Q: What is the purpose of the Brown Act?
A: The nature of the Brown Act is fundamentally political. It is about nothing
more or less than self-government. Its purposes are to ensure the accountability of
government officers and to enable citizens' oversight of government agencies by
keeping official decision-making processes as open as possible to public knowledge
and participation. As stated in the Act's preamble:
In enacting this chapter, the Legislature finds and declares that the public
commissions, boards and councils and the other public agencies in this State exist to
aid in the conduct of the people's business. It is the intent of the law that their
actions be taken openly and that their deliberations be conducted openly. The
people of this State do not yield their sovereignty to the agencies which serve them.
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.
The people insist on remaining informed so that they may retain control over the
instruments they have created.
(Government Code § 54950)
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Q: At what level of government does the Act apply?
A: The Act's rules "apply to the legislative body of every local agency
notwithstanding the conflicting provisions of any other state law" (Government
Code § 54958) and define "local agency" expansively, as including
a county, city, whether general law or chartered, city and county, town, school
district, municipal corporation, district, political subdivision, or any board,
commission or agency thereof, or other local public agency
(Government Code § 54951).
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Q: Does the Act apply only to governmental agencies?
A: Yes; with some rare exceptions discussed below, the Brown Act applies only to
"agencies" with official power or formal governmental status and not, for
example,
to the county central committee of a political party (59 Ops.Cal.Atty.Gen.162 (1976)).
The court system, despite its official powers, is not an "agency" within the
meaning
of the Act, nor are local administrative committees of judges, for example (I.L. 75-
109; I.L. 62-46; I.L. 60-16). The sessions of a municipal or superior court in civil
lawsuits and criminal prosecutions are ordinarily open to the public, not because of
the Brown Act, but as a matter of long-established common law and of
constitutional law.
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Q: How can one tell if a government agency is "local"
enough to be under the Act?
A: In addressing the issue of whether a certain agency was subject to the Brown Act
or the Bagley-Keene Act, which applies to state boards and commissions, the
California Court of Appeal looked to whether the agency was
local in scope and character, restricted geographically in its area of operation, and
does not have statewide power or jurisdiction even though it is created by and is an
agent of, the state rather than of the city or county in which it functions.
(Torres v. Board of Commissioners , 89 Cal.App.3d 545 (California Court of
Appeal,
5th Dist. 1979)
By those standards, the court concluded that a local housing authority, while an
agent of state policy, was a local agency for purposes of the Brown Act.
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Q: Assuming we're talking about a meeting of some group in local
government, how can we tell if the group has to observe the Brown Act?
A: The first point to note is that the law applies only to the meetings of defined
bodies and their members. It does not apply to all interesting or consequential
gatherings, such as meetings of staff or department heads, or of committees created
by, and at the service of, a single decision-maker (75 Ops. Cal. Atty. Gen.263 (1992));
(56 Ops.Cal.Atty.Gen.14, 19 (1973)). Nor does it apply to the sitting of a single hearing
officer when he or she conducts disciplinary or other proceedings ( Wilson v. San
Francisco Municipal Railway, 29 Cal.App.3d 870 (California Court of Appeal, 1st Dist.
1973)) -- there is no "body" involved -- although local rules may allow access
to
such administrative hearings.
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Q: What does the Act call the groups whose meetings it covers?
A: The Brown Act calls the entities directly subject to its rules "legislative
bodies."
That term does not mean that only policy-making bodies are involved; in fact most
bodies subject to the Act are advisory rather than legislative in the formal sense.
Nor does it mean that only the legislative deliberations of affected bodies are subject
to the law; discussions and actions of an executive or even quasi-judicial nature are
equally covered (61 Ops.Cal.Atty.Gen 220 (1978)); (57 Ops.Cal.Atty.Gen. 189 (1974)).
"Legislative body" is thus a term of art, meaning exactly what the Brown Act
sets
forth in its definitions in Government Code § 54952.
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Q: What is the commonest kind of "legislative body"
subject to the Act?
