001you say hi now hi kelly hi lee have you already can you guys hear me oh okay that was weird hi we still can't see anything from uh the board room there i think they just haven't turned it on now cool alright you should stand up i can say that joke because you know is nancy going to be with us uh in the boardroom okay i suppose i need an agenda i better pull that up you i'm sorry what yeah we're we're visiting by saying we just got back from playing disc golf so i figured it wouldn't affect my ability to listen it was fun i'm terrible at it but that's okay i knew that i'm not i'm not strong enough i i got a little bit better with the the aerodynamics of it but
002i'm just not very strong so would be like i'm on nine and everyone else would be like oh that was three it was still fun i don't mind losing i'm sorry i didn't see nancy there she is hi nancy okay go ahead and let's call the meeting to order at 6 03 p.m and i was just trying to open the agenda i'm sorry i had it open and then i closed it and now i'm opening it again one second i believe this is okay yes it is call to order at 603 slight flute if you could stand salute pledge i pledge allegiance to the flag of the united states of america and to the republic for which it stands one nation under god bless individuals with liberty and justice for we actually can't see them
003it's showing an image of us instead so we were not oh yeah that's that's fine that's good that's going to happen so is scott joining us by zoom as well uh mr holbrook is in the room so we're ready to go when you guys are ready to go okay i just need a motion to adopt the agenda uh item four comments from the audience regarding items on the agenda do we have any comments from the audience we have no audience nope i have not been hearing none we can move on to item five which is board workshop brown act update the board will receive an update and overview of the brown act from legal counsel here we go all yours got mr parker all right good a little evening than the usual setup but a
004lot of things are different uh recently uh anyway my name is scott holbrook i'm a partner with atkinson anderson lawyer rude romo i've been involved in education law now for 18 years as a school attorney working predominantly with school districts county offices of education and community college districts prior to that i worked for i worked as a counselor and teacher in public and private schools for 12 years so dealing with education for quite some time it's interesting and fun and challenging at the same time so tonight we're going to be going over the brown act i like to be interactive as interactive as possible so if there are any questions that come up during my presentation please feel free to interject and ask and i will try to answer the questions as best as i
005can so i'm going to move on my clicker i'm out of distance for the clicker so if i can just ask someone to help me with clicking the slides thank you so these are the topics that i'm going to cover we're going to talk about the intent of the brown act what is a meeting subject to the brown act we'll talk about social media use because there's been some recent changes in the in the brown act in the law with regard to the use of social media networks we'll talk about legislative bodies and members that are subject to the brown act i'll talk about public meeting procedures and the rights of the public to participate in the process i'll talk about the covet 19 orders that are currently still in place but that could change
006in june i'll talk about closed session and then also enforcement of the brown act because there are opportunities for interested persons and members of the public to enforce the brown act to ensure that agencies are complying with its requirements all right so if i could move on to slide two and this is just a placeholder of the section we're going to move into so we're going to talk about the intent of the brown act public participation in government transparency so moving on to slide three so it's really important just to have a general understanding that the brown act really the entire rationale is to ensure that all actions and deliberations of the body of this board of trustees or any or any legislative body that is subject to the brown act that it occurs in
007the open uh that it occurs at an open public meeting that's i mean that's just the general gist of the brown act the people of the state don't yield their sovereignty to the legislative body that is entrusted with management or oversight by the and so to ensure that the people do not yield their sovereignty they have to be a part of the process and the law requires that so moving on to the next slide number four it's really meant to facilitate public participation in local government and if you always remember that then it'll it can help you as a board member if you're faced with an issue that maybe you're uncertain of you just think in the back of your head the intent of the brown act is to ensure public participation nine times out
008of ten that will help you come up with an answer that you may not have or may or may have a question uh with regard to what your obligations are in 2004 the california constitution was actually amended by the voters to in essence codify within the california constitution that public meetings of public bodies and all writings of public bodies are open to the public so in addition to the brown act which was authorized by the legislature the people have actually voiced their desire to be a part of the process by voting to i mean the california constitution now the brown act comes up often in litigation and the courts have liberally interpreted its requirements always focusing and entering on the side of public participation public tran transparency the courts very often tend to favor that
009way so as an attorney and as as counsel for the district we like to avoid litigation because we know where the courts are going to land on these kinds of issues so it's good to have a very informed understanding of the brown act its obligations to help you navigate through its requirements so i'm going to turn to page five in the slides so what's the general rule the general rule is all meetings of the legislative body of a local agency shall be open in public and all persons shall be permitted to attend any meeting of the legislative body of a local agency except as otherwise provided in this chapter so all meetings of the board have to occur in the open with the ability of the public to participate i'll talk a little bit more
010about specific types of meetings but that's the general rule there are limited exceptions to that gender rule which allow for closed sessions and i'll talk a little bit more in detail about those specific exceptions but again the general rule is everything is open to the public and why is that because that's consistent with the rationale of the brown act and what the voters have said in the california constitution that they want to be a part of the process so to ensure that they're a part of the process it has to occur in the public all right so what is a meeting the meeting is defined in the brown act as any congregation of a majority of the members of the legislative body at the same time and location including teleconferencing a teleconference location to hear
011discuss deliberate or take action on any item that is within the subject matter jurisdiction of the legislative body so let's talk about the elements of that statute any congregation of the majority of the members so for this district you have a five member board i work with many districts that have seven member boards so the rules still apply the same way the numbers just work out a little differently but with a with a five member board anytime a majority of that member of those members of the board congregate get together or in the same room and have a conversation discussion about anything that falls within the subject matter jurisdiction of the district that is considered a meeting if if that occurs and it's not properly agendized and noticed it's a unlawful meaning and there are
012consequences that can occur as a result of that kind of an act now let's talk it through a little bit more if if it's three members or of a five-member board that are talking about maybe marie huggins recipe for root beer cake i don't know if you've had it but if three members of the board are talking about that recipe it's not a meeting it's not subject to the brownie why because it's not a matter within the subject matter jurisdiction of the board so it's not considerable so it doesn't have to be agendized it doesn't have to be noticed so those are key distinctions to understand as to when the obligations of the brown act trigger because they can be triggered in an informal setting doesn't have to be a formally agendized noticed meeting in
013order for those obligations and responsibilities to trigger and that's why it's key to understand exactly what a meeting is so that you can navigate those issues now just to talk a little bit more about some of those specific words listed there deliberate what is that well that means that there's some back and forth or some collective acquisition of thoughts or an exchange of information action taken action taken means basically that an act by the majority of the board to either adopt some action or maybe to reach a commitment in a direction that the board is gonna move forward in or to take an actual vote with the body all right moving on to slide eight what does a serum mean i'm sorry let's hold it up for a second uh the screen is frozen so
014we're not able to see anything they took scott and he's frozen there we go thank you all right so what is a serial need now you probably heard this phrase often the cereal meeting basically is an unlawful meeting of a majority of the members of the board but specifically a serial meeting is defined as a majority of the members of the legislative body shall not outside 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 jurisdiction of the legislative body so in essence you may not discuss matters within the jurisdiction of this body outside a cul a called me and i have some examples to illustrate that in just
015a bit so moving on to number nine for page nine what is not a serial meeting an employee or official of the district may engage in separate conversations or communications outside of a meeting with members of the body in order to answer questions or provide information we call this the one-way communication rule where perhaps a staff member or superintendent provides a board update one-way information where information is provided to all members of the board it's not a called meeting it might be an email it might be some other memo that's issued to members of the board but that is not considered a serial meeting as long as that individual who is providing the information does not share with other members of the board what trustee's position is or comments or thoughts of our thoughts are
016of an item that's within the districts or the boards of jurisdiction so i have some nice graphics here to help illustrate this so looking at the slide number ten this is a prohibited serial meeting it's not okay in this example you have a seven member board so trustee number one is having direct communications with another individual that individual happens to be trustee number two and they're talking about items that are within the subject matter jurisdiction of the board let's say maybe there was a news report that one of the sites maybe the high school was broken into while schools are closed and there was a number of electrical electronic equipment that was stolen and it's kind of the talk that's going on right now in the community and this is actually a true story for
