1 Building Board Agendas and The Brown Act ACSA New Superintendents Workshop January 27, 2015 Monterey, California Peter Fagen David Vierra Terilyn Finders.

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Building Board Agendasand The Brown Act

ACSA New Superintendents Workshop

January 27, 2015Monterey, California

Peter FagenDavid Vierra

Terilyn Finders

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About the Presenters

Peter K. Fagen: Partner of Fagen Friedman & Fulfrost LLP

David Vierra: Superintendent of Antelope Valley Union High School District

Terilyn Finders: Director of Communications and Legislative Affairs at Fagen Friedman & Fulfrost LLP

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CONGRATULATIONS!!!

Take a second to realize and appreciate your accomplishment

Not an easy task ahead, but with strong leadership, knowledge and good communication with students, parents, teachers and governing board, you will succeed

Understanding the Brown Act will help ensure effective governing board meetings

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What We’ll Cover . . .

1. Overview of the Brown Act2. What is a Meeting?3. Closed Session Procedure4. Brown Act Violations5. Voting/Taking Action6. Building and Sustaining a Unified

Governance Team

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1. Overview of the Brown Act

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Where to Find the Brown Act

Government CodeCodified in Sections 54950-54963

Implementing regulationsTitle 14, Section 15000, et. seq.

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Intent of the Brown Act

Open and public deliberations

Meaningful public access

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SO…WHO IS SUBJECT TO THE BROWN ACT?

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Legislative Bodies*

*A school board is a legislative body

subject to the Brown Act

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Open Meetings Requirement

All meetings of a legislative body must be open to the public, except for authorized closed sessions.

Purpose of meeting: To accomplish district business

Provide public opportunities for questions and comments

No secret ballots

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The Grey Haze of the Brown Act Email

Process

CommitteesAgenda and Minutes

OpinionsBoard deliberation and giving direction

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2. What Is A Meeting?

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“Meeting” Defined

A meeting occurs whenever: A majority of the Board members

gather at same time and place . . . To hear, discuss, or deliberate . . . Upon any item that is within the

subject matter jurisdiction of the Board or district.

(Gov. Code § 54952.2)

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Serial Meetings Prohibited

Serial Meeting = Communications outside formal meeting, each of which involve less than a quorum,but collectively encompass a majority

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Personal Intermediaries

Separate conversations or communications with board members are not prohibited if the person communicating with the board members “does not communicate to [board] members … the comments or position of any other member or members.”

(Gov. Code § 54952.2(b)(2).)

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A Word of Caution . . .

Board members should be wary of acquiring knowledge, outside of a noticed board meeting, of their peers' opinions or positions on matters to come before the board

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Meetings Do Not Include…

Individual contact Public conferences Standing committees Other local agency meetings Community meetings Social gatherings

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General Constraints

Majority of the members cannot discuss school district business among themselves at “non-meetings”

Can attend standing committee meetings only as observers

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Practical Pointers:

Where should board members direct the concern?When and how do you want to hear from board members?

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Agendas

Agenda must be postedAt least 72 hours prior to

holding a regular board meetingAt least 24 hours prior to holding a

special board meeting

At a location freely accessible to the public

Agenda must also be posted on a school district’s Internet Web site, if it has one

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Agenda Description

The agenda must contain a brief general description of each item of business to be transacted or discussed at the meeting, including closed session items Generally, not to exceed 20 words

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The Board may not discuss or take action on an item not appearing on the agenda except: To respond to statements made or questions

posed by the public during the public section To ask questions of staff or the public for

clarification To ask staff to report on an item not on the

agenda To make a brief announcement When an emergency exists When there is a need to take immediate action

on an item that came to the attention of the agency after the agenda was posted

Action and Discussion of Items

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Practical Pointers:

Explain the purpose of the agenda Read the room; prepare your board Direct those concerned to staff,

committee Avoid appearing indifferent Agenda planning to build trust and

team

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Placement of Items on Agenda Members of the public, including Board

members, may ask to have a specific matter placed on a future agenda

General process Reviewed by Board President and Superintendent If within subject matter of district Decide whether open or closed session item Decide whether information, consent or action

item No right to demand that requested item be

action item

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Public Participation and Comment Regular meeting: Members of the public

must be provided an opportunity to address the legislative body on any item within the subject matter jurisdiction of the agency

Special meeting: Public provided an opportunity to address the Board on any item described in the notice

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Public Participation and Comment (cont’d) Regular or special meeting: Members

of the public must be provided an opportunity to address the legislative body on any item on the agenda either before or during the Board consideration of that item

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Public Participation and Comment (cont’d)

The Board may not prohibit public criticism of the policies, procedures, programs, or services of the agency, or the acts or omissions of the Board

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Practical Pointers: Explain process, demonstrate

commitment to transparency and public responsiveness.

