Ralph M. Brown Act:
Attorney General's Guide

(Note: This page contains a segment of the California Attorney General's 1994 pamphlet, "The Brown Act: Open Meetings for Local Legislative Bodies," Deputy Attorney General Ted Prim, editor. No alteration of the substance has been made in placing the pamphlet on this site, although some formatting changes have been made to allow for navigating the text.)

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CHAPTER IV.

NOTICE AND AGENDA REQUIREMENTS

The Brown Act provides for three different types of meetings. Regular meetings occur at a time and location set by ordinance, resolution, or by-laws. At least 72 hours prior to a regular meeting, an agenda must be posted which contains a brief general description of each item to be transacted or discussed at the meeting. Special meetings may be called at any time but notice must be received at least 24 hours prior to the meeting by all members of the body and by all media outlets who have requested notice in writing. Emergency meetings, which are extraordinarily rare, may be called upon one-hour notice to media outlets which have requested notice in writing.

In addition to the pre-meeting notices and agendas discussed above, the Act requires two other types of disclosures. First, prior to meeting in closed session, a representative of the body must orally announce the items to be discussed in closed session. (sec. 54957.7(a).) Generally, this requirement may be satisfied by referring to the numbered item on the agenda which describes the closed session in question. However, when the agency is meeting in closed session because of significant exposure to pending litigation as described in section 54956.9(b), the statement may need to include additional information as set forth in that section. (See discussion of pending litigation infra.)

Second, at the conclusion of each closed session, the agency must reconvene into open session. If any final decisions have been made in the closed-session meeting, a report may be required. (sec. 54957.1.)

The Act also contains specific requirements with respect to adjourning or continuing meetings. (sec. 54955.) Lastly, unless specifically exempted, all meetings must be conducted within the geographical boundaries of the body's jurisdiction. (sec. 54954(b).)

1. Regular Meetings

The time and place for regular meetings are set by ordinance, resolution, or by-laws. (sec. 54954(a).)

A. Agenda Requirement

At least 72 hours prior to the meeting, the body must post an agenda containing a brief general description of each item to be discussed or transacted at the meeting, including items to be discussed in closed sessions. (sec. 54954.2(a).) The statute makes it clear that discussion items must be placed on the agenda, as well as items which may be the subject of action by the body.

The purpose of the brief general description is to inform interested members of the public about the subject matter under consideration so that they can determine whether to monitor or participate in the meeting of the body. In Carlson v. Paradise Unified School Dist. (1971) 18 Cal.App.3d 196, the court interpreted the agenda requirements set forth in a section of the Education Code. That section required ". . . A list of items that will constitute the agenda for all regular meetings shall be posted. . . ." In interpreting this section, the court stated:

". . . In the instant case, the school board's agenda contained as one item the language `Continuation school site change.' This was entirely inadequate notice to a citizenry which may have been concerned over a school closure.

"On this point alone, we think the trial court was correct because the agenda item, though not deceitful, was entirely misleading and inadequate to show the whole scope of the board's intended plans. It would have taken relatively little effort to add to the agenda that this `school site change' also included the discontinuance of elementary education at Canyon View and the transfer of those students to Ponderosa School." (Id. at 200, original emphasis; see also 67 Ops.Cal.Atty.Gen. 84 (1984).)  

However, the Legislature in section 54954.2 placed an important gloss on the requirement to provide a brief general description. That section expressly provides that the brief general description generally need not exceed 20 words in length. Thus, absent special circumstances, the legislative body should use approximately 20 words to provide essential information about the item to members of the public. Where necessary, legislative bodies are free to provide a more detailed description, but as a general rule, they need not feel any obligation to do so (for more information about closed-session agenda description, see discussion infra). The agenda requirement does not apply when a member of the body or a member of its staff, on his or her own initiative, or in response to a question from the public, asks a question for clarification, makes a brief announcement or makes a brief report on his or her own activities. (sec. 54954.2(a).) In addition, any member of the body or the body as a whole, subject to rules or procedures of the legislative body, may provide a 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 of business on a future agenda. (sec. 54954.2(a).)

Section 54954.2 also contains specific procedures by which the agenda requirement may be avoided in specified circumstances. (sec. 54954.2(b).)