017one of my other clients but um that would not be okay if trustee one spoke to trustee two then trustee three and then the trustee four because now we have a majority of this seven member board that are having these communications it doesn't require that the four member or four members of the seven member board are all sitting in one room or sitting or standing in a group talking to each other about that break-in at the high school that hypothetical break-in at the high school i don't want anybody to think that that was breaking into high school but um for a five-member board if three individuals have that conversation that's a prohibited serial meeting and why is that prohibited well because the public's not there the public doesn't know that these three members of the
018board we're going to have a conversation about this issue that's in the news that's of public importance of community importance so that's why it's a prohibited meeting to prohibit a cereal meat now again if those three members of the five-member board were having a conversation about marie huggins root beer cake recipe not an issue because it's not something within the subject matter jurisdiction of the board maybe it had something to do with something in the community of interest but not within the jurisdiction of the board maybe there was an issue with the city council that would be okay if they're not happy about who won the super bowl that's okay because it's not within the subject matter jurisdiction the problem that can happen though the problem that can't happen though is if you're having a
019conversation with the majority of the members of the board about something that's totally fine but conversation or while you're there hey topic comes up that's within the jurisdiction that's where an issue can arise so it's it's important to always be mindful of what's being discussed i think someone wanted to answer ask a question [Music] i know a break-in at the high school is relevant in the district but how does that fall under think that we would have authority over what would i'm just kind of curious how that would relate to our business as a board well let me add another fact if it's the break-in at the high school involves students of the high school or maybe another district high school or another school so potentially in that situation you're going to have a student
020discipline issue that might come before the board involving an expulsion perhaps so that's how it would potentially fall under the jurisdiction even if even if it didn't involve a student but it involved district property it could be an issue which the board might take some action or give direction to administration uh to follow up on this or to work with law enforcement or so on so it's still an item that could potentially fall within the jurisdiction of the board okay thank you scott that makes sense you're welcome uh moving on to slide 11. so this is an example or an illustration of one-way communication right so at the center there staff member maybe the superintendent is providing information through a maybe a friday update or some other type of update that information is being shared
021with with the board members that's totally fine i've actually as a legal counsel from time to time i don't believe with center or with other clients i work with depending on the matter i might sometimes be asked by administration to send an update to board members and in that capacity if i'm sending it out one way that's totally permissible so moving on to slide 12 this is another example of a permissible communication so in this illustration you have staff sending out that information to the trustees and individuals trustees coming back to that into that staff member to ask questions to get additional information and so on and that's entirely fine however if during that question and answer opportunity with staff a trustee asks well what does trustee two think about this now we have a
022problem uh because the the brown egg specifically prohibits that all right moving on to slide 13. this one looks crazy but it happens uh especially when you deal with emails now this is an example or an illustration of a prohibited meeting occurring by email so in this in this situation you have the staff member sending out let's just call it the friday update to all of the trustees and unfortunately trustee one doesn't reply all and now we have some discussion going on because trustee one has now responded to the information that was provided with a question or some other comment and other members on that email chain of the board are now aware of trustee one's thoughts or position perhaps on this item or items that were in the staff communicating shared with all of
023them that's a problem uh and and one of the issues that can arise when a serial meeting occurs is it could lead or it may be justification to invalidate a future action of the board and again what is the problem with this issue or this item occurring is in essence you have an electronic meeting occurring where the public is not present the public is not able to see what's going on or hear what's going on or read the conversation that's going on and so that's where the issues arise okay moving on to slide 14. all right so let's talk about some situations that aren't considered a meeting that don't fall under the the brown act obligations or requirements so having individual contacts or conversations uh between a member of the board and any other person
024and any other person might be a member of the public those are entirely fine they're not subject to the brown act thank goodness um attendance of a majority of of the board at a conference or a similar gathering that's open to the public where issues of general concern are discussed a great example of this would be perhaps the csba conference i would imagine at some point you all will be attending those in person again hopefully that's a great example of where the entire board or perhaps a majority of the board travels to attend a conference to mingle with their colleagues or peers from other districts to attend presentations and other training sessions and so on to get information and to learn about you know what what issues are facing school districts and in that kind
025of a context it's entirely fine for for a majority of the members of the board to talk and discuss issues of general general concern what else is not a meeting in slide 15 attendance of a majority of the members at a open and publicized meeting of another organization for example maybe a pta meeting or a neighborhood watch meeting that would be totally fine if the majority of the members are in attendance there's not an issue with that the brown act carves out these exceptions moving on to slide 16 and attendance of a majority of the members at a meeting of another body of the local agency of the agency so let's say perhaps the district's school site council one of the school site councils at one of the sites is having a meeting and it
026just so happens that a majority of the members of the board attend it's permissible under the brown eye for that for that to occur as long as they're not discussing things that should be discussed at a board meeting you're fine uh or perhaps maybe a majority of the members of the board attend a meeting of another agency like a city councilman though that's entirely permissible as well now moving on to slide 17. attendance of a majority of the members of the board at a purely social or ceremonial occasion party a celebration something like that hooray right that is entirely permissible the advice though that i always share with with the clients that i work with is and this just kind of comes from where i grew up i spent a lot of time in the
027ocean the ocean is rough we used to say when in doubt stay out right if the ocean's rough doesn't look safe when in doubt stay out same thing if you're attending some kind of a function or a meeting and there's a number of uh you see a number a majority of your board your colleagues there three or four of them there and you feel like yeah you know maybe i should stay out maybe i shouldn't sit amongst them follow that intuition if if you're getting that voice telling you not to do that because the other thing that can occur and i've had it happen with some clients is the appearance of the appearance to members of the public you know if members of the public are in a meeting and they see all five members
028of the board three members of the board or four members of the board sitting in a circle or all clustered next to each other talking about something it's real easy for a member of the public to look at that and think hmm that looks like an unofficial beating what are they talking about you might be talking about marie huggins root beer cape recipe right but they don't know that there might be the appearance that somehow an improper meeting that's occurring and then superintendent has to deal with trying to dispel that misunderstanding and so on so again one of the doubts they have is my advice all right moving on to slide 18 in social media use actually slide 19. so ab-992 amended the brownex prohibition of zero meetings to permit certain social media communications so
029a board member may communicate via social media to answer questions uh to provide information to the public back and forth with members of the public or to solicit information from the public regarding something that's within the board's jurisdiction so it is permissible because the legislature recognizes that social media is here to stay and so much communication goes on through that format that there needed to be some some understanding codified in the law to give some parameters for board members to follow and so these examples that are listed on this slide are permissible however there are some limitations in slide 20 the members of the board may not use social media to discuss amongst themselves official business so it would not be permissible or members of the board say to visit the district's facebook site yeah
030facebook site and discuss back and forth uh an issue involving something within the subject matter jurisdiction of the board maybe there's some facility that's being considered for renovation and this is hypothetical that would be something that falls within the subject matter jurisdiction of the board and so if a member brought that up or maybe that was a topic that a member of the public brought up in a facebook post and then trustee a commented trustee b commented that would be prohibited because the legislature said very clearly that members of the body may not use it to discuss amongst themselves social business and even though members of the public are part of that it's not a formally agendized and noticed meeting if you will and so other other other individuals in the public are not aware
031that that discussion is going on and they're not there to participate i hear someone wanting to ask a question yes so let's say one of us uh is on facebook and someone asks the question and responds to their questions others of us as friends we see what they respond [Music] his or her opinion on it is i mean that really gets you pretty like slicing it dead right and that and that's something that the statute doesn't cover so you might be and that's an aspect of social media you might be monitoring or just happen to see that there's some conversation or discussion by one of your colleague trustee members on let's say facebook there's nothing that prohibits you from viewing that comment or thought that's shared but the law does prohibit you as a member
