“Meeting” under the Brown Act

very few years, it becomes necessary to clarify certain aspects of the Brown Act, California’s open meetings law applicable to school district and county boards of education. The clarification is almost always due to the turnover of trustees after an election and to new situations to which the Act may apply. With more than 950 new trustees elected in 2020 and the virtual meeting experience forced upon boards by the COVID-19 outbreak, these twin factors are currently at play.

New trustees who are beginning to navigate the terrain of opportunities for getting up to speed on their responsibilities are itching to know which meetings and other gatherings they may attend without violating the law. Of particular importance are the conferences, meetings and other training opportunities provided by CSBA and by outside agencies and organizations, such as county trustee associations.

Brown Act “meeting” and related requirements

The California Constitution and the Brown Act ensure that control over the public boards, councils and commissions created to conduct the public’s business, including school district and county boards, remains with the public. (Cal. Const. art. I, § 3, Gov. Code §§ 54950-54963.) To enable the public to fulfill this function, the Brown Act imposes requirements on the public bodies in conducting the public’s business. Foremost among these is the requirement that any item of business within a public body’s “subject matter jurisdiction” be conducted in an authorized meeting.

For a meeting to be lawfully held, the Brown Act prescribes that the board must post its meeting agenda so that the public is placed on notice of the items to be discussed at the meeting and has the opportunity to attend and participate. Any meeting of a majority of board members held without complying with this posting requirement, subject to a few exceptions discussed below, violates the Brown Act. Since the mandate to comply with the agenda-posting requirements depends on whether a gathering of a board majority is a “meeting” or not, the first order of business is to determine whether having the board majority together in the same place, whether physically or virtually, would constitute a “meeting” under the Brown Act. While that determination is easy for events boards organize themselves, events or gatherings organized by outside agencies, organizations or individuals call for deeper consideration.

Under the Brown Act, a meeting occurs when there is (1) a congregation of a board majority (2) to hear, discuss, deliberate, or take action (3) on an item within the subject matter jurisdiction of the board. (Gov. Code § 54952.2.) In the absence of any of these components, there is no meeting or concerns about violating the Brown Act.

The term “item within subject matter jurisdiction” bears further explanation, as it is not expressly defined in the Brown Act. In a recent opinion interpreting the Bagley-Keene Open Meeting Act, which is materially identical to the Brown Act, the Attorney General opined that item refers to “a separate article or particular,” subject matter means a “matter presented for consideration,” and jurisdiction means the “power, right, or authority to hear … a cause.” (103 Ops. Cal. Atty. Gen. 42.) By this definition, a congregation of a board majority constitutes a “meeting” under the Brown Act when they gather to hear or discuss a separate, distinct topic that is within the board’s authority to address. This definition of “item within subject matter jurisdiction,” taken together with a thorough examination of several of the exemptions specified in Government Code § 54952.2 (c), suggests that the actual purpose of the Brown Act is to ensure that the proceedings and discussions of a board are conducted openly with respect to any “business of a specified or specific nature” that the board has authority to address, rather than to matters of a general public concern or interest.

With respect to district and county boards, the interest of the community they serve is in their activities and actions, and not in the activities and actions of trustees in general. Thus, where a board majority attends a gathering to hear or discuss matters generally relating to district and county boards and does not discuss amongst themselves any issues specific to their particular district or county office of education, it is unlikely that the discussion is within the subject matter jurisdiction of that board.

To illustrate, a board majority’s discussion of the district’s charter renewal policy in any setting, private or public, would be a meeting under the Brown Act since the topic is of a “specific nature” and it is within the subject matter jurisdiction of that board. However, legal requirements for a charter renewal as a topic for discussion at a CSBA Regional Director/PACER-organized event for all trustees in that region is a matter of “general concern” and would not be considered a meeting subject to the Brown Act. The reasoning here is that the discussion would not center on the business of any particular board and thus is not an “item” required under the Brown Act to be discussed at a publicly noticed meeting.

Exemptions

Even with the Brown Act’s broad definition of “meeting,” certain events are exempted and compliance with Brown Act notice and agenda posting requirements is not required. Each statutory exemption is narrowly defined and is permitted only if all specified conditions are present. The exemptions include, but are limited to, the following:

A conference or similar gathering, when the conference involves issues of interest to the public or to governing boards of school districts or county offices and the conference is open to the public.
An open and publicized event organized by a person or other local agency to address a topic of local community concern.
A purely social or ceremonial occasion.

What this means for trustees

It bears repeating that a “meeting” is defined broadly under the Brown Act. Beyond a board’s own organized meeting, a board meeting could occur under the auspices of another organization or body, such as at a gathering organized by the county trustee association or the local Rotary Club. Therefore, there is always the need to determine whether an event could unwittingly become a “meeting” of the board and what can be done to avoid violating the Brown Act.

Important questions to ask include:

Who organized the event?
Is the event open to the public?
Will a majority of the board attend the event?
Is the event related to anything on an upcoming or previous board agenda?
Does an exemption apply?

If answers to these questions cause concern, a violation of the Brown Act can be avoided by having less than a majority of the board attend or by having the event or gathering publicly noticed.

The Brown Act was enacted to ensure transparency in the manner that public bodies conduct the public’s business. As a general rule, trustees should be aware of the rules and exceptions that apply to events and gatherings held outside of the board room, whether in person or virtually, especially when a majority of the board may be in attendance.

Bode Owoyele is CSBA associate general counsel.

The information provided here by CSBA is for informational purposes and is not legal advice. Please contact your district or county office of education’s legal counsel for legal questions related to this information.

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