B. Exceptions to Agenda Requirements

The Act identifies three situations in which a body is permitted to discuss or take action on a matter at a regular meeting where the matter was not first described on a duly noticed agenda. (sec. 54954.2(b).) Prior to discussing a matter which was not previously placed on an agenda, the item must be publicly identified so that interested members of the public can monitor or participate in the consideration of the item in question.

The body may discuss a nonagenda item at a regular meeting if, by majority vote, the body determines that the matter in question constitutes an emergency pursuant to section 54956.5. (sec. 54954.2(b)(1).) Any discussion held pursuant to this exception must be conducted in open session, since emergency meetings held pursuant to section 54956.5 cannot be conducted in closed session.

The body may discuss an item which was not previously placed upon an agenda at a regular meeting, when the body determines that there is a need for immediate action which cannot reasonably wait for the next regularly scheduled meeting. (sec. 54954.2(b)(2).) However, the statute specifies that in order to take advantage of this agenda exception, the need for immediate action must have come to the attention of the body after the agenda had already been posted. (sec. 54954.2(b)(2).) Lastly, the determination that a need for immediate action exists must be made by two- thirds of the total body or, if two-thirds of the body is not present, by a unanimous vote of those remaining. (sec. 54954.2(b)(2).)

Finally, where an item has been posted on an agenda for a prior meeting, the item may be continued to a subsequent meeting which is held within five days of the meeting for which the item was properly posted. Under these circumstances, the items need not be posted for the subsequent meeting. (sec. 54954.2(b)(3).)

C. Public Testimony

Every agenda for a regular meeting shall provide an opportunity for members of the public to directly address the legislative body on any item under the subject matter jurisdiction of the body. With respect to any item which is already on the agenda, or in connection with any item which the body will consider pursuant to the exceptions contained in section 54954.2(b), the public must be given the opportunity to comment before or during the legislative body's consideration of the item. (sec. 54954.3(a).) The public testimony requirement appears to apply to closed sessions as well as open meetings (but see sec. 11125.7(c) of the Bagley-Keene Act, concerning state bodies, which was added in 1993 to expressly provide otherwise). Accordingly, this office believes that it would be prudent for legislative bodies to afford the public an opportunity to comment on closed-session items prior to the body's adjournment into closed session. The only exception to the public testimony requirement is where a committee comprised solely of members of the legislative body has previously considered the item at a public meeting in which all members of the public were afforded the opportunity to comment on the item before or during the committee's consideration of it, so long as the item has not substantially changed since the committee's hearing. (sec. 54954.3(a).)

Where a member of the public raises an issue which has not yet come before the legislative body, the item may be discussed but no action may be taken at that meeting. (sec. 54954.3(a).) The purpose of the discussion is to permit a member of the public to raise an issue or problem with the legislative body or to permit the legislative body to provide information to the public, provide direction to its staff, or schedule the matter for a future meeting. (sec. 54954.2(a).)

The legislative body may enact regulations to assist in processing comments from the public. These regulations may establish procedures for public comment as well as specifying reasonable time limitations on speakers. So long as the body acts fairly, it has great discretion in regulating testimony by interested members of the public. (sec. 54954.3(b).)

When a member of the public testifies before a legislative body, the body may not prohibit the individual from criticizing the policies, procedures, programs or services of the agency or the acts or omissions of the legislative body. (sec. 54954.3(c).) Although this provision does not confer any privilege or protection not otherwise provided by law, it evidences an intent by the Legislature to permit individuals to criticize the policies or programs of an agency while leaving open the possibility that a body may prohibit comments which it believes to be slanderous or which may invade an individual's personal privacy.

2. Special Meetings

Under the Act, a local body may call a special meeting by providing notice 24 hours in advance of the meeting to all of the legislative body members and to all media outlets who have requested notification. (sec. 54956; 53 Ops.Cal.Atty.Gen. 245 (1970).) The notice shall state the time, place, and business to be transacted at the meeting, and no other business shall be considered at the special meeting. Notice is required even if the meeting is conducted in closed session, and, even if no action is taken. A member of the local body may waive failure to receive notice of the meeting by filing a written waiver prior to the meeting or by being present at the meeting.