032of the board from responding to that communication so if that individual that first trustee that makes the comment that's it only that individual can comment by our reading of the statute the law prohibits any subsequent board member from commenting further or responding because again that leads to a potential discussion of an issue within the subject matter jurisdiction and it's not properly noticed or agendized now again all right if the conversation is all about kansas should have won the super bowl or something that's totally different pictures of grandchildren uh that's that's fine the limitation only occurs when it's an item of business or district business okay i'd like to take it one step further and then and then i'll let it go but so let's say board member a gets a question from the public and
033they respond to it and then that's getting it no one else responds to that threat now let's say either that member of the public or another member of the republic post something to a different program like [Music] board member and he can see [Music] but the difference is the the board members are not utilizing um an intermediary to find out what the other board members think or what their position is on an item would be analogous to a member of the public or perhaps the press interviewing one trustee about an item in the district of district business and then interviewing another trustee and interviewing a third trustee and then writing a story about it and all the trustees read the article and now know at least believe they know what based on the report what
034other trustees feel that would not be a serial meeting because the board is not actively utilizing an individual as an intermediary and that would be similar to the scenario you share where you know these individuals are going to different social network sites or home pages of trustees and asking the same question to find out what each board member uh thinks about it you may find out about it uh but you didn't utilize that individual individual to find that information out so it would not be a serial meeting but you know this law is new and there's no case law on it it hasn't been litigated yet so i imagine at some point it'll wind up in the courts um can you clarify sorry i apologize can you clarify something um that you had mentioned earlier
035about serial meetings and intermediaries it wasn't about social media um but did you state that if a staff member or another board member communicates with um individual board members and then shares what they know about that individual board members positions or thoughts or ideas on an issue that gets us into trouble with the brown act potentially yes okay i just wanted to clarify that thank you yes she she uh going back to my prior uh review of uh zero meetings and communication where a staff member shares information with a member of the board that would be okay but it would not be okay if that staff member shares thoughts or positions of one board member with other board members so just to clarify um for the serial meetings that said it involves a majority of
036the lord for social media even too is enough to make it a violation they have not the the law does not make a distinction of a majority okay um and then one other thing can we possibly get the volume turned up on that with the air conditioner going a little bit here [Music] with the serial meetings that said it needed to involve a majority of the board to be a violation but with social media it does not require that it be a majority so even if it's two board members that's enough to potentially have a violation sometimes we would have a situation where a teacher would come to me and tell me something and i would have no idea that she went to delray and told delray something and said well i talked to nancy
037and nancy said this so del rey and i are totally in the dark as far as it being a violation and in that type of a situation even if a trustee is not utilizing that individual as an intermediary it could still result in that individual becoming an intermediary if that individual comes to a trustee and says well you know trustee a told me this and trustee b told me this and that's where trustee c should say i don't want to hear i don't want to hear it because i can see in a situation and i hope nobody gets offended by this but when we're in union negotiations and things get ugly i can see where something like that might be set up where board members are totally in the dark is what's being said and
038then all of a sudden the screaming breath act you know right and we were totally innocent but it's still being put out there right and it's you know any violation of the brown act is always going to be reviewed on a case-by-case basis so it's going to depend on the specific facts but i can see where a situation like that could arise and someone who's not intentionally being used as an intermediary becomes an intermediary because they are sharing information that they receive from other board members with a third board member i can see that i could potentially create an issue that's why it's advisable to always be cognizant of that and to be wary about you know receiving information from others when they tell you they talk to other trustees about the issue okay moving
039on to slide 21. a new law also prohibits you from using emojis right so you can't even utilize or make a comment through a digital icon that expresses any type of reaction a thumbs up a heart a smiley face anger face or any of those can't even use even use emojis because that would be enough to uh to communicate trustee's position on an item all right moving on to slide 22 talking a little bit about legislative bodies and members so there are other legislative bodies within the district uh that could potentially be subject to the brown act as well so if there were a committee let's say there were a committee that was created by resolution or some other formal action of the board that body could potentially be subject to the brown act that
040would require those meetings to be noticed and agendized and so on moving to slide 24 to talk discuss that a little more detail so an advisory committee that's composed solely of members of the board less than a quorum so if there were an advisory committee that involved only two members of this board and it was purely advisory that would that type of a committee would not be subject to the brown act so an example of that would be setting up a committee to assist with reviewing applicants to fill a trusting vacancy that would be an example a standing committee if the board were to establish a standing committee that had continuing subject matter jurisdiction over some item or issue that type of a committee would also be subject to the brown act requiring their meanings
041to be noticed and agendized all right moving on to slide 25 now that applies specifically specifically specifically to committees that might be established by the board if the superintendent however were to establish let's say a blue ribbon committee to review some issue of interest that would not be subject to the brown act unless unless the superintendent were solely acting to create this blue ribbon committee really at the urging of the board and so if that were the situation then it would that committee that blue ribbon committee would likely still be subject to the product but if it was purely something that the superintendent wanted to move forward with to assist him in providing some direction or or information to the board that type of a committee would not be subject to the ground all right
042moving on to slide 26 some other examples of of meetings involving district players with other individuals that are not subject to the brown act would be your general union negotiation so a district's negotiation team meeting with the the teachers or the classified union team those those meetings are not subject to the ground along the lines there is a along those lines there is an era exception and it's in the government code section 3549.1 a and that basically allows the board to convene an executive session to give direction to the negotiations team about negotiations and those types of meetings are not subject to the brown act so to illustrate that give you an example of how that comes up if we are in say mediation having difficult negotiations with the union and we're in mediation with
043a state mediator and we want to get direction from the board on a specific item maybe salary or compensation is that issue or or some other provision in the contract and if we want to get direction from from the board that era exception would allow the superintendent to call the members of the board to convene an executive session maybe via telephone conference where we could receive direct direction from the board specific to negotiations that type of a meeting does not require an agenda it doesn't require prior notice it is a very limited exception in era which is the educational employment relations act that governs all negotiations for school districts it's a very limited exception but my advice to clients is when you use that exception to make sure that the conversation or communication is limited
044to negotiations similar to a post-session meeting where you're limited to what's been agendaized for close session any questions on that one i find it to be very useful in negotiations when you're when you get to the point where mediation or maybe you go on a fact finding and you're trying to i've had to use it numerous times with other clients uh trying to reach conclusion that you need a quick answer from your board uh so it's a very convenient exception to have is that yes that's the only that's the only exception specific to negotiations [Music] uh it's it's similar in that your closed session uh meeting to discuss negotiations could give direction to the negotiations team about a specific item the only difference is that in closed session you are actually agendizing that meeting or
045that closed session as part of an agenda's meeting and it's subject to the notice requirement whether it's 72 hours for a regular meeting or 24 hours for for a special meeting this era exception it's useful in the situation where we're in mediation or we're in fact finding or we're really close to reaching a deal in regular negotiations and we and you know we need to be able to make a decision or a proposal right then and we're really close and we know that we're close to reaching a deal that era exception allows that executive session to happen without the the necessity of posting a notice and having it agendized but again it is it's very limited uh to just giving to discussing the the positions and to give direction to the negotiations team well that's
046where we could get into people right no it's very specific to we're in the middle of think of it as really tedious negotiate negotiations and it's timely that we need to make a decision we would convene only on as it relates to the negotiation piece we would talk with the board get direction at that just like a closed session where you guys give us direction this could be if we were in really tenacious i guess you'd say negotiations and you need the answer right now you don't have to agenda that wait 72 hours you can be in a meeting right then or you can be a call right then there and get the direction from the board right yeah and and again the the prime example where it comes up most often is if you're
