1. 1 Building Board Agendas and The Brown Act ACSA New Superintendents Workshop January 27, 2015 Monterey, California Peter Fagen David Vierra Terilyn Finders

2. 2 About the Presenters Peter K. Fagen: Partner of Fagen Friedman & Fulfrost LLP David Vierra: Superintendent of Antelope Valley Union High School District Terilyn Finders: Director of Communications and Legislative Affairs at Fagen Friedman & Fulfrost LLP

3. 3 CONGRATULATIONS!!! Take a second to realize and appreciate your accomplishment Not an easy task ahead, but with strong leadership, knowledge and good communication with students, parents, teachers and governing board, you will succeed Understanding the Brown Act will help ensure effective governing board meetings

4. 4 What We’ll Cover... 1.Overview of the Brown Act 2.What is a Meeting? 3.Closed Session Procedure 4.Brown Act Violations 5.Voting/Taking Action 6.Building and Sustaining a Unified Governance Team

5. 5 1. Overview of the Brown Act

6. 6 Where to Find the Brown Act Government Code  Codified in Sections 54950-54963 Implementing regulations  Title 14, Section 15000, et. seq.

7. 7 Intent of the Brown Act Open and public deliberations Meaningful public access

8. 8 SO…WHO IS SUBJECT TO THE BROWN ACT?

9. 9 Legislative Bodies* *A school board is a legislative body subject to the Brown Act

10. 10 Open Meetings Requirement All meetings of a legislative body must be open to the public, except for authorized closed sessions. Purpose of meeting: To accomplish district business Provide public opportunities for questions and comments No secret ballots

11. 11 The Grey Haze of the Brown Act Email  Process Committees  Agenda and Minutes Opinions  Board deliberation and giving direction

12. 12 2. What Is A Meeting?

13. 13 “Meeting” Defined A meeting occurs whenever:  A majority of the Board members gather at same time and place...  To hear, discuss, or deliberate...  Upon any item that is within the subject matter jurisdiction of the Board or district. (Gov. Code § 54952.2)

14. 14 Serial Meetings Prohibited Serial Meeting = Communications outside formal meeting, each of which involve less than a quorum, but collectively encompass a majority

15. 15 Personal Intermediaries Separate conversations or communications with board members are not prohibited if the person communicating with the board members “does not communicate to [board] members … the comments or position of any other member or members.” (Gov. Code § 54952.2(b)(2).)

16. 16 A Word of Caution... Board members should be wary of acquiring knowledge, outside of a noticed board meeting, of their peers' opinions or positions on matters to come before the board

17. 17 Meetings Do Not Include… Individual contact Public conferences Standing committees Other local agency meetings Community meetings Social gatherings

18. 18 General Constraints Majority of the members cannot discuss school district business among themselves at “non-meetings” Can attend standing committee meetings only as observers

19. 19 Practical Pointers: Where should board members direct the concern? When and how do you want to hear from board members?

20. 20 Agendas Agenda must be posted  At least 72 hours prior to holding a regular board meeting  At least 24 hours prior to holding a special board meeting  At a location freely accessible to the public  Agenda must also be posted on a school district’s Internet Web site, if it has one

21. 21 Agenda Description The agenda must contain a brief general description of each item of business to be transacted or discussed at the meeting, including closed session items  Generally, not to exceed 20 words

22. 22 The Board may not discuss or take action on an item not appearing on the agenda except:  To respond to statements made or questions posed by the public during the public section  To ask questions of staff or the public for clarification  To ask staff to report on an item not on the agenda To make a brief announcement  When an emergency exists  When there is a need to take immediate action on an item that came to the attention of the agency after the agenda was posted Action and Discussion of Items

23. 23 Practical Pointers: Explain the purpose of the agenda Read the room; prepare your board Direct those concerned to staff, committee Avoid appearing indifferent Agenda planning to build trust and team

24. 24 Placement of Items on Agenda Members of the public, including Board members, may ask to have a specific matter placed on a future agenda General process  Reviewed by Board President and Superintendent  If within subject matter of district  Decide whether open or closed session item  Decide whether information, consent or action item No right to demand that requested item be action item

25. 25 Public Participation and Comment Regular meeting: Members of the public must be provided an opportunity to address the legislative body on any item within the subject matter jurisdiction of the agency Special meeting: Public provided an opportunity to address the Board on any item described in the notice

26. 26 Public Participation and Comment (cont’d) Regular or special meeting: Members of the public must be provided an opportunity to address the legislative body on any item on the agenda either before or during the Board consideration of that item

27. 27 Public Participation and Comment (cont’d) The Board may not prohibit public criticism of the policies, procedures, programs, or services of the agency, or the acts or omissions of the Board

28. 28 Practical Pointers: Explain process, demonstrate commitment to transparency and public responsiveness. Help the Board navigate turbulence. Agenda Item:  When to take comments? (process aloud)  Show of hands  Note key themes/integrate into your questions of the experts  Anticipate and plan  Say it. What is the issue? And, what is the question before the Board?