A: Within Government Code § 54952, the first definition is the simplest and
accounts for most bodies subject to the law. Subdivision (a) refers to "(t)he
governing body of a local agency or any other local body created by state or federal
statute." Thus the board of supervisors of a county, the city council of a city, the
board of trustees of a school or community college district or the board of governors
of a special purpose district are clearly covered. A local body created by state law is
noted in the Torres case above (the board of a housing authority); another might be
the board of a regional air pollution control district, for example. The most
pervasive examples of local bodies not "governing" but created by state law are
city
and county planning commissions.
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Q: What non-governing bodies are subject to the Brown Act?
The second definition, in subdivision (b) of Government Code § 54952, covers
the bodies created not by state or federal law but locally, by other legislative bodies,
that is, a
commission, committee, board, or other body of a local agency, whether permanent
or temporary, decisionmaking or advisory, created by charter, ordinance, resolution, or
formal action of a legislative body.
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Q: What is the central factor that decides whether a
non-governing body may be subject to the Act?
A: The key issue is not what the body is called -- it may be designated a task force, a
blue-ribbon panel or otherwise. Nor does it matter (with one exception discussed
below) whether the body has merely advisory as opposed to decisional power, or
whether it is ad hoc (formed to address a one-time issue and then dissolve) or
continually active. The decisive issue is whether the body was "created by" some
"formal action" of a "legislative body".
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Q: What determines that a body was "created by formal
action"?
A: To be created by formal action such that the Brown Act may apply, a body need
not necessarily have been launched with a full and explicit declaration in the form
of "We hereby create..." The California Court of Appeal has held, for example,
that
an advisory committee was created with sufficiently formal action when a city
council designated two of its own members to meet with any two city planning
commissioners designated by that body, in order to screen applicants to fill a
commission vacancy. The council established a mission or agenda for a specifically
defined group and appointed its own representatives, and that was "creative and
formal" enough to trigger the Brown Act ( Joiner v. Sebastopol , 125
Cal.App.3d 799
(California Court of Appeal, 1st Dist. 1981)). If a body simply appoints two of its
members to meet with officials or others from outside its jurisdiction to exchange
information and report back, however, it probably has not created a body within the
meaning of the Act. If the two or more agencies involved were to create some kind
of joint body with its own identity and mission , that would be a different matter,
and the Act probably would apply to the new entity.
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Q: What if the parent body doesn't actually appoint the new
panel's members?
A: The other important point about advisory bodies in general is the distinction
between the creationof the body and the appointment of its members. A city
council, for example, may both create a committee and appoint some or all of its members,
as in Joiner. Or it may simply create (authorize and define the role or mission of)
the committee, and delegate the appointment function to the staff. Such was the case in Frazer
v. Dixon Unified School District , 18 Cal.App.4th 781, 792-93(3d Dist. 1993), in which
the California Court of Appeal held that a committee charged with following up on parental
complaints about textbooks was subject the the Brown Act because its formation was called
for by district policy established by the school board, even though the task of appointing
members was left to the superintendent. The "creation" by "formal
action" occurs when a legislative body
establishes a policy calling for committee advice; who designates the members makes no
difference.
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Q: What if an agency executive or department head -- or a member
of the
governing body itself -- appoints a committee to advise him or her directly?
A: If a single official takes the initiative without authorization of the legislative
body to create an advisory group which reports only to him or her, the Act does not
apply, since the body had no role in creating the advisory function. The same goes
for advisory groups created by individual members of a legislative body; under the
law prior to 1994 these panels were subject to the Act, but that provision was deleted.
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Q: Is there any kind of advisory committee that is not subject to
the Act?
A: Yes. Despite the general rules, one variety of advisory body created by formal
action is exempt, namely an ad hoc committee of the creating body which consists of
only the body's members, but less than a quorum. As subdivision (b) states it:
... advisory committees, composed solely of the members of the legislative body
which are less than a quorum of the legislative body are not legislative bodies,
except that standing committees of a legislative body, irrespective of their
composition, which have a continuing subject matter jurisdiction, or a meeting
schedule fixed by charter, ordinance, resolution, or formal action of a legislative
body are legislative bodies for purposes of this chapter.