047in mediation right you've got a state mediator helping you and that state mediator has gotten you as close as that mediator can get you and it might be a little bit more than maybe we were authorized but we need immediate we needed a green light from the board right away we can utilize that exception and not have to wait 24 hours for a special meeting or 72 hours for regulating um [Music] it would be an executive session where members of the board can participate telephonically uh typically television if everyone wasn't available together okay moving on to slide 27 public meeting procedures and public participation slide 28 just some of the key requirements that the brown act imposes or or obligates the district to comply with for example specifying that all agendas and any other writings
048that are part of a board meeting they are all public documents and they're all subject to being provided to the to members of the public now there are exceptions under the public records act regarding certain types of documents so there might be an example where a document might not be subject to disclosures if perhaps you're meeting in a closed session on a litigation matter and you're provided a legal counsel provides advice for some memo or something that's attorney-client privilege that would be an example where that type of a document would not be a public document so to the school okay moving on to slide 29 before you move on one question we had come up in the past was whether or not we should report closed session what you're doing on that i don't advise
049uh there's no obligation to record it or take minutes and i don't recommend it okay so slide 29 dealing with public records if it relates to an agenda item for open session it has to be provided or made available to the public at the time at the same time it's made available to the board sometimes situations occur where perhaps items are agendized on the agenda for a meeting but perhaps the document related to that agenda item is not quite ready yet in that type of the situation the brown act does allow for that document to be provided at a later date so long as it's made available to the public at the same time it's provided to to the board i've had that occur in a couple of situations where a resolution was still being
050worked out on a specific issue and there was a placeholder in the agenda about a resolution but it hadn't been finalized yet and and at the meeting there were copies of the resolution made available to the public at the same time that the resolution was provided to the poor if that situation arises and we try to avoid those kinds of situations but from time to time they do arise the brown act does allow for that there is an allowance that that would still uh make it possible for the board to take action on that item as long as that item is provided to the public at the same time the board gets it [Music] from time to time individuals or third parties will bring documents to to a board meeting you may see this a
051public comment where an individual has some kind of a white paper or something they want to distribute to members of the board and it's interesting under the brown act even though it's not the district's document or created by staff or any member of the district brown act requires the district to provide copies of that third party document to members of the public if they request it so if someone comes to a board meeting during public comment and says i want to share this document with the board and someone in the public says hey i want a copy of that veronica requires the district to make a copy of it and provide it to them after the meeting okay all right so moving on to slide 30. as far as uh with regard to um uh
052okay i think i may have gotten ahead of myself yes i did get ahead of myself all right so documents that are prepared by any other person must be made available after the meeting okay slide 31. so talking about agendas the agenda for a regular meeting must be conspicuously posted at least 72 hours prior to the time of the meeting in a location freely accessible to all members of the public so moving on to slide 32 an agenda must specify the time and location of the regular meeting uh ab-2257 passed several years ago requiring as of 2019 that if the school district maintains a website that it has to include a prominent direct link on the home page so that members of the public can very easily access that agenda it can't be buried prior
053to this prior to this law going into effect it wouldn't be uncommon to look at a school district's website and try to find the board agenda and it's just buried you'd have to click one spot and click another and click again before you finally and then click a few more times before you might find it well the problem with that is members of the public have become now in this age very reliant on accessing web information from websites and so if the district maintains a website in order to promote or enhance the public's participation in the process it's got to be easy for them to find that agenda so they can make a decision as to whether or not they want to show up at that meeting and discuss some public comment and get involved
054in the process i'm happy to say that center gets an a for me the the link is very prominent easily accessible it says right there on the home page and current board meeting agenda i can tell you that there's still some districts that i wouldn't give an aid to so that [Music] you're still required you're still required to make those those those uh old school uh physical uh postings um what the law does requires if you do have a website you're obligated to make it available on your website as well i think at some point there may have there may have been districts that still didn't have websites i don't think that's the case now all of the districts i work with have websites but at some time there were some that still hadn't made
055that investment okay moving on to slide 33 talking about regular meeting agendas so a regular meeting agenda may not be changed within the 72 hours preceding the meeting so if once an agenda gets posted within that 72 hour period it cannot be changed there's very limited exceptions to that one would be where a majority of the board determines that an emergency exists during that board meeting the board determines there is an emergency and we need to add an item to the agenda an emergency might be a work stoppage maybe there's some crippling activity maybe a terrorist act something like that something that's so far out there that couldn't have been foreseen in that 72-hour period when the notice got over when the agenda was published that a majority of the board could take action this
056slide lists a few other situations where two-thirds of the board members determine there's a need for immediate action or when you're post when you're continuing a postponed meeting in those type of situations i always recommend consult with legal counsel just to make sure that you're navigating the requirements because the last thing you want to do is take some kind of an action to amend an agenda and then it turns out that you didn't really because sometimes it's like threading a needle you don't want it you don't want to take action to revise an agenda discuss an item take action on that item and then it turns out you didn't thread that needle right and it's invalid so if that kind of a situation arises that's when you ask the superintendent to text the lawyer and
057they'll respond and help out another thing that we do and i haven't listed here on this slide is if something happens between that 72-hour period and it's important item of business it's not uncommon to tack on a special meeting special meeting only requires 24 hours of notice so if something comes up you know 48 hours before that next meeting you can utilize a special the special meeting notice your 24-hour notice requirement and add a special meaning either before or after the regular meeting i don't recommend inserting it in the middle that can be confusing to the public okay moving on to slide 34. so the key requirement with regard to agendas is that they reasonably apprise the public of matters that are going to be considered or before the war we need to provide sufficient
058details so that a member of the public can make a decision as to whether or not you know what i'm going to miss the game tonight and i want to go to that board right there's got to be enough information there that they can make that decision i i include a citation to this carlson versus paradise unified school district that case crazy case in that in that situation the school district agenda said continuation school site change that's all it said continuation school site change that's all it said what the action involved though was the board considering and ultimately taking action to close or discontinue elementary education at an elementary site and moving the continuation school to that elementary site and that agenda was not descriptive enough to let the parents of that elementary school know
059that their kid's school was going to close and was going to be replaced with this continuation support so families that were affected went to court and they were able to get an injunction to stop the bor to stop the board of the district from moving forward um and so as a result we have this sort of this generalized 20 this 20 word uh uh rule which means if you can get it all within 20 words then you're probably okay your agenda doesn't have to be 20 words long but if but if you provide a general description and it's within 20 words you're probably okay if you have an issue or you're not you're not not absolutely certain as to what you should or shouldn't uh include then it's always a good idea to reach out
060to the legal counsel to help out with that we do that regularly because again the last thing you want is like what happened in paradise to have an agendized item action was taken and then it turned out it was improperly agendized now you've got to do a redo and potentially face legal costs depending against an action like this all right slide 35 we're still talking now we're talking about special meetings so special meeting only requires 24 hours notice a special meeting may be called by either the president of the board or by a majority of the board the board may only consider business that's on that specific notice the board may hold a closed session as part of a special meeting so you can have closed sessions during special meetings as well there are some
061things that you can't do at a special meeting and i'll talk about that here in just a second public speakers must be allowed the opportunity to speak during a special meeting so you have to have public comment on this during a special meeting but public comment can be limited in the special meeting only to items that are on the agenda now the board does have the discretion to allow individuals during public comment to speak about other items as long as they're within the subject matter jurisdiction that might not be on that agenda but the brown act does allow the board and the agenda to limit public comment to only those items that are agenda during special meetings all right moving on to slide third and six these are this is an example of something that
062cannot be done at a special meeting so the law was changed to prohibit action being taken on on salaries or compensation including fringe benefits of any local agency executive and this was a result of the city of bell fiasco that happened maybe a decade ago it's been some time but those revisions to the brown act were a result of what happened what happened in the city of bell where they were passing these really generous compensation packages for executives of the city that that weren't subjective to public scrutiny so as a result anytime you're going to discuss compensation or approved compensation or salary schedules or fringe benefits for an executive of the district the board can only do those media can only take that action at a regular meeting and why is that well with a
