Board Meeting

001thank you carlos thank you uh carly calling the meeting to order at 401 um so we'll go ahead and start uh maribel can you please um call uh roll call sorry thank you today is a regular i mean today is a special board meeting study session of june 24th 2021 at 4 pm members of of the board in attendance president corinna president vice president vice president on this i don't know if there's others in the room with you um that might be causing some feedback if they can put themselves on mute that might work better [Music] you can um put them on here perfect vice president ernesto i mean andres quintero can you hear me yes member mempham president administration superintendent dr bauer present thank you maribel now if you can all join me in

002uh the pledge of allegiance i pledge of allegiance i pledge allegiance to the fight of the united states thank you now i'll go ahead and turn over to uh rogelio audrey for our brown act trainings thank you good afternoon early evening board members thank you so much for uh for having this meeting and inviting me to um to discuss these issues with you um you know in putting together the materials which have been posted in which you all have received uh it really occurred to me that your timing almost couldn't be more perfect for this update on the brown act because there have been so many you know aside from the pandemic issues themselves there have been so many developments in the law both related and unrelated uh to the pandemic and so now really

003is a is a good time to talk about it um and also because and this is going to be a spoiler alert for something that's really designed more for the middle of this session but in the materials i noted that on june 11th the governor governor newsom issued a new executive order which extends the suspensions of some of the brown of portions of the brown act which allow for these types of virtual sessions only through september 30th and so um the end or the expectation is that after september 30th all public meetings will be returning to a fully public fully in person format for people who uh for members of the public who want to be able to attend in public there will and in person there will still be the telephonic option available but

004it will be in accordance with the old brown what i call the pre-pandemic or the old brown act provisions and i'll be talking about those tonight so there are some changes coming and you know we can keep our our fingers crossed that uh the progress in battling the pandemic continues uh and so that in october we can in fact return to public but we shall see so um what are we doing today and then dr bauer shall i call up the share the screen with the powerpoint or will staff be able to do that uh you can call the share screen i don't know if maribel has your presentation ready i have it okay so here we go um so this is uh as i said it's an update uh on the brown act um

005you know i you know lawyers like disclaimers so my only disclaimer here is that just please keep in mind that this is a gen this is intended to be a general guide and should not be considered specific legal advice in the area of brown act many times the issues can be very complex and very fact specific but i think what i've done here will give you enough of uh put some tools in your toolbox to to help dissect the issues and uh in case you have any brown act concerns or questions that will really help you to start analyzing those issues so what are the objectives for today is to review the brown act uh to consider the recent developments in the law to review the impact of covet 19 pandemic and the governor's executive

006orders and and what the coming return to normal will be like for purposes of the brown act and then of course to ensure and increase transparency in board meetings and board member communications and then also fundamentally to limit potential liabilities that may come from board member communications that that can skirt or run afoul of the brown act so this is sort of really to give you the guideposts uh you know in your path in your journey in terms of your communications not just with staff and your board colleagues but also with members of the public as well so what is the brown act the brown act was passed in 1953 it's a it's a part of the government code it's been around for a long time and it basically guarantees and protects the public's right

007to attend and participate in public meetings and in the decision and decision-making process of local legislative bodies including school districts this board is a local legislative body for the for the school district there are other related laws in 2004 the voters passed prop 59 which uh added an amendment to the constitution which guarantees the right of open meetings and access to public records and then there are also provisions in the brown act that weigh upon uh the right of access uh to public meetings that supplement uh the brown act in relation to the conduct of school board meetings so the brown act and this is coming straight from the statute all meetings of the legislative body of a local agency shall be open and public and all persons shall be permitted to attend any meeting

008of the legislative body of a local agency except as otherwise provided in this chapter so as i mentioned this board constitutes a legislative body of the school district the alum rock union elementary school district the district is the local agency for purposes of this statute and as and as we walk through these materials i want you to just if you could keep in mind that most of the issues and analysis that real that revolve around brown act issues revolve revolve around the question of what is a meeting what is a meeting and we're going to go through the we're going to go through the definition in the statute right now but but that's really where the crux of the issues arise there are a lot of technical requirements in the brown act surrounding posting of

