THE RALPH M. BROWN ACT Cal. Gov’t Code § et seq. Presented to the First 5 Commission San Mateo County Monali S. Sheth, Deputy Office of the County Counsel February 5, 2016

The Ralph M. Brown Act Government Code § et seq. Introduction 6 Topics  What are the public’s rights?  What are the notice and agenda requirements?  What types of public groups are covered?  What is a “meeting?”  When are “closed sessions” permissible?  What are the consequences of violating the Brown Act?

Introduction Government Code § “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.” Proposition 59 of 2004 – the right of the people to open meetings and public records is now in the State Constitution.  Presumption in favor of access.  Exceptions are narrowly construed.

Rights of the Public  Right to be notified of items to be considered (notice and agenda);  Right to the hear the deliberative process of the legislative body unless a special exception applies;  Right to comment during the meeting on issues within the Commission’s jurisdiction;  Right to criticize Commissioners and the Commission;  Right to attend meetings anonymously;

Rights of the Public Other “access” issues:  Right to record the meeting;  Right to have access to documents distributed to members of the body;  Right to know who voted for what – No secret ballots;  Right to be free of discrimination.

Notice and Agenda Requirements Regular Meetings  Post the agenda 72 hours in advance  Can’t discuss or take action on items not on the agenda Exceptions:  Make a brief announcement  Provide a brief report on Commissioner’s own activities  Ask for clarification  Provide a reference for factual information  Ask staff to place a matter on a future agenda  Agenda must contain opportunity for public testimony but may contain reasonable time limitations

Notice and Agenda Requirements Special Meetings  May be called at any time by the Chair or a majority of the Commissioners.  Requires written notice to each Commissioner and “each local newspaper of general circulation and radio or television, requesting notice in writing” and posting notice on Commission’s website and in “a location that is freely accessible to members of the public” at least 24 hours before time of meeting.  Agenda must contain opportunity for public testimony but may contain reasonable time limitations.

Responding to Public Questions Commissioners may respond during the meeting to public questions regarding items on the agenda Public may also ask about items not on the agenda  Commissioners may not discuss or take action, but may “briefly respond” Example: provide a factual reference (“the website has that information”)  Optional: Ask staff to place the matter on a future agenda

Groups Subject to the Brown Act “Legislative bodies” include governing bodies and their subsidiary bodies  Examples: boards, commissions, standing committees, committees or other bodies of a local agency that are created by charter, ordinance, or resolution  This applies regardless of whether the board or commission is “temporary” v. “permanent,” or “advisory” v. “decision making.” Exception for “Non-standing” advisory committees that are composed solely of less than a quorum of the legislative body.

Advisory Committees: Standing v. Non-Standing Subject to the Brown Act?  Early childhood evaluation advisory committee referenced in the bylaws. YES (standing: continuing jurisdiction over the Commission’s research and evaluation activities)  Advisory committee of 3 Commissioners to produce a report in 6 months on a specific policy issue impacting children 0-5 in San Mateo County and their families. NO (non-standing: accomplishing a specific task in a short time)

What is a “Meeting?” Any congregation of a majority of the members of legislative body to hear, discuss or deliberate on any matter within its jurisdiction.  Can include lunches, social gatherings, board retreats.  Teleconferences are “meetings” and must satisfy the requirements.

Prohibited Serial Meetings  Brown Act prohibits “any use of direct communication, personal intermediaries, or technological devices…to develop a collective concurrence as to action to be taken on any item…”  Watch out for “serial” or “hub” meetings (“chain communication”) Serial: A  B  C Hub: B  A  C

What is a “meeting?” Social Media Concerns Social networking sites make it easy to inadvertently hold an illegal “serial” or “hub” meeting.  Facebook, Twitter, YouTube, blogs, etc. Raises concerns over:  proper notice, agenda  public participation/access  developing “collective concurrence” Ambiguous, emerging area of the law.

What is a “meeting?” Social Media Concerns (cont.) The most surefire way to avoid problems:  Remove other commissioners from your personal social media networks. E.g.: Don’t friend other commissioners on Facebook Don’t follow other commissioners on Twitter  Take certain precautions with the Commission Facebook page Designate someone who can post for Commission Avoid liking or commenting on Commission Facebook page itself

What is a “meeting?” How to inadvertently turn an into a meeting  Reply All Don’t do it!  Forward Already forwarded by a commissioner? To whom will they forward it?  Reply Ask: “Who else have you consulted (on or off-line)?”

What is a “meeting?” Teleconferencing Cal. Govt Code §  Teleconferencing may be used “for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law.”  A teleconferenced meeting “shall comply with all requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.”

What is a “meeting?” Teleconferencing Requirements Governed by Govt Code § 54953(b)  Each teleconference location must be listed in the official agenda for the meeting;  Must be conducted in a manner that “protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency”  Agendas posted at all teleconference locations;  All votes taken during a teleconferenced meeting by roll call;  At least a quorum must participate from locations within County;  Each teleconference location accessible to the public;  The agenda shall provide an opportunity for members of the public to address the legislative body directly at each location.

What is a “Meeting?” Exemptions  Conferences open to the general public that involve issues of interest to the body;  Other public meetings;  Meetings of other bodies under same local agency; or  Social or ceremonial occasions, as long as a majority of the members do not discuss application of specific issues to the legislative body.

Permissible Closed Meetings These exceptions to the open meeting requirement are narrowly construed  Conference with attorney for existing or anticipated litigation  Personnel exception  Real estate negotiations  Labor negotiations  Public security Can’t disclose “confidential information”

Consequences of Violations Civil Remedies  Anyone may seek a court order to prevent or stop violations or threaten violations Pattern of past conduct is relevant  Most common: Voiding past actions of the body Criminal Penalties  Where commissioner intends to deprive the public of information to which the commissioner knows or has reason to know the public is entitled at a meeting where a “collective decision, commitment or promise” to take action occurs.

Use of Commissioner title  “I’m speaking for myself, not the Commission”  Commissioners cannot act on behalf of the commission without authority from the commission.  Be careful not to give the impression you are acting on behalf of the commission, or by extension, the County or the Board of Supervisors. Fundraising and campaigning Public speaking Media statements Social media postings