063special meeting it only requires 24 hours notice it's very small window of notice where members of the public might not know that hey they're going to talk about this great compensation package i want to be a part of it and so a regular meeting requires 72 hours notice so it's implied that 72 hours will give the public more opportunity to decide whether or not they want to skip that ball game and participate in the meeting all right notice of the special meeting must be mailed or delivered to the media and posted 24 hours in advance of the meeting the notice must also be posted on the district's website okay moving on to slide 37 there is another exception to the regular meeting requirement and that allows for emergency meetings so an emergency meeting can be
064called by the president or by majority of the board at a minimum you have to provide at least one hour notice to the media except in a dire emergency where perhaps maybe you can't even give one hour an emergency is defined here is work stoppage crippling activity that impairs health or safety this one actually came up quite a few times for several of my clients when everything happened the last year in march i had a number of clients that called emergency meetings when we all learned that schools were going to be shutting down and so on in response to the pandemic that's totally fine permissible and fell within one of the authorized reasons for an emergency meeting i advise clients though to still put it up on the website call the media give them at
065least that one hour notice and also to post wherever you physically post agendas so that we've got it all covered even though it's short notice we're still going forward with the process of trying to make uh individuals aware of it in the in the situation where you're trying to give this one hour notice or give notice by telephone and if telephone service for some reason is not working uh then the brown act requires the district to still try to make that notice as reasonably possible or soon thereafter all right moving on to slide 38 diving into the rights of the public to participate so members of the public must be able to address the board regarding items on the agenda before or during the gary board's consideration of the item moving on to slide 39
066every regular meeting agenda must provide an opportunity for the public to address the board on any item of interest to the public within the subject matter jurisdiction of the board so it's not limited like a special meeting what typically happens in my experience is a board will set aside a specific time frame at the beginning of the meeting or public comment and then quite often they'll set time aside under under individual items to allow for public comments specific to that item and that's totally permissible moving on to slide 40 so the board within the board it's within the board's authority to adopt reasonable rules and regulations in order to ensure uh proper uh functioning of the media and these types of rules and regulations can regulate time place and manner but they cannot regulate viewpoint
067they cannot regulate speech i've sat through i've sat through a few meetings where i felt really bad for members of the board and members of administration as i listened to members of the public just unload just unload i remember sitting in one board meeting where this was a topic of huge community interest so much so that the regular board meeting was moved to the high school auditorium and it was packed and there were news cameras there and i actually had to present on the item but i remember sitting there and watching members of the public get up to the podium and just unload on the superintendent and unload on members of the board about how much they dislike the decisions that have been made and so on and the language got very colorful yeah yeah
068you know that it happens people are they want to they want to let you know how they feel and brown act respects that and and there's very little that the board can do when that type of dialogue or those types of words are being thrown at staff or administration there's very little you can do the only thing really that the board has the discretion to do is to perhaps recess the meeting to let to let the you know temperatures cool down a little bit or if it's becoming a disruption to the meeting then it might be it might be sufficient where the board could exercise authority to perhaps have that person removed but that's very limited and i i have never seen that happen because nine times out of ten if you recess the meeting
069temperatures cool and then people come back and they continue to vent meetings where we anticipated that there was going to be perhaps physical altercations and so we had beefed up security present just as a deterrent against those kinds of things happening um sometimes those types of issues come up i think a question yeah first of all during our you know business [Music] right um i would say she does i would say she does but what she could do is perhaps spell them out instead of actually saying the word [Music] um that that in my opinion is fine i think the board presidents that the board president or whatever trustee is presiding over the meeting can certainly make that request i in my opinion you don't have the authority to enforce it but you can certainly
070make the request as a courtesy to ask that you know and i've seen this happen especially when children are present i've seen a board president say you know in the interest because we have so many children present i would please ask that that individual of the public please be mindful of the words that you're using because we have so many children present and that seems to work and that's totally fine but if you know if you've got a knucklehead at the at the podium and they don't care and they want to throw those words unless it's becoming entirely disruptive to the meeting you sort of have to just deal with it regarding the public policy if carol were uncomfortable something would it be acceptable if somebody else read it for her yes yeah everybody can
071read it yes yes those comments need to be made public yes so for instance miss carroll is receiving 26 comments via email or however she's getting them those need to be public they need to be read in public but do they need to be presented somewhere in public so for instance would it be attached to a board package like an amendment to a board packet or is it fine just saying them out loud what what's required is and these are all in response to the executive orders that were issued which basically requires that the public still be allowed to communicate at least electronically to share their uh share their thoughts or comments electronically so what a lot of districts have done is set up this arrangement where you can email your comment and your comment
072will be read to the written board that's all that's required is that the email is read to the board during public comment that allows the individual to participate in the process and to communicate their thoughts to the board that's all that's required doesn't have to be part of the packet or anything like that now those words become part of the minutes those words all get captured in the minutes maybe we can issue that warning regardless in the beginning and say there are children watching this meeting because i know my grandson watches sometimes and have you heard scott say those words oh boy scott would be in trouble okay uh [Music] um [Music] is what that individual has said and so is that permissible for the board to attempt to censor any public comment in any
073way [Music] following the rules i i would suggest we remember we only had i think we've had of all the public comments we had one that had some words and i'm sorry i'm not happy to read it but i i i will do it because i agree i think we should read it as it is i just think that's above board that's the right thing to do i will i'm happy to read that again we've had one out of the last year but we're trying to communicate the public's wishes and their comments so i think it's appropriate that we we unfortunately do because otherwise i do worry that we would be considered now are we putting our emphasis on it or trying to take away from their meaning again it doesn't come up that often
074it hasn't so if we do do that and plus we're transitioning meeting in public so hopefully that will be behind us until the kids find out they have made you say that i i think that virtual meetings are with us for a bit as we're still in a global pandemic and i agree with you uh scott that we shouldn't attempt to censor any public members um then we're getting into subjective um you know um measurements of what is a profanity to whom and how and i think that could just get absolutely absurd yeah and i i agree with you [Music] it sounds like the superintendent is the designated reader of colorful comments you're not going to read them all no problem okay continuing slide 40 uh so the the board does have the authority to
075establish clear maximum time limits uh subject to extension or reduction uh this is typically in your board bylaws not it's not uncommon for either a two or three minute public comment limitation to be in place and those are totally permissible i've also seen boards where there's a lot of interest in an item but to ensure that the meeting can be conducted in a timely fashion i've also seen boards in my opinion within their authority to do it to set maybe a block of time limit under a certain item like i remember dealing with a a charter school petition where there was a lot of public comment anticipated and in that situation they said i believe a one hour a one hour block for public comment under that individual item and so that that would be
076a reasonable regulation in my opinion for the board to adopt as long as the public is being allowed to comment regarding the extension reduction we typically have not been enforcing the time limit you don't get many comments that go over it and when we do it we've just been kind of enjoying engaging with the public my concern is that if somebody isn't granted the extension when somebody else is that we could be accused of giving preferential treatment to some and not validated yeah you know it's it's um that's why i think it's better for consistency to stick to your three limit or whatever your limit is for public comment if it's too limited or two minutes or three minutes uh because those issues can arise or there might be that perception even if it's totally
077unfounded there could be that perception that why is that individual being allowed more time and i've seen this pop up where an individual during public comments says oh and i also would like to read a comment or or or they'll come up and say well you know um mr smith has given me his two minutes you know to expand that individual's time and those kind of issues can pop up i think the best practice is to stay the course if you have a three minute or two minute time limit that applies to everybody and i've had some uh boards where they actually cut the mic when two minutes or it turns off there's someone that's monitoring the two minutes that turns the mic off it doesn't always go over well sometimes you're just agitating the
