Appointing board members and the Brown Act
Q: Our school has a board director nomination policy. It says, “Board vacancies will be widely advertised in the regional media and to countywide educational and non-profit organizations in order to reach a broad population. Applications for Board service shall be made available to the public on the school website and only those applications received by November 1st of the year prior to elections will be considered. New Board members are elected at the Board’s February regular meeting. However, nothing shall prohibit the Board from drafting new Board members at any time during the year should the need or a vacancy arise.” The school also has Bylaws stating that the board will recruit from current parents first. In March, the board announced one new vacancy, which is the co-chair of parent volunteer association (PVA). In April, board selected two best candidates (from 5 applicants) for the PVA position.
Later, when there were two other positions (vice president and development director) open, the board didn’t announce the openings to the public at all. Instead, the board just selected two remaining candidates who applied for PVA co-chair previously. At the May board meeting, several people from the audience indicated the procedure was not right, and asked the board to announce the vacancies (vice president and development director) to the public to ensure all interested people having equal access. However, the board ignored these people’s input, but went ahead to fill these two positions skipping the step of announcing the vacancies. Since the board directors enjoy not only the power of governing, but also the privilege of their children’s admission to this school (which has a waiting list larger than its population), we do not think the board should select new directors without announcing to the public. As a matter of fact, several highly qualified people said that they would have applied if the positions had been announced. Moreover, it was even more suspicious that at least one of the newly accepted two directors is the board president\’s friend.
A: It is unclear from the information in your submission whether the school you refer to is a public school, in which case the meetings of its governing body would be subject to the Ralph M. Brown Act’s (“Brown Act”) open meeting provisions. However, even if it is subject to the Brown Act, the Brown Act does not address the organization or composition of legislative bodies nor does it address the election/nomination of its members, and I am not aware of any other California statutes that might apply. Such organizational issues are typically governed by the internal rules of the governing body itself. You might want to ask the board for a copy of its bylaws to see if they address the specific issue of director elections.
In addition, assuming the Brown Act applies, to the extent you believe there was communication among a majority of the board’s members concerning the vacancies at issue and such communication was not at a public meeting, this might be deemed a violation of the Brown Act. The Brown Act defines a “meeting” as “a congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.” (Govt. Code § 549523.2(a)). Section 54952.2(b) provides that “except as authorized pursuant to section 54953, any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action taken on any item by the members of the legislative body is prohibited.”
The Attorney General takes the position that a serial meeting, in violation of section 54952.2(b), may occur where there is a chain of communications (A communicates with B, B communicates with C, and so on), and/or when one intermediary acts as the hub of a wheel and communicates individually with the various spokes (i.e., board members A, B, C, etc). To the extent the there was communication that concerned matters within the board’s subject matter jurisdiction and the communication was among a majority of the members of the board, resulting in a collective concurrence as to action that will be taken on an agenda item, this is probably a violation of the Brown Act.
As the Attorney General has explained:
“In construing these terms, one should be mindful of the ultimate purposes of the Act — to provide the public with an opportunity to monitor and participate in decision-making processes of boards and commissions. … Conversations which advance or clarify a member’s understanding of an issue, or facilitate an agreement or compromise among members, or advance the ultimate resolution of an issue, are all examples of communications which contribute to the development of a concurrence as to action to be taken by the legislative body.”
The Brown Act: Open Meetings for Local Legislative Bodies, p. 12 (Cal. Atty General’s Office 2003).