- ARTICLE 1: Introduction and Purpose
- ARTICLE 2: Intent and Spirit of the Open Meeting Laws
- ARTICLE 3: Applicability
- ARTICLE 4: Bodies Included
- ARTICLE 5: Meetings Defined
- ARTICLE 6: Agenda and Notice Requirements
- ARTICLE 7: Rights of the Public
- ARTICLE 8: Permissible Closed Sessions
- ARTICLE 9: Penalties for Violating the Open Meeting Policy
Introduction and Purpose
"Guide") is an open meeting reference handbook created for the Board of Directors of Cal State L.A. University Auxiliary Services, Inc. (hereafter "UAS"), an auxiliary organization of the California State University (hereafter "CSU") system. Although specifically prepared for the UAS Board of Directors, this Guide may be utilized by other auxiliary organizations on the California State University, Los Angeles campus (i.e. Associated Students, Inc. or University-Student Union, Inc.) or on any other sister schools across the State of California.
The purpose of this Guide is to inform, educate and assist new and present members of auxiliary organization policymaking bodies on the State of California requirements of conducting meetings openly and publicly. Frequently, new Board members are seated without much orientation of his or her responsibility of complying with the open meeting laws. Whatever little piece of information the new member receives is usually obtained from one or two short paragraphs within the corporation's bylaws. However, such information is inadequate and does not fully inform the member. This user-friendly Guide will be catered to auxiliary organization practices and will contain "what-if" scenarios to help the reader better understand the open meeting requirements that govern the conduct of meetings.
Another purpose of this Guide is to add clarity to a specific law which I consider to be poorly written. Specifically, the California Education Code (� 89920 et seq.) lacks the information and guidance needed for members of an auxiliary organization to fully understanding the open meeting requirements. Unlike the open meeting requirements pertaining to University of California (see Education Code � 92030 et seq.) and Community College (see Education Code � 71000 et seq.) systems which make specific references to State of California open meeting laws, the Education Code stands by itself without making any references. However, because of the auxiliary organization's classification as a "public agency" (see California Government Code � 20057), this Guide shall also incorporate the Ralph M. Brown Act (Government Code � 54950 et seq.) (hereafter "Brown Act") which also requires local public agencies to conduct their deliberations and take actions openly before the public.
It shall be noted that this Guide was created as part of a May 1997 graduate thesis project. Prior case laws and opinions from attorneys general were individually reviewed and analyzed to aid in the creation of this Guide; therefore, this Guide contains a considerable degree of accuracy. However, in any given situation, the reader is cautioned to always refer to the full text of the open meeting laws and/or consult an attorney for clarification. This Guide is not intended to take the place of the legal advice of an attorney.
Hereinafter and unless otherwise noted, "Government Code" and "Education Code" shall be abbreviated as "G.C." and "E.C." respectively.
I wish to express my deepest appreciation and gratitude to two special individuals who helped in the content review and accuracy of this Guide: To my dear friend, Karen N. Pavia, Esq., whose words of encouragement, unselfish assistance in legal research and legal guidance helped me whenever I needed it, and to Dr. Allen A. Mori, Dean of California State University, Los Angeles' Charter School of Education, whose 13+ years in chairing board meetings, in-depth knowledge of the fiduciary duties of Board members, and constant references to the open meeting laws inspired me to expand on this topic. Thank you two very much.
Prepared by: Jonathan See
Master of Public Administration
California State University, Northridge
The author welcomes any comments and suggestions the reader may have in bettering this Guide. Please direct all comments and suggestions to:
UAS SUNSHINE GUIDE
Cal State L.A. University Auxiliary Services, Inc.
5151 State University Drive, Golden Eagle 314
Los Angeles, California 90032
Intent and Spirit of the Open Meeting Laws
In the State of California, local agencies such as UAS and other auxiliary organizations exist to aid in the conduct of the people's business. The following is the Brown Act's declaration:
"In enacting this chapter, the 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." (see G.C. � 54950)
The purpose of UAS's existence on the Cal State L.A. campus is to provide commercial services to the entire campus community (i.e. faculty, staff and students). Policies which the UAS Board of Directors establish have considerable effect, whether directly or indirectly, on the community. Therefore, through this legislative intent and spirit of the open meeting laws, the UAS Board of Directors shall conduct its business in an open forum so that the public may exercise its rights of information and knowledge access.