Or to put it in the affirmative, a standing committee of a legislative body is subject
to the Act no matter who is a member, but a committee that has no ongoing role to play and
whose meeting schedule is not set by the creating legislative body is exempt from the Act
if, but only if its only membership is a sub-quorum of the creating body.
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Q: Can the boards of private organizations ever be subject to the
BrownAct?
A: Yes. Government Code § 54952, subdivision (c) defines yet a third category of
"legislative body" -- those which in some senses at least have a corporate
identity.
There are two versions, either of which is subject to the Act:
A board, commission, committee, or other multimember body that governs a
private corporation or entity that either:
(1) Is created by the elected legislative body in order to exercise authority that
may lawfully be delegated by the elected governing body to a private corporation or
entity.
(2) Receives funds from a local agency and the membership of whose
governing body includes a member of the legislative body of the local agency
appointed to that governing body by the legislative body of the local agency.
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Q: Are there some examples to show how different bodies might be
subject to the Act?
A: Well, to illustrate these variations, imagine the different ways in which the
problem of unemployment and the need for new business development might be
addressed in a given city.
- The Governing Body -- The city council itself meets to
discuss these
challenges. The council is subject to the Act as a "legislative body" pursuant
to
Government Code § 54952(a).
- A Body Created by State or Federal Law -- The city planning
commission is
considering a proposed new industrial park that will help create jobs. The
commission is likewise subject to the Act as a "legislative body" pursuant to
Government Code § 54952(a).
- The External Standing Committee -- The council
creates a Task Force on
Business Development, consisting of influential business, financial and professional
people from the private sector, which will address all aspects of the problem as they
arise for the indefinite future. The task force is subject to the Act as a
"legislative body" pursuant to Government Code § 54952(b).
- The External Ad Hoc Committee -- The council creates an
Industrial Park
Incentives committee, consisting of influential business, financial and professional
people from the private sector, which will formulate a set of proposed inducements
to use in soliciting tenants for the industrial park. The proposals will be reported
back to the council in six months, at which point the committee will dissolve.
Because it is an advisory committee outside the council, the fact that it has an ad hoc
role does not prevent its being a "legislative body" pursuant to Government Code
§
54952(b).
- The Internal Standing Committee -- The council creates a
new Business
Development committee, which will address all aspects of the problem as they arise
for the indefinite future. The committee consists of two of the five members of the
council and no one else. Because it has a continuing subject matter jurisdiction,
even though it consists of less than a quorum, the committee is subject to the Act as
a "legislative body" pursuant to Government Code § 54952(b).
- The Internal Ad Hoc Committee -- The council creates
an Industrial Park
Incentives committee, consisting of two of the five members of the council and no
one else, which will formulate a set of proposed inducements to use in soliciting
tenants for the industrial park. The proposals will be reported back to the full
council in six months, at which point the committee will dissolve. Because it is an
advisory committee limited to less than a quorum, and of limited duration with no
continuing jurisdiction, it is not a "legislative body" pursuant to Government
Code
§ 54952(b).
- The Hybrid Body -- The council appoints a Business
Development Task
Force to perform some or all of the above functions. There are two members
appointed from the council itself and the rest consisting of other influential persons
in the public and private sector. Whether this body has only a short term, ad hoc
charge or a function with long-term duration, it is a "legislative body"
pursuant to
Government Code § 54952(b) because while it comprises a sub-quorum of the
council, it also includes others.
- The Agency Corporation Board -- The council establishes a
nonprofit
corporation to acquire land and perform other business functions that are more effectively
accomplished in that manner to support expanded commercial and industrial growth. Assuming
the law permits this delegation at all, the board is a "legislative body"
pursuant to Government Code § 54952(c)(1).
- The Funding-Linked Board -- The council contracts
with the chamber of
commerce for the promotion of business relocation, providing it with $10,000 for
that purpose. If the council also appoints at least one of its members to sit on the
chamber board representing city interests, that board is a "legislative body"
pursuant
to Government Code § 54952(c)(2). But unless such an appointment is made, the
funding does not trigger the Brown Act.
