Question
I have a couple of questions regarding the Board of Commissioners for the Housing Authority of my city and the Brown Act.
1.) The posting of the Agenda for Board meetings lists out the items to be discussed and the order in which to do so. In all such postings the agenda item for public comment is listed after all other items for discussion have been listed. The Brown Act specifies that Public Comment must occur prior to or during the discussion of agenda items. My question: is this posting in violation of the act because it is misleading that public comment is done after all agenda item discussions?
2.) Also it is common practice for the board members to gather in a closed room with the Executive Director prior to the official beginning of the Board meeting. I have also seen the Chairman of the Board of Commissioners go into the Executive Director’s office with the door closed outside of normal Board Meetings.
Answer
Turning to your second question first, the Brown Act defines a “meeting” as any congregation of the majority of the members of a 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.
To the extent a majority of board members are gathering in a closed room with the Executive Director prior to the official beginning of the Board meeting to hear, discuss, or deliberate upon any item within the board’s subject matter jurisdiction, that gathering constitutes a meeting subject to all of the Brown Act’s requirements for closed sessions (items to be discussed must be posted on agenda, requirements for closed sessions must be met, etc).
As to your first question, you are correct that in general, public comment must be allowed before or during the Board’s consideration of the particular item. However, Brown Act itself does not contain any specific requirement as to the order in which items must be listed. However, the purpose of the agenda is to provide members of the public with fair notice of what is to be discussed at the meeting so that they can make an intelligent decision as to whether to attend the meeting and/or offer public comment. To the extent the order in which the agenda items are listed frustrates that goal and is misleading to members of the public (ie, members of the public are not attending because they are misled into thinking they will not have a chance to offer comment before a particular item is decided), this would seem to raise an serious issue under the Brown Act.
I hope this information is helpful to you. To the extent you have follow-up inquiries about access to public records, we would appreciate it if you would submit these as part of a separate request, so that CFAC can do its best to address inquiries in the order in which they are received.
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