29. 29 Public Records All agendas and other documents distributed at a Board Meeting in connection with an agenda item are public records.

30. 30 Public Records Documents distributed to the Board less than 72 hours prior to an open public meeting shall be made available for public inspection when distributed to the Board. List on the agenda the location of where item can be viewed or can post on website.

31. 31 3. Closed Session Procedure

32. 32 Closed Sessions May be held only for purposes expressly authorized by the Brown Act or Education Code Board must disclose in open session (or via the agenda) the item(s) to be discussed in closed session Board may only consider those items covered in statement (or via the agenda)

33. 33 Permissible Closed Session Topics 1. Personnel Matters 2. Pending Litigation 3. Student Matters 4. Negotiations/Collective Bargaining 5. Security Matters 6. Real Property Negotiations

34. 34 Closed Session: Agenda Requirements Closed sessions must be identified on the agenda The Brown Act provides safe harbor language which automatically satisfies this requirement

35. 35 Practical Pointers: Is Board prepared to report out? Does Board need message points?

36. 36 Confidentiality of Closed Sessions Board members are prohibited from disclosing information obtained during a closed session except to persons entitled to receive that information Unauthorized disclosure could waive attorney-client privilege, violate privacy rights of students or employees, or impact collective bargaining

37. 37 Personal Liability for Disclosing Closed Session Information Civil suit Injunctive relief Criminal liability Censure Removal from office

38. 38 4. Brown Act Violations

39. 39 Brown Act Violations Misdemeanor: For Board member to attend a Board meeting where action is taken in violation of The Brown Act, where the member intends to deprive public of information which the member knows the public is entitled to receive The District Attorney, or any interested person, may bring a civil action to stop or prevent violations or to have Board action taken in violation declared null and void

40. 40 Cure or Correct Demands Before bringing the action, the Board must be given notice and an opportunity to correct the violation Prevailing plaintiff may be entitled to costs and attorney’s fees For closed session violations, court can order Board to tape record all closed sessions

41. 41 5. Voting/Taking Action

42. 42 Quorum Number of members that must be present to legally transact business Why? We don’t want small unrepresentative groups making decisions for entire board

43. 43 Actions by the Board A majority vote of all Board members is necessary for an item to carry (Ed. Code § 35164)  Applies even where members are absent or abstain (exception to Robert’s Rules of Order) Certain types of actions require greater than majority vote (2/3 or 4/5 or even unanimous)

44. 44 Quick Note: Conflicts of Interest If there is a conflict of interest, Board member(s) must:  Publicly announce the economic interest and the fact that they are disqualifying themselves  Not engage in discussion or voting on matter Cannot attempt to influence the decision in any way  Consider leaving the room until the matter is over unless the item is on the consent calendar

45. 45 Resolutions, Voting and Consent Calendar Resolutions Use resolutions when the issue requires more formality, attention, and matters of policy are being adopted Voting Chair should announce minority votes, i.e., “Hearing one ‘nay’ and no others….” If vote requires more than a majority, Chair should announce it before the vote Tie vote is a lost vote because no majority was obtained

46. 46 Resolutions, Voting and Consent Calendar (cont’d) Consent Calendar Intended to be used to dispose of ordinary, non- controversial business where lengthy debate is not foreseen or desired

47. 47 Resolutions, Voting and Consent Calendar (cont’d) Chair should ask before consideration of the consent calendar: “Are there any items that Board members would like to discuss?” Before entertaining those questions, take a vote on the balance of the consent calendar, then return individually to each item of discussion

48. 48 Practical Pointers: Review agenda and meeting format with new members Process for deliberation Level of formality (first or last name)

49. 49 6. Building and Sustaining a Unified Governance Team

50. 50 How Does the Governance Team Maintain Positive Relations? Essential Components  Communication  Structures

51. 51 Communication Frequent discussions Keep all Board members informed No surprises Up front and honest

52. 52 Steps to Success Treat Board members equally  Cohesive and stable Board is important When possible, allow adequate lead time to get a measure passed  Allow for adequate discussion and consideration Frequent communication is essential!

53. 53 Community & Media Parents 1) Site Administrators & Union Leadership 2) Staff Cabinet Superintendent & Board

54. 54 Structures Short-term  Agenda review  Work Study sessions  “What’s Happening”  Board Highlights  Principal’s Newsletter Long-term  Annual Governance Workshop (Handbook)  Annual Progress Report to Board  Annual Vision/Priority Setting Workshop  Superintendent Review

55. 55

56. 56 Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.