Does the Brown Act cover a committee made up of two agencies with two members each?

Answer

The question whether the 2×2 committee is a “legislative body” subject to the Brown Act depends on the facts.

The Brown Act applies to meetings of legislative bodies of local agencies in California. A local agency means a city, county, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency. Govt. Code § 54951.

A “legislative body” is defined, in relevant part, as the “governing body of a local agency,” such as the city council or school board itself, or:

A commission, committee, board, or other body of a local agency, whether permanent or temporary, decisionmaking or advisory, created by charter, ordinance, resolution, or formal action of a legislative body. 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.

Govt. Code § 54952(a)-(b).

If two members of a five-member board form an “advisory committee” by themselves, that is not necessarily a legislative body, unless it is a “standing committee” under the above definition. But if an “advisory committee” is created by formal action of a legislative body and composed of members of two different legislative bodies within a single agency, it may be a “legislative body” under the Brown Act, even though it contains less than a quorum of each body. See Joiner v. City of Sebastopol, 125 Cal. App. 3d 799, 801 (1981) (holding a group consisting of two members of the city council and two members of a planning commission created by the city council to advise on filling a planning commission vacancy was a “legislative body”). In Joiner, the planning commission was part of the city and subject to the city council’s authority, and so it was possible for the city council to create a separate legislative body unilaterally.

However, as one court later said, a legislative body such as “a city council may designate some of its members to meet with representatives of other entities” outside the city “to exchange information and report back to the council without falling under the Brown Act,” as long as the designated members are less than a majority of the legislative body and not acting as a standing committee. Taxpayers for Livable Communities v. City of Malibu, 126 Cal. App. 4th 1123, 1129 (2005) (holding the Brown Act was not violated when two city council members acting as a short-term ad hoc committee held private meetings with various individuals, constituents, and city staff to discuss a response to the Coastal Commission’s draft land use plan).

As the California Attorney General suggested in a 1981 opinion, a “coordinating committee” composed of members of two governing boards, but less than a quorum of each, is not a legislative body subject to the Brown Act if it “is in fact two subcommittees of the governing boards of the water agency and the irrigation district,” but it is subject to the Brown Act if it “is an independent, separate committee which has been established by the two governing boards.” The opinion states, “Whether the committee is two subcommittees or is a single, independent committee is a factual question.”

The opinion discussed two competing views of the facts. On one view, “the coordinating committee is in reality two subcommittees of the respective governing bodies which are sent to meet with each other and do nothing but report back with information to their respective boards to avoid the necessity of the full boards jointly mee[t]ing all the time.” In that case, the Attorney General’s office said the Brown Act would not apply. But on the second view, “the coordinating committee is a single committee which has generally acted like a ‘unitary body’ such as by having elected a chairman and having directed staff members to compile information for their single committee,” in which case the Brown Act would apply.

Apart from that issue, the two designated members of the city council might be a “legislative body” if they are in fact a standing committee with a continuing subject matter jurisdiction or regular meeting schedule rather than a short-term ad hoc committee established for a limited purpose. That question depends on all the relevant facts. Please see our July 2025 brief in a Brown Act case for a discussion of the relevant issues.