Open Meetings: How the Brown Act Works

by Leslie Reckler | August 26, 2019 | 4 Comments
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What You Need to Know About Open School Board Meetings

The Brown Act plays a big role in how school board meetings are run in California. If you want to speak to your school board, run for a seat, or serve as a student school board member, you need to understand the basics.

The Brown Act: History and Why It's Important.

The Brown Act, or “Open Meeting Law,” is designed to ensure that public meetings are open and transparent, enabling the general public to know when and where meetings are to be held, what is to be discussed, and how to comment on the matters at hand. The Brown Act was adopted by the California State Legislature in 1964 and was substantially overhauled in 1993. The California State Legislature still makes updates from time to time.

To Whom Does the Brown Act Apply?

The Brown Act applies to all “legislative bodies,” which includes the governing body of a local agency or any other local body created by state or federal statute. This includes city councils, county boards of supervisors, school boards, county boards of education, and charter school boards. All subcommittees and commissions created by formal action of a legislative body are included, too, even if they are temporary or advisory.

There is an exception for "ad hoc" advisory committees consisting solely of less than a quorum of the legislative body. (Need to brush up on rules like the meaning of a quorum? The League of California Cities has concise explanations.)

If you were just declared the winner of a school board race, congratulations! But guess what? The Brown Act now applies to you too. You are expected to abide by the laws even if your swearing in and first official school board meetings are weeks off.

What’s a Meeting?

Under The Brown Act, a meeting is defined as any occasion in which a majority of the voting members of the board come together at the same time and location to “hear, discuss, deliberate or take action on any matter that is within the subject matter jurisdiction of the legislative body.” If your school board has five voting members, a majority is three. If your school board has seven voting members, a majority is four.

While the majority of meetings take place as you would imagine — inside a physical structure like an office of education or school gymnasium — technology has expanded the definition of a meeting. The Brown Act permits meetings by audio or video teleconference as long as all other meeting requirements are met. Additionally, an agenda must be posted at each location and members of the public are still allowed to comment. All votes or decisions must be recorded by roll call vote.

Three Types of Meetings

There are three types of meetings: regular, special and emergency. All must generally be properly noticed, identifying the day, place and time, with a posted agenda of items to be discussed, and how public comment will be accepted. But each is a little different to allow flexibility for different needs.

Three Types of Meetings

Regular

A regular meeting is just that — a regular gathering to discuss regular school board business. These regular meeting dates are normally set at an annual organizational meeting and they occur throughout the school year.

Special

Special meetings may be called at any time by the board president or a majority of school board members. All Brown Act requirements must be met, but only a 24 hour notice is to be given. Any topic can be discussed except the salary and benefits of certain high-level employees.

Emergency

Emergency meetings can be only be called when critical, pressing needs are at hand that must be addressed within 24 hours. (Think severe disruption to school district operations due to a natural disaster or other catastrophic event.) Even then, notice must be given through local media if requested, and minutes, papers and other materials related to the meeting must be posted for 10 days.

Where's the Meeting?

All meetings must occur within the jurisdictional boundaries in which the legislative body operates. In most cases this means that the school board meeting must take place within the school district’s boundaries. There are some exceptions, such as for acts of nature, interviewing a superintendent for hire, or the inspection of property or equipment that can’t be easily transported. This provision ensures that the business of the community is discussed close to home operations.

For charter schools and charter school networks, the location requirements are less obvious. If a charter school board operates one or more charter schools in the same county, it must meet within the physical boundaries of the county where the school is located. If a charter school board runs multiple schools in multiple counties or is a non-classroom charter school (such as an online school) the board must meet within the county were it has the most students. Effective January, 2020, SB 126 requires all charter schools to install two-way teleconferencing equipment.

Serial Meetings

Oops, this conversation just became a meeting!

Progress in technology has amplified a complication: it's pretty easy for meetings to happen accidentally. For example, a majority of board members copying each other on emails or casually commenting on Facebook posts might just become the equivalent of a meeting and trigger Brown Act noncompliance. Board members need to be extremely careful about emails, posting to social media and being tagged in posts. Discussions that play out through messages are known as serial meeting violations of the Brown Act.

Board members are allowed to come together for social or ceremonial purposes such as graduations as long as a majority of them are not discussing any matter that may come before them at a school board meeting.

Violating the Brown Act can expose board members to litigation and potential individual liability. It can also be the basis for board actions to be overturned. As a matter of caution, you may see board members sitting separately at events in order to avoid any appearance of impropriety.

Are Charter Schools Different?

A little. SB 126, which was signed into law in March, 2019 to take effect in January 2020, requires charter schools to adhere to the Brown Act. Charters authorized by the State Board of Education have to adhere to the The Bagley-Keene Open Meeting Act, a similar set of open meeting laws that govern California state boards and commissions.

What Does It Mean to "Notice" a Meeting?

The Brown Act requires that the time, place and agenda for a regular meeting be released 72 hours in advance. The “notice of meeting” and the agenda must be posted in a place that is freely accessible to the public, and the agenda must be posted to the school district’s website through a prominent link. (This requirement was enacted by the California State Legislature in 2018 and became effective in 2019).

The board may only discuss and act upon what is upon the written agenda.

A written agenda must be provided, with a brief description in clear language of each item to be discussed. This is so the public knows without ambiguity what is to be discussed and voted upon. The board may only discuss and act upon what is on the written agenda. This prevents board members or others from commandeering the meeting and calling a vote to support a pet project or other cause that is not on the agenda.

You, as a member of the public, are allowed to submit items to be considered for a future agenda. If you want to change policies about school lunches, for example, contact your district’s superintendent and ask that the item be added to an upcoming agenda.

Who Gets to See the Documents?

