Question
An employee retirement trust is delegated the responsibility of providing and administering retiree health benefits by our school district. The unions appoint four individuals, the district appoints four and it is unclear who appoints the two retirees on the board (10 board members total). I filed PRAs last year, they responded to first one and then stopped responding. I went to three public board meetings last year (only member of public there). After last meeting in October, they held a special meeting to change by-laws to only allow “invited guests”. They have not responded to my further PRAs. Their attorney uses AG Opinion 03-1107 for his view that the Trust is not a “local agency”, but is a labor-management “committee.” The board is constructed and has duties similar to pension boards (administer retirement benefits and act as a fiduciary on behalf of beneficiaries only). Pension boards are subject to Brown Act and PRA, but is that because of court decisions; which ones, if so? or by law. Can this Board ban me from meetings. I write stories about retiree health benefits for public employees.
Answer
The Brown Act applies to any “legislative body.” Under the first sentence of Government Code section 54952(b), a legislative body includes any “commission, committee, board or other body of a local agency, whether permanent or temporary, decision making or advisory, charged by charter, ordinance, resolution, or formal action of a legislative body.”
So, if the Trust was established by “formal action” of the EGUSD school board it would seem to be covered by the Brown Act. In addition, the last sentence of section 54952(b) underscores that any “standing committees …, 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 covered by the Brown Act. So, if the Trust has continuing jurisdiction over retiree health benefits, and if it has a set meeting schedule fixed by resolution or formal action of the school board, it would also be covered.
We have reviewed the Attorney General’s opinion cited by the Trust and believe the AG’s opinion misconstrues section 54952(b).
The AG’s opinion says that the trust at issue in that case was not a “legislative body” under section 54952(b) “since half its members are appointed by the Union as part of the collective bargaining agreement.” Cal. AG Opp No. 03-1107 at 3. However, nothing in the first sentence of subsection (b) sets any membership requirement. If the Trust was established by “formal action” or “resolution” of a legislative body, under the first sentence of section 54952(b) it is subject to the Brown Act regardless of the composition of its membership and/or who appoints them.
In fact, there is a Court of Appeal decision that says that “creation” by the school district under the first sentence of 54952(b) does not require that the district appoint all the members of the Trust, and it held that that a committee created by a school district board is subject to the Brown Act even though its members were not appointed by the board (and consisted of teachers and parents in one instance and district employees and community members in another). Frazer v. Dixon Unified School District, 18 Cal. App. 4th 781 (1993).
The Frazer decision is not cited in the AG’s opinion. While AG opinions are not binding on a court, a court will follow an AG’s opinion if it finds the opinion to be “persuasive.” However, an AG opinion that is contradicted by a Court of Appeal’s decision will usually not be followed (because, among other things, it means the AG’s interpretation of the law is not “persuasive”).
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