009agendas what has to be included in agendas what the pro what the public has a right to do at a public meeting what they have a right to know the conduct of closed sessions but most of the issues that we deal with from a legal standpoint revolve around the issue of what is or isn't or might be a meeting within the meaning of the brown act so the next slide so one of the questions that has arisen in the past is are board subcommittees subject to the brown act so board advisory committees composed solely of board members but less than a quorum of the board so that would be two or less are not subject to the meeting requirements of the brown act unless it's a board standing committee or it's a i'm sorry a

010standing committee that has continuing subject matter jurisdiction or it's an advisory committee that has a meeting schedule fixed by formal action of the board if it doesn't meet those requirements and you the board appoints an ad hoc temporary advisory committee on a certain subject does not fix a meeting schedule for that committee then that that board committee is not a brown act committee for purposes of of the law and what that means is that members of that subcommittee can communicate that they can hold meetings they can set meetings without having to go through the public agenda and posting and noticing requirements in my experience with this district and other school districts when boards create subcommittees and again with this district the intent has always been to uh to solicit and encourage public engagement and so

011even though the brown act creates an exception for certain subcommittees in my experience this board has always said let's let's have this board or this subcommittee meet according to uh or comply with the brown act for purposes of setting these meetings and publishing notice of the agendas and and soliciting public comment so you don't have to do it but you can the the brown act doesn't doesn't prohibit you from making the subcommittee applicable uh or subject to the laws of the brown act okay so who does it apply to overall the board of trustees of course board subcommittees composed of a quorum of the board so if you create a committee that has three or more members uh then that's a brown act committee that's a board majority as well subcommittees standing subcommittee that has

012continuing subject matter jurisdiction even if there's only one board member on that subcommittee but it has but the board delegates to it continuing subject matter jurisdiction so for example a board budget committee or subcommittee that would be a brown act committee and then also a board standing board standing committee that has a meeting schedule fixed by formal action of the board so if you create a standing committee on facilities and you provide that the schedule or the the subcommittee has to meet once a month then that's a brown act committee as well there are other there are other district committees that are subject to open meeting requirements even though they may not be subject specifically to the brown act and a couple of slides ago i mentioned that some you know the the education code

013contains provisions that are intended to supplement the brown act and so this slide lists some of those committees that by statute have open meeting requirements and also agenda notice and posting requirements um that that would apply so the the one that uh you uh probably deal with most often is your bond uh oversight committee which is required by the california constitution and by the education code that the statute the enabling statute creating that committee specifies that the bond oversight committee is subject to the brown act just like the board for purposes of conducting its meetings the alcap parent advisory committee english learner parent advisory committees the district advisory committee on compensatory ed programs migrant ed parent advisory committee school site councils those are all subject to open meeting requirements not exactly like the brown act

014but they are specified in the ed code including agenda posting requirements opportunity for the public to comment things along that nature okay so i said uh earlier that um you know really the issues arise around um the meaning of of a meeting within the brown act so how does the brown act define a meeting and what the what the law tells us is that a meeting includes any congregation of a majority of members of a legislative body at the same time and location including teleconference locations as permitted by section 54953 to hear discuss deliberate or take action on any item that is within the subject matter jurisdiction of the legislative body so let me let me re-read that but with substituting words in there that will make it more applicable to to this board so

015a meeting includes any congregation of a majority of the board at the same time in location including a teleconference location to hear discuss deliberate or take action on any item that is within the subject matter jurisdiction of this board there are some very key words in there um towards the or the third from the bottom sentence is to hear discuss deliberate or take action on deliberation has a very broad meaning and we'll talk about that in a section it includes the acquisition of information for purposes of helping any board member to make a decision one way or another on an issue but i also want to point out that it says in the second sentence that the legislative body or the members of the board um congregate at the same time and location well what

