Closed sessions to discuss “items not falling within their jurisdiction.”
Q: I am a student at community college. After a board meeting of the Associated Students was adjourned, the president of the board asked all non-board members to leave the room so that the assembled quorum could talk about “items not falling within their jurisdiction.” Was this a violation of the Brown Act?
A: According to an opinion of the California Attorney General, meetings of a student body association of a community college are subject to the provisions of the Brown Act. 75 Ops. Cal. Atty. Gen. 143 (Sept. 16, 1992). Nevertheless, please note that opinions of the Attorney General, unlike court decisions, do not establish a controlling rule for how the law is to be applied.
Legislative bodies subject to the Brown Act (such as the Associated Students of a community college) must satisfy the proper notice requirements for a closed session. At least 72 hours prior to each regular meeting, legislative bodies must prepare an agenda containing a brief general description of each item to be transacted or discussed, including items which will be handled in closed session. (Gov’t Code §54954.2(a).) In addition to the agenda requirement, the Brown Act requires the legislative body to orally announce the items to be discussed in closed session prior to any closed-session meeting. (Gov’t Code § 54957.7(a).)
This requirement may be satisfied by referring to the item by number as it appears on the agenda. In the closed session, the legislative body can only consider those matters described in the statement. (Gov’t Code § 54957.7(a).) Once a closed session has been completed, the legislative body must convene in open session. (Gov’t Code § 54957.7(b).) If the legislative body took final action in the closed session, the body may be required to report the action taken (either orally or in writing) and the breakdown of the vote. (Gov’t Code § 54957.1(a).)
Whether or not the Brown Act was violated by the closed meeting depends upon whether the subject matter was one properly discussed in closed session and whether the required notice on the body’s agenda pertaining to such a closed session was given. If not, then the members likely violated the Brown Act. Under the Brown Act, only certain topics can be discussed during closed session. Properly closed sessions encompass, among other things, meetings with a body’s negotiator prior to the purchase or lease of real property, meetings to discuss pending litigation, meetings with law enforcement officials on matters posing a threat to public security, etc.
However, from the information provided in your submission, the closure of the Associated Students’ meeting to discuss “items not falling within their jurisdiction” does not appear to violate the Brown Act. A meeting under the Brown Act is defined as “any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.” (Gov’t Code § 54952.2(a).) If it is true that the Associated Students board was not discussing items within its jurisdiction, there was no “meeting” within the meaning of the Brown Act and therefore those discussions, and the closure of those discussions, were not subject to the Brown Act. In addition, the fact that these closed discussions occurred after the official meeting was adjourned should not change the analysis.