A&A: Special audience privilege and the Brown Act

Special audience privilege and the Brown Act

Q: Does Brown Act specify that any board member and any school administration staff enjoy “special audience” privilege to join any board appointed committee’s discussion at anytime? If so, could you refer me to the specific section(s) regarding this? Does it mean that a board appointed committee chair must allow a board member (even she/he is not the committee member) to speak anytime during the committee meetings, but stop other audiences?

1.         A board appointed committee meeting agenda only specifies 5 minutes at the beginning of the meeting for public comments on items “NOT ON THE AGENDA.” Does it mean that audience can have agenda item related input when that agenda item is discussed? Or, that means, the audiences can only comments on “ITEMS NOT ON THE AGENDA,” and then never have any opportunity to have input regarding the “ITEMS ON THE AGENDA”?  At one board-appointed committee meeting I recently attended, the chair denied audience’s opportunity to have questions/comments related to the agenda items when the items were discussed, and said ALL public comments should be raised at the beginning of the meeting during the public comment period. To reform this question/dilemma: if the public comment period at the beginning of the meeting only allows input ON ITEMS NOT ON THE AGENDA, but later the meeting chair says that ALL COMMENTS must be raised at the beginning of the meeting, when and how should the audiences address their questions and comment about the “ITEMS ON THE AGENDA”?

2.         Does a board appointed committee chair have the right to deny one audience’s opportunity to input “according to Brown Act,” but allow other audiences to input during the same meeting on the same items?

The story (please do not publish the following because it is too easy to be identified):

(The history: It has been a common practice in this organization, the audiences are always allowed to input at the very beginning for anything and have agenda item related input when each item is introduced during regular board meetings including board executive meetings and other board appointed sub-committee meetings.)

However, I encountered the following:

I recently was invited to attend a board appointment committee meeting, which I was not a member of it. On the agenda I received, it specified 5 minutes for “PUBLIC COMMENTS ON ITEMS NOT ON THE AGENDA”, and didn’t specify that audience cannot speak during the meeting regarding agenda items. As a matter of fact, I got a promise from the board president (who appointed the committee) that she would make sure that I would be invited to PARTICIPATE in all meetings of this committee although I do not have voting right. At one point of the meeting, two audiences joined discussion. I was the third person to speak from the audience (only 4 people in the audience). When I requested to speak, the two co-chairs didn’t say anything to me but LET me to start. I requested that all listeners to forgive my accent, and don’t perceive anything I said as criticism but try to keep the communication path open. I was only talking about some theoretical and procedural issues related to what the earlier two audiences said and a co-chair’s responses. Most people at the meeting were listening to me very attentively with interest (I can see from their eyes). However, one co-chair (who is a school board director, I refer her as E) suddenly cut me off during a middle of sentence with some rude comments. Then, E said according to the Brown Act, the public input time could only be at the beginning of the meeting, and it had already passed, so I had to stop talking. However, after about 10 minutes, when another audience (the 4th audience) spoke, both co-chairs didn’t object. After another 15 minutes, I asked a very simple question to clarify a single digit yet important number (because I heard one of the co-chairs mentioned a number very different from the board previously announced). I only wanted to know if I heard it wrong or it was actually a change. The co-chair E again said according to Brown Act, I should not even ask any question. After another 10 minutes, when another audience (the 4th) spoke again, E didn’t stop him either.  However, the other co-chair (who is a parent, I refer her as L here) sensed the discriminative treatment, and politely stopped the 4th audience, and said that she had to enforce Brown Act consistently. After the meeting, the other co-chair L approached to me.

It is clearly that L observed the discriminative treatment, and came to offer an “explanation.” It goes this way: (1) the co-chairs allowed the first audience to join the discussion because she was a board member. Although that board member is not a member of this committee, according to Brown Act, all board members can speak freely at any board appointed committee meeting at anytime regardless if she/he is the member of that committee or not. (2) The co-chairs allowed the second audience to participate in discussion because she is an administration staff (although she is not the principal or vice principal). According to the Brown Act, all school administration staff enjoys privilege to join any board-meeting (including sub-committee) discussions at anytime. (YES, SHE CLEARLY USED WORDING “BROWN ACT” and “anytime.”) (3) L had no explanation about the unfair treatment that E allowed the other parent audience (who is not either a board member or an administration staff) to speak twice but stopped me.

A: The Brown Act mandates that most meetings of a school board must be open to the public, but, for the most, does not specify who must be allowed to speak when during those meetings.  In particular, we are not aware of any provision of the Brown Act that would confer “special audience” privileges on board members or school administrators.  If a board member is in attendance at a meeting of a board-appointed committee, it would seem that the board member should have the same “public comment” rights as members of the public, but not greater rights.  In fact, Government Code section 54952.2(c)(6) allows a majority of board members to attend a public meeting of a standing committee of the board if the attend “only as observers.”

With respect to your Point 1, Government Code section 54954.3 requires that “[e]very agenda” for the board’s regular meetings “shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public BEFORE OR DURING THE LEGISLATIVE BODY’S CONSIDERATION OF THE ITEM ….” (emphasis added).  Thus only allowing members of the public to address items not on the agenda appears to violate the Brown Act, which requires that the public be allowed to comment on any item before the board acts on it.

With respect to your Point 2, the Brown Act does not allow the committee chair to discriminate in who may speak during the public comment period.

As long as the speakers want to address matters “‘within the subject matter jurisdiction'” of the committee, they must be allowed to speak during the public comment period regardless of “speaker identity.”  Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719 (C.D. Cal. 1996) (quoting section 54654.3).  As that court and the California Attorney General have both noted, a board or committee can limit the total time allotted for public comment, but cannot pick and choose who gets to speak during that period — especially since this may well be viewed as a subterfuge for unlawfully discriminating in who can speak based on the expected content of what the speaker has to say.  See id.; 75 Ops. Cal. Atty Gen. 89 (1992).