Opinion > Commentary

Let's bring the Brown Act into the 21st century


Seth Rosenblatt

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.

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12 Responses to “Let's bring the Brown Act into the 21st century”

  1. navigio said

    on November 9, 2013 at 11:37 am

    No taker son the public meeting transcription thing? I guess we believe only the people who have the time to sit through an entire meeting or it’s recording have the right to know what’s going on.

  2. Will said

    on January 30, 2013 at 1:43 pm

    The public meeting is an agreed upon time and place. With notice.

    Twitter doesn’t work like that, necessarily. You could certainly hide a discussion in plain sight on twitter. Or the discussion could be closed and a decision made before one discovers it. Plus, not everybody know twitter.

    So the discoverability is a problem.

    Email is even worse. If you’re not on the list, you’re shut out completely.

    The purpose of the brown act is to not shut out or hide discussion from anyone. Technology is just too good at limiting this access.

    And let’s face it, every board has discussions they wished were private, because these public discussions can get very “messy”, what with all the different opinions and everything.

    When a board member misses a meeting, that is a great opportunity for that mber to test that the minutes do their job.

  3. Manuel said

    on January 24, 2013 at 1:01 pm

    I partly understand the reason for having the Brown Act.

    But the explanations above raise, to me, an important issue: how can a citizen affect policy if there can be no response during a public meeting?

    Currently, it seems that for a citizen to “get satisfaction,” s/he has to meet with each individual committee member to present the issue and discuss it prior to going to an open meeting to request that the issue be put on the agenda of the next meeting. If that happens, then it can be brought up for public discussion but the citizen will not be able to have an open discussion with the committee because it can lead to intimidation. All the citizen can do is give a 3-minute statement and hope for the best.

    This is terribly inefficient. (For instance, it would take a minimum of three months to bring something up at a school board meeting; it might even be more if all the stars do not align.) Isn’t there a better way? (No wonder lobbyists are paid good money to do this.)

    • el replied

      on January 24, 2013 at 1:37 pm

      Manuel, for our small district it’s relatively easy for someone to approach the superintendent and ask to have something added to the agenda for the next meeting … assuming it’s appropriate for that forum. But, that’s probably not possible at LAUSD et al.

      It is my understanding that the board members can ask questions of the person making the public comment to clarify, but they cannot make any decisions or reach any official conclusions for the un-agendized item.

  4. navigio said

    on January 24, 2013 at 12:02 am

    Personally I don’t think the Brown act is the primary reason board members don’t respond to group emails. My feeling was that even if they were allowed to respond to emails many of them would not do it because it’s politically and logistically difficult to interact with a large group of disparate people at that level. I think the brown act requirements for public meetings exist primarily for three reasons. First is that meetings is where decisions happen and so stakeholders need to know what policies are going to be be set (so they can provide input before the vote). Second, general reporting requirements (eg minutes, archives, etc) exist so people have a record of the things that happened in those meetings after the fact. Finally I think the reason board members are not allowed to respond to public comments is so that they cannot depress the voice of the public. It would be fairly easy for someone in a board position to intimidate a public speaker if they could respond directly to the things that they were saying. While email or social media can make the first two moot (its easy to restrict decisions to public, physical meetings only; discussion and information sharing to emails/social media. Email/SM is also a written record that can be made public) it does not change the potential for intimidation. I guess in theory if email/social media discussions were limited to discussion only (no decisions) that might make the intimidation less critical, but not sure that’s good enough.
    Personally I think the most important thing that could happen with regards to transparency is that every brown act meeting including the subcommittee meetings be transcribed and the transcriptions published. this would go along way toward addressing the problem that there are simply too many meetings for a normal community member to attend (I think the state board already does this for its general meetings).
    I also think all PRA requests and the responses to them (including whatever documents are produced) should automatically be made public (the ‘P’ in PRA has a meaning.. :-) ). (that one is obviously not brown act, but is a related law that has to do with transparency.)

    When Seth writes another article about general transparency (not brown act specific) I can add another 50 or so ideas.. ;-)

  5. Eric Premack said

    on January 22, 2013 at 12:24 pm

    One strategy that would help to ensure that the Brown Act is more narrowly tailored would be to force the California Legislature to comply with it.

    • el replied

      on January 22, 2013 at 1:00 pm

      My sense is that the legislature doesn’t have the same issues because they need so many people to make a quorum, and because they don’t have many common interests outside the legislature. In a smaller school district, you could potentially have three board members with their kids enrolled in the same school or in the same extracurricular activity; there’s the Facebook issue I mentioned; heck, any kind of community meeting could end up with three board members present.

      At least there’s the exception that it’s okay for three to be present if only two talk and the rest stay silent.

      • Eric Premack replied

        on January 22, 2013 at 5:18 pm

        True in part, but forcing the majority party (since they generally constitute a quorum) to caucus in public sure would put a damper on their discussions. To make matters even more interesting, the law could be tailored to force meetings of legislative leaders to public session, especially “Big 5″ meetings with the Governor.

  6. el said

    on January 22, 2013 at 11:49 am

    Heaven forfend three board members sit next to each other at a basketball game.

  7. CarolineSF said

    on January 21, 2013 at 11:34 pm

    The Brown Act also applies to official committees of school districts — not just people who ran for office and made a serious commitment, but community members who responded “OK, I guess I can do that for a year or two” when a school board member asked us to serve.

    So if you get into those complexities with people who did not sign on to be high-powered lawmakers, things get really weird. Some of the effects of the Brown Act are completely unworkable, in my opinion — they sound good, but nobody thought them out — even without taking technological advances into account.

  8. el said

    on January 21, 2013 at 7:44 pm

    To give people a sense of how convoluted this can be, imagine that a school district has a band booster club with a Facebook page. And now suppose 3 of 5 board members “Like” that page and at various times add comments, whether in their incarnations as board members or parents or just fans of the band.

    I have been told a situation like that can be interpreted as a serial meeting and a violation of the Brown Act.

  9. el said

    on January 21, 2013 at 3:53 pm

    Another excellent essay from Seth.

    “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!”

    I agree entirely.

    And the irony is, there’s no rule that the public meetings have to be at times when ordinary people can attend, or in places that are easy to get to and park at. In some situations, there’s no better way to bury a discussion than to have it at the public meeting. :-)

    Rather than leave this as a plea to the legislature that will either go unanswered or be answered with language that makes even less sense, I challenge those of us here to try to write the precise amendments we’d like to see. If I understand correctly, the issue with email and social media and serial meetings is a matter of legal interpretation rather than the statute directly, so I’m not quite sure where the new exception would go. Would it just be a clause inserted after the section about serial meetings?

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