Let's bring the Brown Act into the 21st century
Jan 21, 2013 | By Seth Rosenblatt
Both lauded and maligned—and perhaps occasionally violated—the Brown Act has been an integral part of California politics for over half a century. The Ralph M. Brown Act, often referred to as California’s “open meetings law,” was first passed in 1953 to ensure that work of publicly elected bodies was done openly and transparently. It also remains one of the most confusing pieces of legislation, particularly for “amateur” politicians such as school board members, because of its non-obvious provisions and multiple exemptions.
The California School Boards Association’s annual conference has multiple sessions every year devoted to explaining the Brown Act to school board members (and CSBA publishes a 63-page book to explain the law), but even attorneys specializing in the area disagree on the application of some of the law’s provisions, particularly in the modern era.
The intent of the law is clear and largely not in dispute: Public bodies should not deliberate behind closed doors but rather allow the public to witness their “thinking process” in how they come to decisions. The law centers on provisions stating that a majority of the members of any elected body must deliberate in public with an agenda that is posted and available publicly in advance of such meeting. There are many specific requirements and some exceptions (including for matters such as litigation, collective bargaining, and student discipline), but practically it means that I, as a member of a five-person school board, cannot meet with two or more of my colleagues behind closed doors to discuss policy. This would, by its nature, hide the deliberations of a majority of a body which has the power to make public policy.
The act also prohibits “serial meetings,” deliberations that happen asynchronously by person A talking to person B, then B talking to C, etc., or A becoming a “hub” by separately talking to B and C. One of the more confusing provisions (particularly for members of the public) prohibits elected officials from discussing in a public meeting items not included on the posted agenda. For example, members of the public may comment during a meeting on any topic that wasn’t on that meeting’s agenda, but a board member cannot substantively respond to that comment—this would effectively create a “back-door” way to add a topic to a public meeting without giving notice to the community that such topic would be discussed.
As I wrote in my post describing the supposed “inefficiencies” of government bodies, these openness provisions make the decision-making process slower and more frustrating to some (both elected officials and the public), but I believe that most people believe this is an acceptable price to pay for that transparency. And my experience is that most elected officials, despite the occasional incidental or unintentional violation of the Brown Act, take it very seriously.
The main problem with the Brown Act is that it was created in an era where communication vehicles were much more limited and it was easier to hide from the public eye. In 1953, only about half of U.S. households owned a television (and only a bit more than that even owned a phone), therefore as a practical matter the only way the public could interact with their elected officials was through these periodic in-person meetings. Of course, the world has changed, and the advancement of communication technology has allowed us to craft policy leveraging these communication vehicles while actually advancing the spirit of the Brown Act.
We can preserve the essence of the Brown Act to ensure transparency and openness but also update it to recognize that school boards (and other elected bodies) have the opportunity to leverage multiple communications tools, including social media, in a very powerful way that would actually increase community involvement and transparency. Most Brown Act attorneys advise school boards that it is not allowed for a school board member to phone in to a board meeting (while they are traveling, say) unless they post the agenda where they are located and make it accessible to the public (tough to do if you’re talking in your car, by the way). This is also a vestige of an old era: How does my phoning in from halfway across the country deny the public’s right to attend the board meeting back in my district? If anything, it makes my participation and deliberation more public.
Another example is social media. It’s ironic that board members collaborating on a public forum (Twitter, blogs, etc.) is a violation of the Brown Act despite the fact that this is immensely more open, transparent and accessible than forcing people to go to a board meeting! For instance, my fellow board members won’t likely ever comment on any of my EdSource Today articles out of a fear that more than one other board member doing so would unintentionally create a “serial” meeting, violating the Brown Act despite the fact that expressing one’s views on EdSource is as transparent as it gets! Using modern tools, we can go much further than the old paradigm of “show up to a meeting and make a comment.”
Imagine the ways that community members—even those without kids in school—could participate in discussions and get information if we broadened the definition of a “public meeting.” We could have modern electronic forums to disseminate information—and collaborate—on tax measures, construction projects, school boundaries and many other topics, as well as provide better ways to work with community partners and get feedback from parents (or students).
But I don’t want to oversimplify the challenge of updating the Brown Act. For example, a “conversation” on e-mail isn’t truly public unless it’s posted for all to see; same with Facebook, unless it’s on a public page. But blogs and Twitter are truly open for all to see, and there are many other ways for meetings to happen virtually with board members and the public not in the same physical room.
I also appreciate that a completely open electronic forum may not necessarily be the most effective way to collaborate with a very large group! But despite not having all of the answers, I know that more methods of communication and collaboration will continue to appear. Technology will march on despite our restrictions on its use, so now would be as good a time as any to examine what a new Brown Act for the 21st century would look like—one that not only preserves the spirit of openness but, by recognizing the powerful tools in front of us, actually enhances it.
Seth Rosenblatt is a member of the Governing Board of the San Carlos School District. He also serves as the president of the San Mateo County School Boards Association and sits on the Executive Committee of the Joint Venture Silicon Valley Sustainable Schools Task Force. He has two children in San Carlos public schools. He writes frequently on issues in public education, including in both regional and national publications as well as on his own blog. In his business career, Seth has over 20 years of experience in media and technology, including executive positions in both start-up companies and large enterprises in positions across finance, marketing, business development, technology and general management. Seth currently operates his own consulting firm for technology companies focused on strategy, marketing and business development. Seth holds a B.A. in Economics from Dartmouth College and an M.B.A. from Harvard Business School.