Regional Centers and the CPRA
Q: Are the roughly 21 private non-profit corporations known as Regional Centers (effectively created by the Lanterman Act) that operate under contract with the Department of Development Services, subject to the Brown Act, and thus, to the CPRA?
A: The mere fact that a nonprofit is created by state action or contracts with a state agency would not subject it to the requirements of the CPRA. As you suggest in your inquiry, the CPRA applies to some nonprofit corporations if the governing body of the nonprofit corporation is subject to the Brown Act. Specifically, the CPRA applies to entities that are “legislative bodies of a local agency” pursuant to Section 54952 of the Brown Act. Cal. Gov’t Code 6252(a). In turn, section 54952(c) of the Brown Act provides two sets of circumstances under which a “legislative body of a local agency” would include the governing body of a nonprofit corporation:
First, a governing board of a nonprofit corporation (e.g., the board of directors) could be subject to the Brown Act if the board was created by an elected legislative body of a local agency (e.g., a city council) in order to exercise authority that can be lawfully delegated to the nonprofit. Cal. Gov’t Code section 54952(c)(1)(A). Typically, entities subject to the Brown Act under this section will be nonprofit corporations established by local government entities for the purpose of constructing, operating, or maintaining a public works project or public facility. See 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, but generally would include some kind of direct involvement by a city or other local government agency in the formation of the nonprofit. See, for example, Epstein v. Hollywood Entertainment District II Business Improvement Dist., 87 Cal. App. 4th 862 (2001)
(where 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).
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 (e.g., a city) and the legislative body for that agency (e.g., the city council) 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 nonprofit would be subject to the Brown Act and also, in turn, would be required to comply with a Public Records Act request.
Your inquiry deals with nonprofit corporations under contract with the State of California, and not a nonprofit affiliated with a local government in the ways described above. (Note that the Attorney General opinion you point to in your inquiry addressed a nonprofit that operated under a franchise agreement with a city, not the state). However, it is possible that the Brown Act and the CPRA apply to the Regional Centers if there is local (and not just state) involvement in their formation and/or funding and operation. You would need to examine the circumstances and purpose surrounding the creation of each particular nonprofit (for example, whether it is created by a local ordinance).
Alternately, you would need to determine whether a particular nonprofit receives funds from a local government and whether the nonprofit’s governing board also has a representative of the local government as a voting member of its board.
If the CPRA does not apply, one alternative may be to consider whether you could get some of the information you are seeking by making a CPRA request directly to the Department of Development Services or other appropriate state agency and ask for documents relating to the non-profit.