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 dosed session to discuss the case records of ongoing criminal investigations,and other related matters). 4 California Government Code section 549571 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 549571(a) 10 California Government Code section 549571(b) 11 California Government Code section 54957.2 12 Hamilton v. Town of Los Gatos(1989)213 Ca1.App.3d 1050;2 CaLCode Regs.section 18707 13 Roberts v.City of Palmdale(1993)5 Ca1.4th 363 14 California Government Code section 54956.9;Shapiro u Board of Directors of Center City Development Corp. (2005) 134 Ca1.App.4th 170(agency must be a party to the litigation). 15 82 Ops.Cal.Atty.Gen.29(1999) 16 Page u Miracosta Community College District(2009) 180 Ca1.App.4th 471 17 "The Brown Act,"California Attorney General(2003),p.40 18 California Government Code section 54956.9(g) 19 Trancas Property Owners Association v.City of Malibu(2006) 138 Ca1.App.4th 172 20 Government Code section 549569(e) 21 California Government Code section 54957.1 22 California Government Code section 54956.8 23 Shapiro u San Diego City Council(2002)96 Ca1.App.4th 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.Cal.Atry.Gen.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 549545(b) 26 Califarnia Government Code section 549571(a)(1) 27 California Government Code section 54957(b) 28 63 Ops.Cal.Atry.Gen.153(1980);but see Duvall v.Board of Trustees(2000)93 Ca1.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 u San Francisco Public Library Commission(1998)67 Ca1.App.4th 1165;85 Ops.Cal.Atty.Gen. 77(2002) 30 Gillespie u San Francisco Public Library Commission(1998)67 Ca1.App.4th ll65;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 Califarnia Government Code section 54957(b)(3) 32 88 Ops.Cal.Atty.Gen. 16(2005) 33 Morrison v.HousingAuthority of the City of Los Angeles(2003) 107 Ca1.App.4th 860 34 Califarnia Government Code section 54957(b);but see Bollinger v.San Diego Civil Service Commission (1999)71 Ca1.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.Atry.Gen.218(1995);Bell v.Vista Unified School District(2000)82 Ca1.App.4th 672; Furtado u Sierra Community College(1998)68 Ca1.App.4th 876;Fischer v.Los Angeles Unified School District(1999)70 Ca1.App.4th 87 36 Moreno u City of King(2005) 127 Ca1.App.4th 17 37 California Government Code section 54957 38 Gillespie u San Francisco Public Library Commission(1998)67 Ca1.App.4th 1165 39 California Government Code section 54957.1(a)(5) 40 California Government Code section 54957.6 41 Califarnia Government Code section 54957.6(b);see also 98 Ops.Cal.Atty.Gen.41 (2015) (a project labar agreement between a community college district and workers hired by contractors or subcontractors is not a proper subject of dosed 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 35491 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 Ca1.App.4th 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 Interagenry Metropolitan Police Apprehension Crime Task Force(2005) 134 Cal. App.4th 354 54 California Government Code section 54957.8 55 California Government Code section 54962 56 Califarnia 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 � ' 1 1 1 64 Government Code section 54963 65 Kleitman x Superior Court(1999)74 Ca1.App.4th 324,327;see also California Government Code section 54963. 66 Roberts v.City of Palmdale(1993)5 Ca1.4th 363 67 800ps.Cal.Atty.Gen.231 (1997) 68 76 Ops.Cal.Atty.Gen.289(1993) 69 California Government Code section 54963 70 California Government Code section 54963 71 California Government Code section 549571 Updates to this publication responding to changes in the Brown Act or new court interpretations are available at .A current version of the Brown Act may be found at . 54 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT # T ! �. �•��rt�� rt M � - '� '�_~��!�y,� � 1� _ � - �� , `�� ' ' �� Y� � l - � _ � ' �+�• *y�,� � �'�� !!,.-X�•�+.. � ; - ��- � � �� V11/��11� ��*�� . � ��I�IMw�r t � � � � - � ;6'J!� �w, 1� � �� ` .� � 7�`*J�I�' � �� ' . _ � � ��-�k+_�-�� ___ _ ;-_ � '� � - �� ' � �, * . . .eF. � . �. • . •�� .� � • � • • � � � � . � � � • � � • � � • • OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT � ' 1 a ter p 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 , t - 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;z Those involving the sale or issuance of notes,bonds or other indebtedness,or any related contracts or agreements; 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 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. 