078crowd that way right we've always figured that it's better to let them get it out and you know say their peace if we have time to do that it's kind of a case by case and what's the issue and who's up there speaking and now i've seen i've had trustees that i've worked with recognizing that if an individual speaks slower and has a hard hard time you know speaking that they they might be more inclined to give that person a little more time um but i think the best practice is if you can try to stick to your limit and apply it evenly and consistently with all of your speakers but again very often it's going to be at the discretion of the board president that's presiding over the meeting or whoever whatever trustee is
079presiding over the meeting it's typically going to be that discretion and and if the president or whoever's presiding can ask the board do we want to extend public comment do we want to extend the opportunity for individuals to speak for a longer period of time there might be something of interest there it's not the easiest thing to navigate it just depends [Music] uh so i understand what you're saying scott i also understand what i'm answering about trying to make sure people are able to get things out so maybe maybe what we do is we extend the time a little bit harder and take a very clear account that we're doing that to keep things equitable and that they will be limited to whatever the amount of time says yes i agree whatever you can do
080to maintain consistency is the better practice is the best practice okay um and then the last the last bullet point there on that slide 40 just talks about you know how the legislative body should not prohibit public criticism of policies procedures programs or services of the agency or the acts or missions of the legislative body that comes right out of the brown act so there is a recognition that you know the public is allowed to make those criticisms if they have them can you draw a line between that and the public criticism of employees i would say no no no no one so we can let him stand up there and tear a teacher apart it's true or untrue yes wow okay you can regulate time manner and place but you cannot regulate viewpoint or
081or content of the speech is anyone that's speaking during public comment from the podium has the first amendment right to say what they want to say okay and that's i i'll share it i sat through a board meeting where i heard and it looked orchestrated to me but there were half a dozen individuals that got up to that board that podium and just unloaded on the superintendent and it was hard to sit there but they have that right and there's as much as the attorney working with that district wanted to stand up and take some of the arrows or you know slowly there's nothing there's nothing you can do about it you have to allow that process to play out uh okay moving on to slide 41. so uh ab-1787 went into effect back in
082and this really revised the brown act with regard to non-english speakers so if there's an individual that requires or uses a translator they're allowed twice the amount of time so if your set time is two minutes and an individual is speaking at the podium and is usually using the translator by law they're entitled to twice the time so they would receive four minutes now this doesn't apply if you use simultaneous translation equipment so that additional time doesn't apply in that type of situation it's it's interesting the brown act has these obligations for more time and so on with regard to translators but it doesn't require districts to provide translators it's a common practice for districts that i work with especially in communities that have a lot of non-english speakers to provide translators but it's not
083a requirement in the brown egg okay moving on to slide 42 so there's specific rules in the brown about responding to public statements made during public comment so what the law does allow you to do as a board when you're sitting at the board is to briefly respond to a statement made or a question posed by persons making public comments it doesn't allow for engaging back and forth conversation or discussion with a member at the podium but if uh it does allow for example um uh sir i can't hear you can you repeat yourself or sir uh you made a comment about the school site which school site did you make a comment of i mean that kind of minimal type of interaction is permissible but i would say anything beyond that is not permissible
084and the reason is because what that what that results in is possibly conversation of an item a conversation or discussion by the board of an item that this member of the public brings forward during public comment that has not been agendized and has not been noticed and so other members of the public who might have an interest in this topic didn't have the opportunity to be aware of it and decide whether or not they wanted to come and participate in the meeting so the brown act was very clear that that that interaction is very limited typically i advise clients consistent with the brown act is if if there's something that requires or maybe warrants follow-up uh you know if a member of the public is sharing information about an item maybe reporting something that they're
085aware of that is of interest to the to the board the board can give staff direction please follow up with that individual let's get their information we can decide if it's something that needs to be dealt with at a future meeting or perhaps that individual can be provided contact information of the correct staff member to bring their issue to so that staff can work through the issue within the policies or procedures of the district if it's a complaint perhaps okay uh moving on to slide 43 these are just some of the typical practices or requirements so minutes are required to be taken minutes are public records of regular meetings uh there is no requirement for me for minutes and closed sessions no action may be taken by secret ballot the board must publicly report any
086action taken in the vote for abstention on the action of each member present for the action the board can excuse me the board the public has a right to record any meeting my motion picture camera or video audio tape i've been in meetings where relatively well before before a covet but i've been to meetings where individuals were actually live broadcasting on facebook that's permissible what you can do is you can designate an area for example if there's a matter of huge public interest and there's a lot of news media cameras there what you can do is you can designate an area in the meeting room where all the cameras can situate themselves so as to minimize the impact or disruption of others so you do have that authority [Music] and the board members are also
087allowed to speak on the item and then they have information from publicly making sure that they think is that correct well i guess it depends on how the board member received that information from the public i'll share with you an example i don't know if it answers your question or not but i recently had a client where they were during a meeting one of the board and i can share i won't show you the client but i can show you the facts because it was a public meeting where a member of the board received text messages from the union president and and it was responding to a public comment that was uh read in during public comments and the text message was basically disputing what had been read during public comment by some other individual
088who had provided this public comment and the board member shared what was in that text message and i got a call during the break and in my opinion that is not permissible because that is creating even though that's a union president it's not permissible because that's created that created another mechanism to allow a member of the public to communicate with the board which was not consistent with the mechanisms that the board had put in place to allow for public comment which was electronic email within the by by by a date specific submitted to the to the district which would be read my advice would be that that would not be advisable one of the board members saw the email [Music] would you recommend don't have time to do in that situation i would recommend that
089there be an individual staff member that's designated as the primary person to receive these these comments and then if or however the comments are being submitted by email and that if a board member receives a message from a member of the public saying hey there's a problem with what was read or something then that board member should relay that person back to that staff member that's responsible for coordinating the public see the public comment and have that individual communicate with that staff member and if they're in that staff member if there's time to receive but i didn't get a chance to look at what your requirements were for uh submitting electronic we allow them right in the moment in the moment if that's the process then that staff member can relate to that individual you
090can you can submit a correction or or submit a statement that i will read during public comment if public comments still open if it happens within that time frame but i would recommend that that the board the board members funnel those types of direct communications to the designated staff member let them deal with it otherwise there's an appearance that there's another mechanism for members of the public to communicate with the board which differs from what's been established there's going to be a few changes [Music] right uh okay so moving on to slide 44 uh board may not prohibit or restrict the broadcast of its proceedings the only exception will be if it's creating a persistent disruption any recording made by or the direction of the board shall be subject to inspection as a public record
091so if you record your meetings they are public records inspection of any video audio recording shall be provided without charge on a machine made available by the district moving on to slide 45 so the brown act does permit teleconferencing for all purposes in connection with any meeting teleconferencing means a meeting of the body of which the members are in different locations connected by electronic means through audio or video or both however um moving on to slide during the teleconference at least a quorum of the members of the legislative body must be within the jurisdiction of the local agency i had a situation a few years back where trustee was in maui and there was an issue of importance and that trustee needed to participate and participated from maui and that was permissible because the rest
092of the board were all at the dias at the board meeting room and so that person patched in but what that but brown act also requires that the agenda identified where that individual is going to be telephone conferencing from and that individual i kind of chuckled when i found out about it i didn't share this with them after but that individual was in their hotel room and participating and the individual didn't realize that if by chance there had been someone else from the community in maui and wanted to participate that board member would have been required by law to let that public member into their hotel room to participate in the board meeting so i always advise clients if if that happens ask the hotel for a conference room a meeting room or something like
093that so that if by chance and it's a very remote chance but you never know if by chance a member of the pub just happens to be there they're not in your personal hotel room it has to be posted on their door yes and the agenda has to be posted outside the door even in maui even in maui fortunately for is that what you're saying not under not under the cobit orders right right but prior to covet or if at some point these orders are lifted um and and if a board member were to telephone or to teleconference into the meeting and it happens that that location is your home uh then by law a member of the public if they wanted to would have to be allowed to participate in the entire meeting from
