Q: Our organization arranged a private meeting of some community stakeholders on a issue that will be coming before a city council committee, and we invited members of the staff of the three councilmen who make up that committee. However, we were told that only one staff member could attend, because any more would make it a violation of the Brown Act. Is it correct that meetings of elected officials’ staff members subject to the open meetings provisions of the act?
A: There may, indeed, be a Brown Act violation here if any communications these staffers relate back to their respective council members leads to a so-called a “serial meeting” among members of this committee. Under the Brown Act, a “meeting” includes 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).
Members of a legislative body do not have to meet face to face in order to conduct a “meeting” or take action within the meeting of the Brown Act. In 2006, in a case called Wolfe v. City of Fremont, the Court of Appeal noted that “serial individual meetings that do not result in a ‘collective concurrence’ do not violate the Brown Act.” 144 Cal. App. 4th 533, 545 n. 6 (2006).
The Brown Act was subsequently amended in 2009 to supersede this holding from the Wolfe case. Now the Brown Act provides that:
“A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” Govt. Code § 54952.2.
The Attorney General takes the position that a 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). See The Brown Act, Open Meetings for Local Legislative Bodies, Office of the Attorney General, 2003, at p. 11, available at http://caag.state.ca.us/publications/2003_Main_BrownAct.pdf.
Presumptively, the three staffers would hear the same information at this meeting that they then take back to their respective city council member, who then acts on this information without ever having deliberated in public. That said, these three staffers would have to represent a “majority” of the members on this particular city council committee in order for this to be a violation of the Brown Act.
Of course, it’s possible that even if only one staffer came to the meeting, a serial meeting that violates the Act could be held in other ways. For example, the staffer could share what he or she learned at the meeting with all of the other city’s council members’ staffers, who then relay those messages to the committee members themselves, who then come to a consensus based on that information without ever having discussed the information face to face, much less deliberated in public.
Therefore, it may be that in order to comply with the Brown Act, only one staffer may attend this particular meeting, and even then, must take care as to how this information is shared with committee members (either directly or through other staffers) in order to ensure that there is no serial meeting in violation of the Act. To that end, you may considering asking the staffer who attends your meeting to present the information he gathers there with the committee at one of its public meeting that complies with the Brown Act.