016we're going to see in a little bit is that really social media has kind of turned that that card over um because when you're on social media you're not really at the same time and location some of you might all be on social media at the same time but people can post things and then you can comment on them share them like them unlike them dislike them uh later in time you're not necessarily congregating at the same time you may be at the same place in the virtual cyberspace sphere but maybe not at the same time that's okay we'll talk about that in a minute because there are some very specific rules that apply to social media okay and then a meeting includes any use of direct communication personal intermediaries or technological devices which could

017include telephone email text messages zoom um which are employed by a majority of the members of this body to develop a collective concurrence on action to be taken by members of the of the board or this legislative body so there's another key word in here that i want to highlight for purposes of this discussion which is that the communications are being used by a majority of the members to develop a collective concurrence on action to be taken by members of the board in other words your your majority is developing the same understanding of their positions through these communications through their positions on issues that relate to the jurisdiction of the board and or the district so earlier i said key words were communications or a congregation of a majority to hear discuss deliberate or take

018action on any item and now we have to throw in there this concept of the communication being used to develop a collective concurrence on an action to be taken all of those things if they're present in any uh specific type of communication they can result in a meeting within the brown act even though you're not in the same room at the same time same place not even in cyberspace it could happen over a period of time so let's dive a little bit into that okay so here it is again restated a majority of the members shall not outside of a meeting authorized by the brown act use a series of communications of any kind directly or through intermediaries to discuss deliberate or take action on any item of business that is within the subject matter

019of this board so there's the overall concept of the meeting by a majority of members which in this case would be three out of the five members okay so that leads us to my keywords issue which is uh when is a communication a meeting when does a communication between a majority of members become a meeting for the purposes of the brown act and so there are some key concepts that i want you to think about when you're considering your own uh communications but really the four the first four of the the most critical ones that i see so you know if you have an issue or you think there might be a an issue or problem with any communications that you're engaging in or being asked to engage in you should ask these four questions

020are you hearing with two or two or more board members an item an issue that is within the subject matter jurisdiction of the board in other words by hearing are you all considering this thing for purposes of making a decision one way or another because it is your power as a board and as board members to take a vote on that are you discussing with tour board members an item that is within the subject matter jurisdiction of the board are you deliberating with two or more board members on an item that's within the subject matter jurisdiction of the board so deliberating is considering one way or another are you considering the views or maybe even opposing views of your board members your fellow board members that you are having these communications with and then are

021you developing a collective concurrence with two or more board members on an item that's within the jurisdiction of the board so when i think of developing a collective concurrence i think about communications in which you are either stating your agreement with other people two or more members whether where you're stating your opposition to their viewpoints or you're trying to convince them that your viewpoint on a particular issue is the right one to me that speaks to the the notion of developing a collective concurrence on something you're eliciting everybody's stance and viewpoints on these issues so if you go down this list you're you're having discussions whether in person on the telephone email whatever it is you ask yourself these four four questions and any the answer to any of them is yes you might want

022to put the brakes on it and then get some advice or direction on whether or not it's uh sensible to continue moving forward in those uh in those communications so those are the four questions i'd like you to think about if and when you know you run into any issues that you think might be a problem okay so this concept of the meeting and those four elements that that i just talked about there are three primary areas in which issues or concerns arise and they are the serial meeting the hub and spoke meeting and then now we have social media posts and communications i believe when i when i talked to this board about about the brown act a year or so ago i called it the potluck at it at the time that you're

023on social media and if you comment or share on somebody's post and three two or more other board members are on that same thread it could have given rise to a brown act issue at the time the legislature had not really fully wrestled with that issue and figured out whether or not it wanted to make any adjustments in the statute the legislature did act last year and that law is now in effect and we'll walk through that in a second so what i want to do next is talk about what a serial meeting is what a hub-and-spoke meeting is and then really focus on the social media component of this so what is the serial meaning a serial meeting relatively straightforward if member a contacts member b and member b contacts member c and c

