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.
Most of this post relates to "business as usual" conditions; the Covid-19 pandemic required some changes, which are discussed in this post.
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.
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.
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.
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
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 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 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.
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 required all charter schools to install two-way teleconferencing equipment.
The Brown Act was created with the expectation that most official meetings would be conducted in person; The COVID-19 pandemic demonstrated the importance of enabling government business to be conducted virtually. On March 12, 2020, Governor Newsom issued Executive Order N-25-20, which set new rules for the duration of the declared emergency. For school boards, the most important provisions, in section 11 of the order, establish that it's OK for school boards to meet online, but that they must do so in a way that provides public notice and public access. There's one provision that might trip up some boards: you have to publicly announce one publicly-accessible physical location where it will be possible to view and participate in the meeting.
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.
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.
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.
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.
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.
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.
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.
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. However, it is likely that many PTA bylaws include provisions written in a way that do not obviously permit virtual meetings. Time to update your meeting policies!
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