Applicability of the Education Code In section 89901(c), the Education Code defines an auxiliary organization as "Any entity which operates a commercial service for the benefit of a campus of the California State University on a campus or other property of the California State University." By virtue of its functions as stated in section 025 of the California State University, Los Angeles Administrative Code Manual, UAS is responsible for all commercial operations and services on the CSU's Los Angeles campus and is therefore, an auxiliary organization. The Education Code, in section 89920, further states that:
"Each governing board, or any subboard of the governing board, of an auxiliary organization shall conduct its business in public meetings. All governing board and subboard meetings shall be open and public, and all persons shall be permitted to attend any meeting of the governing board or subboard of an auxiliary organization, except as otherwise provided in this article."
Applicability of the Brown Act
"public agency" (see G.C. � 20057), UAS shall also comply with provisions of the Brown Act. (G.C. � 54950 et seq.) The Brown Act requires the legislative bodies of all local agencies in California to conduct their deliberations and decision-makings openly. As one of its definitions (see G.C. � 54952(a)), a legislative body means "The governing body of a local agency or any other local body created by state or federal statute." Therefore, the Brown Act applies to UAS because of the following reasons:
- UAS is an organization organized under the provisions of the California Education Code, a state statute; (see E.C. � 89900 et seq.)
- UAS is considered a "public agency;" and
- UAS is also considered a local agency because its primary functions are local in character (meaning that UAS's business affairs are conducted within a local jurisdiction).
The inclusion of the Brown Act in this Guide is to supplement the Education Code. There are certain sections in the Brown Act that conflict with the Education Code; therefore, the Brown Act shall only be consulted for appropriate instructions whenever the Education Code does not address an issue or situation.
What if complying with one code violates the other?
In the event there is a conflicting provision, the Education Code takes precedence over the Government Code because UAS is formed to aid in the fulfillment of the CSU's educational mission and to conduct business in conformity with regulations as set forth by the CSU Board of Trustees. (see E.C. � 89903) It is not the intent of the Brown Act to abrogate provisions of Education Code or other California statutory laws. Therefore, in the event there is a conflicting provision between the two codes, full compliance with the Education Code is mandatory.
"each governing board, or any subboard of the governing body of an auxiliary organization shall conduct its business in public meetings." The UAS Board of Directors and all of its Board-established ad hoc or standing committees are the governing board and subboards respectively. Subboards are committees created by either charter, ordinance, resolution or formal action of the governing body and are also treated as legislative bodies. The current UAS standing committees include:
- Finance Committee
- Executive Committee
- Audit Committee
- Investment Committee
- Ethics Committee
Therefore, unless otherwise provided as an exemption of the open meeting law, members of these committees shall deliberate and conduct their business in public meetings.
What is the difference between "Ad Hoc" and "Standing" committees?
Ad hoc committees are defined as those advisory committees created for the special purpose of a one-time project (e.g. the UAS 50th CSLA Anniversary Advisory Committee). Upon completion of the project, the ad hoc committee shall cease to function in that capacity. On the other hand, standing committees are those committees empowered by the UAS Board of Directors to assume the responsibility of a continuous subject matter (e.g. Finance, Investment, Audit and Ethics).
Since ad hoc committees assume an advisory role only and do not take any official Board actions, are such committees required to conduct their meetings openly?
Yes. The Education Code requires that any subboard of the governing board shall conduct its business in public meetings. Unlike the Brown Act which excludes advisory committees with less than a quorum of the legislative body (see G.C. � 54952), the Education Code does not make any exceptions. Therefore, all deliberations of UAS Board-established committees, whether advisory or standing in character and irrespective of their compositions, are required, unless otherwise exempted, to be conducted in public meetings.
