Q: I am a city commissioner, and I was recently advised against voicing my opinion to the press on any subject that is or in the future may be under my commission’s jurisdiction. The concern is that later other commissioners may choose to speak to the press on the same subject and give rise to a Brown Act violation.
I am very concerned that this interpretation of the Brown Act violates my First Amendment right of freedom of speech, and also censors the press. Obviously I wouldn’t be meeting with commissioners in private to discuss a subject, or even publicly to discuss a subject. I would be speaking to the press publicly. I would appreciate any advice you could provide me on this matter.
A: It might be useful to know more about the basis for the advice you received against communicating with the press about issues that fall within your commission’s subject matter jurisdiction. I am not aware of any basis for a broad prohibition along these lines, though it is possible to imagine situations where Brown Act issues could conceivably be implicated.
The background for these issues is the Legislature’s intent for the Brown Act, which is that the actions and deliberations of public commissions, boards, councils, and other public agencies be performed publicly. Gov’t Code § 54950.
As the declaration of public policy set forth in the Brown Act itself states:
“[t]he people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”
Accordingly, the provisions of the Brown Act are geared toward maximizing publicity and transparency about public business. Communications between members of legislative bodies of local agencies and the press would generally seem to promote transparency rather than subvert it.
It is possible that the concern underlying the advice you received relates to the so-called serial meeting prohibition of the Brown Act, which is intended to prevent legislative bodies from deliberating on public business outside the context of public meetings.
The Brown Act defines “meeting” as “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.” Gov’t Code § 54952.2(a).
The Brown Act further 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.” Gov’t Code § 54952.2(b)(1).
California courts had held that this kind of prohibited serial meeting must result in a “collective concurrence” for it to violate the Brown Act, Wolfe v. City of Fremont, 144 Cal. App. 4th 533, 545 (2006), but the Legislature subsequently amended the Brown Act to remove the “collective concurrence” requirement.
There may be some uncertainty on the part of bodies subject to the Brown Act as to what exactly might constitute using a series of communications through intermediaries to discuss items of business with the subject matter jurisdiction of the legislative body and — in particular — whether expressing an opinion to the press could fall within the prohibition.
While I am not aware of any authority addressing this particular issue directly, interpreting the serial meeting prohibition to foreclose communications between members of legislative bodies of local agencies and the press would seem to be highly problematic, as you suggest.
Note that the Brown Act expressly permits:
“[t]he attendance of a majority of the members of a legislative body at a conference or similar gathering open to the public that involves a discussion of issues of general interest to the public or to public agencies of the type represented by the legislative body, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specified nature that is within the subject matter jurisdiction of the local agency.” Gov’t Code § 54952.2(c)(2).
Similarly permitted is:
“[t]he attendance of a majority of the members of a legislative body at an open and publicized meeting organized to address a topic of local community concern by a person or organization other than the local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency.” Gov’t Code § 54952.2(c)(3).
These provisions seem to underscore that discussion of public business that is truly open to the public is not contrary to the Brown Act and that what is meant to be prohibited is “subterfuge; a concerted plan to engage in collective deliberation on public business through a series of letters or telephone calls passing from one member of the governing body to the next.” Roberts v. City of Palmdale, 5 Cal. 4th 363, 376 (1993).
An interpretation of the Brown Act that results in a wholesale prohibition against legislative body members’ speaking with the press — which, in turn, would seem to necessarily reduce instead of promote transparency as to the body’s workings — seems untenable in light of the principles underlying the Brown Act.