Updated: Jan 26, 2021
Let's talk about the Brown Act. That's the California law that governs the rules around local public meetings. The intent behind the law is to ensure that bodies like city councils and boards of supervisors deliberate and make their decisions in full public view so that we all get to participate and hold public members accountable. However, as many social justice warriors might recognize from experience, just attending a public meeting doesn't necessarily guarantee a real opportunity to be influential. So let's talk about what the Brown Act does and doesn't do. Here are the CliffsNotes:
The Brown Act applies to all public boards, commissions, councils and agencies at the local level.
It requires that their meetings must be in public.
Public meetings must be noticed in advance - at least 72 hours ahead for regular meetings and 24 hours for special meetings.
Meetings are required to be agendized and that the agendas include brief descriptions of each item. If an issue isn't noticed, it can't be considered.
There are some limited circumstances when the public can be excluded from a meeting of a public body - for closed or executive sessions. There are some specific rules for determining when that's appropriate. But to avoid getting too far into the weeds, these usually relate to deliberations that need to be kept confidential such as when the public board is having discussions around property negotiations or receiving legal advice on pending litigation.
So all of that sounds great, but what are the push points?
A common problem is figuring out what constitutes a "meeting" of the public body. When a majority of the body comes together to discuss or deliberate on an issue that is before them, it will be considered a meeting. This applies to telephone and electronic communication as well. For example, if three out of five members of a city council are on an email chain together discussing a housing project that the board will have to vote on the following week that would likely violate the Brown Act. You may also run into Brown Act problems if there's a serial meeting. So if board member A has a conversation with member B and later texts member C to share the details of that conversation, you may have a violation on your hands.
That makes sense, right? Don't throw stones and hide your hands! We, the public, want to know how board members and supervisors are making their decisions. And, we want a fair opportunity to tell them where we stand on the issues.
That said, however, anyone that has ever been to a public board meeting may notice that in most cases the officials already have their minds made up before the public debate ever begins. There's a lot of research, analysis and lobbying that happens away from the public. So even if board members are following the Brown Act and not discussing the issues together outside of official meetings, it doesn't always translate into transparency and true public participation in the process.
And that's a difficult problem to fix. While the Brown Act makes sure that members aren't talking to each other in private, you don't want to limit their ability to meet with constituents in private. Public board and council members need to hear from the community and that also means they're meeting with business owners, lobbyists, and any other member of the public. Even further, you want members to do their homework prior to a public meeting to be prepared. In that process, it's unavoidable that members will develop an opinion.
Another issue that's been raised about the Brown Act is that the prohibition on public board or council members discussing issues outside of public view can make it really difficult for like-minded members to strategize to accomplish a collective goal. It's pretty inefficient to have all of your relevant conversations with your colleagues on a dais in front of a crowd.
So what's the verdict on the Brown Act? It's sort of a mixed bag. Some good things here for sure, but it's also important to recognize the areas where it doesn't always lead to the best consequences. Most critically for members of the public, if the first time you're reaching out to your local elected member is during the regularly noticed meeting, you're already behind the eight ball. This highlights the importance of organizing early, setting meetings, making calls and making sure your voice is heard on issues that matter well before the board or commission meets to take a vote.