The Brown Act OnlineSuggested Guidelines for the use of email and the World Wide Web among Berkeley Commissioners
By Paul Kamen, January 11 2000
The Brown Act (Government Code 54950 to 54961 inclusive), adopted by the State of California in 1953 and subsequently amended, requires that all meetings of commissions where a majority of commissioners attend, be open and public and grants all persons the right to attend such meetings. The purpose of the legislation is stated in the Brown Act as follows:
"54950. In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in the State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberation be conducted openly.
This is the Brown Act, as stated in The Commissioner's Manual for Boards, Commissions, and Committees, September 1992 edition.
The intent of the Brown Act is fairly clear: to prevent a quorum of a commission from meeting privately in a "smoke-filled room" environment. It is to prevent commissioners from negotiating policy or action decisions among themselves, outside of the public eye and isolated from public comment.
In practice, the Brown Act means that no more than four commissioners (assuming a nine-member commission) can ever meet in the same place at the same time, unless it is at a properly announced and fully accessible public meeting.
Although not included in the Commissioner's Manual, 54952.2 further defines "meeting" under the intent of the Brown Act:
"54952.2. (a) As used in this chapter, "meeting" includes any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.
Case law appears to hold that sequential one-on-one discussions with a majority of a commission, if the intent is to contribute to formulation of a "collective concurrence," are a "meeting" under the meaning of the Act, and these discussions are in violation if they are nonpublic and unnoticed. (Stockton Newspapers, Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95)
Another important Brown Act interpretation is the inseparability of deliberation from the decision- making process:
"Deliberation and action are dual components of the collective decision-making process and the meeting concept cannot be split off and confined to one component. The term "meeting" extends to informal sessions or conferences of members of legislative bodies designed for discussion of public business" (Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41)"
"The public has a right to notice of and attendance at such meetings irrespective of whether individual members of the council intend or do not intend to take "action" at such gatherings." (Ops.Cal.Atty.Gen. 61 1963)"
So, not only are conference calls (and. presumably, email) that involve a majority of commissioners prohibited, but even sequential communication with only one commissioner at a time are in violation if they ultimately involve a quorum. Even the fact that no action is taken as a direct result of these communications does not relieve them of the requirement that they be public and properly noticed. The informal fact-finding and discussion phases of developing a "collective concurrence" must be subject to public scrutiny and public input to the same degree as is the vote-taking at a scheduled meeting.
Neither the Brown Act, nor the guidelines distributed to commissioners, make any explicit mention of email communications. This is a problem because an email distribution and response list can create a very effective "virtual meeting," even though it may not involve any simultaneous or real-time interaction among the participants. As such this is an extremely efficient and powerful tool for developing consensus. Unrestricted use of email among commissioners "blows the Brown Act out of the water," in the words of one commissioner.
But the Brown Act does not prohibit sending copies of paper mailings to a majority of commissioners, as long as copies are available to the public. Similarly, there should be nothing wrong with sending email to a distribution list that includes all commissioners or a subset of commissioners, provided that the public has full access to the content of these mailings.
In the case of paper communications, copies are normally included in the publicly available "packet" distributed to each commissioner a few days before each meeting. The interested public can obtain, albeit with some effort, copies of this material, and they can be present for the interactive face-to-face discussion between the commissioners that will be based on this material.
In email, the problem is that interactive communications can occur with much greater facility outside of the public and noticed meeting format. But email communication involving a majority of a commission can be brought into compliance with the intent of the Brown Act if two conditions are met: 1) these communications must be readily available to the public; and b) the public must be able to make comments on the content of these and subsequent communications among commissioners.
These conditions could be fulfilled if an official commission website is utilized for publishing such communications, and if email or web-based contact info for use by the public in commenting on these communications is provided.
While this might be seen as a liberalization of the Brown Act, the practical effect would be very consistent with the stated goals of the Act. Compare electronic publication on a public website to the one- on-one communications that now occur in private by telephone, or to the paper copies of commissioners' packets that are now available only to those motivated to jump through the procedural hoops required to obtain them. Indeed, these guidelines represent significant enhancements of public access and public participation in the commissions' business, enhancements that go well beyond what the authors of the Brown Act would have imagined possible.