Which Meetings are Governed by the Brown Act? Bagley-Keen Act?
Q: Are relevant portions of the following meetings governed by the Brown Act (or the Bagley-Keen Act)?: The board meetings of a nonprofit that a County Dept of Mental Health has contracted with to run a program which has been fully developed by the County Mental Health Department, when that board discusses such program? The program was approved by the California Department of Mental Health at the State level, and State-originated funds from Prop 63 (tax on millionaires to provide more money for mental health services in California) pays for the entire program.
A: The Brown Act applies to any “board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that … [i]s 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.” Cal Govt Code Section 54952(c). In this case, it is unclear whether the nonprofit in question was actually “created” by the County Department of Mental Health.
Based on your inquiry, it looks as though the nonprofit may not have been created by the County Mental Health Department, but that rather, the Mental Health Department contracted with it. In Epstein v. Hollywood Entm’t Dist. II Bus. Improvement Dist., 87 Cal. App. 4th 862, 862-865 (2001), the court addressed the meaning of “created by” as it pertains to Section 54952(c). The court focused on whether the legislative body played a role in bringing the nonprofit into existence. Id. at 863. In that case, the court found that the Property Owner’s Association was “created by” the legislative body because the city had created the Association, even though it had been created for a different project than the one at issue in the litigation. In that case, the nonprofit adopted a city ordinance which included the creation of a non-profit for governance. In Int’l Longshoremen’s And Warehousemen’s Union, 69 Cal. App. 4th 287, 295 (1999), the court held that a private for-profit corporation was subject to the Brown Act, relying on the fact that the City Council had the authorized the Board of Harbor Commissioners to create the corporation.
The second relevant question is whether the non-profit was created by a legislative body. In Int’l Longshoremen, 69 Cal. App. 4th at 296, even though the Board of Harbor Commissioners was ultimately responsible for the creation of the corporation, because the City Council retained plenary jurisdiction over the project, it was considered to have been created by a legislative body. Also, in one California Attorney General’s Opinion, a nonprofit corporation created by a redevelopment agency authorized under state statute was deemed to have been created by a legislative agency. 91 Cal. Ops. Atty. Gen. 281, 290 (1998).
Whether or not the non-profit is subject to the Brown Act depends primarily on whether the Department of Mental Health and the State Department of Mental Health has any role in the creation of the non-profit. If the relationship is simply that the non-profit contracted with the County, it was not brought into existence by the County, and not subject to the Brown Act. If on the other hand, the non-profit was created by the Department or State, whether in relation to this project or a previous one, it is likely to be governed by the Brown Act.