Q: I would like to question the legality of a new practice our school board school board to “bundle” regular action items on the agenda.
At the only regular board meeting of August 2010, after approving the consent calendar, the board approved the regular agenda items as presented. Their own by-laws state an agenda item will be presented; the administration will give their presentation and recommendations for action; the board will ask/seek further information; the public will be allowed to speak; the board will discuss and deliberate; the vote will be taken.
Ignoring their own by-laws, it was moved and rapidly seconded that they bundle three action items. There was no presentation or recommendation by administration, no discussion, no public comment, no deliberation…simply a vote on all three at once. Not only was the public silenced, so were any board members who wished to ask for information or who wished to discuss or deliberate. I would like to know if they may continue with “bundling.”
A: If I understand your inquiry correctly, the public was not given the opportunity to comment on agenda items that the board took action on at the meeting, which sounds like it may have been a violation of California’s open meeting law, known was the Brown Act.
The Act requires that “[e]very agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.” Gov’t Code section 54954.3(a).
The scope of comment permitted at a regular meeting includes not only agenda items, but any item within the body’s jurisdiction that has not already been considered at a previous meeting where public comment was permitted. The Brown Act permits legislative bodies to adopt “[r]easonable regulations” for public comment periods, including regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker, but the body may not “prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Gov’t Code section 54954.3(b), (c).
It’s not entirely clear what you mean by excluding other board members (who presumably were present at the time) from deliberations, but that might also be problematic (though not necessarily under the Brown Act, which focuses on the public’s access to the deliberations and not necessarily how the deliberations themselves should be conducted).
Thus, if the public was not permitted to comment on the agenda items prior to some action being taken on those items, then the Brown Act may very well have been violated with respect to those items. (Whether or not the school board could “bundle” the items for purposes of discussion and voting amongst the board members themselves would probably depend on what the board’s bylaws permit.)
The Brown Act does not specify a particular way that a violation of the Act may be cured and corrected, but presumably the board could satisfy the Act by reopening the process to permit public awareness of all the facts and views, as well as give the public the opportunity to express its views on the issue(s).
Either a citizen or the district attorney may sue to compel the local agency to comply with the Brown Act; obtain a ruling that a particular practice of the local agency violates the Brown Act; or obtain a ruling that the local agency is violating the free speech rights of one or more of its members in seeking to silence that member. Gov’t Code section 54960(a).
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. Notice and demand to cure and correct a violation must be given, in writing, within 90 days from the date the action was taken, or 30 days if the basis for the notice is that the action was not on an agenda or not adequately described. Cal. Gov’t Code § 54960.1(c)(1).
The local agency then has 30 days to take action. Cal. Gov’t Code § 54960.1(c)(2). If the local agency responds and refuses to correct the problem or does nothing, the challenger has 15 days to initiate court proceedings to nullify the action. Cal. Gov’t Code § 54960.1(c)(3)-(4).
You can find a template for a Brown Act complaint, as well as other useful information pertaining to the Act, on the FAC’s web site https://firstamendmentcoalition.org/category/resources/access-to-meetings/.
If you are interested in finding a lawyer who specializes in the Brown Act and First Amendment to represent you, you may consider using the FAC’s Lawyer’s Assistance Request Form at https://firstamendmentcoalition.org/lawyers-assistance-request-form/.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.