Question
Our agency facilitates a multi-agency Policy Council on Children & Youth which is also our county’s Child Abuse Prevention Commission. This group is subject to the Brown Act. If our bylaws allowed it, could we legally allow members to submit a written proxy vote on specific agenda items when the member cannot be present? We are envisioning this as a rare occurrence, and that the written vote be signed by the member and delivered to the meeting in person by a representative designated by that member. Are there better ways to accomplish this if our idea won’t work. (The council meets monthly, and we sometimes have difficulty achieving a quorum. This delays important, time-sensitive tasks that are the responsibility of the Council to perform.)
Answer
The Brown Act would appear to require that at least a quorum be present, either in person or via video teleconfencing from a location within the boundaries of the council’s jurisdiction accessible to the public where agenda notices have been posted. See Gov’t Code section 54953(b)(3).
Assuming a quorum is present, it is not clear whether the Brown Act would prevent those not present from voting by written proxy. Clearly, however, conversations — in a group or in a series of one-on-one conversations or email exchanges — that lead the absent member to decide how to vote would be prohibited. It is not just the vote but the decision-making, or deliberative, process of the council that is supposed to be open, and if allowing a member to vote by proxy would deny the public the opportunity to participate in the decision-making process, it may well constitute a secret ballot prohibited by the Brown Act.
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