Transparency Laws: Brown Act and Public Records Act … Act...Transparency Laws: Brown Act and...

Presented By: Mary Dowell

February 22, 2017

Transparency Laws:

Brown Act and Public

Records Act for Public

Education Agencies

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Today’s Agenda

• Brown Act – Public Meeting Law

– Who is covered?

– Meetings and agendas

– Closed sessions

– Remedies for violations of the Act

• Public Records Act

– What records are covered and exempt under

the Act?

– Responding to requests for records

Brown Act – Public Meeting Law

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“The people in delegating authority,

do not give their public servants the

right to decide what is good for the

people to know and what is not

good for them to know.”

- Ralph M. Brown Act,

1953

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• The Brown Act is contained in Gov. Code

section 54950, et seq.

• Enacted to respond to the then

increasing utilization of secret and

informal meetings by legislative bodies

• Generally requires for meetings of

legislative bodies to be open and public –

“open meeting requirement”

Who is Covered by the

Brown Act?

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Agencies and Legislative Bodies

Subject to the Act

Local agencies covered by the Act:

• Counties, cities, city and county, towns,

school districts, municipal corporations,

districts, political subdivisions,

community college districts, joint powers

agencies.

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Subject to the Act

Legislative bodies covered by the Act:

• Governing body of local agency or other

local body created by state or federal

statute

– Boards and Personnel Commissions

– What about associations of local government?

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Subject to the Act


• Other bodies of local agencies created by

charter, ordinance resolution or formal

action of a legislative body

– Academic Senate

– Associated Students

– Bond Oversight Committees (EC §15280)

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Subject to the Act

• Standing Committees

– A standing committee is one with

Continuing subject matter jurisdiction OR

Meeting fixed by statute or rule

• Not just standing committees of the

Board; also committees of entities

created by the Board, such as Senate,

AS

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Subject to the Act


• Bodies that govern private corporations

or similar entities that are created by the

legislative body or receive funds from a

local agency

– i.e. auxiliary organizations or “foundations”

for CCDs

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What is NOT a

Legislative Body?

• Advisory committees composed solely of

the members of the legislative body

which are less than a quorum of the

legislative body

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Who is a Member of a Legislative

Body?

• Any individual who is elected or

appointed to sit on a legislative body and

vote on and make decisions with other

such individuals

• Applies to individuals who have not yet

assumed elected office

Meetings and Agendas

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What is a “Meeting?”

• Congregation of a majority of the members of the legislative body at the same time and place to hear, discuss or deliberate upon any item within its subject matter jurisdiction

– No collective concurrence necessary. So be careful when you communicate with members!

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What is a “Meeting?”

A meeting may occur during:

• Informal sessions or conferences

designed for discussion of public

business, including retreats

• Telephone conversations (i.e. group

telephone conference)

• Email

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What is NOT a “Meeting?”

• Attendance of majority of members at

Conferences/seminars, community

meetings, social events

– But there must be no discussion of specific

business

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What is NOT a “Meeting?”

• Contacts/conversations between

administrators and individual board

members or less than a quorum

– No communication of other members’

comments or position

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Types of Meetings

• Regular meetings

• Special meetings

• Emergency meetings

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What is a Regular Meeting?

• Meeting that is held at a time and place specified

by ordinance, resolution, bylaws, or whatever

other rule is required for the conducting of

business by the legislative body

• Occurs at a regularly scheduled time

• Agenda must be posted at least 72 hours before

the regular meeting

• Posting location must be freely accessible

• Agenda encompasses notice

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Posting Requirements

• Must mail agenda upon written request

– Request valid for the calendar year in which

it is filed

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Agenda Content

• Date, time and location of meeting

• Brief general description of items

• Closed session items

• Public comment

• Disability access

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Items NOT on Agenda

• General rule – no action OR discussion on

an item that is not on the posted agenda

• Limited exceptions…

– Brief response, but no action

– Emergency

– Immediate action required after agenda posted

– Item from agenda of prior meeting

If within 5 days

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What is a Special Meeting?

• Meeting that is called at any time by the

presiding officer of the legislative body or

by a majority of the members

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Special Meeting Posting

Requirements

• Notice must be posted at least 24 hours

before the meeting

• Notice must be delivered to members and

press at least 24 hours before the meeting

– Can be by phone, fax, email,

• Date, time and location of meeting

• Brief description of matter to be discussed

– Only matters in notice may be discussed at

meeting

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What is an Emergency Meeting?