024contacts d and so on until a quorum has been involved and you're discussing something within the subject matter jurisdiction of the board then that could result in a in the violation of a brown act i'll give you a very specific example member a says i calls member b and says member b uh we have something on the agenda next week about whether or not we want to buy more computers uh for our students um i'm gonna vote yes where do you stand and member b says where she stands and then member b calls member c and member c and tells member c you know we got this computer issue on the agenda next week member a's on board member b is on board we really need you to be on board that's that's a problematic

025communication right there you're you're working you're using a series of communications member a is not communicating with member c it's member b now you're using a series of communications to develop a collective concurrence on an issue that's within the subject matter of the board that you would be voting on at an open and public meeting so that would be a violation of the brown act the next one is the hub and spoke and these really they they are exactly as they sound an intermediary or even a board member contacts a quorum of the members to develop a collective concurrence on action to be taken by the board so in the previous previous example i had member a board member a contact board member b and board member b contact board member c that was a

026serial communication a hub and spoke would be board member a contacts member b has the communication develops an idea concurrence on where they stand on an issue and then board member a after that communication reaches out to board members c and has the same communication and with the intention of developing a concurrence building a majority on a specific issue outside of a noticed and agendized meeting that in that particular case member a is the hub of that communication and members c and i'm sorry members b and c are the spokes um that also would be a prohibited brown act communication and again the idea being you're discussing something you're deliberating on something and you're developing you're developing a collective concurrence on an issue that's within the subject matter jurisdiction of the board that is whether

027or not to purchase additional computers for you for your students social media of course raised a whole new set of issues relating to communications and application of the brown act and so last year the state legislature passed a b 992 and the reason for that was the brown act didn't directly or specifically address issues raised by social media you know for example the potluck that i talked about earlier so what ab-992 has done it is it has amended the brown act to clarify what kinds of communications a public official may have via social media and what kind of communications on social media are prohibited so this is really a new part of this uh regime or the brown act landscape that there are now on social media there are now communications that are absolutely prohibited

028should not be taking place okay so what does ab-992 tell us which went into effect on january 1st of this year so first thing it says is that a board member may communicate on an internet-based social media platform to answer questions to provide information to the public or to solicit information from the public regarding a matter within the board's subject matter jurisdiction provided that a majority of the members so two other members do not use the social media platform to discuss amongst themselves business of a specific nature that is within the board's jurisdiction so first off the brown act or ab992 tells us it is okay for board members to use social media to discuss issues relative to the district and to the board you can use it to provide information to answer questions or

029to solicit information from the public as long as two other members or or members constituting a quorum are not also using that uh platform that media to discuss these issues amongst yourselves okay the so that is the the granting part of the permissive part of ab-992 the prohibitive part of of ab992 is that a member of the legislative body of this board shall not respond directly to any communication on an internet-based social media platform regarding a matter that is within the subject matter jurisdiction of the board that is made posted or shared by any member of the legislative body so that's a huge prohibition it says you cannot respond directly to any communication on a social media platform that's made posted or shared by any other board member at all it's a very bright line

030and it's very expensive because it includes not just posts that other board members are making writing but also that they may be sharing and i think it's a really common sense rule because uh we all know from uh you know over the last uh of four years uh under the previous uh presidential administration there was great controversy that came that arose whenever the president at that time shared tweets and other social media posts because it was clear that that person was using the share process to affirm his agreement with those positions being being posted on other social media platforms and in other posts so i said that um uh you cannot you can use social media posts as long as a majority or quorum are not using uh the the social media platform to discuss

031amongst yourselves business of a specific nature of the district so the statute defines for us what discuss amongst yourselves means and this will tell you how broad this really is so just discuss amongst yourselves is defined to mean and include communications made posted or shared on social media between board members including comments or use of digital icons that express reactions to communications made by other members of the board what does that mean that means that if you see a post on social media from one of your fellow board members not only can you not share it or comment on it you cannot like it you cannot put a sad face a thumbs down a heart you can't use or an angry face you can't use any digital icons uh in response to that post internet