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Q: Other than these examples, are there any other groups to which
the Brown Act would apply?
A: One other kind: the Brown Act applies to certain boards of private corporations
which have entered into long-term "leases" with hospital districts, pursuant to
which the company operates the hospital on a day-to-day basis and makes occasional
reports to the district board. But this definition of "legislative body" under
subdivision (d) grandfathers out of the Act any arrangements commenced prior to
1994:
The lessee of any hospital the whole or part of which is first leased pursuant to
subdivision (p) of Section 32121 of the Health and Safety Code after January 1, 1994,
where the lessee exercises any material authority of a legislative body of a local
agency delegated to it by that legislative body whether the lessee is organized and
operated by the local agency or by a delegated authority.
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Q: If it's fairly clear that the body is subject to the Brown
Act, what are the gatherings that must observe the rules?
A: Until the major legislative revisions effective in 1994, the Brown Act had a
curious gap at its center. The Legislature had never defined the term around which
so much in the Act turned: "meeting." The courts and the attorney general had,
however, gradually arrived at the notion that the Brown Act could not be evaded by
calling a meeting something else, or deeming it "informal", or insisting that no
action would be taken, if it was in fact a gathering of all or most of a legislative
body to discuss public business . They had also concluded that an orchestrated
series of
private conferences, each one involving less than a quorum of the body, intended to
allow for discussion of an issue by all or most of the members without triggering the
Brown Act, was a prohibited mechanism. The California Court of Appeal used this
"serial meetings" analysis in holding that a telephone poll used by a body's
attorney
to get approval of the members for a proposed legal action violated the Brown Act
(Stockton Newspapers v. Stockton Redevelopment Agency , 171 Cal.App.3d 95 (3d
Dist. 1985)). The California Supreme Court later agreed that a deliberate use of serial
communications to evade the Brown Act would itself be treated as a violation
(Roberts v. City of Palmdale, 5 Cal 4th 363 (1993)).
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Q: What is the commonest type of meeting subject to the Act?
A: The Brown Act now defines a "meeting" subject to its rules in subdivision
(a) of
Government Code § 54952.2 as follows:
...(a)ny congregation of a majority of the members of a legislative body in the same
time and place to hear, discuss, or deliberate upon any item that is within the subject
matter jurisdiction of the legislative body or the local agency to which it pertains.
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Q: Would it be a meeting if the members of the body took no
action, and didn't even discuss much -- just sat and listened?
A: If the topic was official business, yes. A meeting may occur not only when there
is no "action" taken, but even when the members' role is confined to hearing
about
a matter -- when they are being briefed about it. Even prior to the addition of this
meeting definition to the Act in 1994, the California Court of Appeal had concluded
that briefing sessions were meetings whether or not they resulted in any action or
agreement to act (Frazer v. Dixon Unified School District).
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Q: How does the Act deal with "serial" meetings and
other consensus-building maneuvers?
A: As for serial meetings, subdivision (b) of Government Code § 54952.2 bars the
use of orchestrated sequences of contacts, whether by the members in person, via
electronic means or even using proxies or go-betweens, to achieve a non-public consensus:
...any use of direct communcation, 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.
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Q: Are there any legal high-tech alternatives for holding a
meeting?
A: The section expressly allows for one form of electronic "meeting" -- video
teleconferencing -- but only subject to the conditions set forth in Government Code
§ 54953, subdivision (b):
Notwithstanding any other provision of law, the legislative body of a local agency
may use video teleconferencing for the benefit of the public or the legislative body of
a local agency in connection with any meeting or proceeding authorized by law. The
use of video teleconferencing, as authorized by this chapter, shall be limited to the
receipt of public comment or testimony by the legislative body and to deliberations
of the legislative body. If the legislative body of a local agency elects to use video
teleconferencing, it shall post agendas at all video teleconference locations and adopt
reasonable regulations to adequately protect the statutory or constitutional rights of
the parties or the public appearing before the legislative body of a local agency. The
term "video teleconference" shall mean a system which provides for both audio
and
visual participation between all members of the legislative body and the public
attending a meeting or hearing at any video teleconference location.