At every special meeting the legislative body shall provide the public with an opportunity to address the body on any item described in the notice before or during consideration of that item. (sec. 54954.3(a).) The special meeting notice shall describe the public's rights to so comment. (sec. 54954.3(a).)

3. Emergency Meetings

When a majority of the legislative body determines that an emergency situation exists, it may call an emergency meeting. (sec. 54956.5.) At least one hour prior to the meeting, telephonic notice must be provided to all media outlets which have requested that they receive notice of any special meetings called pursuant to section 54956. The Act defines an emergency as a crippling disaster, work stoppage or other activity which severely impairs public health, safety or both. In the event telephone services are not working, a report must be given to media outlets as soon as possible after the meeting. Except for the 24-hour notice requirement, the provisions of section 54956 relating to special meetings apply to the conduct of emergency meetings. (sec. 54956.5.) Emergency meetings may not be held in closed session. (sec. 54956.5.)

4. Closed Sessions

There are three types of "notice" obligations that accompany the conduct of a closed-session meeting. First, each item to be transacted or discussed in a closed session must be briefly described on an agenda for the meeting. (sec. 54954.2(a).) Second, prior to adjourning into closed session, a representative of the legislative body must orally announce the items to be discussed in closed session. (sec. 54957.7(a).) Frequently, this requirement may be satisfied by merely referring to the relevant portion of the written agenda for the meeting. However, the law contains specific requirements for closed sessions regarding pending litigation where the body believes it is subject to a significant exposure to potential litigation. (sec. 54956.9(b)(3).) Third, once the closed session has been completed, the agency must reconvene in open session, where it may be required to report votes and actions taken in closed session. (sec. 54957.1.) These requirements are discussed in detail below.

A. Agenda Requirement

At least 72 hours prior to each regular meeting, legislative bodies must prepare an agenda containing a brief general description of each item to be transacted or discussed, including items which will be handled in closed session. (sec. 54954.2(a).) A description of each item generally need not exceed 20 words, although the description must be sufficient to provide interested persons with an understanding of the subject matter which will be considered. (Carlson v. Paradise Unified School Dist., supra, 18 Cal.App.3d at 200.) In the case of pending litigation, the legislative body must make reference in the agenda or publicly announce the specific subsection of section 54956.9 under which the closed session is being held. (sec. 54956.9.)

In order to assist legislative bodies in preparing agendas for closed-session meetings, section 54954.5 establishes a model format for closed session agendas. Substantial compliance with the model format assures the legislative body that it will not be found in violation of the agenda requirements of section 54954.2. Compliance with the model format in section 54954.5, therefore, provides a "safe harbor" from liability under the Act's agenda requirements. Substantial compliance is satisfied by including the information contained in the model format, irrespective of the form in which it is ultimately presented. (sec. 54954.5.)

The model format, which comprises the safe harbor provisions, adopts a fill-in-the-blank approach. The format is well suited to placement on a personal computer where descriptive information concerning specific agenda items can be inserted as appropriate. The safe harbor provisions concerning real property negotiations are set forth below and are illustrative of the format. (All of the safe harbor provisions are contained in the appendix in section 54954.5.)

"(b) With respect to every item of business to be discussed in closed session held pursuant to Section 54956.8:

CONFERENCE WITH REAL PROPERTY NEGOTIATOR

Property: (Specify street address, or if no street address, the parcel number or other unique reference, of the real property under negotiation)

Negotiating parties: (Specify name of party (not agent))

Under negotiation: (Specify whether instruction to negotiator will concern price, terms of payment, or both)."  

The safe harbor provisions concerning litigation and personnel have been tailored to protect the confidentiality interests of the agency, and employees who potentially are the subject of discipline. Thus, the safe harbor provisions require less specificity when the agenda deals with such matters.

Although the safe harbor provisions are primarily designed to fulfill the agenda requirements for regular meetings, the provisions also can be used in connection with closed sessions at special meetings called pursuant to section 54956. (sec. 54954.5.)

