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.

 

The Benefits Of Mediation Over Traditional Courtroom Proceedings

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Compared to the tense nature of litigation, mediation offers a valuable tool for alternative methods of dispute resolution. Mediation involves the two disputing parties getting together and discussing the issues at hand with a trained mediator guiding them through the process. There are numerous benefits to working through mediation, and many disputing parties are able to end with satisfactory outcomes.

Avoid The Lengthy Litigation

Mediation is much more flexible than a traditional lawsuit proceeding. Since many courts are backlogged, forcing more immediate criminal issues into the schedule ahead of civil matters; it can take weeks or even months for an initial hearing in a civil case. Mediation, however, can be scheduled with much more ease, since the meeting will require setting up an agreeable time with the other party and a mediator.

Make Your Own Solution

Mediation also allows the involved parties to help contribute to their own solutions in more creative ways. Rather than the win/lose atmosphere in a courtroom, a mediation room can be an open discussion between two parties. The source of the conflict can be explored in greater detail, and parties can work together rather than duke it out in front of a judge. An experienced mediator will be trained in how to maneuver around issues with high emotional stakes, and will work carefully in choosing words and tone when addressing parties in the mediation room.

Participants are actively involved when helping to generate their own outcome. The fact that mediation is centered around a calm discussion, as opposed to a bitter battle in court, allows relationships to remain civil for the duration of the process and likely the aftermath. More often than not, parties generate more creative agreements than the kind of decisions handed down in a courtroom. For the most part, as long as parties can agree to it, the final agreement may be a variation of anything they have initially wanted or thought about.

Create Better Chances of Moving Forward

Mediation looks into the future, rather than dwelling on the actions of the past. The procedure feels less threatening and pressurized than the more formal process of the court. Mediation also allows the opportunity to think about ways to prevent problems in the future, rather than sticking band-aids on past issues of dispute between the parties. The confidential nature of mediation adds a layer of privacy for parties that don’t want their issues aired publicly.

Mediation is a helpful tool for addressing disputes that provides confidentiality, flexibility, and the opportunity to reach creative and useful outcomes.

Avoid Large Legal Bills

Mediation is a much more cost-effective means of resolving disputes. Court battles can cost individuals and businesses hundreds of thousands of dollars a year and result in loss of employee productivity as well as other large expenses. However, Mediation can achieve the same or better results with significantly less expense and time. Mediation can occur before yieldy discovery battles and courtroom hearings and without the need for expert witnesses. However, even after discovery in a case has been completed, mediation is still more cost effective than a lengthy drawn out trial and other pretrial procedural motions practice.

Why Construction Disputes Are Better Resolved Through Mediation

Working as contractors, project owners, sureties and even lenders unfortunately puts some construction professionals at risk for legal disputes. Disputes over the specifics of the job, the cost of the job, change orders as the construction is ongoing or the quality of the completed project or even delays in construction, can all cause grief and headaches for a property owner and for an experienced construction expert.

In a typical dispute over construction, the case can move forward into litigation or into the arbitration process. A third option, however, may be more ideal for all involved parties, and that method is mediation. Many parties have had success negotiating their disputes with a mediator outside of the courtroom. Mediation also has many benefits for all parties associated with a construction project.

To start with, mediation is less expensive than other methods. Usually, a mediator handling a construction case will charge by the hour, which benefits parties since construction cases generally take a few days or less to complete. This is also beneficial for business owners and executives who don’t want to miss too many days from work. Since the preparation for mediation can be completed more quickly, the burden of preparing for weeks or months in advance is removed for both parties involved.

Mediation is a much more expedient way to manage disputes, since the entire process can be completed in as short as a few days. Just waiting for a trial date on a construction case can take months or years; mediation can be scheduled simply in a few days. When construction projects are involved where resolution is possible, quick agreements can allow the project to get back on track right away.

In the mediation setting, parties can work together to generate a solution that’s mutually agreeable. In a courtroom setting, the scenario can make parties feel like it’s a winner take all system, but mediation allows the sides to generate creative agreements. Mediation can also be helpful when other issues have already been settled in past mediation sessions, providing an easy ground to discuss contested problems without having to go back into court.

Construction mediations tend to be handled by a mediator with specific experience in that industry. Mediators are trained in best practices and can use their industry expertise to work through arguments. Unless a specific mediator is named in an existing contract, the parties can review the experience and background of their chosen mediator before the process begins, lending some comfort about the professional who will lead them through. There are numerous benefits to mediation, and both parties tend to find that a solution is easily reached.

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