1. Brown Act and Conflicts of Interest
Presented by
Jennifer McQuarrie
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2. Disclaimer
THIS SESSION IS INTENDED TO PROVIDE GENERAL INFORMATION REGARDING TOPICS OF CURRENT IMPORTANCE TO CHARTER SCHOOLS AND DOES NOT CONSTITUTE LEGAL ADVICE. THE INFORMATION CONTAINED HEREIN IS NECESSARILY GENERAL AND ITS APPLICATION TO PARTICULAR FACTS AND CIRCUMSTANCES WILL VARY. YOU SHOULD NOT ACT ON THIS INFORMATION WITHOUT CONSULTING LEGAL COUNSEL.

3. Workshop Goals Board member legal duties
Gain an understanding of the Brown Act
What is the Brown Act?
Policy interests at play
Brown Act requirements
Conflicts of Interest
Government Code section 1090
Political Reform Act
Corporations Code

4. Board Member Legal Duties
Duty of Care, Loyalty and Obedience
Care: Level of care that prudent person would exercise in like position
Loyalty: Undivided allegiance (faithfulness) to school, not self interests
Obedience: True to the school’s mission, not personal agenda

5. What is the Brown Act?
Ralph M. Brown Act (CA Gov. Code sections 54950, et seq.)
Open meeting requirement for local legislative bodies
Includes, among other things:
Notice
Agenda
Public comment

6. Competing Policy Interests
Brown Act
Encourage public participation in local government decisions
Deter secret legislation by public bodies
Charter School
Confidential information re students/employees
Candor in decision-making and debate
Efficient decision-making

7. What is a Meeting? Broadly defined
Congregation of board majority at the same time and place to hear, discuss or deliberate upon any item within its subject matter jurisdiction
Includes collective acquisition and exchange of facts before making a decision
Includes informal and inadvertent meetings
Collective commitment to make a positive or negative decision

8. What is a Meeting? Serial meetings prohibited Board majority uses
direct communication
personal intermediaries
technology
To discuss, deliberate or take action or develop collective concurrence
For an action to be taken on an item by the Board
Prohibition does not prevent employee/official from engaging in separate conversations or communications with board members to answer questions/provide information
So long as does not communicate to members the comments or position of other board members

9. What is a Meeting? Exceptions:
Individual conversations between a board member and another individual
Attendance of a majority members at:
Open conferences (or similar meetings)
Open meetings of other organizations
Open meetings of other legislative bodies
Purely social or ceremonial gatherings

10. What is a Meeting? Exceptions continued:
Provided they don’t discuss amongst selves school business, other than as part of a program

11. Compliance - Notice Three types of meetings: Regular meetings
Usually designated by resolution or bylaws
72-hours notice
Special meetings
Called at any time (presiding officer or board majority)
24-hours notice
Emergency meetings
Very rare
1-hour notice to media outlets that previously requested notice

12. Compliance - Agenda Regular and Special Meetings: Content
Time/location, including any teleconference locations
Brief general description of each item of business to be transacted or discussed
Including closed session matters (further discussion later in slides)
Need not exceed 20 words

13. Items Not on the Agenda
Member or staff, on own initiative or in response to statements made or questions posed by public, asks for clarification, makes a brief announcement or reports on his/her own activities
Provide reference to staff or other resources for factual information , request staff to report back to the body at a subsequent meeting concerning any matter or take action to direct staff to place a matter on a future agenda
If emergency exists as defined by statute, determined by majority vote
2/3rd vote or unanimous, need to take immediate action and need came to the attention of the body after the agenda was posted

14. Compliance – Limits at Special Meetings
Salaries, salary schedules, compensation in the form of fringe benefits of CEO may not be discussed in special meetings
Does not preclude discussion of the budget in a special meeting
Oral report of a summary of the recommendation for final action during the open meeting in which the final action is to be taken

15. Compliance - Posting
Post in a location that is freely accessible to the public 24-hours a day and compliant with ADA
Website, if the school has one
After 1/1/2019, post to homepage through prominent direct link in a certain format
Integrated agenda management platform ok
If teleconference participation, at each teleconference location