B. Oral Announcement Prior to Closed Sessions

In addition to the agenda requirement for regular and special meetings, the Act requires a representative of the legislative body to orally announce the items to be discussed in closed session prior to any closed-session meeting. (sec. 54957.7(a).) Generally, this requirement can be satisfied by referring to the item by number as it appears on the agenda. However, in at least one situation, such a referral may not be sufficient.

Pursuant to section 54956.9, a closed session may be conducted in order to permit an agency to receive advice from its legal counsel. When the impetus for such a closed session is the agency's exposure to potential litigation, the Act carefully regulates the circumstances under which a closed session may be called, and the types of announcement which must accompany such a meeting. (sec. 54956.9(b)(3).) These required disclosures may be made as a part of the written agenda or as a part of the oral announcement made prior to any closed session. These requirements do not mandate disclosure of privileged communications exempt from disclosure under the Public Records Act. (sec. 54956.9(b)(3)(F).) A summary of the disclosure requirements surrounding closed sessions based on an agency's exposure to potential litigation is set forth below.

• Where the agency believes that facts creating significant exposure to litigation are not known to potential plaintiffs, the facts need not be disclosed. (sec. 54956.9(b)(3)(A).)
• Where facts (e.g., an accident, disaster, incident, or transaction) creating significant exposure to litigation are known to potential plaintiffs, the facts must be publicly stated on the agenda or announced. (sec. 54956.9(b)(3)(B).)
• Where the agency receives a claim or other written communication threatening litigation, reference to the claim or communication must be publicly stated on the agenda or announced, and the claim or communication must be available for public inspection pursuant to section 54957.5. (sec. 54956.9(b)(3)(C).)
• Where a person makes a statement in an open and public meeting threatening litigation, reference to the statement must be publicly stated on the agenda or announced. (sec. 54956.9(b)(3)(D).)
• Where a person makes a statement outside of an open and public meeting threatening litigation, the agency may not conduct a closed session unless an agency official having knowledge of the threat makes a contemporaneous or other record of the statement prior to the meeting. Reference to the statement must be publicly stated on the agenda or announced, and the record must be available for public inspection pursuant to section 54957.5. However, the record, or the disclosable part thereof, need not identify the alleged victim of unlawful or tortious sexual conduct or anyone making a threat on their behalf, or identify a public employee who is the alleged perpetrator of any such conduct, unless the identity of the person has been publicly disclosed. (sec. 54956.9(b)(3)(E).)

C. Report at the Conclusion of Closed Sessions

Once a closed session has been completed, the legislative body must convene in open session. (sec. 54957.7(b).) If final action was taken in closed session by the legislative body, a report of the action taken and the vote thereon generally must be provided to the public at the open session. (sec. 54957.1(a).) The report may be made either orally or in writing. (sec. 54957.1(b).) In the case of a contract or settlement of a lawsuit, copies of the document also must be disclosed as soon as possible. (sec. 54957.1(b) and (c).) If final action is contingent upon another party, the legislative body is under no obligation to release a report about the closed session. Once the other party has acted, making the decision final, the legislative body is under an obligation to respond to inquiries for information by providing a report of the action. (sec. 54957.1(a).)

With respect to litigation, approval given to the body's legal counsel to defend, to seek or refrain from seeking appellate review, or to appear as amicus curiae in any case resulting from a closed-session meeting held pursuant to section 54956.9 shall be reported in open session. (sec. 54957.1(a)(2).) The report shall identify the adverse parties and the substance of the litigation. Where the body has decided to initiate litigation or intervene in an existing case, the report shall indicate that fact but need not identify the action, the parties, or other particulars. The report shall specify that once the litigation or intervention has been formally commenced, the body must, upon inquiry, disclose such information, unless to do so would jeopardize service of process or existing settlement negotiations. (sec. 54957.1(a)(2).)

With respect to a personnel decision, the name of the position must be reported in open session in connection with the appointment or employment of an individual. (sec. 54957.1(a)(5).) However, with respect to a dismissal or a refusal to renew a contract, the report shall be deferred until the first public meeting after the exhaustion of administrative remedies.

With respect to labor negotiations conducted pursuant to section 54957.6, the approval of an agreement concluding labor negotiations shall be reported after the agreement is final and has been accepted or ratified by the other party. The report shall identify the item approved and the other party or parties. (sec. 54957.1(a)(6).)

