San Leandro City Council
Brown Act / Public Records
Act training
Richard D. Pio Roda, City Attorney
January 9, 2023
A. General Ethics Principles that Apply
to Government Transparency Laws
B. Brown Act
C. Public Records Act
D. Questions
ABCs of Today’s Training
• Values such as transparency, trustworthiness, respect, fairness and responsibility promote public trust in government, advance the reputation of the City
• Important to avoid even the appearance of impropriety • Ethics laws merely set minimum standards for conduct
• Ethics goes beyond legal requirements
– About doing what we ought to do,
– Doing more than what’s minimally required
– Set a higher standard
A. GENERAL ETHICS PRINCIPLES
• Right to access/information
– People have a right to access information that enables them to monitor the functioning of government.
• Brown Act
– The people have a right to be informed about the conduct of their business, and for deliberations to be conducted and actions to be taken openly (absent an exception).
Government Transparency Laws
A. Public Policy Considerations
Government Transparency Laws – Brown Act
• Meetings…
• Of Legislative Bodies…
• Shall be open and public
Government Transparency Laws – Brown Act
Open Meeting Requirements
B. Brown Act
Government Transparency Laws – Brown Act
Legislative Bodies
What is a
legislative body?
Governing
body
Appointed
body
Standing
committee
What is not a
legislative body?
Ad hoc
committee if
comprised
of less than a
quorum
• A congregation of a majority of the members at the same time and place to hear, discuss, or deliberate on an item of business within the agency’s subject matter
jurisdiction
• Exceptions:
Government Transparency Laws – Brown Act
– Conferences
– Community meetings
– Social or ceremonial
occasions
– Individual contacts
– Standing committees
– Meetings of other
legislative bodies
B. Brown Act Definition of “Meetings”
• A majority may not, outside
a meeting, use a series of
communications to discuss,
deliberate, or take action
on any item of business
Government Transparency Laws – Brown Act
B. Brown Act— Avoiding “Serial Meetings”
– Does not prevent employees and officials from
engaging in separate conversations outside
of a meeting provided that the comments or
positions of other members are not
communicated
Hub and spoke
A staff member (the hub)
communicates with members
of a legislative body (the spokes)
one-by-one for input on a proposed
action and in the process reveals
members’ positions to other
members.
Government Transparency Laws – Brown Act
Examples
B. Brown Act—Avoiding “Serial Meetings”
Daisy Chain
Member A contacts Member B,
Member B contacts Member C,
Member C contacts Member D
and so on, until a quorum has
discussed, deliberated or taken
action on an item within the legislative
body’s subject matter jurisdiction.
Government Transparency Laws – Brown Act
Examples
B. Brown Act—Avoiding “Serial Meetings”
Emails, Text Chains,
Social media feeds
Informal nature of electronic
communication is ripe
for inadvertent Brown Act
violations
Government Transparency Laws – Brown Act
Examples
B. Brown Act—Avoiding “Serial Meetings”
• Amends Government Code section 54952.2 to clarify that most communications on social media are permissible.
• Bright-line rule: Members of a legislative body may not respond directly to any communications posted on the
internet by other members of the same legislative
body regarding a matter within the jurisdiction of the
legislative body.
Government Transparency Laws – Brown Act
AB 992 (Social Media)
B. Brown Act
• Closed session discussions are
confidential
• Required to publicly report certain
actions taken in closed session
Permissible Closed Session Topics:
Government Transparency Laws – Brown Act
Closed Sessions
B. Brown Act
• Real estate negotiations
• Pending or threatened
litigation
• Initiation of litigation
• Personnel
• Labor negotiations
• Public security
• Posting requirements:
– Regular meetings
must be posted 72
hours before meeting
– Special meetings must
be posted 24 hours
before meeting
Government Transparency Laws – Brown Act
May take action only
on items on posted agenda
B. Brown Act
• Exceptions
– Emergency
– Urgency need for
immediate action
came to agency’s
attention after
posting the agenda
• Regular meetings must provide
an opportunity for the public to
speak regarding on any matter
within the body’s jurisdiction
– Legislative body may briefly discuss
these items and refer matters to staff,
but cannot take action
Government Transparency Laws – Brown Act
Public Participation Rights
B. Brown Act
• Public can address the legislative body on matters on the agenda before or during consideration of the item
III. Government Transparency Laws
Public Participation Rights
B. Brown Act
Public has the
right to make
audio/video
recordings
• Remote public meetings without identifying each teleconference location and without making each location accessible to the public. – Only under limited circumstances
• “Just cause” is met or emergency circumstance exist
– Just cause is any of the following:
• Child care or caregiving requiring remote participation • Contagious illness preventing in person attendance
• Physical or mental disability
• Travel while on City business or another public agency – Conditions: Notify Council at earliest possible opportunity; general description of the circumstances; and may only be used up to two meetings per calendar year
New Remote Public Meetings Option (AB 2449)
Government Transparency Laws - CPRA
C. Public Records Act
Transparency Privacy
• All non-exempt, state and local government agency records in any form or medium are subject to public inspection
during office hours or copying upon payment of duplication costs
Government Transparency Laws - CPRA
Basic Rule
C. Public Records Act
• Agencies are required to
– Assist requestors with identifying
records and information that
are responsive to requests
or to the purpose of the requests
– Describe the information technology and
physical location in which the records exist
– Provide suggestions for overcoming any
practical basis for denying access to the
records or information sought.
Government Transparency Laws - CPRA
Duty to Assist Requestors
C. Public Records Act
• Drafts
• Pending litigation
• Personnel records
• Medical, dental, and other insurance records
• Closed session minutes and legal memoranda
and other materials distributed in a closed session
• Records protected by the attorney-client privilege
Government Transparency Laws - CPRA
Exemptions
C. Public Records Act
• Emails and text messages about or related to
public or City business on personal phones,
devices, or accounts
» CA Supreme Court held that these records
are subject to disclosure in response to
a Public Records Act request.
(City of San Jose et al. v. Superior Court)
(2017)
Government Transparency Laws - CPRA
C. Public Records Act
Questions?