Q: I am a parent of an elementary school student who is attending a public school being fast-tracked to close in 25 days. An important piece of this decison-making process is a report that is being written by a superintendent’s advisory committee. This committee has closed meetings and the school board allows this. I have asked for the public to be able to view the meetings, to observe, but this has been denied.
The superintendent’s advisory committee is not under the Brown Act. However, the public is not allowed to observe the meetings live or recorded. This is setting a precedent to ban the public from understanding how the tough decisions of school closure are being made.
The lawyer for the school district says it is ok to compromise by having a 30-minute public discussion before the committee goes in and works behind closed doors. This is described as a “compromise” to help move the decision making along.
I just want to know if the school district within its legal rights to bar parents from observing such important school closure decision meetings.
A: The Brown Act only governs meetings if (1) there is a “legislative body” involved, and (2) the gathering of the members of that body is “meeting.” You would first need to determine whether this committee constitutes a legislative body that is subject to the Brown 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; or (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).
In other words, if the committee was created by formal action, but falls under the ad hoc sub-quorum committee exemption, then the committee does not have to adhere to the Brown Act’s meeting requirements. Government Code § 54952(b). On the other hand, if the advisory committee is a standing committee, which has “continuing jurisdiction” over a particular subject matter (e.g., budget, finance, legislation), OR has a meeting schedule that is fixed by some formal action of the legislative body, then that committee is required to abide by the Brown Act’s meeting requirements. (Gov’t Code § 54952(b)).
Additionally, it has been held that a school board’s creation of an advisory committee constituted the creation of a committee subject to the Brown Act, even though the superintendent appointed members of the committee. See Frazer v. Dixon Unified Sch. Dist., 18 Cal. App. 4th 781 (1993). In that case, the board’s adoption of a formal, written policy calling for appointment of a committee to advise the school superintendent and, in turn, the school board (with whom the final decision rested), whenever there was a request for reconsideration of “controversial reading matter,” was sufficiently similar to the types of “formal action” listed in § 54952.3, to require that meetings be open to the public. Taking guidance from this case, there it could be an argument in your case that the committee falls within the purview of the Brown Act if the school board selected the members to exercise continuing subject matter jurisdiction over something for which the school board would typically be responsible.
Closed Sessions Under the Brown Act
With respect to closed sessions, as a general matter, both the California courts and the California Constitution require that the provisions of the Brown Act that allow closed sessions must be “narrowly construed.” Cal. Const. Ar. I, section 3(b)(2). See also, e.g., Trancas Property Owners Assn. v. City of Malibu, 138 Cal. App. 4th 172, 185. That means, in essence, that the closed-session provisions of the Brown Act should not be extended beyond the narrowest scope consistent with their terms. Furthermore, school boards that govern a local school district are considered legislative bodies for purposes of the Brown Act. Kavanaugh v. West Sonoma County High School Dist., 29 Cal. 4th 911 (2003).
In order for the school board to hear a matter in closed session, it must either fall within one of the enumerated exemptions in the Brown Act or be expressly permitted under some provision of certain other state laws. Gov’t Code § 54962. Some examples of exemptions where closed sessions may be permitted include meetings about: specific personnel matters (appointment, employment, evaluation of performance, discipline of an employee), pending litigation, labor negotiations, real estate negotiations, public security, and student discipline. See Gov’t Code § 54950 et seq.
It may also be helpful to note that, even if a closed session were appropriate in this instance, the Brown Act requires that even where an item is to be discussed in closed session, a “brief general description” of the item must still be included on the agenda, and must be posted at least 72 hours before the regular meeting. Cal. Gov’t Code § 54954.2(a)(1). The Brown Act sets forth “safe harbors” for such closed session agenda items, i.e., descriptions of closed sessions on the meeting agenda that will be found to satisfy the notice requirements of the Brown Act. Government Code § 54954.5.
Enforcement Options Under the Brown Act
If an individual believes the Brown Act is being violated, he or she may bring essentially three types of legal suits to enforce the Brown Act:
(1) a suit over a government entity’s alleged violation of the Act based on the that entity’s past violation of the Brown Act;
(2) a suit to contest or enjoin ongoing or future actions in alleged violation of the Brown Act; and
(3) a suit to void an action taken by a government entity in alleged violation of the Brown Act.
With respect to option 1, challenging past actions to stop their recurrence (which was added to the Brown Act in 2012), persons alleging a past violation of the Brown Act, and seeking to bar further violations – but NOT to invalidate a specific government decision or action – must first attempt to resolve the matter, short of litigation, through an elaborate settlement procedure set forth in Government Code § 54960.2. The deadlines for filing a cease and desist letter with the government entity, as well as the government’s obligations in responding to such a complaint, are set forth in this code section, which can be accessed on the California Legislature’s website here.
With respect to option 2, barring an ongoing or future action, Government Code § 54960(a) provides that “any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter … or to determine the applicability of this chapter to ongoing actions or threatened future actions … of the legislative body.” Since lawsuits seeking injunctive relief against future actions usually are based on evidence of past violations, most cases involving prospective relief will be brought under Government Code § 54960.2, discussed above.
With respect to option 3, bringing suit to void a specific past action, Government Code § 54960.1 provides the mechanism for bringing such a challenge, which includes a demand to the Board that it “cure and correct” the violation before filing a lawsuit. If action was taken based on improper procedure, the way to remedy the violation would typically be to send the legislative body a demand that it cure or correct the action taken in violation of the Brown Act. “The demand shall be in writing and clearly describe the challenged action of the legislative body and nature of the alleged violation,” and must usually be made within 90 days of the action, or 30 days if the action was taken in open session. Gov’t Code § 54960.1.
You can find out more about enforcement of the Brown Act on the FAC’s website here.
In all Brown Act cases brought by citizens, attorneys’ fees may be recovered at the discretion of the court. Gov’t Code § 54960.5.
Bryan Cave Leighton Paisner 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.