1. LCAP Committee – September 28, 2017
THE BROWN ACT - AN OVERVIEW   Local Control and Accountability Plan Parent Advisory Committee (LCAP PAC)     Linda C. T. Simlick General Counsel San Juan Unified School District
LCAP Committee – September 28, 2017

2. THE BROWN ACT - AN OVERVIEW
“In summary, all meetings shall be open and public except when the Brown Act authorizes otherwise.”*
Found in Government Code sections through 54963
Designed to encourage public participation in local government
Purpose is to ensure that deliberations and actions of a local agency legislative body are conducted openly
So that the public is fully informed and able to participate in decisions involving the public agency (section 54950)
* League of California Cities “Open & Public IV: A Guide to the Ralph M. Brown Act” (2nd Edition, July 2010).
LCAP Committee – September 28, 2017

3. THE BROWN ACT - AN OVERVIEW
The basics:
All meetings shall be open and public
Deliberations must be open
All persons shall be permitted to attend and participate in the meetings
Those subject to the Brown Act include:
Legislative bodies, including advisory boards/standing committees
Board/committee members from the time of appointment
Subcommittees created by formal action of the board, but it does NOT include temporary ad hoc advisory boards made up solely of board members and constituting less than a quorum
LCAP Committee – September 28, 2017

4. THE BROWN ACT - AN OVERVIEW
Meetings
The Act requires:
Meetings to be open to the public
Meetings held on a regular schedule
Conducted in accordance with an agenda available to the public in advance
No secret ballots are allowed
Closed meetings are allowed only as identified in the Government Code (would not apply to LCAP)
A meeting is:
any gathering
of a majority of the members
at the same time and place
to hear, discuss or deliberate on any item within the subject matter jurisdiction of the board/committee (section (a)).
LCAP Committee – September 28, 2017

5. LCAP Committee – September 28, 2017
Meetings
Any gathering of a majority of members that involves any aspect of the decision-making process triggers Brown Act open meeting requirements.
A meeting can occur no matter how inadvertent or informal the congregation of a majority of the members is, including:
if a majority of members happen to “run into each other,” and
start discussing board/committee business.
That gathering would be considered a meeting, and would be in violation of the Brown Act.
A majority of members cannot use telephones, fax machines, s, chat rooms, or other similar devices to develop a collective consensus, agreement, or decision, or to exchange information in about their views or positions.
LCAP Committee – September 28, 2017

6. LCAP Committee – September 28, 2017
Meetings
In order to be a legal meeting under the Brown Act:
the meeting must be publicly posted with notice and an agenda,
the agenda must be posted at least 72 hours prior to the meeting, and
the meeting must be open to the public (sections , 54953, 54954, and ).
Examples of illegal meetings include:
“hub and spoke” meetings – where one person acts as the center and communicates with other members, and
“daisy chain” meetings – where one member calls a second member, and the second member calls a third member, etc., to discuss the same business item.
LCAP Committee – September 28, 2017

7. Prohibited Communications/Meetings
The Act prohibits serial communications, which are:
the use of direct communication by way of personal or technological devices
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.
Serial contacts can lead to a collective concurrence and are prohibited by the Brown Act (section (b)).
LCAP Committee – September 28, 2017

8. LCAP Committee – September 28, 2017
What is Not a Meeting
Exceptions to a meeting (when a meeting is NOT a meeting):
Individual/public contacts between a member and any other person;
a majority of members attending a conference, training, workshop, or similar gathering open to the public involving discussions of general interest;**
a majority of members attending an open and publicized event of an organization other than the local agency; ** or
a purely social or ceremonial event.**
**BUT a majority of members may not engage in discussions among themselves of board/committee matters at these events.
LCAP Committee – September 28, 2017

