School district and county office of education board members are locally elected public officials entrusted with governing a community’s public schools. Board members are tasked with ensuring that local educational agencies are responsive to the values, beliefs and priorities of their communities through five major responsibilities: setting direction, establishing an effective and efficient structure, providing support, ensuring accountability, and providing community leadership as advocates for children. Citizen oversight of local government is the cornerstone of democracy in the United States.
Through the Brown Act, the people of the state of California require transparency in the form of information about the actions and deliberations of school district governing boards and other local government agencies. In addition to board members’ crucial work for education, trustees must also adhere to the rules in the Government Code and Education Code sections defining the open meeting laws in the state.
The overriding direction of the Brown Act is relatively simple — all meetings of a board shall be open and noticed to the public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, subject to exceptions described in the government code (Cal. Gov’t. Code § 54953(a)) But as many board members already know, understanding the intricate exceptions and definitions within the Brown Act can be challenging.
CSBA’s Office of the General Counsel fields questions and provides legal guidance on a variety of topics, including questions about the Brown Act. CSBA has even written and published a book designed to give board members all the information they need about the Brown Act, available for purchase at www.csba.org/ProductsAndServices/CSBAStore/Books.
Below are a few of board members’ most frequently asked questions about the Brown Act:
Q:Can board members meet together socially without violating provisions of the law regulating meetings?
A: Yes. A “meeting” under the Brown Act is any congregation of a majority of the board to discuss, deliberate or take action on any matter within the board’s subject matter jurisdiction, or any use of a series of communications by a majority of members of the board to discuss, deliberate or take action on any matter within the board’s subject matter jurisdiction. In a social setting, even if a majority of board members is present, as long as those board members do not discuss, deliberate or act on agency business, no “meeting” has occurred. However, board members should always take care to protect and uphold the public’s trust in its elected leaders. They should consider avoiding congregating in one area, or appearing to discuss or deliberate topics within the board’s jurisdiction, even if just meeting socially.
Q: Does the Brown Act apply to a standing committee created by board action, even if the committee does not have a majority of the board on it?
A: Yes. Board standing committees must provide public notice of meetings and conduct meetings in accordance with the Brown Act. Standing committees may be established within the board’s bylaws or by formal action of the board and have “continuing subject matter jurisdiction.” The bodies are subject to the Brown Act, regardless of the committee’s membership.
Q:Does the Brown Act apply to an “ad hoc” or temporary advisory committee consisting of less than a majority of the board?
A:No. The Brown Act does not apply to ad hoc or temporary advisory committees composed of less than a majority of the board. In establishing an ad hoc or temporary advisory committee, the board should strictly define the purpose of the committee and set a time frame to accomplish that purpose. An ad hoc or temporary advisory committee is advisory only; the board has not delegated any decision-making power and the committee will be returning to the full board to make a public recommendation. Other board members may only attend these committee meetings as “observers,” meaning they may not ask questions or make statements and must sit in the area designated for members of the public. Similar to attending a social function as indicated above, board members should consider the perception of attending unnoticed meetings even as observers and take steps to ensure the public trust regardless of the technical rules of the Brown Act.
Q: May board members communicate with one another on board business by email, text, or social media?
A: Yes, but be advised to proceed with caution. Emails and texts can be shared and forwarded easily, creating a higher likelihood of a Brown Act violation by reaching a majority (called a serial meeting). The use of direct communication, personal intermediaries or technology by a majority of the board to discuss, deliberate or take action on any matter of district business may constitute a virtual serial meeting, in violation of the Brown Act. Similarly, a majority of the board commenting, discussing or deliberating on social media about a subject matter within the board’s jurisdiction may constitute a virtual meeting in violation of the Brown Act. In addition, board members should keep in mind the California Public Records Act and be aware that board member’s electronic communications may be subject to disclosure regardless of whether the board member is using a district, county office, or even private device or email server. The Brown Act applies equally regardless of whether board members are using district email or their own personal email — there’s no distinction for the Brown Act whether it’s a text, personal email, district email, etc. In addition to the Brown Act issue, emails sent regarding district business using personal email accounts are also subject to California Public Records Act requests just as district emails would be.