16. Compliance – Rights of the Public
Regular and Special meetings:
Before or during consideration of the item
Participate at each teleconferenced location
Reasonable accommodations per ADA
Cannot be required to sign in (unless speaking)
May record or broadcast meetings
May have access to board materials (with some exceptions)
May not be censored
Allow 2x allotted time to a member of the public when utilizing a translator, unless simultaneous translation provided

17. Compliance – Closed Session
Closed Sessions Generally
Sessions must be expressly authorized by statute
Narrowly construed
Strong bias in favor of open meetings
Sensitive, embarrassing or controversial content does not justify application unless expressly allowed
Semi-closed meetings not allowed

18. Compliance – Closed Session
Confidentiality of Closed Sessions
Person attending may not disclose to a non-attendee
Violations enforceable in court
Injunction
Disciplinary action
Grand jury referral

19. Compliance – Permissible Closed Session
Personnel
Litigation
Real property negotiations
Labor negotiations
Public security
Student discipline
Others likely not applicable

20. Conflict Codes Generally
Application of Codes to charters continues to be conflicted
Charter commits school to follow all conflict statutes applicable to the District
Conflict Codes generally
Restrict an entity from entering into a transaction where a board member or employee has a financial interest; or
Articulate rules about how an entity may enter into a transaction where a board member or employee has a financial interest

21. Government Code section 1090
An officer/employee may not make a contract in which s/he is financially interested
If no contract signed, no violation
Board members are conclusively presumed to have made any contract by the board even if s/he has disqualified from any and all participation in contract
Employees can recuse and disqualify from decision

22. Government Code section 1090
Contracts made in violation of section 1090 are void and cannot be enforced
Criminal and civil sanctions

23. Government Code section 1090
Financial Interest
Direct and indirect interests
Certainty of financial gain not required, may be a mere possibility
No reach-back when looking at interests
Applies to community and separate property income of spouse

24. Government Code section 1090
Remote Interests
Disclose the interest to the board
Have it noted in the official records of the body
Board may take action on the remote interest if it acts in good faith
Cannot count the vote(s) of those with remote interests
Non-Interests
Board may take action without recusal, disclosure may be required

25. Political Reform Act Enacted in 1974 Application to charters contested
Fair Political Practices Commission is enforcing body
Government Code section 81000, et seq., conflicts of interest begin at 87100

26. Political Reform Act
Charter school directors, officers employees with decision making authority
Look at your own structure to determine who falls within that definition
Fill out form 700
Follow the recusal process for interested decisions
Prevented from making, participating in making or influencing or attempting to influence a decision

27. Political Reform Act Making a decision
Voting on a matter
Appointing a person to a position
Obligating the school to a course of action on an issue or
Entering a contract for the school
Deciding not to act is also making a decision

28. Political Reform Act Participation in Decision Making
Official provides information, an opinion or a recommendation without significant intervening substantive review
Solely ministerial, secretarial, manual or clerical not included
Appearance before school representing own personal interests not included
Actions regarding compensation or employment contracts not included
Official may not make employment decisions against self or family members or set those salaries, unless part of overall job classification
Public speaking not included
Academic and teaching positions not included

29. Political Reform Act Qualifying Interests
Investments in business entities ($2,000+)
Interests in real property ($2,000+)
Sources of income ($ months)
Sources of gifts and their agents/intermediaries ($ months)
Positions with business organizations (director/officer/employee/management)
Personal finances of the official and immediate family (spouse or dependent child)

30. Political Reform Act Personal Financial Effect
If it is reasonably foreseeable that a decision will have a material financial effect on the official or family, disqualification is required if the impact is different than the effect on the public generally

31. Conflict of Interest Form 700 Interests looking backward 12 months
File each April 1
Public documents
Keep on file with business office, chartering agency likely wants a copy
Initial, annual, assuming office, candidate and leaving office

32. Conflict of Interest Corporations Code
Applies to all non profit corporations
No more than 49% interested directors on board
Recusal and an affirmative finding that interested transaction in the best interest of the corporation when made

33. Conflict of Interest Manner of Disqualification cont.
Board must affirmatively find for each interested transaction
It benefits the school
It is fair and reasonable at the time
School could not have obtained a more advantageous arrangement with reasonable effort
Disqualified member shall not be counted toward achieving a quorum while discussing the item