• Emergency = a work stoppage, crippling

activity or disaster, or other activity that

severely impairs or threatens to impair

the public’s health and/or safety (e.g.

earthquake, terrorist act, or sickout/blue

flu labor action)

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Requirements

• No written notice required

• Notice to media

• Posting of minutes

• Limited closed sessions

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Conducting the Meeting

• Location of meetings

– Within local agency’s territory/district

– Emergency location

– Non-discriminatory

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• Adjournment of meetings – e.g. less than

quorum of body attends

• Notice of adjournment

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• Continuance of hearing

– Must be announced at meeting

• Notice and posting requirements same

as for adjournment

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Rights of the Public

• Public attendance at meetings

– Registries, attendance lists may not be

required but voluntary lists okay

– Teleconference locations must be identified

and held in a place accessible by public

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• Right to record meeting

• Right to broadcast meeting

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• Right to inspect documents and

recordings

– Agendas and attached documents

– Writings distributed at meetings

– Tapes/films that record meetings

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• Disorderly conduct during meeting

– Willful interruption may result in clearing of

the meeting room

– Establish procedure for re-admission of non-

disturbing persons

– Media may remain if did not participate in

disruption

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• Public agenda documents provided to

legislative body members less than 72

hours before a meeting must be provided

to the public at the same time (Gov.

Code § 54957.5)

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Public Right to

Participate in Meetings

• Must permit the public to address items

on the agenda

• Must allow speakers to speak before the

items are voted on

• Tip: If agency begins with closed

session must first have public comment

on that agenda

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Public Right to Participate in

Meetings

• Must permit members of the public to place

items on the Board’s agenda for action

– EC §§ 35145.5; 72121.5

• Items must relate to the district’s business

• Can enact reasonable regulations that

insure the proper functioning of governing

board meetings

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Meetings

• Must allow public to address items not on

the agenda which are within the Boards

subject matter jurisdiction

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Meetings

• May adopt reasonable regulations for

public comment

– Time limit on particular issues and for each

speaker

– May not prohibit public criticism of the staff,

policies, procedures, programs, services or

acts of the legislative body

– May prohibit making comments outside of

the body’s jurisdiction

Closed Sessions

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Closed Sessions

• Closed sessions are generally prohibited

• Can only be held if the purpose fits a

specific statutory exception

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Closed Sessions

• Common exceptions for closed session

– Pending litigation

– Personnel matters

– Labor negotiations/relations

– Real property transactions

– Student discipline/complaints

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Pending Litigation Exception

• Pending litigation exception – legislative

body confers with or receives advice

from its legal counsel

– Necessary to avoid prejudicing the position

of the local agency in the litigation

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• “Pending litigation” includes:

– Ongoing litigation

– Significant exposure to litigation

– Decisions to initiate litigation

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• Settlement discussions – typically

discussed during closed session

• BUT, may not decide matters in closed

session that must be decided after a

public hearing even if part of settlement

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Personnel Matters

• There is no general “Personnel Matters”

exception

• Closed session must be to consider

appointment, employment, evaluation of

performance, discipline/dismissal/release

• There are other requirements depending

on the type of personnel matter

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Personnel Matters

• Includes appointment of high level

managers

• Does not include appointment of board

members

• Does not include independent

contractors (unless the latter is

functioning as an officer or employee) or

consultants (e.g. architects, law firms)

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Personnel Matters

• Complaints or charges against employees

– 24 hours written notice of right for open session

– If notice not given, action taken is void

– Hearing vs. deliberating on complaints/charges

• Written notice must be delivered 24 hours

before session

• If employee does not request open session,

it is heard in closed

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Personnel Matters

• Performance evaluations

– Does not constitute hearing of

complaints/charges

– 24 hours notice not required

– May take disciplinary action following review

of adverse performance…BUT watch out for

accusations made during closed session

– Conservative approach - 24 hours notice

that addresses performance evaluation and

complaints/charges

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Personnel Matters

• Compensation/salary setting

– Only reduction resulting from discipline

• Probationary employees

– Probation determination is not

complaint/charge

• Specific employees only

– Discussions that relate to broad

classification of employees must be held in

open session

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Labor Negotiations Exception

• The legislative body may meet with its

designated representatives in closed

session to give directions

– But may not act on proposed compensation in

closed session

– Agency’s representatives must be identified in

an open and public session

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Labor Negotiations Exception

• Purpose of closed session meeting:

– To review position and instruct the local

agency’s designated representative, or

– To discuss any other matter related to

represented employees within the scope of

bargaining

• Closed session may also take place prior to

and during consultations and discussions

with employee representatives and

unrepresented employees

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Real Property Transaction

Exception

• The legislative body may meet in closed

session with an agency’s real property

negotiator prior to the purchase, sale,

exchange or lease of property

– To discuss price and term of payment

– Must identify property, negotiator and party

he or she is negotiating with on public

agenda

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Closed Session Agenda

Description

• The format for describing closed session

items vary and depend on the item

• Section 54954.5 provides descriptions for

the various closed session items

– No violation so long as the closed session

items are described in “substantial

compliance” with the section 54954.5

descriptions

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Student Discipline Exception

• Suspension, expulsion or other action

• Closed session unless student requests

open session within 48 hours of receiving

notice of Board meeting

• If discussion will involve any other

student, that must be in closed session

• Must act in open session

– Decision is public record

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Description

• Pending litigation – state name of pending case

– If litigation is anticipated – state “potential action involving significant exposure to litigation”

– Either on agenda OR at meeting, describe facts and circumstances leading to counsel’s conclusion there is risk

• Personnel matters

– Public employment or appointment

– Evaluation of performance

– Public employee discipline/dismissal/release

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Description

• Student discipline – “Consideration of student discipline (suspension/expulsion/ other action) pursuant to Ed. Code § 72122.