094your home in your home and you have to post the agenda for 72 hours yes yeah so they just say you know i'm homeless guy but i'm here for me and while i'm here i can use your wristband all right uh moving on to slide 47 so i'm going to go through the kogit 19 orders i've been going for about an hour and a half here would you like to take a break or should i continue to move forward please continue continue okay no i'm fine okay uh all right so i'm going back for one second i noticed on the last slide he said all votes taken during the teleconference meeting must be by bowl call so would that even include like the vote we did at the start of this meeting to approve the
095agenda we should have done that as a rule though what you're operating right now under cobit 19 executive order so a lot of the requirements shouldn't say a lot many of the requirements have been relaxed okay these these specific requirements apply prior to prior to the orders being in place and so if there is a member of the of the board that's teleconferencing in that vote should occur to ensure that their vote is part of the process okay all right slide 48 so these are some of the brown act changes that occurred as a result of some of the governor's cobia 19 executive orders so the legislative body is authorized to hold public meetings via teleconference without having to provide a physical location from which members of the public may observe the meeting and offer
096public comment as long as members of the public are allowed to observe and address the meeting telephonically or otherwise electronically so a lot of clients have done or districts that i work with have done as you have which allow them to participate or observe the meaning uh via zoom or whatever platform you're using and then submit comments either by phone or by email to be reread but i also have clients that have figured out that the technology is such that they can actually allow individuals to give public comment virtually and that's created a host of other issues with individuals not showing their uh you know what's the word not showing their video or their visual and in my opinion that would be permissible that would really be no different than i might be running attention
097but that might that would be really no different i don't know if i would probably date myself but if you remember the unknown comic i mean if someone wanted to show up at a board meeting a regular board meeting with a paper bag on their head and address the board there's nothing you could do to tell them to take that paper bag off of their head and so i analogize that to the issue of where the district is allowing is permitting uh public comment virtually and that individual member of the public doesn't want to show their video and just wants to keep it you know with maybe their name or whatever some other visual i think that's entirely permissible and you couldn't prohibit them from participating just because they didn't show their visual for the
098same reason as they are normal comedy okay local agencies but still ensure that they comply with ada accessibility requirements and any notice requirements so again this is just a temporary relaxing of the brown act they're eventually going to end that might be june 15th we're still waiting to get i mean there's still some contingencies with june 15 of that announcement that came out from the governor's office and from the california department of public health but we'll see slide 49 notice if each member's teleconference location is not required so that was relaxed agendas do not have to be posted on on all teleconference locations that was relaxed and the requirement that at least in form of the members are located within the territory of the jurisdiction that's been relaxed as well all right slide 50 these
099things still apply the legislative body must have and advertise each time so the meeting notice requirement is still required uh requests for reasonable accommodations are still required to be adhered to or honored a legislative body must provide advanced notice of the time of and post the agenda for each public meeting so your posting and agenda requirements are still required that hasn't been relaxed and the means by which members of the public may observe the meeting and offer public comment that has to be included in the notice all right slide 51 this was a subsequent order n3520 which basically allows that more than a quorum of the members of a body can meet with federal or state officials regarding cobit 19 without the need of calling a special official board um to allow the free flow
100of information during the pandemic uh and so on and then members are allowed to ask questions in that setting uh without any formal agenda or noticed meeting okay slide 52 the orders though do not relax the requirements that members take action uh the requirements as to what a meeting is that subject that to a to the brown act have not been relaxed so you're still not authorized to you know take any action or discuss amongst yourselves any item of business or within the jurisdiction of the of the body those requirements have not been relaxed they're still in place let's see slide 53 again okay so the executive orders are applied only during the period in which the state and local officials oppose or recommend measures to promote social distancing including limitations on public events so
101it's plausible that it could these orders might be lifted on june 15th there's still a lot of uncertainty there because there's a couple of triggers that need to be met if they're met we anticipated the met and if if the direction is to move forward for example the department of public california department of public health issued a publication on the sixth i believe uh effectively it was just yesterday they issued a notice that basically amongst all of the information that was in that notice said that you know consistent with this governor's action would be that the expectation that all schools return to full in-person instruction by june 15. if that plays out then i suspect or anticipate that there will be some uh subsequent order or confirmation that these orders were lifted in which we
102would go back to pre-cultivated brown act obligations and requirements and so on but there's still a lot of uncertainty there's still a lot of other things that need to happen okay moving on to slide 54 and close sessions so there are very limited exceptions in which the board can meet outside the public eye in closed session so those involve threats to public safety or security personnel issues if you're going to confer with or receive advice from legal counsel labor negotiations and issues involving real property transactions and student discipline so on slide 56 probably one of the most common proposed session items that the board will meet under would involve personnel and that would include that could include the appointment employment appointment evaluation of performance or discipline or dismissal of an employee now the employee does
103not include a board member so that exception cannot be used to discuss some closed session maybe an issue with a board member i actually had just last year a member of the public filed a complaint against a board member and so we had to investigate the complaint and we're trying to figure out how do we have how do we how do we talk about that complaint with the rest of the board uh because you can't use the personnel exception which you would typically use if you were dealing with a complaint against the employee but because in that situation there was the potential for litigation because of what the complaint was alleging we were able under that exception to discuss it with the board but but the general rule is that that exception the personnel exception
104does not apply to members of the board okay let's move on to slide 57 so one of the exceptions is specific for labor negotiations and so in that context the board can discuss in closed session with its bargaining team for either represented or unrepresented employees and those closed sessions can include discussion of the agency's funds available funds and funding priorities but they cannot include final action on any proposed compensation so you can't take any actual closed session even for negotiations regarding the compensation of your representative unrepresented employees for your representative is that typically going to happen in your 80-1200 process where the superintendent and the district's ceo is going to certify that the district can afford the compensation that we proposed that has to happen in an open public session okay slide 58 employment contracts
105so any contract for superintendent deputy superintendent assistant superintendent or other similar chief administrative officer or chief executive officer shall be ratified in an open session of the governing board which shall be reflected in the governing board's minutes and this has to happen at a regular meeting so anytime you're dealing with compensation or contract of a of an executive it needs to happen in open session now you can discuss the contract in terms of the contract in closed session but you cannot approve it in closed session that actually has to happen in open session to allow the public an opportunity to participate in their process uh copies of contracts any employment contracts settlement agreements those are all public for a settlement agreement it wouldn't be public until the issue was resolved and settled but those are
106all public documents employment contracts are all public documents moving on to slide 59 so sb 1436 in 2017 also created this responsibility or this obligation of the board to early report the summary of the recommendation so as a result of this change in the law for example if assistant superintendent's contract is going to be proved the board has to precede that action by orally reporting out the provisions of the contract with regard to compensation fringe benefits and so on to again give the public another opportunity to participate in the process and be aware of what what is being contemplated with regard to compensation for that executive okay uh page 60. these are examples of some safe harbor safe harbor agenda descriptions so the brown act includes a number of safe harbor agenda descriptions meaning if
107you agendize it this way you're good you're golden no issue with improperly agendizing an item for closed session so you've got the public employee discipline dismissal release conference with real property negotiators in that situation you have to identify the property who's the agency negotiator who are the negotiating parties and what's under negotiation price terms on slide 61 uh conference with legal counsel existing litigation uh there was a case that came down recently fowler vs city of lafayette that basically held that the board agenda packet violated the brown act because it didn't it didn't provide sufficient information about the case so you do need to provide the name of the case and if the case name is unspecified uh you have to identify that why it's not being specified but when you have this type of
108issue it's a good idea to consult with legal counsel and the other thing about using the uh the conference with legal counsel is technically legal counsel should even be there or you should be reviewing or receiving uh perhaps an opinion from legal counsel so it'd be okay if the superintendent shared a legal opinion provided by council it would be okay under that exception uh if that were the other thing that we we do sometimes is being available on standby in case a question arises by the board in a phone call we'll wait for a phone call if a question arises okay slide 62 prior to closed session the board must disclose an open session of the items to be discussed in closed session so technically before you convene into closed session you're supposed to either