032social media uh internet-based social media is also defined in the statute to mean an online service that is open and accessible to the public you know i view that as meaning twitter snapchat facebook tick tock instagram um i'm not i'm not really a social media person but uh it's a it would encompass a very broad range of social media platforms um and uh social and the social media platform has to be open and accessible to the public which means that uh you typically just sign in and you're not uh prohibited from accessing it unless you uh break the platform's rules so that's why i believe it's very broad to include twitter instagram snapchat etc oh hello we didn't talk about the questions and answers are you okay with questions throughout i do see a hand

033up from mr abs absolutely go ahead and listen okay thank you first of all i apologize for being a few minutes late i had work conflict but i was able to get here um but my question actually i thought of another question so it's two one of them is uh when you say that we can't respond in any way shape or form to the post of another member but just to be clear can we respond to the public on posts that we make yes okay and then the second question is i i assume i know the answer but i'll ask it anyway does all of this apply whether it is a personal um account or a a trusty kind of branded so if you have like your own account personally and you have one that

034you represent you as a trustee i'm assuming that it doesn't matter all of this applies with either account is that accurate that that's correct let me answer that question first it would apply to any social media account that you control uh even one where your name is not readily identifiable so let's say that you created a new uh twitter account with the handle eb 2001 but you're posting out there um that you're going to be held responsible for the content that you place and the the way you use that account in responding or reacting to other board members social media posts so it does not have to be an official trustee social media account it can be your personal account this the first question was um do these rules apply to posts uh that you

035make and the or or would the prohibition apply to post that you make so i i think you know the the best way to think about that is to apply the rule of reason so you let's say you because the statute says clearly you can use your social media posts to to ask questions to solicit information from the public and you do that there is nothing wrong with that under this statute but at some point you notice in the thread or you see in the thread that your fellow board members are responding or reacting to your posts uh your social media posts i think that should you know trigger sort of the the alarm bell a little bit that oh i got two two other members in here who should not have been commenting on

036my social media posts because that the statute says you just can't do that um and and so i think for you in your case even though you know you were perfectly fine when you put the you know that post out there i think at that point you have to exercise caution or even when you see one other board member uh commenting on a social media post like that and if i uh just to follow up on that um and again i just want to make sure we're very clear so on a post if there's the ability to block a certain anybody from seeing it and if we blocked all of the other board members then um is that permissible being that it's now not accessible to everyone um and then the second question is if

037we make a post that we notice that another board member is responding and we delete their posts i'm assuming that doesn't matter because it was already there it existed that's right you have you you now have you know knowledge center of what the person's opinion would be so let's say they use that pose to say i you know i disagree 100 percent and i will fight you to the end on this issue well you now you know their position and it's you know it's yeah that doesn't fix the problem in other words okay and i have an additional question um even if we're not friends or we're not connected in any way i'm just thinking it's probably best not to post anything because i think and correct me if i'm wrong so like instagram or

038twitter or any one of these they're public so even if we're not friends i can read i don't know if i have my daughter's phone oh ernesto believes this you know i'm against him or with them or whatever um it's probably best not to i mean is that correct because you know at some point i mean it could be like in a court of law right gorina did you read that you know were you aware and even though we're not connected or related or i liked yeah um i don't know i guess i'm speaking to myself it's probably best it so it's well so it's a i mean it's it's a really good question it's a great question and it's an interesting dilemma um i mean like it or not for better or for worse

039social media is now such an important conduit for information a place to acquire information and i think you know elected officials who say i have to have a social media presence because it's how i gather information about my constituents i think the law was recognized that that elected officials needed that source of information and so they were trying to balance you know the goal and intent and policy behind the brown act that you know meetings had to be open in public but also with the concept of the town square and people just expressing opinions and you as board members listening to it so for example um pre-social media days um you went to community meetings and you might show up at a community meeting and you might hear a board member one of your fellow

040board members express an opinion during that meeting and the next day you could go to a coffee meeting with people and you could hear another board member express those express their opinion or position on things there was nothing wrong with that provided that you were not using and communicating that information to develop a collective concurrence to evade the brown act in other words i think in the the situation that you just uh raised i would apply sort of that rule of reason you know your your daughter your friend is uh friends with one or more board members and you see that post that doesn't mean that you violated the law you you can't unsee that just like when you were at the meeting live you could not you weren't going to stand there and plug