No action for injury to a reputational, liberty, or other personal interest may be commenced by an employee or former employee based upon the report made by the legislative body in an attempt to comply with section 54957.1. (sec. 54957.1(e).)

5. Adjournments and Continuances

Regular and special meetings may be adjourned to a future date. (sec. 54955.) If the subsequent meeting is conducted within five (5) days of the original meeting, matters properly placed on the agenda for the original meeting may be considered at the subsequent meeting. (sec. 54954.2(b)(3).) If the subsequent meeting is more than five (5) days from the original meeting, a new agenda must be prepared and posted pursuant to section 54954.2. Hearings continued pursuant to section 54955.1 are subject to the same procedures.

When a meeting is adjourned to a subsequent date, notice of the adjournment must be conspicuously posted on or near the door of the place where the meeting was held within 24 hours after the time of the adjournment. When less than a quorum of a body appears at a noticed meeting, the body may either meet as a committee of the parent body or adjourn to a future date pursuant to the provisions of sections 54955 or 54954.2(b)(3). If no members of the legislative body appear at a noticed meeting, the clerk may adjourn the meeting to a future date and provide notice to members of the legislative body and to the media in accordance with the special meeting notice provisions set forth in section 54956.

6. Location of Meetings

Regular and special meetings shall be held within the boundaries of the territory over which the legislative body has jurisdiction. (sec. 54954(b).) Accordingly, a city council must meet within the city; a county board of supervisors must meet within the county; and boards of directors for special districts must meet within the special district. Gatherings which are not meetings, as set forth in section 54952.2(b) (e.g., conferences, social activities, and attendance at open and public meetings held by others) are not subject to the Act, and therefore are not covered by the boundary restriction. In addition, the Act contains a number of specific exemptions from the boundary requirement. (sec. 54954.) The fact that a meeting is exempt from the boundary requirement does not exempt the legislative body from the notice and open meeting requirements of the Act. A summary of the boundary exemptions is set forth below.

A legislative body must meet within its boundaries except to do any of the following:

• Comply with state or federal law or any court order. (sec. 54954(b)(1).)
• Inspect real property located outside the jurisdiction or personal property which would be inconvenient to bring inside the jurisdiction. (sec. 54952(b)(2).)
• Participate in meetings or discussions of multiagency significance so long as the meetings are held in the jurisdiction of one of the agencies and proper notice is provided by all bodies covered by the Act. (sec. 54952(b)(3).)
• Meet in the nearest available facility if the legislative body has no meeting facility within the jurisdiction, or at the principal office of the legislative body if they are located outside the jurisdiction. (sec. 54954(b)(4).)
• Meet with federal or California officials on a legislative or regulatory issue affecting the local agency and over which the state or federal officials have jurisdiction. (sec. 54954(b)(5).)
• Meet in or nearby a facility owned by the local agency so long as the topic of the meeting is directly related to the facility itself. (sec. 54954(b)(6).)
• Visit the office of the body's legal counsel for a closed session held on pending litigation held pursuant to section 54956.9, when to do so would reduce legal fees or costs. (sec. 54954(b)(7).)

In addition to the foregoing, governing boards of school districts have the following exemptions from the requirement to meet within their boundaries.

• Attend a conference on nonadversarial collective bargaining techniques (sec. 54954(c)(1).)
• Interview a potential employee from another district or interview the public from another district about the employment of a superintendent from that district. (sec. 54954(c)(2) and (c)(3).)  

Joint powers agencies must meet within the jurisdiction of one of its member agencies unless an exemption contained in 54954(b) is applicable. (sec. 54954(d).) A joint powers agency with members throughout the state may meet anywhere in the state.

Where a meeting place is unsafe because of emergency circumstances, the presiding officer of the legislative body shall designate the meeting place pursuant to specified notice requirements. (sec. 54954(e).)

7. Special Procedures Regarding Taxes and Assessments

Section 54954.6 establishes a series of procedures which must be followed when a legislative body proposes new or increased taxes or assessments. These procedures are in addition to the notice and open meeting requirements contained elsewhere in the Act.