A&A: CA Public Benefit Corporations and the CPRA

Q: We are a very small group of residents are concerned about a community plan, which is in process of being amended, and the revised EIR that will be coming out soon that could bring a potential of overwhelming development to our area.

We’ve been working on the growth issue for two years now and have just recently organized as a non-profit (CA Public Benefit Corp) and filed under IRS 501(c)(3) to obtain a Determination Letter.  Anyhow, I’ve spent numerous hours reading CA state websites re planning issues, AG Opinion letters, abbreviated court cases, etc., visiting law libraries and trying to get a handle on what rights citizens have re planning.

I must say you’ve got a great website.  In fact I’ve copied your CA Public Records Act info and AG Opinion letter 71 Ops. Cal. Atty. Gen 235 to get clarity on public records requests.  I now feel extremely confident and knowledgeable about what records are available for public disclosure.

I do have a question however that I’m hoping you might answer.  We expect to be pressured into making available our Board of Director’s minutes.  As I understand it, we are required to release copies of our incorporating paperwork, bylaws and minutes of the incorporators meeting as well as the first Board meeting.  But after that, do we have to release copies of our regular Board meeting minutes?  I’ve searched the web and cannot get an answer.

A: With respect to whether the California Public Records Act requires your organization to disclose any particular records, the PRA applies to local and state agencies.  Cal Govt Code Section 6252(a).  A “local agency” includes “a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.”  Govt Code Section 6252(a).  The California Attorney General, however, has said that the PRA applied to a private, nonprofit corporation formed for the purpose of providing programming for a cable television channel set aside for educational use by a cable operator pursuant to its franchise agreement with a city and subsequently designated by the city to provide the programming services.  85 Ops. Cal. Atty. Gen. 55 (2002).  This conclusion was based on the AG’s initial determination that the board of directors of the nonprofit constituted a legislative body pursuant to Section 54952(c) of the Brown Act.  The Brown Act defines “legislative body” to include:

A board, commission, committee, or other multimember body that governs a private corporation or 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 or entity; or (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.

Cal. Govt. Code Section 54952(c)(1).  The PRA explicitly provides that “nonprofit entities that are legislative bodies of a local agency” pursuant to Section 54952(c) are “local agencies” subject to the PRA.  It is not clear that your nonprofit meets these requirements, which would mean that it is not subject to the PRA.

Unfortunately, whether other laws or regulations (such as those generally governing California public benefit corporations) require you to disclose any particular information or documents, however, is a question beyond the scope of our expertise.  Although I cannot vouch for its accuracy, you might find the following web page from a local firm that does specialize in nonprofits interesting: http://www.silklaw.com/faqs/home.cfm.