Any documents distributed to all or a majority of the board by any person are public records. Additionally, any documents that are made public need to be made public to everyone. For charter schools, SB 126 requires compliance with the California Public Records Act. The League of California Cities has a thorough guide.

What is Closed Session?

Some discussions and actions are too sensitive in nature to be open to public scrutiny. These items are discussed or negotiated in what is called a “Closed Session.” Closed session items are likely to include direction to negotiators on collective bargaining issues, discussion of lawsuits and potential litigation, superintendent employment reviews or appraisals, employee disciplinary actions, appointments and dismissals, serious student conduct issues or expulsions, real estate transactions or negotiations.

Although the discussions are closed to the public, an agenda describing the topics at hand in clear language still must be posted 72 hours in advance, and the board must take public comment prior to the session. At the end of the closed session, there must be a “report out” in open session to disclose any actions taken.

Public Participation: Your Voice Allowed.

The public must be given the opportunity to address the board on any item on the agenda, and on any item that is within the subject matter jurisdiction of the legislative body. If you are unhappy with school lunches, and it isn’t on the agenda, this is your opportunity to tell board members about it.

The public is given this same opportunity at closed and special sessions as well.

Public comment need not be a free-for-all. The school board may place “reasonable” time limits on the comments, and must double the amount of time available if the comment needs to be translated. You also cannot be stopped because your comments are unfavorable.

However, “reasonable time limits” can be interpreted in different ways. If you’ve ever tried to give a complete and coherent argument in one minute, you understand the challenge. Introducing yourself and your topic can easily chomp up 10 seconds. To some boards, “opportunity to address the board” looks different as well. In Berkeley, the school board limits public comment strictly to 30 minutes, and can draw speakers by lottery. In Oakland, members of the public sign up online to speak.

Writing it all down…

For all its attempts at openness and transparency, the Brown Act does not require official minutes of the meeting to be taken or published. But school boards are not off the hook. Several other laws cross with the Brown Act. For example, Education Code 35145 requires minutes be taken and made available to the public.

Beginning in January 2020, all charter school boards are required to record meetings (audio, video or both) and post them to the school’s website.

Parent Committee Meetings and the Greene Act

Another set of open meetings laws called the Greene Act governs some parent committees such as school site councils and English Language Advisory Committees.

Are PTA meetings subject to open meeting laws?

The Greene Act matches the open meeting structure of the Brown Act, but loosens it to encourage more parents to participate without fear of penalties or criminal charges for violations. Committees that operate under the Greene Act must provide notice of meetings 72 hours in advance, including a published agenda. The meetings must be open to the public and allow public comment on matters under their purview.

However, there is no “closed session,” and parents are allowed to communicate with each other about committee business outside of meetings without restriction. As a kind of speed bump, committee members cannot vote on items not included in the agenda unless they unanimously vote to do so. If procedure is not followed, upon the request of any individual, the committee is to defer discussion of the item to the next meeting after allowing for public comment.

In case you are wondering if PTA board meetings fall under the Browne Act or Greene Act, the answer is no. PTAs are not legislative bodies as described by the California State Legislature and are not regulated by the same set of meeting laws required by school boards.

Leslie Reckler is President of the Bayside Council of PTAs, the umbrella organization that serves the 30+ PTAs in the West Contra Costa and John Swett Unified School Districts. She's the mother of two and a passionate advocate for public education.

Questions & Comments

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user avatar
Denise Dafflon September 11, 2019 at 11:18 am
Are DELAC under the Green or Brown Act. This was not clear on this webpage. https://www.cde.ca.gov/ta/cr/delac.asp
If DELAC was used to be under Brown Act, are there step needed to change to Green Act (board policies? district policies?)?
user avatar
kittycahalan September 3, 2019 at 3:22 pm
I've seen people get very frustrated because they don't understand why the board isn't engaging with them during public comment, or why board members don't respond to group emails. Thank you for sharing this important information so people understand the reasons!
user avatar
tom nelson August 27, 2019 at 2:23 pm
Regarding: "open meetings laws called the Greene Act governs some parent committees such as school site councils and English Language Advisory Committees."

Are LCAP Parent Advisory Committees governed by the Brown Act or the Greene Act?
( Perhaps explain in plain words Ed Code Section : 35147 )
user avatar
Leslie1 August 28, 2019 at 9:45 pm
The LCAP Parent Advisory Committee is governed by the Greene Act. This FAQ link from the California Department of Education is helpful. https://www.cde.ca.gov/fg/aa/lc/lcfffaq.asp Once on the page, enter "Parent and Community Engagement" into the search function.
user avatar
Jennifer B August 27, 2019 at 9:33 am
Excellent summary -- parents are often aggrieved by the stiff formality of school board members when it comes to discussing major issues. This is a helpful clarification about why that happens -- and that (a) school business can't be discussed or decided 'offline' without creating a legal issue and (b) why school board members do not and should not cc:all when responding to a blast email. I would suggest, however, that you insert a definition of the classic case of serial meetings -- you jump immediately to how these can occur accidentally via email. Thanks again!
user avatar
Leslie1 August 28, 2019 at 8:45 am
Thank you for your great observation. As described in the League of California Cities manual linked below, page 4, serial meetings are, "...a series of private meetings (known as serial meetings) by which a majority of the members of a legislative body commit to a decision or engage in collective deliberation concerning public business ....." A number of classic scenarios are described that outline the ways in which serial meetings can form through social media, email, text and phone calls and even in-person. These great examples outline how easy it can be to fall out of Brown Act compliance and how careful public officials need to be. League of California Cities, "Serially? Seriously. Avoiding the Perils and Pitfalls of Serial Meetings in the Digital Age." The serial meeting discussion begins on page 4: https://tinyurl.com/y6zlt2yo Enjoy!
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