Q: I have reason and documentation to believe that the charter school my children attend has not been properly permitted and fire codes have been violated. The Governing Board falls under the Brown Act as a California Nonprofit Public Benefit Corporation. Can I request and receive copies of permits from the school for the portable classrooms on campus? Because one of the Board members is affiliated with the City Office I was told I couldn’t get the records.
A: Your inquiry raises the issue of whether a nonprofit organization governing a charter school is subject to the California Public Records Act (“PRA”). Under the PRA, the public has a right to inspect and copy any record held by any state or local agency unless one of the Act’s specific exemptions applies. See California Government Code 6253. The PRA explicitly provides that nonprofit entities that are “legislative bodies of a local agency” pursuant to subsections (c) and (d) of Government Code section 54952 (the Brown Act) are “local agencies” subject to the PRA. See Cal Gov Code § 6252(a). Accordingly, if the nonprofit organization governing the charter school your children attend would be considered a legislative body under Government Code section 54952(c) and (d), then it must also disclose records to the public under the PRA unless an exemption applies.
Based on my research, neither the attorney general nor any court has considered application of the Brown Act to nonprofit organizations governing charter schools, but the Brown Act may apply depending on how the nonprofit organization was formed and the make-up of its members. Note that the mere receipt of public funds by a nonprofit corporation or other entity, without more, does not subject it to the Brown Act. There are two sets of circumstances under which the organization at issue here might be considered a legislative body under Government Code section 54952(c):
First, a governing board of a nonprofit corporation could be subject to the Brown Act if the board was created by an elected legislative body in order to exercise authority that can be lawfully delegated. Cal. Gov’t Code section 54952(c)(1)(A). Typically, entities subject to the Act under this section will be nonprofit corporations established by government entities for the purpose of constructing, operating, or maintaining a public works project or public facility. (Int’l Longshoremen’s & Warehousemen’s Union v. Los Angeles Expert Terminal, Inc., 69 Cal. App. 4th 287, 294 (1999)). Whether an entity is “created by” an elected legislative body, can be 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. (See 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 (for example, an ordinance that calls for the school’s 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.
Second, the Brown Act may also apply to the governing board of a nonprofit corporation if the nonprofit organization receives funds from a local agency and the legislative body for that agency also appoints one of its own members to the nonprofit organization’s governing board as a full voting member. See Cal Gov Code 54952(c)(1)(B). If both of those conditions exist, the charter school is subject to the Brown Act and also, in turn, must comply with a Public Records Act request.
If the PRA applies, I am not aware of any exemption that would allow the school to refuse to provide you with the permits you seek merely because one of the board members is affiliated with the city. CFAC provides a form letter that you may wish to use as a template for your PRA request, available on CFAC’s website at the following link: http://www.cfac.org/templates/cpraletter.html