A&A: Informal Meetings and the Brown Act

Informal Meetings and the Brown Act

Q: I understand that the Brown Act prohibits a majority of a Board of Supervisors from meeting together illegally.  However, can one supervisor discuss an issue with another two or more other supervisors on a personal, informal basis, one at a time?

A: The Brown Act defines a “meeting” as “a 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.”  (Govt. Code § 54952.2(a)).  Section 54952.2(b) of the Government Code provides that “except as authorized pursuant to section 54953, any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action taken on any item by the members of the legislative body is prohibited.”

While board members are not prevented from engaging in independent one-on-one contacts with one another or anyone else, these one-on-one contacts cannot be used to arrange a collective and nonpublic discussion of specific agency business.  The Attorney General takes the position that a so-called serial meeting, in violation of section 54952.2(b), may occur where there is a chain of communications (A communicates with B, B communicates with C, and so on), and/or when one intermediary acts as the hub of a wheel and communicates individually with the various spokes (i.e., board members A, B, C, etc).  To the extent the communications you refer to — that is, communication between one supervisor and another two or more supervisors — concern matters within the board’s subject matter jurisdiction and the communication is among a majority of the members of the board, resulting in a collective concurrence as to action that will be taken on an agenda item, this is probably a violation of the Brown Act.

As the Attorney General has explained:

“In construing these terms, one should be mindful of the ultimate purposes of the Act — to provide the public with an opportunity to monitor and participate in decision-making processes of boards and commissions.  … Conversations which advance or clarify a member’s understanding of an issue, or facilitate an agreement or compromise among members, or advance the ultimate resolution of an issue, are all examples of communications which contribute to the development of a concurrence as to action to be taken by the legislative body.”

The Brown Act: Open Meetings for Local Legislative Bodies, p. 12 (Cal. Atty General’s Office 2003).