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 Although just about anyone has standing to bring an action for invalidation,4 the challenger must show prejudice as a result of the alleged violation.s An action to invalidate fails to state a cause of action against the agency if the body deliberated but did not take an action.b 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.'Before filing PRACTICE TIP:A lawsuit to an action,the interested person must,within nine months of the alleged violation of the Brown invalidate must be preceded by Act,submit a"cease and desist"letter to the legislative body,clearly describing the past action a demand to cure and correct and the nature of the alleged violation.8 The legislative body has 30 days after receipt of the letter the challenged action in order to provide an unconditional commitment to cease and desist from the past action.9 If the body to give the legislative body fails to take any action within the 30-day period or takes an action other than an unconditional an opportunity to consider its commitment,a lawsuit may be filed within 60 days.10 options.The Brown Act does not The legislative body's unconditional commitment must be approved at a regular or special meeting specify how to cure or correct as a separate item of business and not on the consent calendar.��The unconditional commitment a violation;the best method must be substantially in the form set forth in the Brown Act.12 No legal action may thereafter be is to rescind the action being commenced regarding the past action.13 However,an action of the legislative body in violation complained of and start over,or of its unconditional commitment constitutes an independent violation of the Brown Act and a reaffirm the action if the local legal action consequently may be commenced without following the procedural requirements for agency relied on the action and challenging past actions.14 rescinding the action would prejudice the local agency. 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.15 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; 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 Compel the legislative body to tape record its closed sessions. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 57 � ' 1 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." 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.19 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.z4 58 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 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 1222.25 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 �r� - _ and pay close attention to the requirements of the Brown Act will have little reason to worry about enforcement. 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(tas hearings); ��r 54956(special meetings);and 545965(emergency . situations).Violations of sections not listed above w. cannot give rise to invalidation actions,but are subject - to the other remedies listed in section 54960.1. 2 Castaic Lake Water Agency x Newhall County Water + District(2015)238 Ca1.App.4th 1196,ll98 �~ 3 California Government Code section 549601 (b)and � �. t � . . (�)(�) �;��' _.�� s��+� � � � 4 McKee v.Orange Unified School District(2003) 110 Cal. � �� `� App.4th 1310,1318-1319 5 Cohan u City of Thousand Oaks(1994)30 Ca1.App.4th 547,556,561 6 Boyle v.City of Redondo Beach(1999)70 Ca1.App.4th ll 09,1116-17,1118 7 Government Code Section 54960.2(a);Senate Bill No.1003,Section 4(20ll-2012 Session) 8 Government Code Sections 54960.2(a)(1),(2) 9 Government Code Section 54960.2(b) OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 59 � ' 1 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 for Utility Safety and Education(CAUSE)v.City of San Diego(1997)56 Ca1.App.4th 1024;Common Cause u Stirling(1983) 147 Ca1.App.3d 518,524;Accord Shapiro v.San Diego City Council(2002)96 Cal.App.4th 904,916&fn.6 17 Kleitman x Superior Court(1999)74 Ca1.App.4th 324,334-36 18 Los Angeles Times Communications,LLC v.Los Angeles County Board of Supervisors(2003) 112 Cal. App.4th 1313,1327-29 and cases cited therein 19 California Government Code section 54960.5 20 California Government Code section 54959.A misdemeanor is punishaUle 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 aiminal 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 61 Ops.Cal.Atty.Gen.283(1978) 24 California Government Code section 54959 25 California Government Code section 1222 provides that"[e]very 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 .A current version of the Brown Act may be found at . 60 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT LEAGUE° or cni.iroizNin CITI � S 1400 K Street,Suite 400,Sacramento,CA 95814 Phone:(916)658-8200�Fax:(916)658-8240 www.cacities.org�www.cacities.org/events I www.westerncity.com �Printed on Recycled Paper