041your ears or run out of the room so you didn't want to know it's just information that you acquire you have it the key is not to use that information to come in your communications with other board members to develop that collective concurrence that really creates the problems under the brown act so you haven't done anything wrong in that instance you've acquired information um where the problem comes or may arise is how you use that information going forward and and you could certainly you know you could certainly choose if you wanted to to raise that information or the acquisition of that information at your next public meeting you know i was member c i was at that meeting on the 13th and i heard you say this i haven't talked to anybody about it but

042i heard you say this is that really your position is that what you really you know is that what's really driving your decision-making process there is nothing wrong with doing it in that way any other questions yet and i i apologize i can't see raised hands and my old age it's hard for me to see the faces i'll help you facilitate thank you okay uh so what are the what are the do's and don'ts of this and that this was a great conversation because i think we've talked about the do's and don'ts the do the do is the good news about statute is that you can use your social media to answer questions provide information to the public or to solicit information regarding from the public regarding matters that you know that's within your jurisdiction

043as a board the the key words in this of course being from the public right to the public and from the public the statute is not saying you can use social media to communicate with your board members that way you can use it to communicate or to provide information to or get information from the public what are the don'ts and these are the really important ones don't use digital icons the thumbs up or other symbols care to respond or react to other board members social media post comments reactions or shares and don't respond or reply directly to another board member's post on social media involving any subject matter on any item within the subject matter jurisdiction of this board you just really have to avoid that i know it's probably tempting to comment uh but

044you really have to avoid that at all costs and i think i would just add the um you know this the same cautionary note like you know we did we talked about a year ago whenever it was before ab-992 we were talking about this as a potluck but i think that you know if you are on a social media platform and you do see uh two or more board members uh on a thread i think the best thing is just to avoid that thread at all costs and because whatever your intent may or may not be at that time if you engage in that thread even though you may not be responding to their post directly the appearance uh to the outside to the public is that or potentially could be that you all are

045using your cryptic comments and separate posts and responses to everybody else to signal how you stand on an issue so i would say uh avoid that if and when that issue arises or situation arises i did see ernesto stand up but i also realized that we're on item 20 and i think we're only halfway through and we only have 15 minutes left yes so i don't know if you want to maybe leave q a at the end or yeah um well can we take ernesto's question and then i can jump to the pandemic issues okay i mean mine is really quick and i think you already answered it usually i try to not like thumbs up or anything on things that seem germane to what we do on the board but like if i see

046a board member a fellow board member at a community clean up or something like that i try to like sometimes i thumbs up those i think that expresses our solidarity as a board to the community but i'm hearing kind of getting the message that just steer clear just to avoid things is that safe to say well you know i i think that's it's easy for somebody like me who doesn't hold elective office to say well that's the safe thing to do but as i said you know you all have a presence in the community and i know it's important for you to be visible and to let your community know that you're listening i think in that your particular situation or example that a community cleanup if it's if it's a community cleanup that's sponsored

047by the district five city council person and your thumbs up in it and you see other other board members doing the same thing that's okay that's not that's not something with that's within the board's jurisdiction uh anyway and it's just you know it's a good way to express community support okay um so real quick uh what is not a meeting and we this is what we just kind of covered individual contacts or conversations between board members uh and any other private uh individual that that aren't part of a serial or sp spoken hub or a social media communication involving other board members that's okay the brown acts also says that board members can have one-on-one communications with administration and staff that doesn't violate the brown act the proviso being again that the administration the staff

048member the board member cannot use that information acquired in those one-on-ones to build a collective concurrence uh or to use it as a way of sharing information uh with between and among other board members to develop an understanding of what their position is this slide here 22 it tells you uh what some of the exceptions are under the brown act which we've talked about social or ceremonial occasions a conference that's open to the public a meeting organized to address a topic of local community concern um another open and noticed meeting of another body of the district or another legislative body those are not meetings under the brown act and you're okay going to those again with the understanding that you are not going to be commenting or discussing with the any other majority of board