– Student #xxx

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Description

• Labor negotiations/relations – specify

names of designated representative and

employee organization

• Real property transaction – specify

location of property, agency negotiator,

negotiating parties and what will be

instructed to the negotiator (e.g. price,

terms of payment, etc.)

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Announcement Before Closed

Session

• Before conducting a closed session, the

legislative body must announce in open

session the items to be discussed in

closed session and state the general

reasons for the closed session

– Refer to agenda or make announcement

orally

– Make sure to cite statute for closed session

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Conducting Closed

Session Meetings

• Closed session meetings should usually

involve only the members of the

legislative body of the local agency, plus

any additional support staff required or

any witnesses required

• Individuals not necessary to the meeting

should be excluded

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Reporting After Closed

Session

• After the closed session, the legislative

body must reconvene into open session

and report the actions taken in the closed

session

– Must include the roll call vote

• The nature of the report depends on the

type of action taken

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Session

• Real property negotiations – approval

and substance of final agreement

• Disposition of claim or settlement of

litigation – parties involved, monetary

amount, substance of claim

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Session

• Personnel decisions

– Shall be reported at the public meeting

during which the closed session is held

– Identify the title of the position

– Report of a dismissal or non-renewal of

employment contract must be deferred until

the first public meeting following the

exhaustion of administrative remedies

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Session

• Labor negotiations

– Report approval of final and ratified

agreement

– Report items approved and parties to the

negotiation

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Confidentiality of Closed Session

• No disclosure of personal recollection of

closed session discussions

– Members of a legislative body are not

permitted to disclose the contents of a

closed session

– Disclosure of the personal recollections of

participating members cannot be compelled

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• A person may not disclose confidential

information that was acquired by being

present in a closed session

• “Confidential Information” is a

communication related to the basis for the

legislative body to meet lawfully in closed

session

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• Sanctions for improperly disclosing

confidential information

– Injunctive relief to prevent disclosure

– Disciplinary action against an employee who

willfully discloses

– Referral of a member of a legislative body to

the grand jury

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• Exceptions to rule of non-disclosure

– Employee provides information to a district

attorney or grand jury concerning a

perceived violation of the Act

– Employee is expressing an opinion

concerning the propriety or legality of actions

taken by a legislative body

Remedies for Violations of the

Brown Act

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Remedies for Violations

of the Act

• District attorney or other interested

person may

– Bring an action to prevent violations or

threatened violations

– Determine the applicability of the Act to

actions or future actions

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of the Act

• Correcting or curing an unlawful action –

there are specific procedures the DA or

interested person must take to

nullify/void action

– Written demand to cure

– Opportunity for legislative body to cure

– Interested party must have been prejudiced

by the violation of the Act

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of the Act

• Attorney fees and costs

– Court may award court costs and

reasonable attorneys fees to the prevailing

plaintiff

– Costs and fees must be paid by the local

agency and is not a personal liability of any

public officer or agency employee

– Agency may be awarded fees and costs for

frivolous actions

Public Records Act

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Public Records Act

• The California Public Records Act is

contained in Gov. Code section 6250 et

seq.

• General policy of the Act is to favor

disclosure

• The Act recognizes protection of privacy

interests implicated for certain records –

provides numerous exemptions to

disclosure

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Public Records Covered

by the Act

• The Act applies to “any writings containing

information relating to the conduct of the

business, prepared, owned, used, or

retained by any state or local agency

regardless of physical form or

characteristics”

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Public Records Covered By the Act

• What about records contained on the

private email servers and phones of

public officers and employees?

– Currently pending before California

Supreme Court

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Public Records Covered

by the Act

• Types of public records

– Financial data

– Personnel records

– Employment contracts

– Minutes of regular and special meetings

– Emails, faxes, photographs and photocopies

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Inspection of Public Records

• Public records are subject to inspection

at all times during the business hours of

the state or local agency

• Agency may adopt regulations stating

procedures to be followed when making

public records available

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Requests for Copies

• A member of the public has a right to

receive exact photocopies of public

records under the following conditions:

– Request describes an identifiable record

– Requester provides fees covering copy

costs

– Providing an exact copy is not impracticable

– Agency is not obligated to reconstruct

unavailable computer data

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Right to Assistance from Agency

• An agency must assist the requester make

a focused and effective request that

reasonably describes an identifiable record

– Assist requester to identify records/information

that is responsive to the request

– Describe the information technology and

physical location of the records

– Provide suggestions for overcoming any

practical basis for denying records

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Responding to a

Records Request

• An agency must determine whether or

not the request is for discloseable

records, and notify the requester of such

determination within 10 days after receipt

of the request.