109briefly discuss or say what's going to be discussed in closed session or you could very simply refer to the items that are listed in the agenda so you could say the district is before you go to the closed session the district will be competing in the call session to review the items listed on the agenda identified under closed session something as simple as that can you verify a point for us should any item be discussed in closed items in closed session that are not uh agendas or that do not fall under the uh the agenda the agenda item i will say that for example in my opinion if if the if the agenda view has the personnel the generalized discipline dismissal release if that is part of the agenda and if if the board was
110going or the staff we're going to discuss with the board the termination of employee a and sometime between the the agenda being posted and the actual meeting occurring within that 72 hours there was now an issue with employee b being totally unrelated to employee aid in my opinion it would be permissible to discuss employee b as well under that agenda item because it it it covers anything that would deal with uh dismissal or release of an employee you raise a great question and my advice to to clients trustees is we all we all benefit by helping each other reminding each other about the limitations of the brown act because it's not uncommon and i've been in closed session meetings regularly but it's not uncommon for a conversation to go lateral and you're talking about one
111topic and then another item that's just very loosely related on the periphery uh comes up and as a lawyer i have to diplomatically remind the board uh you're going beyond the agendized item i have to advise you not to discuss it but you don't always have a lawyer there in the meetings and so it's it's i think it's a benefit to all trustees to help each other and remind each other you know um of the limitations of the brown act and your superintendent uh is there as well to assist with that uh or whatever other staff is present but it's you know it's it's it it happens on occasion it does happen on occasion and it's it's a good opportunity just to remind an individual uh about the limitation yes so very often we will
112have the superintendent's annual review on the agenda for uh you know several conversations if there are goals on the superintendent's annual review that relates to an issue that is currently happening let's say there's a communications issue and that's part of his uh goal then we do to discuss those things in relation to his annual review um are we are we getting into dicing water at that point i mean to me it seems like it can get dicey if the intent of the conversation is to focus on that issue or item and how the superintendent handled it or is handling it consistent or in the context of his evaluation or in areas or goals of which he is being evaluated then it's likely permissible but if the intent is to use the evaluation closed session exception
113to just talk about items carte blanche and that would not be uh permissible so it's you know it's it's it's it's an issue that needs to be uh finally navigated um because i'm about to get into the enforcement piece of of a post session but anything else on that question the intent of the law is to ensure that the public is part of the process and it's transparent and there's very limited exceptions where the board is allowed to meet outside of the public's purview right in closed session and one of those being personnel and within personnel an evaluation of an employee and so you know i could see the issue arise i've never i've never observed it here but i have seen it with other clients where i'm sitting in closed session and a topic
114comes up and it's loosely related and that might be okay but then further dialogue then it becomes more apparent that yeah we're we're pushing over uh and we're now going outside of the bounds of what was agendized and that's well that's where i will make a reminder so it's something that you you know there's no there's no brown act police sitting in a meeting and you're really obligated on your own as trustees and employees of the district that might be in closed session to help each other navigate what can and can't be discussed and errors occur you know it's human nature for error to occur but when errors become common practice is when that creates issues which may be subject to sanction as well can you touch just for a moment on what happens in
115closed session stays in procession and the violations yes i'm just about to get to that so that's a good segue um actually that's my next slide so 60 65. so the law is clear that a person may not disclose confidential information that has been acquired by being present in an authorized closed session to a person not entitled to receive it so board members discuss an item in closed session the sanctity of closed session is it's not permitted to be pierced um there's very limited exception so whatever you learn in closed session stays in closed session um and and you know there's there's there's great value to that because again the general rule is everything happens in open session public as part is is a part of it but the legislature has concluded that in limited
116exceptions there should be an opportunity for members of the body or the board to discuss an item of important of importance to the district to allow for the free flow of discussion about a very important item and there has to be this understanding that in that little exception the sanctity of that closed session cannot be violated it has to stay there the only limited exceptions to that are if perhaps there was some perception or belief a legitimate belief that perhaps something that was being discussed was inappropriately discussed during closed session that wasn't within the confines of what was agenda or something illegal was being discussed or perhaps you know there was some business being contemplated or or discussed in closed session that triggered some whisper whistleblower obligation so there's very limited exceptions where the sanctity
117of closed session can be pierced i mean defined by law and if and the law also it's clear that if a person or a trustee or a member of the legislative of a legislative body that's subject to the brown act if they willfully violate closed session and disclose information willfully that's a that's an item that's reportable to the grand jury and then the grand jury can determine uh what discipline or or sanction or legal action should be imposed against that member of the board so it's it's it's a serious thing my advice to clients is to whatever said in closed session stays in close closed sessions you don't want to risk information being disclosed or being subject to something like that where there's even an allegation that a trustee willfully violated it because then that
118goes to the grand jury you potentially have the d.a district attorney involved and those things don't always stay confidential those are the kinds of stories that the media just loves to run with anytime they can put a public official negative light it seems they seem to revel in that so it's something to be mindful of we have had on occasion parents who have wanted to come in and speak to us in closed session over discipline of a child or teachers who have wanted to speak to us for various reasons and i think that's one of the catch 22s of closed session is if they come in and speak to us about something and then later whatever they said in possession is out there for whatever reason they could turn around and come back and say
119well that came from closed session when it may came yeah that's that's one of the risks of inviting and the board has discretion to invite someone into closed session they have that discretion um but it's one of the risks of inviting someone who's outside of the agency in the closed session because you can't necessarily ensure that they're going to maintain the sanctity of closed session my advice is if you're going to do that is to remind them that you are in closed session by law anything discussed or disclosed a discussed in closed session is confidential and may not be shared outside of closed session but even that is not always enough to keep them from sharing information right okay slide 66 so there are enforcement remedies of civil remedies such as injunction in that paradigm
120case that i shared the families were able to get an injunction against the school district also violations of the meeting notice and agenda provisions may cause an action to be null and void such actions may be commenced by the district attorney or by any interested person so moving on to slide 67 there is an opportunity to cure and correct so if a violation does occur and i've had this happen where a client reaches out to me and says hey you know turns out we made a mistake i said well you're incorrect it may not look good for the district but you know errors do occur and there is an opportunity to correct it so if you're incorrect basically you're redoing the action making sure it's properly noticed and agendized and redoing the action if that
121doesn't occur if the current correct doesn't occur then there's the opportunity for the for the interested person or the da to come after the district and come after a district for violating the brown act if an individual does it and they're successful they can recover attorneys fees and that's one of the limited exceptions one of the limited instances where attorneys fees can be recoverable against the public agency and that can be costly so if a if a mistake occurs my advice is always pure incorrect we don't want to take the risk with some type of litigation and then having to shell out uh turning schemes to the to the filing party all right slide 68 under enforcement uh the brown act also allows the district attorney or an interested person to follow an action regarding
122past violations they have to do within nine months of the alleged violation starting with a cease and desist letter but there is the ability for members for members of the public out there to also try to enforce the ground act for past violations all right now slide 69 the q a stump the lawyer lawyer is there is there any questions that i can try to answer that you might have i cannot tell you what's in marie's cake recipe i have no idea i can just tell you it's delicious for me and i would just say i appreciate scott i like the level of detail too and i like the examples because you read the slides and you you hear but the examples bring it to life so thank you i mean i don't know questions
123if you're going to speak nancy speak into the microphone they're they were high but that's okay you don't need to i'm sorry it didn't he didn't know what i was talking about anyway so it's okay i asked if he was around during the date of rivers days and he didn't know dana all right i actually had a question concerning that uh [Music] a lot of good information and um [Music] thank you thank you [Music] i just want to clarify that we will have a virtual option available um [Music] yes that was the plan you have the virtual option yes thank you [Laughter] miss anderson and dr lee seconded i actually dr lee and trustee anderson both of them simultaneously it was not bruno for the second so take your pick from dr lee or miss
124anderson for the second to adjourn i think we're all getting tired i am yes all right thank you