Q: It’s come to my attention that three of the five members on the School Board meet privately with representatives of the teacher’s union to discuss items on the agenda for the upcoming board meeting. There are no public notices for these meetings. My feeling is that the board members will find a way around the Brown Act if I bring this subject up at the next board meeting, thereby negating any positive effect for change. So what is my best option to have these meetings cease immediately?
A: It sounds like you believe the board members are violating the Brown Act by holding unnoticed meetings but also believe that if you raise the issue at an upcoming board meeting, the board members may find a way to either (a) technically comply with the Brown Act while violating its spirit, or (b) continue to violate the Brown Act, but in a way that members of the public will be unable to detect (i.e., continue unnoticed meetings but proceed more secretively).
Although I can’t advise you as to how to proceed, I can make a few general observations that may be useful. First, the only way to force a legislative body of a local agency to comply with the Brown Act is for either a member of the public or the district attorney to take legal action. Gov’t Code section 54960, 54960.1. A prerequisite for a suit under Section 54960.1 for a determination that a particular action taken by the body is null and void because it was taken in violation of certain provisions of the Brown Act is that a written demand be sent demanding that the body cure and correct the action.
Please note, however, that the Brown Act imposes fairly strict requirements on the enforcement of the Brown Act, including deadlines for taking certain necessary actions. You might find the information on the FAC’s web site at https://firstamendmentcoalition.org/category/resources/access-to-meetings/ useful for proceeding. You might also try the First Amendment Coalition’s Attorney’s Assistance Request Form for finding an attorney who might be able to assist you (https://firstamendmentcoalition.org/lawyers-assistance-request-form/).
Sometimes the public is able to rein in a body that has been violating the Brown Act by drawing media attention to the violation. For example, members of the public who send a cure-and-correct demand under Section 54960.1 sometimes send copies of the demand to local media in an attempt to generate attention.
Of course, to the extent the Board is either not technically violating the Brown Act or is violating it in a way that escapes detection by the public, there is — as a practical matter — little that can be done through legal channels. In such a case, it may be that mobilizing political attention and support is the only effective answer.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.