1. Transparency Laws: the Brown Act and the Public Records Act Michelle Goldberg, Interim General Counsel California Community Colleges Chancellor’s Office August 1, 2014

2. Transparency Laws - Big Picture  Fundamentally, what public officials do is transact the public’s business.  As regionally elected representatives to the SSCCC, responsible for representing CCC students before the Board of Governors, you are considered “public officials.”  Conducting oneself and transacting the public’s business in a transparent fashion gives the public an opportunity to monitor and participate in the SSCCC’s decisions and is required by law.  Today we will talk about two of those laws, the Brown Act (open meetings) and the Public Records Act (the people’s business).

3. Brown Act - Open and Public “ The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.” (Gov. Code, § 54950.) Ralph M. Brown 1959 Photo courtesy The Modesto Bee

4. LAW – three key components All meetings shall be open and public. All meetings shall be open and public. The public shall know ahead of time when and where you plan to meet and what you intend to discuss. The public shall know ahead of time when and where you plan to meet and what you intend to discuss. All persons shall be permitted to attend and testify at the meeting. All persons shall be permitted to attend and testify at the meeting.

5. Meetings A meeting is a gathering of a majority of members to hear or discuss any item of SSCCC business or potential business (very broad). A meeting can simply be the exchange of information. There are three types of meetings:  Regular – regularly scheduled council meetings. The SSCCC must formally set the time and place for their regular meetings in their bylaws, by resolution or some similar formal rule.  Special – meetings called by the agreement of a majority of the council to discuss a specific issue.  Emergency – not applicable to SSCCC.

6. More About Meetings   The SSCCC CANNOT meet to discuss SSCCC business outside of a meeting that the public has not received proper notice about. (More on notice later.) Generally, SSCCC members cannot meet for coffee or lunch to discuss SSCCC business outside of a meeting.   There are a few exceptions where a majority of you can get together without violating the Brown Act, e.g., attending a conference that is open to the public, social or other event – but don’t talk shop.

7. Socializing The Bottom Line: You must avoid talking about SSCCC business while you are at an event (social, conference etc…). The only time a majority can discuss SSCCC business outside a meeting is if the business is part of the other organization’s agenda and the agenda has been properly posted. For example, if the Board of Governors requests that the SSCCC attend their meeting to discuss SSCCC business and the BOG had properly posted notice of the meeting.

8. Subcommittees  The Brown Act also applies to meetings of all:  Standing committees – a committee that has continuing jurisdiction over a particular topic § 54952(b) For example: Budgets, executive, etc.  The Brown Act does not apply to advisory committees that DO NOT include a majority of the council and are not standing committees.

9. Serial Meetings  Serial meetings are not allowed.  Serial meetings occur when a majority of the council members have communicated about an issue and have developed a collective concurrence.  A collective concurrence is developed when:  Members have either directly or indirectly heard each others’ opinion on a topic enough to collectively develop or begin to develop an agreement on an issue.

10. E-mail Except as authorized pursuant to § 54953, any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the members of the legislative body is prohibited.

11. The Attorney General’s opinion regarding e-mail  In 2001 the CA Attorney General issued an opinion regarding the use of email. (Opinion #00-906, 2001.)  The opinion concluded:  The opinion concluded: A majority of the board members of a local public agency may not e-mail each other to develop a collective concurrence as to action to be taken by the board without violating the Ralph M. Brown Act.  Even if the emails are made public they would still be a violation of the Act because the board would be depriving the pubic of the deliberative process.   The opinion also states, “The term ‘deliberation’ has been broadly construed to connote ‘not only collective discussion, but the collective acquisition and exchange of facts preliminary to the ultimate decision.”

12. Collective Briefings  Collective briefings are not permitted. Any briefings involving the majority of the council must be open to the public and satisfy the notice and agenda requirements specified in the Act.  A unilateral written communication to the council such as an informational or advisory memorandum does not violate the Brown Act. The memo is, with very few exceptions, a public record.

13. But, I just want to be heard…  Public can speak about anything that is within the jurisdiction of SSCCC, however, council can only talk about what is on agenda (brief response allowed).  Every agenda must allow the public to speak on any item of interest, and as to each item of business before or during your consideration of that item.  Treat everyone the same, same time, same attention, same everything….

14. Meeting Agendas All meetings of the SSCCC must have a properly prepared and posted agenda.

15. Meeting Agendas  Requirements:  Posting requirements – Agendas must be posted at least 72 hours before the regular meeting in a location freely accessible to the public.  Posting requirements – Agendas must be posted at least 72 hours before the regular meeting in a location freely accessible to the public.  Content requirements – The agenda should 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.  Agendas must have enough information to enable members of the general public to determine the general nature of subject matter of each agenda item to be discussed. (Need not exceed 20 words.)  Agendas must allow for general public comment. **The council cannot discuss or take action or deliberate on any item that is not on the agenda, with three exceptions.

