Q: I am a journalist preparing a story about two potential members of the local School Board. One is the recent city manager of the city who quit the post and the other is a current councilwoman who is not running for re-election this Nov. Both, though are running for the school board, and the two are engaged. This fact is the reason why the former city manager quit because of a conflict of interest when they were only romantically involved. Is it ethical or illegal for two engaged candidates and/or possible board members to be on the same board. Is this a potential conflict, maybe of the Brown Act?
A: I can only speak to the legal, and not the ethical, implications of the factual scenario that you present. Violations of the Brown Act would be implicated here if the two board members somehow create a “serial meeting” through communications with each other, which are then related by them to other board members either directly or indirectly (i.e., through intermediaries such as staffers).
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 (emphasis added) .
Presumptively, the two board members could discuss board business over dinner, then relate that information to other board members. As soon as a “majority” of board members hear the same information, then a serial meeting has been held in violation of the Brown Act.
You may also want to explore whether the Fair Political Practices Commission (http://www.fppc.ca.gov/index.php) has any opinion on this particular topic.