Whenever a congregation of a majority of the members of the UAS Board of Directors at the same time and place to hear, discuss, or deliberate upon any item that is within its subject matter jurisdiction, the UAS Board of Directors shall have engaged in a meeting. The meeting need not take place in a formal board room for it to become an official meeting. Members of the UAS Board of Directors may hold their public meetings at any location for as long as the meeting is properly noticed as required by the Education Code.
There are three different types of meetings in which the UAS Board of Directors and its committees can conduct their business. These three types of meetings are the regular, special and emergency meetings. UAS's regular Board of Directors meetings are held once per academic quarter, four times a year as provided in the UAS Bylaws in accordance to E.C. � 89903. Special meetings are those meetings in between regularly-scheduled meetings. Special meetings contain issues that require the Board of Directors' immediate consideration and action and which otherwise could not be postponed until the next regular Board meeting. Emergency meetings are those urgent meetings involving matters upon which prompt action is necessary due to emergency situations such as work stoppage, crippling disaster or other activity which severely impairs public health, safety or both, as determined by a majority of the UAS Board of Directors.
What if a majority of the UAS Board members gather at a "conference" or "social event," are these types of gatherings considered as meetings?
No. As long as the members do not engage as a group in any form of discussions on any topic that is within the Board's subject matter jurisdiction, the gathering is not considered a meeting. However, if the Board members engage in a discussion on matters relating to the Board's subject matter jurisdiction, then a meeting would have taken place and would also be deemed to have violated the legislative intent and spirit of both the Education Code and the Brown Act because the meeting was not properly noticed.
What if the issues presented during the conference are within the UAS Board's jurisdiction, may the UAS Board members engage in a discussion?
Depends. If the conference is open to the public, the UAS Board members may enter into discussions on issues or business affecting UAS in a public forum as part of the scheduled program of the conference. If the conference is not open to the public, then the UAS Board members may not enter into any discussions for doing so would be deemed a violation of the open meeting laws.
What if a majority of the UAS Board members gather at a "retreat," is this gathering considered a meeting?
Yes. During retreats, the subject matter (e.g. revisiting the UAS mission statement, team building, etc.) being discussed is usually within the UAS Board of Directors' jurisdiction. Therefore, similar to regular meetings, UAS retreats, whether formal or informal, shall also follow the proper notice requirements and be conducted in an open forum in which the public may attend and participate.
What if a majority of the UAS Board members attend a public meeting of another governing body, is the gathering of the UAS Board members considered a meeting?
No. As long as the UAS Board members do not discuss as a group, other than as part of the scheduled meeting, issues of a specific nature related to the subject matter jurisdiction of the UAS Board of Directors, the gathering is not deemed to be a meeting.
What if a Board member or any ex-officio member of the UAS Board of Directors engages in a one-to-one or one-to-many communications, either through direct communications (e.g. verbal or in writing), personal intermediaries (e.g. through other people) or technological devices (e.g. telephone) with a majority of the remaining Board members for the purpose of developing a collective concurrence as to action to be taken on a particular issue, is this type of communication considered a meeting?
Yes. Furthermore, such communication is considered a seriatim or serial meeting in violation of the open meeting laws. Serial communications are conducted secretly without the public's knowledge and are expressly prohibited by the Brown Act. (see G.C. � 54952.2(b)) The Education Code and the Brown Act require that all deliberations and actions taken shall be conducted in public meetings. The legislative intent and spirit of the Education Code and the Brown Act is for UAS and other auxiliary organizations to ensure and guarantee the public's access rights to attend and participate in any meetings of the governing body. Serial communications and secret meetings would deprive the public of such rights.
Are brainstorming sessions of the UAS Board of Directors or its committees considered as meetings?
Yes. The Education Code and the Brown Act require that all deliberations of the UAS Board of Directors or its committees be conducted in public meetings.
May the UAS Board of Directors or its committees use telephone conferencing to conduct meetings?