16. The Three Agenda Exceptions  The three exceptions to the agenda requirement are:  Emergency situations (not applicable to SSCCC)  A need for immediate action  Items posted on a previous agenda

17. A Need For Immediate Action  Action can be taken on an item that is not on the agenda if the council determines by a 2/3rds vote that there is a need for immediate action that can’t reasonably wait until the next meeting. (§ 54954.2(b)(2).)  Requirements:  The issue must have come to the attention of the council after the agenda had been posted.  The board must openly discuss the issue during the meeting.

18. Item Posted on Previous Agenda  The item appeared on a previous agenda and was continued from a meeting held not more than five days earlier.  Example: The SSCCC cannot come to a resolution on a topic at their regularly scheduled council meeting. So, they agree to continue the discussion on the topic at their already planned budget meeting the next day.

19. Special Meetings Conditions for a special meeting:  Written notice must be delivered to each member of the council and to each local newspaper of general circulation, and radio or television station which has requested such notice in writing. (§ 54956.)  The written notice must be delivered and posted at least 24 hours prior to the special meeting in a site freely accessible to the public. The notice must include the time and place of the meeting, and a brief description of all business to be transacted or discussed. (§ 54956.)  The SSCCC cannot consider business that is not mentioned in the notice.  Notice is required even if no action is taken at the meeting.  As with regular meetings, every special meeting must allow for a public comment period. (§ 54954.3(b).)

20. Closed Sessions  Without specific authority in the Brown Act for a closed session, all council business must be discussed in public, regardless of its sensitivity of the matter.  As a practical matter there should not be cause for a closed session of SSCCC. If you believe there is cause for a closed sessions please first consult with CCCCO staff.

21. Location of Meetings  With a few exceptions (not applicable to SSCCC), meetings must be held within SSCCC boundaries. (§ 54954(b).)  Hawaii is most likely not allowed for council meetings.  A meeting may not be held in any facility that prohibits the admittance of any person on the basis of race, religious creed, color, national origin, ancestry, or sex; which is inaccessible to disabled persons; or where members of the public may not attend without making a payment or purchase.

22. Teleconferences  § 54953(b)(1) permits the use of teleconferencing.  Requirements for teleconferences include:  Teleconferences must comply with the rest of the Act  All votes taken during a teleconference must be taken by roll call.  Agendas must be posted at all teleconference locations.  Each teleconference location must be identified in the agenda.  Each teleconference location must be accessible to the public.  At least a quorum of the council must participate from locations within the council’s boundaries.  The agenda must provide for public comment at each teleconference location.

23. Disruptive Attendees  The SSCCC MUST allow for negative public comment however,  the members of the legislative body conducting the meeting may clear the room and continue the meeting. However, all press and other members of the pubic who were not part of the interruption must be allowed to stay.

24. Consequences of Disregarding Open Government Laws Violating the open meetings laws can have significant consequences, which include:  Invalidating or nullifying any decision made in violation of the open meetings laws.  Criminal sanctions for intentional violations of the open meeting laws (up to 6 months in jail/$1,000 fine).  The prospect of the SSCCC having to pay for attorney’s fees to defend challenges, as well as possibly paying for the attorney’s fees of those who successfully sue the SSCCC.  Intense, adverse media, BOG and/or legislative attention.

25. Resources Summary of the Brown Act by the Attorney General’s Office - http://ag.ca.gov/publications/2003 Summary of the Brown Act by the Attorney General’s Office - http://ag.ca.gov/publications/2003 http://ag.ca.gov/publications/2003 Summary of the Brown Act by the League of California Cities - http://www.cacities.org/opengovernment Summary of the Brown Act by the League of California Cities - http://www.cacities.org/opengovernment http://www.cacities.org/opengovernment

26. The Public Records Act "The Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” (California Government Code section 6250; see also California Constitution, Article I, section 3(b).)

27. Is it a Public Record? Documents and information are public records if they:  contain “writing” relating to the conduct of the public’s business, AND  are prepared, owned, used or retained by a public agency, “regardless of physical form or characteristics.” (Gov. Code, § 6252(e).) A record kept by a public official or employee because it is necessary or convenient to the discharge of his/her official duty is a public record. (Braun v. Taft, (1984) 154 Cal.App.3d 332, 340.)

28. Is it a Public Record? Documents in any format can be public records:  “Writing” includes “handwriting, typewriting, printing, photographing, photocopying, transmitting by electronic mail or facsimile and every other means of recording upon any tangible thing any form or communication or representation.” (Gov. Code, § 6252(f).)  The definitions of “public record” and “writing” in the PRA are “intended to cover every conceivable kind of record that is involved in the governmental process and will pertain to any new form of record-keeping instrument as it is developed.” (Braun v. Taft, (1984) 154 Cal.App.3d 332, 340.)

29. Is it a Public Record? Public records are created/stored in many formats other than paper, including:  E-mail & text messages  Electronic calendars  Voice mail  Digital photographs  The content of a document, not its format, determines whether it is a public record and whether it must be disclosed.

