A&A: Are Community College Faculty Senate meetings covered by the Brown Act?

Q: I believe Community College Faculty Senates are subject to the Brown Act?  If so, must these bodies disclose how each member voted on an item? I teach at a community college.  My program was asked to make some amendments to an item, otherwise an individual told us she would challenge the matter. We made the amendments. The indivdiual then actually went ahead and challenged the matter at a Faculty Senate open meeting. She also asked two senators  to join her in opposition.

No one from my program attended as the matter was very routine and we were told that there would be no challenge as long as the amendments were made. So, does a Faculty Senate have to keep a record of how senators vote, along with some brief notes, at least, regarding what was said by the senators?If so, doesn’t this information have to be released? In the past, the Senate kept more detailed notes, but the current body is releasing incredibly abbreviated notes.

A: Your question presents quite the puzzle and I will do my best to put the various pieces together for you. Unfortunately, the most definitive answer I can give you may be “maybe.”

Community Colleges are state entities, rather than local governmental entities, and thus the open meeting law potentially applicable is the Bagley-Keene Act, Government Code sections 11120-11132.

The Bagley-Keene Act applies to “state bodies,” which defines as “every state board, or commission, that is created by statute or required by law to conduct official meetings and every commission created by executive order,” or “a board, commission, committee or similar multimember body that exercises any authority of a state body delegated to it by that state body.”

Community college faculty senates are authorized by regulation, Title 5, sections 53200 et seq. But nothing in that regulatory scheme requires that a faculty senate conduct official meetings. Rather the regulations merely require the governing board of a community college district to authorize faculty to “fix and amend by vote of the full-time faculty the composition, structure, and procedures of the academic senate.” Title 5, section 53202(c)(1).

So unless, a particular community college district requires that the faculty senate of one of its colleges have meetings, it is unlikely that the faculty senate is “required by law to conduct official meetings.”

In terms of the second definition of “state body,” again there is nothing in the regulations by which the community college districts are required to delegate any of their own authority to the academic senates.

However, the regulations do permit the districts to so delegate its authority. Title 5, section 53203 (a), (e). So if a particular community college district has so delegated some of its authority to a faculty senate, such an action would then bring the faculty senate within the requirements of the Bagley-Keene Act.

And there is one more possibility: There are specific open meeting requirements in the Education Code that apply to “auxiliary organizations” of community colleges. Among other definitions, an “auxiliary organization” is “any entity which, exclusive of the foregoing subdivisions of this section, is designated as an auxiliary organization by the Board of Governors of the California Community Colleges.”

The Board of Governors has not so designated the academic senates as “auxiliary organizations” categorically. However, the applicable regulations appear to permit, although not require, the governing bodies of the individual community college districts to designate a faculty senate as an “auxiliary organization.” Title 5, sections 59250(a), (b), and Education code section 72670. But see Title 5, section 59259 (which lists the permissible services that may be provided by auxiliary organizations, and does not appear to include faculty support). If the faculty senate is an “auxiliary organization,” there will be an approved written agreement between the senate and the district and the faculty senate will be listed on the district’s official list of auxiliary organizations in good standing. Title 5, 59255, 59623

In sum, it does not appear the faculty senates are categorically subject to any of the open meetings statutes. But the possibility exists that a particular faculty senate is required to comply with the Bagley-Keene Act, or the rules governing auxiliary organizations.

If no law applies, then the faculty senate will merely be governed by its own bylaws. If the Bagley-Keene Act does apply, all votes must be public.

Bryan Cave 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.