l'c INSTITUTE FOR The Institute is able to make this resource available to local officials Conducting the ¡ LOCAL GOVERNMENT™ and others as a result of much appreciated financial support from: A Public's Business in Public
RICHARDS WATSON GERSHON
- The ATTORNEYS AT LAW - A PROFESSIONAL CORPORATION
• Permissible Gatherings. Not every gathering of members of a public body outside a noticed meeting violates the law. Example The Institute is grateful for this firm's ongoing commitment to public service ethics and public service ethics education. For example, a violation would not occur if a majority of If two members of a five-member public body consult the members attend the same educational conference or outside of a public meeting (which is not in and of itself ABCs All decisions regarding the final content of this pamphlet were the attend a meeting not organized by the local agency as long as a violation) about a matter of agency business and then members do not discuss among themselves agency business one of those individuals consults with a third member
except as part of the gathering. Nor is attendance at a social or ceremonial event in itself a violation. The basic rule to on the same issue, a majority of the body has consulted keep in mind is a majority of the members cannot gather on that issue. Note the communication does not need of Open Government Laws
Conducting the and discuss agency business except at an open and properly to be in person and can occur through a third party. For A Public's Business in Public noticed meeting. example, sending or forwarding e-mail can be sufficient to create a serial meeting, as can a staff member's polling The underlying philosophy of the open government laws Closed Sessions. The open meeting laws include provisions the body's members in a way that reveals the members' is that public agency processes should be as transparent as for private discussions under very limited circumstances. The positions to one another. possible. Such transparency is vital in promoting public trust General Rules reasons for holding the closed session must be noted on in government. • Elected and most appointed local-agency bodies - which the agenda and different disclosure requirements apply to This concept of governmental transparency is so important to include many advisory committees - must conduct their different types of closed sessions. Taping or Recording of Meetings Is Alioned. Anyone the public that some 83 percent of voters supported adding it to business in open and public meetings. attending a meeting may photograph or record it with an Posting and Following the Agenda. In general, public audio or video recorder unless the governing body makes a California's constitution by adopting Proposition 59 in 2004. officials may only discuss and act on items included on the • A "meeting" is any situation involving a majority of a public finding that the noise, illumination, or obstruction of view California's open government laws require public officials to: body in which agency business is transacted or discussed. In posted agenda for a meeting. However, they or staff may will disrupt the meeting. Any meeting tape or film made by other words, a majority of the body cannot talk privately about briefly respond to questions or statements during public the local agency becomes a public record that must be made a matter of agency business no matter how the communication comments that are unrelated to the agenda items. Officials available to the public for at least 30 days. occurs, whether by telephone or e-mail, or at a local coffice shop. can also request staff to look into a matter or place a matter on the agenda for a subsequent meeting. Only under Sign-In Must Be Voluntary. Members of the public cannot Conduct meetings of public bodies openly, except for limited • The public must be informed of I) the time and place of and unexpected circumstances can matters that are not on the 2) the issues to be addressed at each meeting. In general. be required to register their name or satisfied any other circumstances under which the law allows the public's agenda be discussed or acted upon. condition for attendance. If an attendance list is used, it must business to be conducted privately in closed sessions. public officials may only discuss and act on items included clearly state that signing the list is voluntary. on the posted agenda for a meeting. The agenda must be
posted at least 72 hours in advance of a regular meeting and written in a way that informs people of what business will be discussed. Muny local agencies ure required to pust agendas • Consequences of Non-Compliance with Open Allow the public to participate in meetings of public bodies on their websites (if they have one). Members of the public Meeting Requirements through a public comment process. may request a copy of the agenda packet be mailed to them at the time the agenda is posted or upon distribution to the • Nullification of Decision. Many decisions that are not • Other Measures. Either the district attorney or any governing body. Some agencies also maintain e-mail lists to made according to the open meeting laws are voidable. interested person may sue to remedy past and prevent future distribute agendas and related materials. After asking the agency to cure the violation, either the violations of the open meeting laws. Another remedy. district attorney or any interested person may sue to under certain circumstances, is for a court to order that all Allow inspection and copying of public records, Key Things to Know - have the action declared invalid. closed sessions be lape-recorded. Regulations of public except when non-disclosure is authorized by law. • Advisory Bodies. Advisory bodies formally created by the participation beyond those allowed by applicable statutory governing body are subject to the open meeting laws. In Criminal Sanctions. Additionally, members of the and constitutional pricipals can be a civil rights violation. some cases, committees of less than a quorum of the public body who intentionally violate the open meeting laws body are also subject to these laws. may be guilty of a misdemeanor. The penalty for a Attorneys' Fees and Costs. Attorneys" fees and costs This pamphlet summarizes these three requirements in general terms. misdemeanor conviction is imprisonment in county jail may be awarded to those who successfully challenge Local officials are also encouraged to consult with their agency • Serial Meetings. Avoid unintentionally creating a "serial" for up to six months, a fine of up to $1,000 or both. open meeting violations. attorneys for information about how these requirements apply in meeting - a series of communications that result in a any given situation or more information about this area of the law. majority of the body's members discussing, deliberating. or taking action on a matter of agency business.
www.ca-ilg.org www.ca-ilg.org www.ca-ilg.org ww.ca-ilg.org The Public's Right to The Public's Right To Access Beyond Legal Minimums Resources for Further Information B Participate in Meetings C Agency Documents and Records It is important to note that the requirements discussed in this pamphlet California's open government laws are complex and extensive.
