A&A: Did email exchange between committee members violate Brown Act?

Q: Last month our recently elected academic senate president announced to us, the Senate Executive Committee, privately, on campus, that he would be moving to New York and would not be teaching anymore at our college. He said we would have a meeting about his leaving as soon as he learned about what sick time he had left, etc. He didn’t know when it was he would be resigning.

Over the course of the following week, most of us left for separate vacations. There are five of us total. Over the course of 8/7/13 to 8/14/13 we emailed one another about his leaving while on our vacations. We used work emails as well as personal emails for these conversations about him leaving to New York. Did we violate the Brown Act by emailing one another about his resigning? The emails were basically asking him to not resign, that he could stay with one of us during the week and fly home to New York on the weekends.

I am the 1st VP of our Senate and would take over if he retired or left. Two weeks prior to him submitting his letter of resignation to the Senate as a whole, which is per our bylaws, I was trying to find another faculty member to cover one of my jobs so I could take over the position of Senate president. This person did not get back to me until later. So thinking I would not be able to do the position of Senate President I emailed to the Senate Exec that I would not be able to be senate president. The following week, the person that I had emailed about replacing me finally emailed me back and she could replace me. A week later we scheduled a Brown Act meeting of the Senate Executive committee and I informed the Exec committee that if the current Senate President is resigning, I will be able to step up and be president.

Two questions: are our emails a violation of the Brown Act, and are our emails binding? In other words, when I mentioned not being able to serve as president in my email, there was not an official resignation at the time.

A: The first inquiry here is whether the Senate Executive Committee is a legislative body covered by the act.  Under the Brown Act, a “legislative body” is defined to include:

(a) the governing body of a local agency or any other local body created by state or federal statute, or any “local body” created by state or federal law;
(b) a commission, committee, board or other body of a local agency created by charter, ordinance, resolution or formal action of a legislative body; (c) standing committees of a legislative body that have continuing subject matter jurisdiction. Cal. Gov’t Code § 54952.

However, “advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter.” Cal. Gov’t Code § 54952(b).

Thus, bodies such as a board of supervisors, city council, planning commission or directors of a special district are legislative bodies under § 54952(a); Kavanaugh v. West Sonoma County Union High School Dist., 29 Cal. 4th 911 (2003) (school board that governs a local school district is a legislative body).

The harder question is whether commissions, committees or advisory committees are governed by the Act. Per the definitions under
Gov’t Code § 54952(b) and (c), you will want to consider how the Senate Executive Committee was created, and who created it, and also, possibly, its composition of members, in order to determine whether it is indeed covered by the Act.

If the Senate Executive Committee is determined to be a legislative body for purposes of the Brown Act, it may have violated the act by holding a serial meeting.

The Brown Act is violated when “a series of communications of any kind, directly or through intermediaries,” is used by a
majority of the members of a local government agency to “discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” Gov. Code section 54952.2(b)(1).

Such communications include those dispatched by email.

If two council members communicate with each other (including by text or email) regarding the item outside of an officially noticed council meeting, and the city council is made up of five members total, then the Brown Act’s prohibition against such communications is probably not implicated (since two out of five would not be a majority of the council) .

However, if one council member emailed two other council members regarding the issue, or following the initial communication between the two council members, one of those members relays those communications to a third council member, then at this point, a majority of council members (three out of five) are in on a discussion being held outside of a publicly noticed meeting, and thus a “serial” meeting in violation of section 54952.2(b)(1) might have occurred.

If you feel that a violation of the Brown Act has occurred, you might want to get the committee to convene a properly noticed meeting (with 72-hour notice, an agenda, etc.) whereby members make their emailed communications known to the public, and possibly reconsider any action that was taken in light of those emails. Most importantly, the committee will want to make sure that the public has the opportunity to comment on any action that the committee is considering, and also
that the committee discusses the issues in an open forum.

As to your second question regarding whether your emails are binding: if the Senate Executive Committee did come to an agreement over email in violation of the Brown Act, a citizen may seek court action to declare it null and void. Gov. Code section 54960.1(a).

The deadlines for bringing an action under the Brown Act are quite strict. Without a judicial determination that the actions taken in violation of the Act are null and void, or without self-correction on the Committee’s part, decisions made in violation of the Brown Act would probably continue to stand.