Closed City Council Meetings Outside Regular Meeting

Answer

The Brown Act only applies to the extent there is a “meeting” as that term is defined in the Act.   A meeting under the Brown Act is “any congregation of a 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 or the local agency to which it pertains.”  Govt. Code § 54952.2.  Based on the fact that only one or two City Council members attend the staff meetings you’re asking about, it is unlikely that a majority of the members of the Council attend those meetings, and thus the staff meetings are probably not “meetings” as defined on the fact of the Brown Act.

Still, the meetings you describe may be “serial meetings,” which are prohibited under the Brown Act.  The serial meeting prohibition provides that “except as authorized pursuant to section 54953, any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action taken on any item by the members of the legislative body is prohibited.”  Gov’t Code § 54952.2(b).

The Attorney General takes the position that a serial meeting, in violation of section 54952.2(b), may occur where there is a chain of communications (A communicates with B, B communicates with C, and so on), and/or when one intermediary acts as the hub of a wheel and communicates individually with the various spokes (i.e., board members A, B, C, etc).    In your case, for example, if the members of the City Council who are present at the staff meetings polled a majority of committee members to form collective concurrence or collective consensus about action to be taken on any item within the subject matter jurisdiction of the body, that would seem to violate the Brown Act.

It is not always easy to determine whether a majority of members of a legislative body were trying to develop a collective concurrence on an item in a given situation.  However, the California Attorney General has shed some light in this regard:

“In construing these terms, one should be mindful of the ultimate purposes of the Act — to provide the public with an opportunity to monitor and participate in decision-making processes of boards and commissions.  … Conversations which advance or clarify a member’s understanding of an issue, or facilitate an agreement or compromise among members, or advance the ultimate resolution of an issue, are all examples of communications which contribute to the development of a concurrence as to action to be taken by the legislative body.”

The Brown Act: Open Meetings for Local Legislative Bodies, p. 12 (Cal. Atty General’s Office 2003).

You might consider writing a letter to the City Council or someone in charge of the staff meetings, addressing the serial meeting prohibition.  Also, you might consider checking the City Charter or other rules governing Council meetings to see if there is any guidance regarding procedures for placing items on the agenda.