Councilmember Brown Act and
Governance Training
January 13, 2025 Worksession
Richard D. Pio Roda, City Attorney
Training Agenda
• Brown Act (Open Meeting Laws)
• City Council Roles and Responsibilities
• Applicable Rules and Laws
• Parliamentary Procedure
• Roberts’ Rules of Order
• Rules of Decorum
2 Brown Act
•Meetings…
•Of Legislative Bodies…
• Shall be open and public
Open Meeting Requirements
3 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
Brown Act
4 Brown Act
• 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:
– Conferences
– Community meetings
– Social or ceremonial
occasions
– Individual contacts
– Standing committees
– Meetings of other
legislative bodies
Definition of “Meetings”
5 Brown Act
•A majority may not, outside
a meeting, use a series of
communications to discuss,
deliberate, or take action
on any item of business
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
6 Brown Act
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 in advance of the
meeting.
Examples
Avoiding “Serial Meetings”
7 Brown Act
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 acted on an item within the
legislative body’s subject matter jurisdiction.
Examples
Avoiding “Serial Meetings”
8 Brown Act
Emails
Informal nature of email
communication is ripe
for inadvertent Brown Act
violations
Examples
Avoiding “Serial Meetings”
9 Brown Act
•Government Code section 54952.2
•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. • This includes comments and digital icons (emojis)
•Applies to all generally accessible social media
platforms
Social Media
10 Brown Act
• Closed session discussions are
confidential
• Required to publicly report certain
actions taken in closed session
Examples of Permissible Closed
Session Topics:
Closed Sessions
• Real estate negotiations
• Threatened or existing
litigation
• Initiation of litigation
• Personnel
• Labor negotiations
• Public security
11 Brown Act
• Posting requirements:
• Regular meetings must
be posted 72 hours
before meeting
• Special meetings must
be posted 24 hours
before meeting
Posted Agendas
• Exceptions
– Emergency
– Urgency need for
immediate action
came to agency’s
attention after
posting the agenda
12 Brown Act
• Regular meetings must provide
an opportunity for the public to
speak regarding any matter within
the body’s jurisdiction
• Legislative body may briefly discuss
these items and refer matters to staff,
but cannot take action
Public Participation Rights
• Public can address the legislative body on matters on the agenda before or during consideration of the item
13 Brown Act
Public Participation Rights
Public has the
right to make
audio/video
recordings
14 Brown Act
Teleconference- Traditional Rules
•Agenda posted at all locations, with teleconference
locations specifically identified
•All locations open to the public with public
participation possible at each location
•At least a quorum of legislative body member must
participate from locations within City boundaries
•Roll call votes only
15 Brown Act
Teleconference- Traditional Rules
•No limit on number of meetings it can be used
•No requirement to provide similar option for public
• Can participate by phone or video
16 Brown Act
AB 2449
• Provides alternative teleconference procedures
• At least a quorum of the legislative body must participate in person from a singular physical location identified on the agenda, which location will be open to the public and within the boundaries of the local agency;
• A member may only teleconference for publicly disclosed "just cause" or in "emergency circumstances" approved by the legislative body; and
• A member may only teleconference for a limited number of meetings.
17 Brown Act
AB 2449
• Qualifying Circumstances:
o "Just cause" means: (1) childcare or caregiving need; (2) contagious illness; (3) physical or mental disability needs; or (4) traveling on official City business.
o "Emergency circumstances" means a physical or family medical emergency.
• Allowed for 7 meetings per year (new change
enacted by AB 2302)
o Of this limit, “just cause” can only be used twice per year 18 Brown Act
AB 2449
• Member must make request to participate remotely as soon as possible.
• For emergency circumstances, Council must vote to approve member’s participation
• Must provide general description of reason
• Identify any adult in the room with the member
• Member must participate through both audio and visual technology
• Must provide public the option of participating in the meeting through similar audio/visual technology
19 Brown Act
Consequences for Violating the Brown Act
•Nullification of a decision made in violation of the
Brown Act’s requirements;
•Willful violation could incur criminal penalties;
•A possible award of attorneys’ fees to the party
successfully bringing a Brown Act lawsuit;
• Loss of public confidence.
