State Commission Finds that Brown Act’s “Serial Meeting” Prohibition May Impede Good Government
by Derek P. Cole on July 13, 2015
posted in Meetings,
Does the Brown Act sometimes get in the way of good government? According to the Little Hoover Commission, a think-tank agency that studies the performance of state government, the answer is yes. After comprehensively studying how the Brown Act regulates “serial meetings”—discussions that occur among more than two council or board members outside of a noticed public meeting—the Commission has published a report that finds that Act’s serial-meeting provisions may be impeding effective decision-making.
The Commission’s findings are interesting and, in this author’s opinion, probably correct. But they are not likely to spur any legislative changes.
The Serial-Meeting Problem
Serial meetings can occur in a number of ways. The most direct involves two or more council or board members discussing a particular business item before the meeting in which it is scheduled to be considered. These members can also engage in a serial meeting by communicating about an item electronically, such as through email or social media. Members can likewise engage in a serial meeting by communicating with each other indirectly, through an intermediary, such as a developer, lobbyist, or an agency staff member.
Few would argue that serial meetings should be allowed without limit. Absent some regulation, members of councils and boards could too easily reach consensus on business items they must approve formally in public meetings. Formal decisions in these situations would be rubber-stamp affairs, depriving the public of its right to have input and affect decision outcomes.
Changes in the Brown Act Regarding Serial Meetings
For many years, the Brown Act did not outright ban serial meetings. Instead, it regulated such meetings by prohibiting officials from directly or indirectly developing a “collective concurrence” before taking formal action.
In 2006, an appellate court interpreted this requirement in a way that many believed was inconsistent with the Brown Act’s overarching policy of open government. When a city manager had discussed a council agenda item with all five council members before a public meeting, the court found no serial meeting occurred when it could not be proven a decision had been reached as a result of these informal discussions. (Wolfe v. City of Fremont (2006) 144 Cal.App.4th 533.)
In 2008, the Legislature amended the Brown Act to close the perceived loophole this decision created. It did so by amending the Act to preclude officials from discussing with a quorum of their body any item of business within their jurisdiction. No longer were members prohibited only from arriving at a “collective concurrence.” After the 2008 legislation, they apparently could not even discuss a business item with more than a single member of their council or board.
The Commission’s Findings and Recommendation
Examining the impact of the 2008 change, the commission noted that agency attorneys who advised councils and boards were counseling that members abstain from all discussions of business items with more than one member in light of the 2008 legislation. Whether or not this interpretation is warranted—First Amendment and media advocates who testified before the Commission claimed it is too conservative—the Commission found that many members were abstaining from pre-meeting discussions altogether due to concerns their counsels had raised of potential Brown Act lawsuits and significant attorney-fee awards.
According to the Commission, the result of these defensive measures has been less-informed decision-making. Several officials testified they felt hampered in their ability to understand important issues because they did not feel they could ask questions of their peers to gain background and perspective. Fearing they will be accused of having held a serial meeting if they study specific business items too much in advance, these officials indicate they often wait until an item is called in a meeting before trying to understand the items’ basics.
Because of the importance, varied nature, and complexity of subjects local officials must address, the Commission found that the constraints officials feel they are under—and more important, that they often act upon—do not promote optimal decision-making. To address this problem, the Commission recommended the Brown Act be amended to allow council or board members to again be able to discuss business items among themselves so long as they don’t develop concurrence or consensus before taking formal action.
Should the Brown Act be Amended?
The Commission’s recommendation is unlikely to be acted upon. The First Amendment and media representatives who participated in the Commission’s proceedings disagreed that the current, categorical prohibition on serial meetings was creating problems. Because these representatives would no doubt characterize any proposal to amend the Brown Act as providing for less open government, it is difficult to imagine a sufficient groundswell would exist to compel the Legislature to act.
But even if the Brown Act were amended, this author doubts the problems the Commission identified would go away. If discussions about business items were allowed so long as no concurrence or consensus is reached, then when, whether, and how that point is reached would become “questions of fact” in the parlance of the attorneys who would handle the ensuing Brown Act litigation. Opposition groups and persons who do not prevail on contentious issues are unlikely to view pre-meeting discussions among officials as mere fact-finding or “get up to speed” endeavors. Inevitably, in the polarized environment that often exists in local government, these interests will claim that any discussions by officials were for the purpose of fostering pre-meeting consensus and they will use the discovery mechanisms of civil litigation—including depositions that require officials to testify under oath—to support their claims.
This author believes the Commission is correct in its findings about the effects of the current serial-meeting prohibition on local-agency decision-making. But in this author’s opinion, changing the Brown Act as the Commission proposes would only lead to more litigation, create more complex factual questions to be resolved in such litigation, and lead to more exposure to significant attorney-fee awards. To avoid these increased risks, officials will simply keep taking the measures they are taking now to avoid being accused of serial meetings. Thus, while the law would change, the defensive behavior of public officials (and the conservative advice their attorneys give them) would not.
