Criteria for Serial Meeting
Q: Our former Mayor was involved in trying to develop a clandestine consensus to support his successor.
Two councilmembers have said that the Mayor spoke about his support of his replacement, including the replacement himself, outside of a public meeting. We suspect a third, who often sides with the Mayor, was also consulted about who the Mayor was supporting, but we do not have definitive proof.
What kind of criteria would there need to be for this to be established as a serial meeting?
A: 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.” Gov’t. Code § 549523.2(a). The serial meeting prohibition in the Brown Act — which you seem to be familiar with — 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). To the extent the communication concerning the development of a collective concurrence among the city council to endorse a particular mayoral candidate is a matter that is with the city council’s subject matter jurisdiction and the communication was among a majority of the members of the city council, this would constitute a violation of 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).
Various California courts have also interpreted the Brown Act’s serial meeting prohibition consistent with the California Attorney General’s interpretation of what constitutes developing a collective concurrence on an item. Below are links to those cases on the FindLaw website.
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)