Parent’s email complaint entered as a public comment by school site council

Answer

Under the Brown Act, in connection with a regular meeting of a legislative body, the public must be given the opportunity to “directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.”  Gov’t Code § 54954.3(a).

The Brown Act does not require, however, that the legislative body read into the record the comments of anyone who could not attend the regular meeting, rather a legislative body “may adopt reasonable regulations” in carrying out its responsibilities, “including, but not limited to, the total amount of time allocated for public testimony on particular issues and for each individual speaker.”  Gov’t Code § 54954.3(b).

Thus, under the Brown Act, the School Site Council was not required to read the full text of the email during the hearing as part of public comment.

However, the School Site Council may have violated a different provision of the Brown Act that requires each and every item considered or discussed by the legislative body to be included in the meeting’s published agenda.

The Brown Act requires legislative bodies to post an agenda for all meetings:
“At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.  A brief general description of an item generally need not exceed 20 words . . . .”  Gov’t Code § 54954.2(a)(1).
The description must be adequate and not misleading — according to the attorney general, “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 Brown Act, Open Meetings For Local Legislative Bodies, Office of the Attorney General (2003), at pp. 16-17.
It would seem that here, by selecting this particular email about this particular employee, the chairperson was adding an item for discussion that may not have been posted on the original agenda.

Further, the Brown Act has a specific provision that relates to how to handle employee disciplinary matters:
Under Section 54957(b), a legislative body of a local agency may hold a closed session during a regular or special meeting “to consider the . . . discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session.”  Gov’t Code § 54957(b).
Where the closed session is being held to hear or consider “specific complaints or charges brought against an employee by another person or employee,” the employee must be given the opportunity to “have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session.  If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void.”  Gov’t Code § 54957(b)(2).
By not listing this item on the agenda, the employee at issue here was not on notice that he or she might want to attend to hear the charges that were set forth in the email and read by the chairperson. If, instead, the author of the email had voiced his or her concerns during public comment at the meeting, without any discussion by the council members, then there would have been no Brown Act obstruction.  See also Baca v. Moreno Valley Unified Sch. Dist., 836 F. Supp. 719 (C.D. Cal. 1996) (holding a school district’s policy of prohibiting comments at open sessions of school board meetings to violate the First Amendment and questioning, in particular, whether the school district’s interest in protecting its employees’ right to privacy was “so compelling that it trumps the public’s First Amendment right to make public comments, negative or otherwise, about such employee’s behavior”).

Likewise, in the context of a Public Records Act request, there would be a strong argument for disclosure of this email, given the strong public interest.

In short, there might be nothing to prevent other members from obtaining the email, or hearing the charges straight from the member of the public who made them, under either the PRA or the Brown Act’s provision for public comment.  That said, there are certain procedural rules governing public meetings under the Brown Act – most importantly, that the public be aware of any agenda item the legislative body might choose to discuss – as well as due process for the employee against whom the charges were aimed.  You might want to remind the chairperson of the Brown Act requirements in this regard so that in the future, the Act can serve its purpose of ensuring full notice to everyone about what the council might discuss so that any interested member of the public – including the employee – can participate.

Bryan Cave 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.