Collective concurrences, serial meeting, and the Brown Act
Q: Much of the material I’ve found prohibits use of email when its intent is “to develop a collective concurrence as to action to be taken by the board”. What about using email to other directors to distribute information, to express an opinion, to alert them to an urgent matter, etc.? In other words, communication not intended to directly or immediately influence concurrence?
For volunteer boards, especially of small organizations (such as our Park and Rec district), dealing from scratch with 100% of the organization’s business exclusively in open monthly session does result in ridiculously long meetings. Given that directors are frequently loathe spending time between board meetings in issue-specific committees, what are the alternatives?
A: The serial meeting rule in the Brown Act provides that “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 to be taken on an item by the members of the legislative body is prohibited.” Govt. Code Section 54952.2(b). The attempt to develop a collective concurrence is therefore a necessary element of a prohibited serial meeting.
Having said that, it is not always easy to determine whether a majority of members were trying to develop a collective concurrence in a given situation. The following cases might give you a better sense of how courts have interpreted the serial meeting prohibition:
Roberts v. City of Palmdale, 5 Cal. 4th 363 (1993) (available at FindLaw: http://login.findlaw.com/scripts/callaw?dest=ca/cal4th/5/363.html)
Wolfe v. City of Fremont, 144 Cal. App. 4th 533 (2006) (http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/144/533.html)
Frazer v. Dixon USD, 18 Cal. App. 4th 781 (1993) (http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/18/781.html)
Stockton Newspapers, Inc. v. Redevelopment Agency of the City of Stockton, 171 Cal. App. 3d 95 (1985) (http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/171/95.html)