30. Email as Public Record Examples of e-mail messages generally considered to be public records:  E-mail that is created or received in connection with official public business.  E-mail that shows how a policy or decision was formulated and/or implemented.  E-mail that initiates, authorizes or completes a transaction of official public business.

31. Public Records are Existing Documents or Information  The Public Records Act pertains to existing records, documents, and information that are stored in some form.  You do not have to create a record in response to a request, but you do have to produce existing records.

32. Exemptions Purpose of the PRA is to assure broad access to public records, exemptions are to be very narrowly construed. Public agencies must allow access to records unless an exemption justifies withholding the record. Public agencies must allow access to records unless an exemption justifies withholding the record. Exempt information can be redacted from documents that are otherwise disclosable public records, i.e., redact social security numbers, or FERPA protected information. Exempt information can be redacted from documents that are otherwise disclosable public records, i.e., redact social security numbers, or FERPA protected information. You cannot limit access to records based on the purpose of the request. You cannot limit access to records based on the purpose of the request. Consult with CCCCO before withholding a requested record. Consult with CCCCO before withholding a requested record.

33. Best Practices for Handling a Public Record Request Requests received verbally, must receive a response. Requests received verbally, must receive a response. Encourage the requester to put their request in writing if possible, or write down their request and confirm with them the items they are requesting. Encourage the requester to put their request in writing if possible, or write down their request and confirm with them the items they are requesting. Read the request carefully -- What records are actually being requested? Read the request carefully -- What records are actually being requested? You’re required to help the requester focus/clarify their request if it seems unclear. (§ 6253.1.) You’re required to help the requester focus/clarify their request if it seems unclear. (§ 6253.1.) Do the requested items fit the definition of “public record”? Mere possession of a document does not make it a public record. (City Council v. Superior Court (1962) 204 Cal.App.2d 68, 73.) Do the requested items fit the definition of “public record”? Mere possession of a document does not make it a public record. (City Council v. Superior Court (1962) 204 Cal.App.2d 68, 73.)

34. Response Time VERY SHORT! Move quickly. VERY SHORT! Move quickly. Agencies have ten days (including weekends) from the date the request was received, to inform the requestor whether there are responsive records and if so, whether any are exempt from production. Agencies have ten days (including weekends) from the date the request was received, to inform the requestor whether there are responsive records and if so, whether any are exempt from production. The agency must make the records available promptly. The agency must make the records available promptly.

35. Fees for Duplication of Records Agencies may charge the direct cost of producing a copy of a record. Agencies may charge the direct cost of producing a copy of a record. The direct cost of duplication includes the pro-rata (proportionate cost) of copying equipment as well as the pro- rata cost of the person running the equipment (a proportion of their salary and benefits, for example). The direct cost of duplication includes the pro-rata (proportionate cost) of copying equipment as well as the pro- rata cost of the person running the equipment (a proportion of their salary and benefits, for example). The direct costs of duplication do not include costs affiliated with the research, retrieval, or redaction of a record. An agency cannot charge a person requesting copies of records for these costs. The theory is that these costs must be borne by the agency as part of its duty to serve the public. The direct costs of duplication do not include costs affiliated with the research, retrieval, or redaction of a record. An agency cannot charge a person requesting copies of records for these costs. The theory is that these costs must be borne by the agency as part of its duty to serve the public.

36. Consequences of not providing records when one should If there is a disagreement about whether the SSCCC satisfied its responsibilities under the records disclosure rules, a person denied access to records can sue the SSCCC to require that the records be produced. If there is a disagreement about whether the SSCCC satisfied its responsibilities under the records disclosure rules, a person denied access to records can sue the SSCCC to require that the records be produced. If they win, the SSCCC will have to pay the requestor's attorney's fees. If they win, the SSCCC will have to pay the requestor's attorney's fees. It can also undermine public trust in the SSCCC if it appears that it is trying to hide information from the public. It can also undermine public trust in the SSCCC if it appears that it is trying to hide information from the public.

37. AB 1234 Ethics Training Requirement The Fair Political Practices Commission and Attorney General’s Office developed an online AB 1234 ethics orientation that includes an overview of the Brown Act requirements, Public Records Act, other transparency and public ethics laws. The Fair Political Practices Commission and Attorney General’s Office developed an online AB 1234 ethics orientation that includes an overview of the Brown Act requirements, Public Records Act, other transparency and public ethics laws. SSCCC council members must complete the FPPC & AG’s online training by August 31, 2014. (And yes, the local official’s – not the state official’s – training is correct.) SSCCC council members must complete the FPPC & AG’s online training by August 31, 2014. (And yes, the local official’s – not the state official’s – training is correct.) Print out a certificate of completion from their website & submit to the Chancellor’s Office for recordkeeping. Print out a certificate of completion from their website & submit to the Chancellor’s Office for recordkeeping. Go to: http://localethics.fppc.ca.gov/login.aspx.

38. Questions?