Help the Board navigate turbulence. Agenda Item:

When to take comments? (process aloud) Show of hands Note key themes/integrate into your

questions of the experts Anticipate and plan Say it. What is the issue? And, what is the

question before the Board?

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Public Records

All agendas and other documents distributed at a Board Meeting in connection with an agenda item are public records.

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Public Records

Documents distributed to the Board less than 72 hours prior to an open public meeting shall be made available for public inspection when distributed to the Board.

List on the agenda the location of where item can be viewed or can post on website.

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3. Closed Session Procedure

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Closed Sessions

May be held only for purposes expressly authorized by the Brown Act or Education Code

Board must disclose in open session (or via the agenda) the item(s) to be discussed in closed session

Board may only consider those items covered in statement (or via the agenda)

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Permissible Closed Session Topics1. Personnel Matters2. Pending Litigation3. Student Matters4. Negotiations/Collective Bargaining5. Security Matters6. Real Property Negotiations

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Closed Session: Agenda Requirements Closed sessions

must be identified on the agenda

The Brown Act provides safe harbor language which automatically satisfies this requirement

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Practical Pointers:

Is Board prepared to report out? Does Board need message points?

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Confidentiality of Closed Sessions Board members are prohibited from

disclosing information obtained during a closed session except to persons entitled to receive that information

Unauthorized disclosure could waive attorney-client privilege, violate privacy rights of students or employees, or impact collective bargaining

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Personal Liability for Disclosing Closed Session Information

Civil suit Injunctive relief Criminal liability Censure Removal from office

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4. Brown Act Violations

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Brown Act Violations

Misdemeanor: For Board member to attend a Board meeting where action is taken in violation of The Brown Act, where the member intends to deprive public of information which the member knows the public is entitled to receive

The District Attorney, or any interested person, may bring a civil action to stop or prevent violations or to have Board action taken in violation declared null and void

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Cure or Correct Demands

Before bringing the action, the Board must be given notice and an opportunity to correct the violation

Prevailing plaintiff may be entitled to costs and attorney’s fees

For closed session violations, court can order Board to tape record all closed sessions

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5. Voting/Taking Action

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Quorum

Number of members that must be present to legally transact business

Why? We don’t want small unrepresentative groups making decisions for entire board

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Actions by the Board

A majority vote of all Board members is necessary for an item to carry (Ed. Code § 35164) Applies even where members are absent

or abstain (exception to Robert’s Rules of Order)

Certain types of actions require greater than majority vote (2/3 or 4/5 or even unanimous)

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Quick Note: Conflicts of Interest

If there is a conflict of interest, Board member(s) must:Publicly announce the economic interest and

the fact that they are disqualifying themselvesNot engage in discussion or voting on matter

Cannot attempt to influence the decision in any way Consider leaving the room until the matter is

over unless the item is on the consent calendar

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Resolutions, Voting and Consent CalendarResolutions Use resolutions when the issue requires more

formality, attention, and matters of policy are being adopted

Voting Chair should announce minority votes, i.e., “Hearing

one ‘nay’ and no others….” If vote requires more than a majority, Chair should

announce it before the vote Tie vote is a lost vote because no majority was

obtained

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Resolutions, Voting and Consent Calendar (cont’d)Consent Calendar Intended to be used to dispose of ordinary,

non-controversial business where lengthy debate is not foreseen or desired

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Resolutions, Voting and Consent Calendar (cont’d)

Chair should ask before consideration of the consent calendar: “Are there any items that Board members would like to discuss?”

Before entertaining those questions, take a vote on the balance of the consent calendar, then return individually to each item of discussion

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Practical Pointers:

Review agenda and meeting format with new members

Process for deliberation Level of formality (first or last name)

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6. Building and Sustaining a Unified Governance

Team

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How Does the Governance Team Maintain Positive Relations?

Essential ComponentsCommunicationStructures

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Communication

Frequent discussions Keep all Board members informed No surprises Up front and honest

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Steps to Success

Treat Board members equallyCohesive and stable Board is important

When possible, allow adequate lead time to get a measure passedAllow for adequate discussion and

consideration Frequent communication is essential!

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Community & Media

Parents

1) Site Administrators & Union Leadership

2) Staff

Cabinet

Superintendent &

Board

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Structures

Short-term Agenda review Work Study sessions “What’s Happening” Board Highlights Principal’s

Newsletter

Long-term Annual Governance

Workshop (Handbook)

Annual Progress Report to Board

Annual Vision/Priority Setting Workshop

Superintendent Review

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .