By James Scot Yarnell, Partner
Sacramento Office
We are periodically asked whether a "weekly update" memorandum which many superintendents distribute to school district governing board members violates the Brown Act. As a general rule, a weekly update distributed to Board members will not violate the Brown Act unless the memo communicates the "comments or position" of a Board member to other members.
Consider the following scenario: In response to a Board member request for information regarding the possible use of District fields by local athletic clubs, a superintendent issued a weekly update to the Board containing historical background information regarding the former use of District fields for athletic competitions by adult league athletic clubs. A long-time current Board member was the source of this information. Thus, the text of the weekly update stated, "Trustee ____________ shared the following information . . ." and proceeded to report a sequence of largely negative activities, observations and recollections by the trustee. In this scenario, a potential violation has occurred.
The definition of a meeting in the Ralph M. Brown Act ("Brown Act") prohibits "serial meetings" conducted through direct communications, personal intermediaries or technological devices. A serial meeting is a series of communications, outside of a public meeting, involving a majority of a legislative body to discuss, deliberate or take action on any item of business within the jurisdiction of the agency. "Deliberate" includes the collective acquisition of information, such as through writings distributed to the Board. However, the prohibition against serial meetings does not prevent an employee or agency official from engaging in separate communications outside of a meeting regarding a matter within the jurisdiction of the agency provided the person does not communicate to members of the legislative body the comments or position of any other member or members.
The need of executive officers to brief Board members on policy decisions and background events concerning proposed agenda items has been recognized by the California Attorney General ("AG"). Since such communications may potentially violate the Brown Act, the AG has long recommended that executive officer memos be available to the public as well as distributed to the Board so that a serial meeting violation would be avoided by everyone having the benefit of responding to the same information. As a "one-way communication," such memos were deemed to not be for the purpose of developing a "collective concurrence" as to action taken.
The reasoning underlying the AG's "one-way communication" rule was called into question in 2006 by the decision in Wolfe v. City of Fremont. The Wolfe case involved a series of face-to-face meetings between the city manager and members of the city council. The court held that the face-to-face meetings did not violate the Brown Act because the city manager's oral communication of policy-related information to council members was not different from the sending of written memoranda to council members, as approved in other precedent. Moreover, the mere communication of policy-related information to individual council members did not constitute a "collective concurrence."
The California State Legislature did not approve of the reasoning in Wolfe and amended the Brown Act in 2008 to delete "concurrence" as a prerequisite for a serial meeting violation. Instead, the Legislature provided that the prohibition against serial meetings does not prevent an employee or agency official from engaging in separate (oral or written) communications with members of a legislative body outside of a meeting as long as the employee or official does not communicate the "comments or position of any . . . member" to other members.
Legislative history indicates the intent of the restriction against communicating the "comments or position of any . . . member" was to ensure that an agency employee or officer would not act as an intermediary for a majority to engage in collective deliberation, rather than to prevent employees or officials from answering questions or conveying information. Accordingly, the restriction need not be so strictly constructed as to absolutely bar all references to another Board member when conveying information. However, the phrase "comments or position" is very broad and can be reasonably understood to prohibit the sharing of any information reflective of Board member judgments, opinions, viewpoints or outlooks.
The mere reporting of purely factual information received from a Board member to other members, without revealing the source, would not constitute communication of the "comments or position" of a member. However, in the scenario presented above, the negative character of the information attributed to the trustee could give rise to a reasonable inference by other members that the trustee would likely oppose the use of District fields by adult athletic clubs. The communication of information which might imply a Board member's position regarding a matter of agency business is not consistent with the Legislature's intent underlying the restriction.
The best practice to ensure full compliance with the Brown Act is to refrain from identifying individual Board members when conveying information to the entire Board. In other words, we do not think a nuanced analysis of Board member statements as being more or less fact or opinion is a sufficiently reliable basis to avoid a potential violation of the Brown Act. Accordingly, we recommend, wherever possible, that the superintendent or another person (not a Board member) be identified as the source of information communicated to the rest of the Board.