049members present any matter that's within the subject matter uh jurisdiction of the board you can go you can listen you can acquire information that's fine um but you you know if you see two other board members at one of those events you should refrain from talking about board business altogether i want to jump to uh where we are or where we're headed with uh kovid um let's see okay here we go um so uh a quick timeline uh it feels like uh march uh 12th was a lifetime ago in many different ways uh but if you all will recall i believe uh that was your last regular uh meeting before the covet emergency but pre-covet pre-march 17 2020 meetings had to be noticed they had to be agendized they had to be open and available

050to the public to attend in person and to provide public comment members of the board could participate telephonically subject to certain rules there had to be a a quorum that was participating not by telephone and for the person who was participating by telephone the the location from which they were going to be taking the telephonic meeting had to be published in the agenda and in the notice in the notice it had to be the their location had to be open and available to the public and the public had to be able to attend from that telephonic location this is why it's very rare that a board member will ever would pre-pandemic that a board member would ever participate in a public meeting from their home the reason is you had to be able to let

051you you had to be able to let the public into your home and participate fully in your home during a board meeting board members have used it in the past when they have to go on business out of state or family issues out of state and they participate that way that was pre-pandemic and then on march 13th of last year the governor issued the first of two executive orders relating to the brown act or suspending portions of the brown act the first one on march the 12th suspended the telephonic requirements for participation but specified that the district had to have a physical location where the public could attend and witness the meeting um and so it would have required the district in fact it did require the district to keep its district office open for

052the purpose of conducting the meeting as we all know the pandemic snowballed very quickly and five days later governor newsom issued executive order n2920 and that suspended all of the telephonic requirements for participation in a board meeting and what it said was that the the public agency could hold board meetings either telephonically or through other electronic means provided that you noticed the agenda you met the notice guidelines of three days for 72 hours for a regular meeting at least for a special meeting and that the the agenda had to specify how the public could access the meeting and how the public would be able to comment during the public meeting and so your agendas have zoom links we also your agendas also inform the public how to comment or to make a comment on an

053agenda item through zoom or through telephone and that's what we have had since march 17th of 2020. on june 11th um governor newsom issued a new executive order n0821 and it wipes out uh the old executive order from march 17th of last year and puts in place the continuation of the ability to hold meetings via zoom electronically and telephonically subject to the same requirements we have been using for the last 15 months but the new executive order specifies that this environment in the zoom environment will remain only through september 30th of this year so borrowing any other emergencies any other circumstances or legislative actions after september 30th the board will have to return fully to public and in-person meetings if board members want to participate by telephone that will still be an option but it

054will be uh but it would be subject to the strict requirements of telephonic participation that have existed for many many years under the brown act any questions on that so far okay so what are the telephonic requirements after september 30th okay so uh as i said the brown act allows teleconferencing participation by board members um a teleconference under the brown act is defined to include or means a meeting of the board where the members of which are in different locations and they are connected by electronic means through either audio or video or both so even though the brown act refers to teleconferencing which i think we all understand you know uh or we all consider to mean telephones the statute was written broad enough to include include both audio or video so in the future

055if either if any of you want to participate telephonically that would also mean zoom availability and it's hard to believe that you know before march 12th of last year we really didn't know what zoom was for the most part and now it's pretty much a part of our lives and has become a part of public meetings in the public process okay um it also means it also means post september 30th if the board wants to continue to make its meetings accessible to the public via zoom you can do that it's not prohibited um that would be a board that would be a board decision about whether or not you want to continue that um let's see uh if and when a if and when a member of the board participates by telephone all votes taken

056during the teleconference have to be by roll call which is what you do in zoom meetings anyway because under the brown act zoom is a teleconference meeting the agenda would have to be posted at all teleconference locations so for example if you are planning a business meeting in hawaii and you uh you would have to and it you want to attend a regular meeting telephonically it would mean that you would have to be there at least 72 hours prior to the public meeting the scheduled meeting and you would have to post the agenda uh the notice and agenda for the meeting on your hotel door uh or in a conference center wherever you're going to take the meeting from at least three days before the meeting if it's a regular meeting or 24 hours if