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Q: Does the Brown Act allow any elbow room for random contacts
with
constituents or other outreach?
A: Definitely. Because of the broad definition of "meeting" in (a) and the
attention
to "direct communications" in (b), subdivision (c) of Government Code § 54952.2
clarifies that members of a body are not prevented from engaging in independent
one-on-one contacts with one another or anyone else, or from collectively attending
certain important gatherings that are open to the public, so long as these occasions
are not exploited to arrange a collective and non-public discussion of specific agency
business:
Nothing in this section shall impose the requirements of this chapter upon any of
the following:
One on One Exchanges -- (1) Individual contacts or
conversations between a
member of a legislative body and any other person.
Open Conferences -- (2) The attendance of a
majority of the members of a
legislative body at a conference or similar gathering open to the public that involves
a discussion of issues of general interest to the public or to public agencies of the
type represented by the legislative body, provided that a majority of the members do
not discuss among themselves, other than as part of the scheduled program,
business of a specific nature that is within the subject matter jurisdiction of the local
agency. Nothing in this paragraph is intended to allow members of the public free
admission to a conference or similar gathering at which the organizers have
required other participants or registrants to pay fees or charges as a condition of
attendance.
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Q: What kind of conference attendance is permitted free of the
Act?
A: Paragraph (2) above would apply, for example, to a school board's attendance at a
conference of the California School Boards Association. All trustees may attend, but
the only circumstance under which a majority of the members could "discuss
among themselves" a specific matter actually or potentially affecting their district
would be if they were doing so on a panel or otherwise, quite publicly, "as part of
the
scheduled program" -- perhaps to share with other districts the particulars of an
experience they were having back home. Note also that the conference would have
to be open to public attendance, but that the association would be allowed to charge
an admission fee to members of the public if it were doing so with its own members.
Paragraphs (3) through (5) cover comparable situations where attendance is
permitted at given events, so long as not used for secret, collective and officially
significant discussion.
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Q: Can a body attend local forums and meetings without
considering them subject to the Act?
Publicized Community Meetings -- (3) The attendance of
a majority of the members of a legislative body at an open and publicized meeting
organized to
address a topic of local community concern by a person or organization other than
the local agency, provided that a majority of the members do not discuss among
themselves, other than as part of the scheduled program, business of a specific
nature that is within the subject matter jurisdiction of the legislative body of the
local agency.
The variations here are that the meeting be not only open but publicized, that it not
be sponsored by the local agency itself, and that its focus be local -- one of
community concern. Thus a neighborhood association forum, or a "candidates'
night" sponsored by a chamber of commerce or the League of Women Voters might
qualify. The members can discuss the agency's business collectively, but only if
they're slated to do so on the publicized program.
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Q: Can different bodies within a local agency attend each other's
meetings?
Meetings of Related Bodies -- (4) The attendance of a
majority of the
members of a legislative body at an open and noticed meeting of another body of the
local agency, provided that a majority of the members do not discuss among
themselves, other than as part of the scheduled meeting, business of a specific
nature that is within the subject matter jurisdiction of the legislative body of the
local agency.
This provision permits a body's majority, without any special notice of its own, to
attend an appropriately noticed and open meeting of some other body of the same
agency, for spectator purposes only. The visitor members may not discuss official
business with one another other than as part of the "scheduled meeting" and its
program, as duly noticed on the agenda. But since such an arrangement amounts to
a virtual joint meeting of the two bodies, it might reduce confusion simply to plan
and publicize it as such.
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Q: Can members of a body attend the same social occasion without
considering a quorum there to be a "meeting?"
A: Social or Ceremonial Occasions -- (5) The
attendance of a majority of the members at a purely social or ceremonial occasion,
provided that a majority of the members do not discuss among themselves business of
a specific nature that is
within the subject matter jurisdiction of the legislative body of the local agency.
Members may attend a party, picnic or graduation exercise, for example, without its
being treated with the formality of a "meeting" -- again, so long as they do not
convert it into a de facto meeting by discussing business "among themselves".
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