Excerpts from
"The Brown Act"
Section 54950 et seq. California Government Code
"Section 54950
- 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."
Section 54954.3(a)
of the Brown Act "Every agenda for regular meetings shall provide
an opportunity for members of the public to directly address the
legislative body on any item of interest to the public, before
or during the legislative body’s consideration of the item, that
is within the subject matter jurisdiction of the legislative body,
provided that no action shall be taken on any item not appearing on the
agenda unless the action is otherwise authorized by subdivision (b) of
Section 54954.2.
"(b) The
legislative body of a local agency may adopt reasonable regulations to
ensure that the intent of subdivision (a) is carried out, including, but
not limited to, regulations limiting the total amount of time allocated
for public testimony on particular issues and for each individual
speaker.
"(c) The legislative
body of a local agency shall not prohibit public criticism of the
policies, procedures, programs, or services of the agency or the
acts of omissions of the legislative body."
Section 54953.7
"Notwithstanding any other provision of law, legislative bodies of
local agencies may impose requirements upon themselves which allow
greater access to their meetings than prescribed by the minimal
standards set forth in this chapter."
Section 54954.2 (a)...No
action or discussion shall be undertaken on any item not appearing on
the posted agenda, except that members of a legislative body or its
staff may briefly respond to statements made or questions posed by
persons exercising their public testimony rights under Section
54954.3," etc.
Analysis
of "The Brown Act": How It Applies to MBUSD’s New Policy
entitled:
"How to Address the Board."
The recently adopted
policy "How to Address the Board" requires that in order for
citizens to participate during the "Public Participation"
portion of a board meeting, they must provide written notice a week and
a day in advance of a meeting and specify the subject matter they will
discuss. Otherwise, they are relegated to speaking at the end of the
meeting after all board business is done. The reason stated by board
members for this requirement is that the board needs advance notice so
that they may respond to the public’s statements and inquiries.
As discussed below, we
believe their new policy violates not only the letter and intent of the
Brown Act, but the spirit of the Act as well. We believe the purpose of
this new policy is to discourage public participation during that part
of the meeting the board thinks most television viewers are watching and
to prevent the board from being caught off guard or embarrassed with
regard to issues raised by citizens. Their concern for their public
appearance is effectively denying citizens their right to freely speak
with regard to the district’s business.
Timing
As excerpted above, the
Brown Act provides authority for MBUSD’s school board to adopt
reasonable regulations regarding the time allotted for individuals to
speak on issues. However, the intent of this aspect of the Act is to
ensure that the public is afforded an opportunity to directly address
the legislative body. [Section 54954.3(b)] Therefore, the board is
entitled to develop a policy requesting speakers to limit their comments
to three minutes. Furthermore, the board is also granted authority to
expand that time to any greater time the board deems appropriate, or to
adopt any requirement allowing "greater access to their
meeting," specifically to ensure that citizens have the opportunity
to be heard.
However, nowhere in the
Act is the board granted the authority to require a citizen to provide
advance notice regarding their desire to speak during the "Public
Participation" portion of the meeting or be forced to wait until
the end of the meeting to be heard. In fact, the Act specifically states
that citizens have the right to address any item of interest
"before or during" consideration of an item. [Section
54954.3(a)] The Act’s purpose is clear: to ensure that the public’s
viewpoint is clearly heard before the board takes action with regard to
matters in which the citizenry is interested.
A requirement for
advance notice essentially imposes upon citizens an additional burden
not contemplated by the Brown Act by restricting timely access only to
those citizens who provide notice in advance. Since, the Act allows a
board to provide citizens greater access to meetings, but does not allow
a board to restrict access or reduce a citizens’ rights beneath the
minimal standards set by the Act, this additional requirement runs
counter to the Act.
Content
In addition to the time
aspect of advance notice requirements, the Board’s new policy requires
that a citizen’s advance notice must also reveal the topic they wish
to discuss. As noted above, the Act gives the board discretion to adopt
reasonable regulations, but these regulations must operate to ensure the
intent of subdivision (a) of Section 54954.3, i.e. to provide an
opportunity for members of the public to directly address the
legislative body, not to restrict access to meetings further than the
minimal standards set forth in the Act. We believe requiring advance
notice which must include the subject matter to be discussed is not
contemplated by the Act.
The board has justified
their new policy by claiming that advance notice regarding subject
matter allows them to appropriately respond to comments or questions
citizens might raise during the Public Comment section. Their policy
states "Board members are legally prohibited from discussing
non-agenda items and, therefore, will not respond to items presented in
the Public Comment section." Yet, the Brown Act at Section 54954.2
specifically states "No action or discussion shall be undertaken on
any item not appearing on the posted agenda, except that members of a
legislative body or its staff may briefly respond to statements made or
questions posed by person exercising their public testimony rights under
Section 54954.3."
The Act goes on to
state that board members may respond, they may answer a question
if they know the answer, they may state that the board will respond at a
later time or they can say nothing at all. The board’s lack of
knowledge regarding an issue is no justification for denying a citizen
their lawful right to access the agenda in the Public Participation
Section and speak, nor does it justify forcing a citizen to wait
until the end of a meeting because the board doesn’t have a ready
response.
The agenda process for
the December 11th, 2000 board meeting demonstrates the inconsistent
implementation of the board’s new policy with regard to subject
matter, as some parents who provided the general description
"special education" in their letters to the district were told
their description wasn’t specific enough, while other parents who
listed the very same description in their letters went unchallenged.
As well, both the
November 15, 2000 and the December 11, 2000 agendas demonstrate how the
board’s policy is applied subjectively in favor of district personnel.
Assistant Superintendent Darlene Gorey was placed on the November 15,
2000 agenda and allowed to speak, because according to President
Campbell, she had submitted notice in advance that she wished to address
the board. Yet, ASK parents who also followed the exact same procedure
by providing their advance notice to the board were denied an
opportunity to speak during the Public Participation section of that
meeting.
In addition, on the
December 11, 2000 agenda, all district staff listed are identified as
speaking with regard to the general subject "special
education," while, as noted above, a parent using this very same
description in her advance notice was told that her description was
insufficient.
Furthermore, the
subject matter submitted by one of the parents, "new policy for
agendizing items submitted by the community" wasn’t even listed
on the agenda, belying the notion that the reason information must be
provided in advance is to allow the board to prepare itself through its
knowledge of the subject matter that will be raised by those who wish to
speak. As with the time issues raised above, the subject matter issue is
just another means the board is using to limit access to the agenda by
those with whom it disagrees.
Advance notice
requirements which require disclosure of subject matter essentially act
as a barrier to a citizen’s right to participate, as they impose
additional obligations the Act doesn’t contemplate. As such, they
violate the Brown Act.
Conclusion
The board’s new
policy states "The Board of Trustees encourages your participation
in its deliberations and has tried to make it convenient for you to
express your view to the Board." We submit that the board’s new
policy does the exact opposite: it discourages participation through
confusing and illogical rules which it implements inconsistently and by
imposing additional and unnecessary steps citizens must take in order to
speak. This policy empowers the board to relegate those from whom they
don’t wish to hear and with whom they don’t agree, to the end of the
meeting, effectively shutting them out of the deliberative process. The
effect of this policy is to discourage public participation in the
process of a body that has significance to the lives of our children.
We believe this policy
and its additional requirements impose a burden on citizens who wish to
have access to the board and its agenda not contemplated by the Brown
Act, and thus violate that Act. For all the reasons stated, we believe
the board must rescind the new policy "How to Address the
Board."
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