General Rules General Rules are legal minimums for local government transparency in decision- Consult the following resources for more information on making. Local agencies can provide for greater transparency. these laws. • Democracy in Action. The public has a right to address • Public agencies must generally make their records the public body at any meeting. A public official's role is available for inspection by the public. Disclosure is the In thinking about how an agency might provide for greater Understanding the Basics of Public Service Ethics:
to both hear and evaluate these communications. rule; withholding is the exception. In addition, there are a transparency, questions local agency officials might ponder include Transparency Laws, available at www.ca-ilg.or?/ number of state laws that require affirmative disclosure of the following: Understanding-Public-Service-Ethics-Laws (includes • The Public's Right to be Heard. Generally, every regular certain kinds of information (for example, by posting the discussions of other kinds of disclosure laws, in meeting agenda must provide an opportunity for the public information on the agency's website). How can the agency make public information more readily addition to Open Meeting Law and Public Records Act). to address the public body on any item within the body's available and easily understandable by the public in order jurisdiction. If the issue of concern is one pending before Key Things to Know --. to promote public trust and confidence in the agency and • Open and Public IV: A User's Guide to the Ralph M. the body, the opportunity must be provided before or demonstrate the agency's commitment to transparency? Brown Act, 2d Edition, 2010. Available on the League of during the body's consideration of that issue. • Agenda and Meeting Materials. Copies of the agenda California Cities website at www.cacities.org or by calling materials and other documents not exempt from disclosure 2 Are there kinds of information that are already publicly 916.658.8200.
distributed to the body must be available to the public. Any available in some form, but could be made available nonexempt materials prepared by the local agency must be more conveniently to the public (for example, through voluntarily posting the information on the agency's website The People's Business: A Guide to the California Public Open-Government-Is-Good-Politics Note available for public inspection at the meeting. Materials Records Act, 2008. Available on the I.cague of California prepared and distributed by some other person must be made or including links on the agency's website to where information is available on other websites)? Cities website at www.cacities.org or by calling The media are highly vigilant in monitoring compliance available after the meeting. 916.658.8200.
with open government requirements-and quick to report
3 What kinds of information might be of interest to a cross- on perceived violations. Scope of Access. The public has the right to see nonexempt section of the public relating to the agency's operations and Local officials should also consult their agency counsel with materials that are created as part of the conduct of the decision-making processes? Are there ways this information questions. people's business. These materials include any writing that can be made available without individual members of the was prepared, owned, used, or retained by a public agency. public having to ask for it? The Attorney General also offers guides on these laws; they are Key Things to Know -- This can include documents, computer data, e-mails. available from the Attorney General's website: http://ag-ca.gov/ facsimiles, and photographs. Ongoing consideration of these kinds of questions enables a local publications/2003_Intro_BrowaAct.pdf (Brown Act Guide) • Anonymous Speech Must Be Permitted. Members
of the public cannot be required to give their name or agency's officials to engage in collective discussion and decision- and http://ag.ca.gov/publications/2003_Intro_BrownAct.pdf Presumption and Exceptions. Written materials are making about ways in which their agency can set its sights higher (Public Records Act). address as a condition of speaking. The clerk or presiding presumed to be a public record unless an exception officer may request speakers to complete a speaker card. than the minimum requirements of the law. applies. There are a number of exceptions. For example. or identify themselves "for the record," but must respect personnel records are typically exempt from disclosure a speaker's desire for anonymity. because their release may violate an employee's • A Note on Civility in Public Discourse
privacy rights. INSTITUTE FOR
• Reasonable Time Limits May Be Imposed. Local For communities to be able to work through difficult LOCAL GOVERNMENT™
agencies may adopt reasonable regulations to ensure The publie's right of access to public records is broadly construed Issues, it's important that people be able to express everyone has an opportunity to be heard in an orderly and applies to many documents that public officials might differing opinions about what best serves the public's manner. For example, some agencies impose a uniform otherwise assume are protected from disclosure. Interests in a respectful and civil manner. The Institute for Locai Government promotes good time limit on each person providing public comments on government at the locai level with practical, impartial, and an issue. This includes focusing on the merits of one's position. easy-to-use resources for California cormunities.
Even if people disagree about what's best for the
community in this situation, it doesn't mean that those ILG is the research and education affiliate of the California State • Dealing with Dissension. The chair cannot stop Association of Counties, the League of California Cities speakers from expressing their opinions or their • Consequences of Violation holding different views are bad people. Treat others with the same respect as one would like to be treated. and the California Special Districts Association. criticism of the body. If an individual or group willfully Anyone can sue the agency to enforce his or her right to Questioning others' motives or intelligence, being 140C K STREET, SUITE 205 interrupts a meeting and order cannot be restored, the access public records subject to disclosure. If the agency room may be cleared. Members of the media must be hostile, engaging in name-calling or making threats SACRAMENTO, CALIFORNiA 95814 loses or otherwise produces the records as the result of the TELEPHONE: 916.658.8208 • FAX: 916.444.7535 allowed to remain and only matters on the agenda can undermines one's effectiveness. lawsuit, it must pay costs and attorneys fees.
be discussed. No matter how passionate one is about an issue, the goal is to conduct oneself in a way that will add to one's credibility and standing as a thoughtful member of the community. 02015 all rights reserved. Institate for Local Goternment.
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