057it's a if it's a special meeting and once the meeting begins you would have to allow members of the public to access your room to participate in the public meeting i have never heard of that happening but it would be a requirement under the brown act so again your location where you will be participating telephonically would have to be disclosed in the agenda no matter where it is you're going to be whether it's a family member's house a hotel a resort it would have to and it would have to be publicly accessible we had one situation where a board member wanted to participate in a meeting telephonically from a private resort which was not accept accessible to the public and that could not happen um so uh you would have to keep that in mind

058whether the place you're going to be is going to be accessible to the public and that that location was actually in hawaii as well um and then during the teleconference at least during the teleconference meeting at least a quorum of the members of the board have to participate from locations within the boundaries of the district any questions so far okay since we've got three minutes left i thought i would cover this this next because this is an issue that arises sometimes as i said or or one of the requirements of the brown act is that for the board to have a meeting it has to be properly noticed and agendized the agenda has to have a brief descript description of what the board will be considering that description can be 20 words or less um

059this district almost always provides backup memos it provides agenda language and backup memos which is fine too sometimes it occurs that an issue arises on which there wasn't enough time to place it on the agenda but action has to be taken and the brown act does make a it does make allowances for that the first one would be an emergency situation so the board can take an action on items of business not appearing on the posted agenda in the case of an emergency situation involving matters upon which prompt action is necessary due to the disruption or threatened disruption of public facilities the board can hold an emergency public meeting without complying with the notice requirements but you can see that the definition of emergency under the brown act is very narrow very specific and very

060strict it has to mean both of the following a work stoppage a crippling activity or other activity that severely impairs public health safety or both as determined by a majority of the members of the legislative body or a dire emergency which is in the nature of a crippling disaster a mass destruction or a terrorist act or event and even in those cases the board could would have to meet and first take an action on declaring it emerging an emergency situation this this part of the brown act is very rarely used mostly because there are very few circumstances which would constitute a true emergency under the brown act which would require immediate action by the board but there is another and there's another basis uh in the brown act to hear items that arise late before

061a board meeting so the board can take action on items of business not appearing on the posted agenda upon a determination by two-thirds of the majority of members of the board present at the meeting so that would be four out of five members if all four of all five are present or if it's less than two-thirds of the members are present it would have to be unanimous and there would have to be an action that there is a need to take immediate action and the need for action came to the attention of the district subsequent to the agenda being posted this district and other districts have used this in the past when issues have arisen which require immediate action by the board and there wasn't enough time to put it on the agenda it is

062a it is an exception that is used but it's rarely used but it's important to know that if there are true uh urgencies or things that require immediate action there are options and there are available ways for the board to consider it at a meeting even though it may not have appeared on the agenda and i think we're at our time and so uh i wanted to thank you for your attention i apologize for the 40 pages but i i knew that this was going to be a subject that we could spend two hours on easily especially with your great questions on it if any questions arise or if you have any questions on the materials please feel free to contact me separately and i'm happy to walk you through the issues or to provide

063you any further explanation on this thank you rogelio um and i just want to clarify um we do open it up for a public comment right at this time yes and then um so i'll go ahead and open it up for public comment we'll say can you help us uh to see if anybody has her hand raised to address yes yes good afternoon uh board president we have no speakers at the moment okay um so seeing that we have none and we're on time um i'm going to go ahead and open it up for the board members if they have any um for mr rogelio at this time otherwise i'm sure you'll call him uh mr franklin yeah i just want to say thank you rogelio for doing this you know asking for this for

064some time so i i i want to express my appreciation for you putting this together and i don't know could you send me a certificate of completion yes i'd be happy to do that thank you thank you so much thank you thank you uh trusty fam um with that i'll go ahead and adjourn this meeting at 5 03 p.m thank you so much thank you all thank you