No. The Education Code does not make any reference permitting UAS or its committees to conduct a meeting through telephone conferencing. The Brown Act permits the use of video teleconferencing but limits the use of such technology to the receipt of public comments and deliberations of the legislative body only. (see G.C. � 54953(b)) The Brown Act prohibits other types of video teleconferencing or telephone conference calls. (see G.C. � 54952.2(b))
Agenda and Notice Requirements
The three different types of meetings as described in Article 5 (above) each meets different set of notice requirements. For regular meetings, the Education Code (see � 89921) and the Brown Act (see G.C. � 54954.1) require that notices of meetings be available for public viewing and distribution to any interested persons at least one week prior to the date set for the meeting. Special meetings which require immediate consideration and action by the UAS Board of Directors must be noticed no less than 24 hours prior to the commencement of the special meeting. Emergency meetings may take place at any time as deemed necessary by a majority of the UAS Board of Directors without complying with the same 24-hour notice and posting requirement as special meetings.
All notice and agenda documents shall specify the time and place of the meeting and shall be posted at a location that is freely accessible to members of the public. Agendas of meetings shall contain information regarding the business items to be transacted by the UAS Board of Directors or committees and be posted at least 72 hours prior to the start of the meeting. (see G.C. � 54954.2) A brief general description of no more than 20 words of each business items shall accompany each agenda item, including items to be discussed during closed sessions. For closed sessions, the applicable provision of law permitting such session shall be cited.
The agenda must also provide a section for public comments during which the public may address the UAS Board of Directors on issues within the Board's subject matter jurisdiction. This section is usually placed at the beginning of the agenda before any business items are discussed and voted by the Board so that the public is afforded every opportunity to address members of the Board on issues pertaining to the agenda or business items. The President or acting President of the UAS Board of Directors may regulate the time designated for the public comments section by limiting either the entire section or the presentation time of each speaker to a maximum number of minutes (see G.C. � 54954.3(b)).
In reference to regular meetings, the UAS Board of Directors or its committees shall not take action on any issue until that issue has been publicly posted for at least one week. (see E.C. � 89924 and G.C. � 54954.2(a)) For special and emergency meetings, no other business items, other than those appearing on the agenda, shall be discussed during these types of meetings. (see E.C. � 89922 and G.C. �� 54956, 54956.5)
What if the meeting is scheduled to start at 10 a.m. on Monday morning and the agenda was not posted until 10 a.m. on the previous Friday morning, can the two-day weekend (i.e. Saturday and Sunday) be counted as part of the minimum 72-hour agenda posting requirement?
Yes. The two-day weekend can be counted as part of the minimum 72-hour agenda posting requirement provided that the location of the agenda posting is accessible to the public 24 hours a day. However, if the location of the agenda posting is within a building that is secured and locked after normal operating hours, then the minimum 72-hour posting requirement is not met.
May the UAS Board of Directors or its committees discuss and take action on any business items that are not included in the agenda?
Yes. Notwithstanding E.C. � 89924 and G.C. � 54954.2(a), the UAS Board of Directors or its committees may discuss and take action on any non-agenda items provided that one of the following conditions exist:
- Upon a determination by a majority vote of the UAS Board of Directors that an emergency situation exists, as defined in G.C. � 54956.5.
- Upon a determination by a two-thirds vote of the UAS Board of Directors, or, if less than two-thirds of the members are present, a unanimous vote of those members present, that there is a need to take immediate action and that the need for action came to the attention of UAS subsequent to the agenda being posted.
- The item was posted for a prior meeting of the UAS Board of Directors occurring not more than five calendar days prior to the date action is taken on the item, and at the prior meeting the item was continued to the meeting at which action is being taken.
May the UAS Board of Directors or its committees convert an information item listed on the agenda into an action item of the agenda at the time of the meeting?
Yes, provided that the conversion of the item is identified during the adoption of the agenda and approved by at least a two-thirds vote of the UAS Board of Directors. However, in the UAS Board of Directors' general practice where the section for action items precede the section for information items, if the request for the information item conversion is presented after the conclusion of the action item section, then such request made and approval thereof would contradict the legislative intent and spirit of the open meeting laws because it is possible that members of the public may have already left the meeting place thinking that all action items have already been addressed.
