Let The Sunshine In: Your Right to Open Meetings under the Brown Act
“[T]he Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.
“The people of this State do not yield their sovereignty to the agencies which serve them. 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. The people insist on remaining informed so that they may retain control over the instruments they have created.”—California Government Code section 54950
Thus begins the Ralph M. Brown Act, California Government Code Sections 54950-54963, a law enacted in 1953 that guarantees Californians the right to participate in local government meetings, and provides legal remedies for violations of this right. It requires covered entities to provide public notice of their meetings and agendas of subjects to be discussed at the meetings, and requires public access to those meetings, except in limited specified circumstances when closed sessions are permitted.
With COVID restrictions relaxed, and residents once again allowed to attend Irvine City Council meetings in person, this is a good time for those not familiar with the Brown Act to get acquainted with some of its basic requirements. The Act is quite complex. This article is far from a comprehensive analysis of it, nor should it be construed as legal advice. Rather, it is intended as a brief overview of some key provisions of the Act to assist Irvine residents in asserting and exercising their rights.
What government bodies are subject to the Brown Act?
Section 54951 defines “local agency” as “a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency.” Section 54952 defines “legislative body” to include, among other things, the governing body of a local agency, as well as a committee, commission or board “created by charter, ordinance, resolution, or formal action of a legislative body.” Covered bodies with jurisdiction in all or part of Irvine include:
- Irvine City Council
- Orange County Great Park Board
- Irvine Ranch Water District Board of Directors
- Irvine and Tustin School Boards
- South Orange County Community College District Board of Trustees
- Orange County Board of Education
- Orange County Board of Supervisors
- Orange County Power Authority Board of Directors
- All commissions and committees under the above bodies
What qualifies as a “meeting” under the Brown Act?
Section 54952.2 broadly defines “meeting” as “any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location …, to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.”
The same section prohibits a majority of the members of a legislative body from, outside of an authorized meeting, using “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.” This ban extends to communications via social media platforms, “including comments or use of digital icons that express reactions to communications made by other members of the legislative body.” Such communications are known as serial meetings, and they may not be used to exclude the public from deliberations of public business.
Public notice requirements for regular meetings.
Section 54954.2 requires that the agenda be posted a minimum of 72 hours before the meeting in a location freely accessible to members of the public. If an agency has a website, it must post the agenda on its primary homepage. The agenda shall:
- Specify the time and location of the meeting.
- Provide a brief description of each item of business to be transacted or discussed, including matters to be discussed in closed session. This description generally need not exceed 20 words.
- Include information regarding how, to whom, and when a request for a needed disability-related modification or accommodation may be made by a person with a disability by a person with a disability wishing to participate.
In addition to the public posting requirements, the entity must mail a copy of the agenda and the complete agenda packet to a party requesting one, but the agency may charge a fee to cover the cost of mailing. (Section 95454.1.)
The above requirements apply specifically to regular meetings. Modified notice requirements are provided for special meetings and emergency meetings, but the business that may be conducted at such meetings is strictly limited by statute. (Sections 95456, 95456.5.) For further information on these provisions, see the references cited at the end of this article.
How meetings must be conducted.
The Act sets standards for the conduct of public meetings:
- The meeting must be held in a place accessible to all members of the public. (Sections 54953(a), 54956.5.)
- Members of the public do not have to identify themselves to attend. (Section 54953.3.)
- The public body must provide time for public comment before or during the body’s consideration of an agenda item. Time limits may be imposed but criticism of policies, procedures, programs or services may not be prohibited. (Section 54954.3.)
- Documents distributed at a public meeting are public records, unless they fall within an exemption under the Public Records Act. (Section 54957.5.)
- Cameras and tape recorders are permitted, and any recording of the meeting made at the direction of the public body is a public record subject to disclosure. (Section 54953.5.)
Closed meetings are permitted to maintain confidentiality in the conduct of certain specified business.
The Brown Act allows the public to be excluded under a number of narrow exceptions where the items of business are strictly limited to specified matters for which confidentiality is important. Generally, if the body takes formal action on a matter discussed in closed session, the action must be disclosed subsequently to the public. Common types of business that may be conducted in closed session include:
- Conferring with legal counsel regarding pending (or threatened) litigation when discussion of the matter in open session would prejudice the position of the agency in litigation. (Section 54956.9.)
- Consideration of the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee. (Section 54957(b).)
- Conferring with the agency’s representatives regarding salaries, salary schedules and fringe benefits for agency employees, and collective bargaining matters for represented employees. (Section 54957.6(a).)
- Conferring with the agency’s negotiator to grant authority regarding the purchase, sale, exchange or lease of real estate. (Section 54956.8.)
- Conferring with law enforcement officials regarding security threats. (Section 45957(a).
Legal Remedies for Violations.
The Brown Act provides several mechanisms for court enforcement of its provisions.
- Suit to void action. The county district attorney or any interested person may file a lawsuit in Superior Court asking the court to determine that an action taken in violation of the Act is null and void. Before filing such a suit, the district attorney or interested party is required to make a demand on the agency to cure or correct the action claimed to have been taken illegally. Generally, the demand must be made within 90 days after the action was taken. After receiving such a demand, the agency has 30 days or cure the violation. The district attorney or interested party may file suit within 15 days after the agency acts in response to the demand, or within 15 days after the deadline if the agency has failed to act. (Section 54960.1.)
- Suit to stop or prevent violations or threatened violations. Similarly, the district attorney or any interested person may file suit for the purpose of stopping or preventing violations or threatened violations of the Act by members of a local legislative body, or to determine the applicability of the Act to ongoing or threatened future actions. Additionally, the same section of the Act authorizes suits to determine the legality under the Act of past actions of the body. (Section 54960, subdivision (a).) Prior to filing such a suit to determine the legality of a past action, the plaintiff must attempt to resolve the matter by filing a “cease and desist” letter with the agency no later than nine months after the alleged violation. The body has 60 days to respond before a suit may be filed. (Section 54960.2.)
- Additional remedies authorized by the Act include suits by the district attorney or member of the public to require the body to audio record its closed sessions, or to determine “whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid or invalid under the laws of this state or of the United States.” (Section 54960, subdivision (a).)
- Attorney fees and court costs may be awarded by the court to a plaintiff who successfully sues to enforce the Act. (Section 54960.5.)
- Criminal prosecution is theoretically possible. Each member of a body knowingly violating the Act with intent to deprive the public of information to which is entitled is guilty of a misdemeanor. (Seciton 54959.) However, proving such intent beyond a reasonable doubt would be a difficult burden for the prosecution, and this may be one reason why there apparently have been no prosecutions under this section.
Additional resources. As discussed above, this is a brief outline of some of the major provisions of the Brown Act, and by no means a comprehensive guide. Those desiring more detailed information can find many publications on the internet. The following items may be particularly useful:
- Text of the Ralph M. Brown Act, California Government Code sections 54950 through 54963 https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=2.&chapter=9.&part=1.&lawCode=GOV&title=5.
- First Amendment Coalition, Brown Act Primer https://firstamendmentcoalition.org/facs-brown-act-primer/
- League of California Cities, Open & Public V: A Guide to the Ralph M. Brown Act https://www.cacities.org/Resources-Documents/Resources-Section/Open-Government/Open-Public-2016.aspx
- Voice of OC, Brown Act: Landmark for Protecting Open Government https://voiceofoc.org/2013/01/brown-act-landmark-for-protecting-open-government/
 All statutory citations herein are to the California Government Code unless otherwise noted.