• The documents themselves do not have

to be produced within 10 days, but must

be provided as soon as practicable.

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Responding to a

Records Request

• The response must provide the reasons

for the determination

– Cite applicable disclosure exemptions

• For denials, must provide names and

titles/positions of each person

responsible for denial

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Extension for Response

• Extension for response - when “unusual

circumstances” exist, the agency may

extend the 10 day response time by no

more than 14 days

• Requires written notice from the head of

the agency to the requesting person

– The written notice must set forth the reasons

for the extension and the date for

determination

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Extension for Response

• Unusual circumstances

– Need to search and collect from separate

facility

– Need to examine voluminous amount of

records

– Need to consult another agency that has an

interest in the determination

– Need to compile data or write computer

program to extract data

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Exempt Records

• The Act contains exemptions to the

disclosure requirement

• BUT the exemptions must be narrowly

construed and the local agency should

be prepared to bear the burden to prove

that the exemption applies

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Exempt Records

• Section 6254 sets out categories of

public records that are exempt from the

disclosure requirements

• Common exemptions applicable to you:

– Personnel files

– Pending litigation records

– Peace officer records

– Catch-all exemption

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Exemption: Personnel Files

• Personnel records are only exempt from

disclosure where the disclosure of these

records would subject the individual to

whom the records pertain to an

unwarranted invasion of privacy

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Exemption: Personnel Files

• Examples of personnel files that must be

disclosed

– Names, job titles and salaries of high-

ranking employees

– Salary ranges of unidentified employees

– Employment agreements

– Certain disciplinary records that reflect

allegations of a substantial nature

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Exemption: Pending Litigation

• Conditions for Pending Litigation

exemption:

– Document is specifically prepared for use in

litigation

– Document is litigation-related and the parties

intend that the document will not be shared

outside of the litigation

– Exemption does not apply once litigation has

concluded

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Exemption: Peace Officer Records

• Peace officer personnel records and

records of complaints against officers by

citizens are confidential

• Only discoverable through Pitchess

discovery motion procedure

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Exempt Records: Student

Information/Records

• Family Educational Rights and Privacy Act (“FERPA”)

• Any item of information which is directly related to an identifiable student, other than directory information

– Grade reports/papers

– Transcripts

– Financial aid forms

• Written consent of student (if 18 or older) or parents of minor student required

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FERPA: Directory Information

• Defined by each District – may include:

– Name

– Address

– Telephone number

– Date and place of birth

– Major field of study

– Student participation in activities

– Height and weight and high school of

graduation for athletic team members

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Catch-All Exemption

• Where no specific exemption exists, the

agency may assert the catch-all exemption

• Agency must demonstrate that based on

the facts of the particular case, the public

interest served by not disclosing the record

clearly outweighs the public interest served

by disclosure of the record

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Records Maintained by Law

Enforcement Unit

• Only applies to records and information:

– Created by a law enforcement unit;

– Created for a law enforcement purpose; and

– Maintained by the law enforcement unit.

• FERPA does not apply to law enforcement

records, even if a student is a victim,

suspect, witness or other involved party.

• Distinguish records vs. information

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Waiver of Exemption

• Generally, if the local agency discloses a

public record that is exempt from the

disclosure under the Act, the disclosure

constitutes a waiver of the exemption

• Several exceptions to general rule

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Legal Action to Compel Disclosure

• After denial of records request, requester

may file an action in civil court to compel

the local agency to disclose the records

• Local agency must be prepared to show

cause why the records should not be

disclosed

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Attorney Fees and Costs

• The court shall award costs and

reasonable attorney’s fees to prevailing

plaintiff

• The costs and fees are paid by the public

agency, rather than the individual official

who denied access to the records

• Local agency may be entitled to attorney

fees/costs for clearly frivolous action

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Thank You!

Mary Dowell

Partner | Los Angeles Office

Phone: 310.981.2000 | [email protected]

https://www.lcwlegal.com/our-people/mary-dowell

mailto:[email protected]

https://www.lcwlegal.com/our-people/mary-dowell

Transparency Laws: Brown Act and Public Records Act … Act...Transparency Laws: Brown Act and...

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Transcript of Transparency Laws: Brown Act and Public Records Act … Act...Transparency Laws: Brown Act and...