Quorums, Listservs, and the Brown Act
Q: I am a member of the faculty at a California Community College and a member of the Academic Senate. The Academic Senate is governed by the Brown Act. The faculty have a listserv–electronic discussion forum. If a quorum or more members of the Senate are subscribed to the listserv (closed to all but faculty as subscribers), is there a Brown Act violation potential if–say–an issue that might come before the Senate for action is being discussed on the listserv?
A: Although the listserv does not in and of itself violate the Brown Act, a Brown Act violation would exist to the extent the listserv is used to conduct a serial meeting. 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 email communication on the listserv concerns matters within the academic senate’s subject matter jurisdiction and the communication is among a majority of its members, such communication is probably a violation of the Brown Act if it results in a collective concurrence as to an action that will be taken on an agenda item.
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).