Let’s bring the Brown Act into the 21st century

Both lauded and maligned—and perhaps occasionally violated—the Brown Act has been an integral part of California politics for over half a century. The Ralph M. Brown Act, often referred to as California’s “open meetings law,” was first passed in 1953 to ensure that work of publicly elected bodies was done openly and transparently. It also remains one of the most confusing pieces of legislation, particularly for “amateur” politicians such as school board members, because of its non-obvious provisions and multiple exemptions.

The California School Boards Association’s annual conference has multiple sessions every year devoted to explaining the Brown Act to school board members (and CSBA publishes a 63-page book to explain the law), but even attorneys specializing in the area disagree on the application of some of the law’s provisions, particularly in the modern era.

The intent of the law is clear and largely not in dispute: Public bodies should not deliberate behind closed doors but rather allow the public to witness their “thinking process” in how they come to decisions. The law centers on provisions stating that a majority of the members of any elected body must deliberate in public with an agenda that is posted and available publicly in advance of such meeting. There are many specific requirements and some exceptions (including for matters such as litigation, collective bargaining, and student discipline), but practically it means that I, as a member of a five-person school board, cannot meet with two or more colleagues behind closed doors to discuss policy. This would, by its nature, hide the deliberations of a majority of a body which has the power to make public policy.

The act also prohibits “serial meetings,” deliberations that happen asynchronously by person A talking to person B, then B talking to C, etc., or A becoming a “hub” by separately talking to B and C. One of the more confusing provisions (particularly for members of the public) prohibits elected officials from discussing in a public meeting items not included on the posted agenda. For example, members of the public may comment during a meeting on any topic that wasn’t on that meeting’s agenda, but a board member cannot substantively respond to that comment—this would effectively create a “back-door” way to add a topic to a public meeting without giving notice to the community that such topic would be discussed.

The main problem with the Brown Act is that it was created in an era where communication vehicles were much more limited and it was easier to hide from the public eye. In 1953, only about half of U.S. households owned a television (and only a bit more than that even owned a phone), therefore as a practical matter the only way the public could interact with their elected officials was through these periodic in-person meetings. Of course, the world has changed, and the advancement of communication technology has allowed us to craft policy leveraging these communication vehicles while actually advancing the spirit of the Brown Act.

The essence of the Brown Act is to ensure transparency and openness but also update it to recognize that school boards (and other elected bodies) have the opportunity to leverage multiple communications tools, including social media, in a very powerful way that would actually increase community involvement and transparency. Most Brown Act attorneys advise school boards that it is not allowed for a school board member to phone in to a board meeting (while they are traveling, say) unless they post the agenda where they are located and make it accessible to the public.

 

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