County Supervisors’ Invitation-Only Meeting
Q: I am a reporter for a small, local newspaper, and have little understanding of the intricacies of the Brown Act. Last Thursday, one of the county supervisors held an invitation-only meeting about a local hot-button topic; the meeting was attended by a sheriff’s deputy, a few “chosen” members of the Chamber of Commerce, and one local media representative (I was invited, but unable to attend). The owner of the newspaper for which I write was expressly told that a certain citizen would not be invited to the meeting, because the supervisor “was looking for people with constructive ideas,” and the publisher of the other newspaper was expressly told not to publicize or advertise the meeting. Is this legal?
A: In order for the meeting about which you ask to be governed by the Brown Act, it must involve a “legislative body,” and it must be a “meeting” as defined by the Act. See Govt Code § 54950 et seq. For your purposes, the Board of Supervisors or City Council would be considered a legislative body, so the critical question is whether the meeting you describe qualified as a “meeting” subject to the Brown Act.
A meeting under the Brown Act is “any 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 § 54952.2. Based on the fact that it looks like only one or two supervisors was at the meeting you asked about, it is unlikely that a majority of the members of the legislative body attended the meeting, and thus it is probably not a “meeting” as defined on the face of the Brown Act.
Still, the meeting you describe may be a “serial meeting,” which is prohibited under the Brown Act. The serial meeting prohibition 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.” Gov’t Code § 54952.2(b).
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). In your case, for example, if the supervisor who was present at the meeting polled a majority of members to form collective concurrence or collective consensus about action to be taken on any item within the subject matter jurisdiction of the body, that would seem to violate the Brown Act.
It is not always easy to determine whether a majority of members of a legislative body were trying to develop a collective concurrence on an item in a given situation. However, the California Attorney General has shed some light in this regard:
“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).
The situation you describe certainly appears to violate the spirit of the Brown Act and of open and transparent government generally. Especially if the purpose of the closed meeting was to restrict one citizen from attending, such conduct should be monitored. To the extent the board of supervisors attempts to further restrain the involvement of this citizen, you might want to consider publicizing this fact, or addressing that supervisor or the board directly.