1 Brown Act Workshop  Seal Beach City Council Craig Steele, City Attorney May 9, 2016

2 Principles of Ethics  “Conduct government openly, efficiently, equitably, and honorably so the public can make informed judgments and hold public officials accountable.” – Josephson Institute The Brown Act Political Reform Act and Disclosure Requirements Public Records Act

3 A Policy of Open Government  “The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” California Constitution Art. I, Sec. 3(b)(1)

4 3 Principles of Good Government  Transparency builds public confidence  Process is important  There is such a thing as bad publicity

5 The Ralph M. Brown Act

6 “Open and Public” " All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.” Government Code § 54953(a)

7 Topics  To what bodies does the Act apply?  What is a meeting?  What rules apply to meetings?  How do we remedy a violation?  Going beyond the minimum.

8 The Brown Act Applies to “Legislative Bodies”  What is a “legislative body?” Governing body of the agency Subordinate boards and commissions created by formal action of the governing body Standing committees with regular meeting schedule and continuing subject matter jurisdiction  What is not a “legislative body?” Advisory committees, ad hoc committees composed solely of the members of the legislative body that are less than a quorum of the legislative body

9 Meetings  Elements: Congregation of a majority Same time and place To hear, discuss or deliberate any item Subject matter jurisdiction

10 Serial Meetings Are Illegal  What is an illegal serial meeting? Direct or indirect communication Employed by a majority To develop a collective concurrence As to action to be taken

11 Serial Meetings Are Illegal  Examples of serial meetings Hub and spoke Telephone or chain BUT - individual briefings are permitted if no collective concurrence is attempted

12 When it might look like a meeting but is not a meeting…  Individual contacts  Conferences and seminars  Community meetings  Another body of the agency  Off-topic conversations

13 When is a meeting not a meeting?  Social or ceremonial events  Ad hoc committee meetings  Observation of standing committee meetings

14 Rules Governing Meetings  Types of meetings Regular Special Adjourned Emergency

15 Regular Meeting  Agenda must be posted 72 hours in advance  Brief description of items of business  Posted agenda must be freely accessible to public and on the website.

16 Special Meeting Called by presiding officer or majority of council/commission Notice must be posted 24 hours in advance Written Notice must be received by each member and press unless waived Consider only items on the agenda

17 Adjourned Meeting  Regular or special meeting may be adjourned to specific time and place  If no time stated, then meeting continued to the hour for regular meetings  Less than a quorum may adjourn

18 Regular & Special Meeting Location  Must be within the local jurisdiction Includes retreats and workshops  Participate in multi-agency meetings held in boundaries of one of the agencies All agencies must give notice  Exceptions for attending legal proceedings, inspect real property, regular meeting place unsafe, etc.

19 Emergency Meeting  Grounds for calling Severe impairment to public health & safety “Dire” emergencies – mass destruction, terrorist acts or threat of imminent terrorism Work stoppage Crippling activity  Provide one hour notice to press by telephone  May meet in closed session, by 2/3 vote

20 Agenda Requirements  Agendas must be publicly accessible, on-line, and distributed in advance to those who request copies  No discussion or decision on items not on the posted agenda

21 Agenda Requirements – Exceptions  Brief response to comments / questions  Clarification / reference to staff  Brief announcements / report on activities  Requests for future report  Placement of items on future agenda

22 Agenda Requirements – Exceptions  Items added to the agenda Came to the agency’s attention after the agenda was posted; and Need to take action before the next meeting Two-thirds vote required

23 Agendas & Agenda Packets  Agendas & packets must be publicly accessible  Writings distributed to majority of legislative body = public records PRA exemptions limited Section 6255 (balancing test) not applicable Government Code Section (a)

24 Agendas & Agenda Packets  Agenda & agenda packet copies must be mailed to: Those who request in writing At same time distributed to majority of legislative body members Fee can be adopted by legislative body, not to exceed cost of providing service Government Code Section

25 Public Participation  Members of the public have a right to speak on: Any item of interest within subject matter jurisdiction of city at regular meetings (public comment period) A specific item of business before or during the body’s consideration at any meeting, subject to agenda organization  Public Agencies cannot prohibit public criticism of policies, procedures, programs of city or acts of city council  Civil Code Section 47 privileges

26 Public Participation  Not required to "register"  Rules of decorum permitted  Time limits okay  Recording permitted

27 Teleconferencing  Quorum must participate from regular location  Teleconference location must be identified on agenda  Agenda posted at teleconference location

28 Teleconferencing  Teleconference location must be accessible to public  Agenda must provide for public participation  Roll call vote only Government Code 54953(b)

29 Closed Sessions  Personnel matters/labor negotiations  Real property matters  Pending/threatened/contemplated litigation  Threats to public facilities  Other less applicable topics

30 Rules Governing Closed Sessions  Matters must be disclosed on the posted agenda, some with greater detail than others Safe harbor agenda language Government Code Section  Closed session may be held at a different location  Pre- and post-session announcements by chair or counsel  Public comment prior to closed session permitted

31 Rules Governing Closed Sessions  Who participates?  Confidential Minute Book (if required by court order) Not a public record Disclose to legislative body and court if violations are alleged  Disclosure of confidential closed session communications prohibited by law

32 Enforcement & Consequences  Notice and opportunity to cure  Civil action for invalidation of actions  Attorneys fees and costs  Criminal prosecution Action taken at a meeting In violation of the act Intent to deprive public of information

33 Enforcement & Consequences  NEW RULE - Civil action (Gov’t Code § ) Applies to past alleged violations only District attorney or any interested person Send “cease & desist” letter to clerk or secretary No civil action if within 30 days the legislative body gives unconditional commitment not to commit same violation Legislative body must approve in open session and not on consent calendar

34 Going Beyond the Basics  Emphasize openness as an organizational value Take care with communications – avoid implications and misperceptions  Prioritize all 3 transparency laws Treat the laws as the floor, not the ceiling  Provide additional disclosure where advisable  Do a better job of explaining exceptions