20 City Council Roles & Responsibilities
•Legislative Role
•Quasi-Judicial Role
•Best Practices
21 City Council Roles and Responsibilities
• Legislative Body that:
• Establishes City ordinances and regulations
•Approves City budget and contracts (above
$100,000)
•Determines City goals and policy priorities
•Hires, appoints, and evaluates City Manager and
City Attorney
22 Mayor & City Council Roles
• Councilmember have no
individual authority to bind or act
on behalf of City Council
• Mayor has no greater authority than
other Councilmembers except under
Charter Section 305:
(a) recommend City policy;
(b) recommend to the Council appropriate and necessary
legislation;
(c) recommend programs for the physical, economic, social and cultural development of the City;
(d) be responsible for public relations activities and represent the City for ceremonial purposes;
(e) represent the City in intergovernmental relations, personally or by delegated representative, at the direction of the Council; (f) preside at meetings of the Council;
(g) establish and dissolve ad hoc committees, subject to approval by the Council;
(h) possess the authority to suspend implementation of any action taken by the Council by filing with the City Clerk, within three days after such Council action, a notice of suspension thereof. Such suspension shall constitute a motion for
reconsideration of the action taken, to be voted upon by the Council at its next regular meeting;
(i) provide leadership and marshal citizen participation in City activities;
(j) report to the public from time to time on the affairs of the City;
(k) possess the authority and attributes of a Council Member; (l) possess such authority and perform such duties as are granted or required by this Charter or by the Council.
23 Council - City Manager
• Council is responsible for setting goals and policy,
adopting ordinances and administrative procedures;
City Manager is responsible for implementation,
personnel, and day-to-day operations
• City Council as a body, not individual members, can
give direction to City Manager
• Neither the Mayor nor any Council Member shall interfere with the execution of the powers and duties of the City Manager, or order, directly or indirectly, the City Manager or any department head to appoint or remove any person to or from any office or employment with the City. Except for the purpose of inquiry, the Mayor, and Council Members shall deal with the administrative service under the City Manager solely through the City Manager and neither the Mayor nor any Council Member shall give orders to any subordinate of the City Manager, either publicly or privately. (Charter Section 345)
24 Council - Staff
• The Council may not direct staff
•Requests for information should be directed to the
City Manager
•If City Manager authorizes Councilmembers direct
communication to staff, City Manager should be
copied on any communication with staff, which should
be limited
• Caution is critical because staff may misinterpret
requests, questions, or comments from the Council
25 Public Communications
• Council members must clearly identify when they are
speaking on behalf of themselves as a Councilmember
• Members should pass along communications concerns and inquiries to City Manager for Public Information Officer consideration and/or assistance
•Mayor on behalf of the City Council and City, and City Manager (or staff designated by City Manager) are
generally the only individuals authorized to speak with media on behalf of City
• Comments must be consistent with City Council approved policies, legislation and/or actions
26 Public Communications
•If Council members are speaking at external agencies
or boards, comments and positions should be upon
approved City Council legislation, policies, or actions • If speaking in an individual capacity, Councilmembers must specifically identify that they’re speaking on behalf of themselves as a Councilmember and not on behalf of
the Council
• When serving as the City’s representative on a regional Board or JPA, member should keep Council informed of
important issues and when necessary or as advised by the JPA, seek Council approval on significant policy decisions or positions
27 Electronic Communications
•When sending written correspondence as a
representative of the City, Members are encouraged
to refer the draft correspondence to the City Manager
for input and advice
• Council members should forward any response to the City Manager
•Reminder: Email communications are subject to the
Brown Act & Public Records Act
28 • Form 700 Economic Disclosure form must be filed
every year
•AB 1234 Ethics Training must be completed every two
years
• Sexual Harassment Prevention Training must be
completed every two years.
Required Trainings for Councilmembers
29 Public Records Act
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
Basic Rule
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.
Duty to Assist Requestors
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
Exemptions
Public Records Act
» Emails and Text message about public
business on personal phones, devices
and accounts
» CA Supreme Court held that these
records are subject to disclosure in
response to a Public Records Act
request
» City of San Jose v. Superior Court
Use of Social Media Considerations
• Social media use by public officials
constitutes state action only if the
public official (1) possessed actual
authority to speak on the City’s
behalf, and (2) purported to exercise
that authority when spoke on social
media.
Court’s recommendations:
• Confirm that you have no authority to speak
on behalf of City.
• Include a label or disclaimer on your social
media account making clear that it’s personal.
• Avoid making announcements of
governmental actions exclusively on your
social-media account. Linking or sharing otherwise available information is okay. • Be careful about blocking users and removing
comments. If you aren’t authorized to speak on behalf of the City and include a personal label/disclaimer, likely free to block and
remove comments from private citizens.
