Q: The School Board is trying to accuse one trustee of a Brown Act violation because he sent out an email in support of a project they were going to be voting on in the near future. The email went to all trustees as well. None of them responded and no discussion was made back and forth with this email.
We do not think it is a violation, but need to know from an expert.
A: The issue you raise is whether the act by one trustee of sending an email to all other trustees that urges them to take a certain position on a matter before them is an illegal “meeting’ as that term is used in the Brown Act.
The Brown Act in numerous provisions sets requirements for covered boards to conduct their business in a way that is open to the public. Among these are the requirements that all “meetings” of the board be noticed and agendized. See, for example, Govt. Code sections 54953, 54954, 54954.2.
A “meeting” is defined to include not just physical gatherings of members of the board. Govt Code section 54952.2(b) specifically states that “any use of direct communication . . . or technological devices that is employed by a majority of the members of a legislative body to develop a collective concurrence as to action to be taken on an item by the members of the legislative body is prohibited.”
Interpreting this section of the Brown Act, The Attorney General has opined that the sending of an email between a majority of the members of a covered board as an effort to develop a collective concurrence as to action to be taken was in fact a violation of the Brown Act. 84 Ops. Cal. Atty. Gen. 30 (2001) (Copies of these opinion are available on the Attorney General’s web site.)
So, yes, it does appear that the trustee violated the Brown Act by sending the email to all of his fellow trustees with the purpose that the board develop a collective concurrence on the issue at hand.
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.