A&A: When is a non-profit board subject to the Brown Act?

Q: I am Chief of Staff at a hospital that is part of a nationwide health care service, and an ex officio member of the hospital Board. Hospital executives have twice dismissed me from the Board room while they conducted official business in my absence. (I am the only Board member not appointed by the parent company, and I oppose some of their plans). The parent organization states this is legal, and also that they are not subject to the Brown Act. Is this true?

A: The board of a private hospital is treated like the governing body of any other nonprofit organization under the Brown Act. See Yoffie v. Marin Hospital Dist., 193 Cal. App. 3d 743 (1987).

In contrast, the board of a local hospital district is a governmental agency. See Green v. Mt. Diablo Hospital Dist., 207 Cal. App. 3d 63 (1989)). Thus, the Brown Act will not apply unless the nonprofit entity was either:

(1) created by a governmental body in order to exercise governmental authority delegated to it, or
(2) both receives funds from and and shares a board member with a local governmental agency.  Govt. Code section 54952(c)(1).

Unless one of those conditions exists, the hospital board need not comply with the Brown Act.

To the extent the hospital board’s actions may be limited by other laws, not pertaining to open government or other First Amendment issues, those issues are unfortunately outside the scope of the expertise offered by this hotline.

Bryan Cave 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.