(Lindke v. Freed, 144 S.Ct. 756)
34 This Photo by Unknown Author is licensed under CC BYSA 35 Common Law Bias Prohibitions – Duty to Act
Fairly and Impartially
Elements:
A public officer…
Must exercise the powers conferred on him or her with
disinterested skill, zeal, and diligence, and primarily for the benefit of the public
One cannot be tempted by personal or pecuniary interests Applies to non-financial interests
Disqualifies one from participating in a discussion or action Acting in a Quasi-Judicial Capacity
• Substantive Due Process
• Fair and unbiased decision
maker
• No conflicts of interest with the
opposing party or their
representatives
• Political Reform Act conflicts,
Common Law Bias conflicts
• Procedural Due Process
• Notice and Opportunity to be
Heard
• City followed its codified
process and procedure
• Charter, Municipal Code, Zoning
Code, Administrative Code
36 Parliamentary Procedure *Robert’s Rules of Order
• Basic Principles
• Quorum
• All members have equal rights,
privileges and obligations
• No person should speak until
recognized by the Chair
• Only one question at a time, and
only one person may have the
floor at any one time
• General Procedures
• Member makes a main motion
• A second is required
• Motion to amend
• Council custom and practice is to
suggest friendly amendments to
maker of motion e.g. adding words,
striking words, striking and inserting
words
• Substitute motion on the current
item or question requires a
second
• Takes precedence over main motion
37 Rules of
Decorum
• Council-Manager Relations;
• You are not alone. Not your job to
solve specific problems as an
individual council member
• Council sets policy and hire
competent staff to carry it out.
• City Manager provides the Council
with an orderly way to handle
community concerns. Rely on that
process and communicate to
constituents that staff will handle
their complaints according to
Council policy.
In meetings:
When Debating motions:
Listen to the other side
Focus on issues, not personalities
Avoid questioning motives
Be polite
Follow your decorum guidelines card
38 Rules of Decorum
• Compromise
• Negotiation and compromise =
effective governance
• Focus on shared interests
• Staff are duty-bound to carry out
Council decisions.
• Disagreement on a Council
directive, collectively resolve the
issue so that it is clear to all
parties
• Model Civility and Listen Well
• Focus on the Long-Term
• Prepare yourself and others
• Ask staff questions before the
meetings, even if you want the
information provided at the
meeting.
• Don’t spring surprises on staff at
Council meetings: They are on
your team.
39 Rules of Decorum
• Communicate through the City
Manager
• This helps ensure all Councilmembers
receive the same information
• Keep Cool during Turbulence
• Fires, earthquakes, pandemics, social
unrest, heavy rain events happen. Stay calm and trust the professional emergency managers.
• Expect the City Manager to keep you
informed, but don’t interfere or get into
the trenches.
• Show the public that you have
confidence in the City’s ability to
respond.
• Consider the entire community’s
interests when making decisions.
• While an elected official, learn
something every day
• Council retreat
• To review operations, City’s strategic
plan, and governance norms.
• Review collegial teamwork, norms, and
practices.
• Keep the community in mind
• Always consider the right thing to do for
the well-being of the community, and
City organization
40 Special considerations – Workplace Bullying
January 1, 2025 Western City Magazine, Danielle Drossel • Councilmembers hold a unique
and influential role
• Pew Research Center* found that
toxic behavior on the dais erodes
public trust and the effective
functioning of government
institutions
• Steps to Prevent Bullying in
Public Meetings:
• Be Prepared
• Ask questions, but don’t
interrogate
• Lead by example
• Use neutral language
• Show appreciation
• Do not make things personal
• Remain objective, and focused on
the issues
41 Workplace Bullying cont.
• Allegations of bullying outside of
public view
• Understand the distinct role of the
Council-Manager form of government, which is the norm in California • City Council enacts laws and sets policy;
City Manager is charged with overseeing the daily operations of staff and implementing Council policies
• City Manager’s role is the conduit for
communication between the Council and
staff
• Maintains clear lines of authority and
preventing undue influence from
individual Councilmembers
• Separation of Powers.
• If you experience or witness
workplace bullying
• For staff, behavior is reported to
management or human resources
• Upon a report, an investigation should
be initiated promptly to determine what occurred and whether the behavior constitutes a policy violation
• Intervene by telling the bully that his or
her behavior is inappropriate and must
stop.
42 Questions?
Q&A?
43