Q: There’s some confusion about whether the county Mental Health Board is violating the Brown Act by receiving information when it doesn’t have a quorum. Can the board have discussions and receive presentations, but not take formal action, when a quorum isn’t present?
A: As you probably know, the Brown Act sets out certain requirements that the legislative body of a local agency must abide by in conducting meetings. The most important of these is probably that the public gets notice of and opportunities to attend meetings.
Very generally speaking, the Brown Act is triggered only when a quorum of the legislative body is meeting. Govt. Code § 54952.2 (Under the Brown Act, “‘meeting’ means any congregation of a majority of the members of a legislative body at the same time and location … to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.”) (emphasis added).
To the extent a meeting that was properly noticed, open to the public, and otherwise complied with the Brown Act lacked a quorum, discussion and presentation at the “meeting” — technically, not a “meeting” for Brown Act purposes if no majority of members — might not be a per se violation of the Brown Act.
The danger, though, might be the expectation that the discussion and information would be disseminated to the absent members outside of a Brown Act-complying meeting, such that discussion and deliberation among a majority ends up happening out of the public eye.
The Brown Act prohibits the use of a series of communications to discuss, deliberate, or take action on any item of business outside a meeting that complies with the Brown Act. (“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.”).
The Brown Act itself doesn’t have much to say about how a legislative body conducts its business. The body’s own by-laws or regulations or even other laws may speak to how the body should proceed when it lacks a quorum. (Note that the Brown Act uses the phrase “majority of members” in the relevant provisions, while certain bodies subject to the Brown Act may define quorum as something other than a majority of members.)
For Brown Act purposes, the important thing is that whatever the body does, it does in the open, with notice to the public.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First AmendmentCoalition 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.