9. LCAP Committee – September 28, 2017
Meeting Agendas
The agenda must:
provide the date, time, and location of the meeting,
provide a brief description of each agenda item (idea is to provide enough information for the public to decide if they wish to attend).
Exceptions to discussing matters not on the agenda:
emergencies which require a majority vote,
a need for immediate action arising after publication of agenda (requires 2/3 of entire body, or if fewer than 2/3 remain, 100% of all remaining members), and
matters which have been posted for a previous meeting which is carried over for no more than five days;
Each of these exceptions must be publicly announced before proceeding with the item.
Meetings must be held within the boundaries of the District (with some exceptions) and must be accessible to the public under the Americans with Disabilities Act.
LCAP Committee – September 28, 2017

10. LCAP Committee – September 28, 2017
Kinds of Meetings
Regular meetings
Special meetings – agendas must be posted at least 24 hours in advance of the meeting (section 54956). The public shall be allowed to comment on agenda items, but it is within the board’s/committee’s discretion whether to allow comments on non-agenda items.
Emergency meetings – a crippling activity, work stoppage, or other activity that severely impairs public health and/or safety (section ). Absent a dire emergency, one (1) hour notice must be made to the media (can be telephonically).
LCAP Committee – September 28, 2017

11. LCAP Committee – September 28, 2017
Public Comments
The public cannot be required to register names or provide other information as a condition of attending a meeting. Voluntary sign-ins are allowed; the law is unclear whether the public can be required to provide names and other information to participate unless necessary to the subject matter.
  Regular meetings – public comment occurs before action is taken. The public:
may comment on any matter within the board’s/committee’s subject matter jurisdiction, even if the particular issue is not on the agenda
must be allowed to comment on agenda items
is allowed to criticize and complain
A board’s/committee’s response to public comments: if not on the agenda, members may only make a brief or limited response to statements (“thank you for your interest,” or refer the speaker to staff), but no discussion or action is permitted.
LCAP Committee – September 28, 2017

12. THE BROWN ACT - AN OVERVIEW
What is “Action Taken”
“Action taken” means:
a collective decision made by a majority of the members,
a collective commitment or promise by a majority of the members to make a positive or a negative decision, or
an actual vote by a majority of the members when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance (section ).
Action may only be taken in a legally called meeting.
If members make a collective promise outside a legally called meeting, it is a violation of the Brown Act.
LCAP Committee – September 28, 2017

13. LCAP Committee – September 28, 2017
Public Records Act
Any “writings” distributed to all, or a majority, of the members by any person in connection with a matter subject to discussion or consideration at a public meeting of the body, are disclosable public records. There are certain exceptions that make some public records not disclosable under the Public Records Act (sections 6250, et seq.) such as attorney/client privileged communications; but one should assume all records are public documents and disclosable.
LCAP Committee – September 28, 2017

14. Common Brown Act Mistakes
THE BROWN ACT - AN OVERVIEW
Common Brown Act Mistakes
Reaching a consensus outside board meetings (serial meetings);
Use of to debate (serial meetings) rather than merely update (time or place of meeting);
Taking action on non-agendized matter (open/closed session);
Not allowing public comment (let people talk);
Not setting limit of time to speak (people should not be allowed to go on forever);
Cutting off negative comments about staff (a member should try to refer to complaint policy);
Releasing employee or student names out of closed session (potential state/federal (FERPA) violation)
LCAP Committee – September 28, 2017

15. LCAP Committee – September 28, 2017
Brown Act Violations
Civil Actions:
Any party may bring an action against a member or the agency
The committee will have an opportunity to cure and correct actions taken
If judgment is rendered against the committee, the particular action complained of is, for the most part, void
Significant costs and attorney fees may be awarded against the local agency if a violation is found.
Criminal penalties (misdemeanor):
may be assessed against a member(s) who participated in the action
with the “wrongful intent to deprive public of information”
to which the member knows or has reason to know the public is entitled to under the Act.
The DA may commence a legal action relative to the Brown Act
LCAP Committee – September 28, 2017