1st Amendment News

A&A: What does Brown Act say about board members’ having secret affair?

Q: In a board of five members, two are having a sexual affair with each other. Both have spouses and children, yet “secret” affair  is so obvious that the the story  has been published on a local news website.  We suspect vote collusion, conflict of interest and Brown act violations.  The school district has refused to investigate the allegations. What can we do?

A: The Brown Act has as its sole focus the extent to which meetings and official business of covered boards must be conducted in the open. So it does not address the issue of whether members of a covered board may have an intimate relationship.

The only way such a relationship, or any type of vote collusion even in the absence of such a relationship, would be if those members’ private conversations amounted to a “meeting’ as that term is defined in the Brown Act. But that would require a gathering — whether all being physically, technologically in the same place — or the collective deliberations on an issue whether facilitated by a middleperson or passed down a chain from one member to another — of a majority of the board members.

So unless there are only three members of the board, or of a standing committee of the board on which they both serve, it is unlikely that any action by just two of the members will implicate the Brown Act.

 Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

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