ASK - Advocates for Special Kids
"Parents helping parents to understand special education"

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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 peopleís 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 bodyís 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 MBUSDís 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 publicís 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 districtís business.

Timing

As excerpted above, the Brown Act provides authority for MBUSDís 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 Actís purpose is clear: to ensure that the publicís 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 citizensí 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 Boardís new policy requires that a citizenís 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 boardís 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 doesnít have a ready response.

The agenda process for the December 11th, 2000 board meeting demonstrates the inconsistent implementation of the boardís 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 wasnít 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 boardís 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" wasnít 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 citizenís right to participate, as they impose additional obligations the Act doesnít contemplate. As such, they violate the Brown Act.

Conclusion

The boardís 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 boardís 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 donít wish to hear and with whom they donít 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."

 

Copyright © 2001  ASK 
All rights reserved.
Revised: January 25, 2002


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