The Brown Act and Charter Schools
Q: A local public charter school has elected eight people to their Board of Directors this year. This is a public charter school. It is also a 501.c.3 non-profit corporation. The board of directors is self-selecting, self-electing.
Each time a person was elected to the board, either as an interim officer (Treasurer) or as a new board member, the process was listed under Action Items on the Agenda. The word “election” has never been used. The Action Item that resulted in a board member being elected is always listed this way: “Nominations Committee recommendation”
At times, the Secretary even records the number of votes in favor or against, but still, no mention of an election.
Is it legal to hold all these elections, without having listed them as elections?
A: The first issue that needs to be addressed is whether the charter school you refer to is subject to the Brown Act. Below are some of the factors you might want to look at to determine whether it is. However, even if the meetings of the charter school’s board of directors are governed by the Brown Act, the Brown Act does not address the organization or composition of legislative bodies nor does it address the election/nomination of its members, and I am not aware of any other California statutes that might apply. Such organizational issues are typically governed by the internal rules of the governing body itself. You might want to ask the board for a copy of its bylaws to see if they address the specific issue of director elections.
Applicability of Brown Act to Public Charter Schools:
Whether a charter school is subject to the Brown Act depends on whether the school was “created by” an elected legislative body–or receives funds from a government agency and whose governing body includes a member of the legislative body–for the purposes of the Brown Act.
A body that governs a private (often non-profit) entity may be subject to the Brown Act if it is “created by” an elected legislative body to perform governmental functions, or receive funds from a local agency and has a member appointed by the local agency. The applicable provision of the Brown Act is Government Code section 54952(c), which defines “legislative body” to mean, among other things:
(c) (1) A board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that either:
(A) Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity.
(B) Receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency.
(2) Notwithstanding subparagraph (B) of paragraph (1), no board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that receives funds from a local agency and, as of February 9, 1996, has a member of the legislative body of the local agency as a full voting member of the governing body of that private corporation, limited liability company, or other entity shall be relieved from the public meeting requirements
of this chapter by virtue of a change in status of the full voting member to a nonvoting member.
You should be able to determine whether the public charter school is receiving funding from a local agency (for instance, by the school district) by reviewing its financial statements. You should be able to determine if a local agency has the right to appoint a member of the board of directors by reviewing the charter school’s bylaws and/or articles of incorporation. (The articles of incorporation, if they exist, are also available from the California Secretary of State.) If both of those conditions exist, the public charter school is subject to the Brown Act and subject to its open meetings requirements.
As to whether the public charter school was “created by” an elected legislative body, this can be more difficult to determine. California case law indicates that, for example, if a city creates a special local assessment district, collects assessments from local property owners, and provides by ordinance that the programs paid for with those funds
will be governed by a non-profit association, the non-profit corporation set up to govern those programs will be subject to the Brown Act. (This example comes from a case called Epstein v. Hollywood Entertainment District II Business Improvement Dist., 87 Cal. App. 4th 862 (2001).) You should look for some kind of direct involvement by the city or another local government agency, such as the school district, in the creation of the charter school, such as an ordinance that calls for its creation. In addition, the articles of incorporation and/or bylaws of the charter school may provide evidence that the city, or other government entity, was responsible for its creation.