Question
We believe based on a published Attorney General’s Opinion that the Brown Act applies to student governments at community colleges.
Our student government, which distributes about $1.3 million per year in student fees, seems to consistently violate the Brown Act, particularly with respect to notice of its intended actions. Specifically, while our student government timely posts meeting agendas, the entries are so vague they fail entirely to describe the possible actions that ultimately (at the same meeting) get taken.
For the most part, every student government agenda item is listed as “discussion,” even so failing to impart any important information as to what’s at stake.For instance, a recent agenda item said: “Business Manager’s Report. Opportunity for the Business Manager to make special comments… (and) Opportunity for the Trustees to approve financial requests.”
The same agenda, lower down, said “Action Items: NONE.”Yet, the Board thereafter heard the Business Manager recommend the allocation of some $5,000 in student money to several campus organizations and the Board thereafter made a motion and passed that motion authorizing the expenditure of those funds to those groups. The money will now be disbursed.
Nothing on the entire agenda said anything about the fact that there would be “action” to distribute money, how much or to whom.The text of the Brown Act itself at 54954.2 is vague—though it does mention a requirement to list and describe items of business “to be transacted or discussed.”
Does that mean “Information or Discussion” and “Action Items” have to be clearly identified—and adhered to?This is just one, very minor illustration, but it is “spot on” with respect to the continuing pattern and problem. Our student government also seems to take some matter listed as an “Opportunity for discussion,” then make a motion to move it to be an “Action Item,” then vote on it and pass it.Are we correct in believing our student government is not complying with the Brown Act?
Answer
As for your first question regarding the sufficiency of the description of agenda items, your student government must satisfy the notice requirements in the Brown Act with respect to its meetings. As you mentioned in your submission, legislative bodies must post an agenda containing a brief general description of each item to be transacted or discussed, including items which will be handled in closed session. Cal. Gov’t Code § 54954.2(a). A “brief general description,” as the term indicates, can be brief and general, usually satisfied within 20 words.
However, it must be a description, not a code phrase that is unintelligible to the public. The purpose of the brief general description is to inform interested members of the public about the subject matter under consideration so that they can determine whether to monitor or participate in the meeting of the body. The agenda description need not educate the reader about all aspects of an item, as it would often be impossible in any “brief” or “general” way.
The law assumes that people with a particular interest in a given subject matter will take steps to find out more about the agenda item and/or attend the meeting. But it does mean, among other things, that when it is possible to use a few words to alert the public to an obviously consequential or controversial proposal, a failure to do just that may violate the law if its effect is to leave those most likely to care unaware and with lowered guard.
Generally speaking, no action can be properly taken if the meeting took place without the requisite notice requirements. Cal. Gov’t Code § 54954.2(a). California Government Code § 54952.6 defines “action” as a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.”
If the action is improperly taken, it is subject to a lawsuit seeking to deem the action null and void. Cal. Gov’t Code Section § 54960.1.From these general principles, it appears (at least in the example you provided) that your student government has provided inadequate notice.
While it arguably provided information regarding the general nature of the item for consideration before the student government, it may not have adequately informed interested members of the public about the subject matter (thereby failing to notify those who might be interested in which campus organizations were requesting and receiving school funds) and seems to have created the misleading and mistaken impression that no action would be taken.
However, please note that, if a proposal is sufficiently well described, the agenda need not predict the precise action the legislative body might take. Phillips v. Seely, 43 Cal. App. 3d 104, 120 (1974) (“where the subject matter to be considered is sufficiently defined to apprise the public of the matter to be considered and notice has been given in the manner required by law, the governing body is not required to give further special notice of what action it might take.”)
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