Q: A group of community members drafted a petition to place on Change.org, requesting an audit of a county department. After receiving several thousand signatures, the results, broken out by supervisorial district, were sent to each county supervisor. One supervisor replied that these matters have been addressed. “Therefore, neither I nor my colleagues on the Board of Supervisors believe an independent audit is warranted.” This may be a stretch, but it appears that the matter was discussed and a conclusion reached by a majority of the board. Or at least that is what this supe is alleging. While this item was never agendized, it does seem to violate the spirit of the Brown Act. Your comments?
A: The Brown Act governs notices, agendas and meetings of legislative bodies, such as a Board of Supervisors. The Act defines the term “meeting” and also defines specific conduct that does not constitute a “meeting” under the Act. A “meeting” includes any congregation of a majority of the members of the legislative body at the same time and place to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains. Cal. Gov’t Code § 54952.2(a). As the attorney general has explained: “This definition makes it clear that the body need not take any action in order for a gathering to be defined as a meeting. A gathering is a meeting if the majority of the members of the body merely receive information or discuss their views on an issue.” The Brown Act, Open Meetings for Local Legislative Bodies, Office of the Attorney General, 2003, at p.8 (emphasis added). See also Frazer v. Dixon Unified School Dist., 18 Cal. App. 4th 781, 794-795 (1993).
Members of a legislative body do not have to meet face to face in order to have a meeting or take action within the meaning of the Brown Act. Any use of direct communication, personal intermediaries or technological devices by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the legislative body is prohibited, if used to “develop a collective concurrence as to action.” Government Code section 54952.2(b).
For example, a series of individual telephone calls between the attorney for a redevelopment agency and the members of the agency’s governing board was held to constitute a meeting. The agency attorney had individually polled the members of the body to get their approval for a real estate transaction. The court concluded that even though the members never met together, their communications constituted a meeting for the purposes of the Act. Therefore, the agency had violated the Brown Act by not complying with the requirements for meeting. Stockton Newspapers, Inc. v. Redevelopment Agency, 171 Cal. App. 3d 95, 105 (1985).
Similarly, when the San Diego City Council directed staff to take certain action in an eminent domain proceeding in a letter signed by a quorum of the council, without conducting a public meeting on the subject, the court held that it had violated the Brown Act. Common Cause v. Stirling, 119 Cal. App. 3d 658 (1981).
If you believe that the Board of Supervisors communicated to discuss and take a collective concurrence on the petition, then your instinct may be correct in that there could be a possible violation of the Brown Act. However, this is a fact specific inquiry.
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. No attorney-client relationship has been formed by way of this response.