What if, during the public comments section, the speaker presents an issue or issues that are not within the subject matter jurisdiction of the UAS Board of Directors, does the UAS Board of Directors have to comply with the open meeting policy and permit the speaker to continue his or her presentation?
No. The President or acting President of the UAS Board of Directors has the right, without violating any provisions of the Education Code or the Brown Act, to stop the speaker's presentation. All issues presented, deliberated or acted upon during a meeting must be within the subject matter jurisdiction of the UAS Board of Directors.
Rights of the Public
The main purpose of the Education Code and the Brown Act is to guarantee the public its right to attend meetings of governing bodies in an environment where admittance is free (i.e. the public shall not be required to pay an admission fee or any form of payment), unconditional (i.e. the member of the public shall not be required to register his or her name as a condition for admittance), and barrier-free (i.e. the meeting facility shall be accessible to all persons irrespective of their race, religious creed, color, national origin, ancestry, sex, or disability). (see G.C. � 54953.3, � 54961(a)) This intent and spirit exists so that the public may remain informed of the public agencies that conduct the people's business. (see Article 1 above) Therefore, the public's attendance at a meeting shall be 100% accessible and unconditional. (see G.C. � 54953.3) To enforce the public's right, the two statutory laws permit the public to:
- Record (through video, audio or both) or broadcast the proceedings provided that such recording does not disrupt the proceedings. (see G.C. � 54953.5(a), � 54953.6)
- Address the Board members on issues within UAS's subject matter jurisdiction or criticize UAS's policies, procedures, programs or services, or even acts or omissions of the UAS Board of Directors or its committees (see G.C. � 54954.3(c)).
- Obtain a copy of the agendas or any other writings, except for records exempt from disclosure under G.C. � 6254 of the California Public Records Act, that are distributed for and during the public meeting. Upon receipt of such request, UAS shall make available copies of the documents without delay.
- Obtain a copy of the UAS tape recording of the proceedings for inspection pursuant to the Public Records Act. (see G.C. � 54953.5(b))
What if the recording of the proceeding by a member of the public becomes a persistent disruption of the proceeding, may the UAS Board of Directors or its committees exclude the member from the public meeting without violating his or her rights?
Yes. Pursuant to G.C. � 54957.9, the UAS Board of Directors or its committees may exclude the member from the proceeding without violating his or her rights. Furthermore, if the removal of the disruptive person does not restore the conduct of the meeting, the UAS Board of Directors or its committees may order the meeting room cleared and continue in session. In such a session, members of the media whom did not participate in the disturbance may be allowed to attend.
What if a member of the public presents to the UAS Board of Directors an issue that has already been presented to and considered by a committee, composed exclusively of members of the Board, during a public meeting, can the UAS Board of Directors stop this presentation?
Yes. If the issue was presented to and considered by a committee, composed exclusively of members of the Board, during a public meeting, the UAS Board of Directors does not need to listen to the presentation. (see G.C. � 54954.3(a))
Permissible Closed Sessions
The UAS Board of Directors and its committees may hold closed sessions as provided in the Education Code. (see � 89923) Closed sessions are held without the presence of either staff members, public or other non-members of the governing body. However, such sessions are restricted to matters involving:
- Collective Bargaining
- The appointment, employment, evaluation of performance, or dismissal of an employee, or to hear complaints or charges brought against an employee by another person or employee, unless the employee requests a public hearing.
- Investments where a public discussion could have a negative impact on the auxiliary organization's financial situation. In this situation, the determination of whether to enter into a closed session to discuss such matter shall be made during a public session.
In reference to litigation which includes any adjudicatory proceeding before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator, UAS may, based on the advice of its legal counsel, enter into closed session to confer with, or receive advice from, its legal counsel regarding the pending litigation when discussion in open session concerning those matters would prejudice UAS's position in the litigation. (see G.C. � 54956.9) Litigation shall be considered pending when any of the following circumstances exist:
- Litigation, to which UAS is a party, has been initiated formally.
