Open meeting law is broader than you think, lawyers say Open meeting law is broader than you think, lawyers say (May 11, 2005)

** Group e-mails, letters to the editor can be risky for members of public boards.

By Rebecca Wallace

Almanac Staff Writer

Perhaps the most meaningful advice at a May 3 briefing on the state's open meeting law was this: "The rule is probably broader than you think it is."

These were the words of San Francisco attorney Stanley Taylor, one of the two lawyers hosting the meeting on the Brown Act in the Menlo Park City Council chambers. The core message: Play it safe, because it's not always clear whether you're violating the law.

Many people know the basics of the law, which is designed to keep the actions and deliberations of public bodies open. For example, it's obvious that the majority of a City Council shouldn't congregate secretly to agree on how to vote later.

Other situations are murkier. The Menlo Park council called the briefing because it recently came out that a city task force on child care had met in 2003 without notifying the public of the meeting times, dates and agendas, a violation of the Brown Act.

City Manager David Boesch said at the time that city staff members had not been aware that the task force fell under the notification requirement. The meetings of the group, which included parents, child care providers, and city officials, were open to the public.

Even though the group contained both city officials and members of the public, it was created by a formal action of the council, and therefore the public members became subject to the Brown Act's requirements, said Nicole Tutt, the other attorney hosting the May 3 meeting.

"You're cloaking them as public officials," she said at the meeting, which was well attended by council members, city commissioners and members of the public. The two attorneys were from the Nossaman Guthner Knox & Elliott firm, whose lawyers represent several public boards in the Bay Area.

After the lawyers gave an overview of the law, much discussion centered on another possibly murky situation: how much city commissioners are allowed to talk outside meetings.

Elza Keet, a city housing commissioner, said she can find issues difficult and would like to talk to other commissioners before a meeting to get clarification, but fears violating the Brown Act.

"Lately, we're scared to communicate in any way," she said.

Heyward Robinson of the Parks and Recreation Commission also wanted to know whether it was all right for commissioners to form an online newsgroup.

The two attorneys advised commissioners to be very careful. It's all right to talk to one other commissioner about an issue, but a danger arises: that commissioner could talk to still another, and another, and before you know it you could have what's called a "serial meeting." As soon as a quorum of the commission is involved in the same conversation, however indirect, a collective concurrence could be developing on an issue, the attorneys said.

City Attorney Bill McClure piped up from the audience, advising commissioners to ask city staff members about issues instead.

As for an online newsgroup, Ms. Tutt strongly advised against it. With all the commissioners chatting about issues, you need to have a meeting with publicly noticed times and agendas, which would be impossible on a newsgroup.

Even published letters to newspapers can be dangerous, Ms. Tutt added. If three members of a council are writing letters about the same topic, this could become a debate, she said.

Group e-mails can also be dangerous, she said. A city manager can generally send an e-mail to all council members saying that an item will be on a future agenda, but things start to get dicey if council members start responding to everyone and getting into a conversation about the agenda.

"The ultra-conservative view is please, never 'reply all,'" Ms. Tutt said.
INFORMATION

The text of the Brown Act is online at www.leginfo.ca.gov. Click on "California Law" and go to government code section 54950.

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