- A point has been reached where, in the opinion of UAS on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the auxiliary organization.
- Based on existing facts and circumstances, UAS has decided to initiate or is deciding whether to initiate litigation.
Prior to holding any closed session, UAS shall state on the agenda or publicly announce the applicable section that authorizes the closed session. If the session is closed pursuant to subdivision (a) above, UAS shall state the title of or otherwise specifically identify the litigation to be discussed, unless UAS states that to do so would jeopardize the agency's ability to effectuate service of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage. Furthermore, after any closed session, the UAS Board of Directors or any of its committees shall reconvene into open session prior to adjournment and shall make any disclosures required by G.C. � 54957.1 of action taken in the closed session.
UAS shall be considered to be a "party" or to have a "significant exposure to litigation" if an officer or employee of the local agency is a party or has significant exposure to litigation concerning prior or prospective activities or alleged activities during the course and scope of that office or employment, including litigation in which it is an issue whether an activity is outside the course and scope of the office or employment.
In reference to hearing complaints or charges brought against an employee by another person or employee, the UAS Board of Directors shall notify the employee of his or her right to have the complaints or charges heard in an open session rather than a closed session. Such notification shall be in writing and delivered to the employee at least 24 hours before the commencement of the hearing. The hearing shall not commence until the employee being charged has had the opportunity exercise his or her right at least 24 hours before the hearing. If such notice is not delivered and the UAS Board of Directors takes disciplinary actions against the employee being charged, all disciplinary or other actions against the employee shall be null and void.
What if, upon the receipt of advice from legal counsel the UAS Board of Directors or any of its committees enters into a closed session to discuss matters not relating to any pending litigation, is this closed session permissible based on attorney-client privilege?
No. With exception to pending litigation, the Brown Act abrogates all other expressions of the attorney-client privilege. (see G.C. � 54956.9) All other communications between the UAS Board of Directors and its legal counsel shall be conducted in public meetings.
What if, during a closed session the UAS Board of Directors or any of its committees deviates from the subject matter and commence discussion on other non-related matters, is this activity permissible?
No. All discussions during a closed session shall be restricted to those matters covered on the agenda. The UAS Board of Directors or any of its committees may not discuss other non-related matters. (see G.C. � 54957.7)
Penalties for Violating the Open Meeting Policy
Any member of the UAS Board of Directors who attends a meeting of the UAS Board of Directors or any of its committees where action is taken in violation of any provision of the open meeting law, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under the open meeting law, is guilty of a misdemeanor. (see E.C. � 89927 and G.C. � 54959) In this situation, an action (i.e. collective decision, commitment or promise by a majority of the members) must have taken place before the member is proven to be guilty of a misdemeanor. Therefore, the mere deliberation of any issue without taking any actions will not trigger such criminal penalty.
What if the UAS Board of Directors or any of its committees unknowingly continues to conduct meetings in violation of the open meeting law, does a member of the public have any recourse?
Yes. In such a situation, the member of the public may contact UAS or its legal counsel, or the University's administration to express and resolve his or her concerns. If such contacts are not successful, the member of the public may seek injunctive relief in a superior court to prevent further or future violations from taking place. (see G.C. � 54960)
What if the UAS Board of Directors or any of its committees takes an action that is in violation of the open meeting law, does a member of the public have any recourse?
Yes. In such a situation, the member of the public may seek to have actions taken in violation of the open meeting law declared null and void by a court. (see G.C. � 54960.1) However, before a suit can be initiated, the complainant must, within 90 days from the date such action was taken, deliver a written demand to the UAS Board of Directors to cure or correct the violation, unless the action was taken in an open session but in violation of section 54954.2 (agenda requirements), in which case the written demand shall be made within 30 days from the date the action was taken. If the UAS Board of Directors refuses or fails to cure or correct the violation within 30 days from receipt of the written demand, the complainant may file a suit to have the action declared null and void. Such suit shall be filed within 15 days after receipt of the UAS Board of Directors' decision not to cure or correct the violation or after the expiration of the 30-day period, whichever is earlier. (see G.C. � 54960.1(b))