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Agenda Packet
CITY OF CUPERTINO AGENDA lop CUPERTINO LIBRARY COMMISSION This will be a teleconference meeting without a physical location. Wednesday, May 12, 2021 7:00 PM Special Meeting TELECONFERENCE / PUBLIC PARTICIPATION INFORMATION TO HELP STOP THE SPREAD OF COVID-19 In accordance with Governor Newsom's Executive Order No-29-20, this will be a teleconference meeting without a physical location to help stop the spread of COVID-19. Members of the public wishing comment on an item on the agenda may do so in the following ways: 1) E-mail comments by 5:00 p.m. on Wednesday, May 12th to the Commission at librarycommission@cupertino.org. These e-mail comments will be received by the commission members before the meeting and posted to the City's website after the meeting. 2) E-mail comments during the times for public comment during the meeting to the Commission at librarycommission@cupertino.org. The staff liaison will read the emails into the record, and display any attachments on the screen, for up to 3 minutes (subject to the Chair's discretion to shorten time for public comments). Members of the public that wish to share a document must email librarycommission@cupertino.org prior to speaking. 3) Teleconferencing Instructions Members of the public may observe the teleconference meeting or provide oral public comments as follows: Oral public comments will be accepted during the teleconference meeting. Comments may be made during "oral communications" for matters not on the agenda, and during the public comment period for each agenda item. To address the Commission, click on the link below to register in advance and access the meeting: Page 1 Library Commission Agenda May 12,2021 Online Please click the link below to join the webinar: https:Hcityofcupertino.zoom.us/webinar/register/WN_7ohvMnGpQdWBO6pv971L1w Phone Dial 669-900-6833 and enter Webinar ID: 965 0049 9167 (Type *9 to raise hand to speak) Unregistered participants will be called on by the last four digits of their phone number. Or an H.323/SIP room system: H.323: 162.255.37.11 (US West) 162.255.36.11 (US East) 115.114.131.7 (India Mumbai) 115.114.115.7 (India Hyderabad) 213.19.144.110 (Amsterdam Netherlands) 213.244.140.110 (Germany) 103.122.166.55 (Australia Sydney) 103.122.167.55 (Australia Melbourne) 149.137.40.110 (Singapore) 64.211.144.160 (Brazil) 69.174.57.160 (Canada Toronto) 65.39.152.160 (Canada Vancouver) 207.226.132.110 (Japan Tokyo) 149.137.24.110 (Japan Osaka) Meeting ID: 965 0049 9167 SIP: 96500499167@zoomcrc.com After registering, you will receive a confirmation email containing information about joining the webinar. Please read the following instructions carefully: 1. You can directly download the teleconference software or connect to the meeting in your internet browser. If you are using your browser, make sure you are using a current and up-to-date browser: Chrome 30+, Firefox 27+, Microsoft Edge 12+, Safari 7+. Certain functionality may be disabled in older browsers, including Internet Explorer. 2. You will be asked to enter an email address and a name, followed by an email with instructions on how to connect to the meeting. Your email address will not be disclosed to the public. If you wish to make an oral public comment but do not wish to provide your name,you may enter "Cupertino Resident" or similar designation. Page 2 Library Commission Agenda May 12,2021 3. When the Chair calls for the item on which you wish to speak, click on "raise hand." Speakers will be notified shortly before they are called to speak. 4. When called,please limit your remarks to the time allotted and the specific agenda topic. In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to attend this teleconference meeting who is visually or hearing impaired or has any disability that needs special assistance should call the City Clerk's Office at 408-777-3223, at least 48 hours in advance of the meeting to arrange for assistance. In addition, upon request, in advance, by a person with a disability, meeting agendas and writings distributed for the meeting that are public records will be made available in the appropriate alternative format. NOTICE AND CALL FOR A SPECIAL MEETING OF THE CUPERTINO LIBRARY COMMISSION NOTICE IS HEREBY GIVEN that a special meeting of the Cupertino Library Commission is hereby called for Wednesday, May 12, 2021, commencing at 7:00 p.m. In accordance with Governor Newsom's Executive Order No-29-20, this will be a teleconference meeting without a physical location. Said special meeting shall be for the purpose of conducting business on the subject matters listed below under the heading, "Special Meeting." SPECIAL MEETING CALL TO ORDER ROLL CALL APPROVAL OF MINUTES 1. Subject: Meeting Minutes for April 7, 2021. Recommended Action: Review and approve the meeting minutes for the April 7, 2021 Library Commission meeting. A-Draft Minutes POSTPONEMENTS ORAL COMMUNICATIONS This portion of the meeting is reserved for persons wishing to address the Commission on any matter within the jurisdiction of the Commission and not on the agenda. Speakers are limited to three (3) minutes. In most cases, State law will prohibit the Commission from making any decisions with respect to a matter not on the agenda. Page 3 Library Commission Agenda May 12,2021 WRITTEN COMMUNICATIONS OLD BUSINESS 2. Subject: Update on the Library Expansion Project. Recommended Action: Receive an update on the Library Expansion Project. 3. Subject: Overview of Conducting Commission Meetings and Review of Subcommittees. Recommended Action: Receive an overview of conducting Commission meetings and a review of subcommittees. Staff Report A-Rosenberg-s-Rules-of-Order B-Commissioner Handbook C-A Guide to the Ralph M.Brown Act 4. Subject: Superfest Disability Film Festival. Recommended Action: Discuss the status of the proposed Superfest Disability Film Festival. NEW BUSINESS 5. Subject: Update on the Library Commission Budget. Recommended Action: Receive an update on the Library Commission budget. Staff Report A—Library Commission Fiscal Year 2020-21 Budget STAFF AND COMMISSION REPORTS 6. Subject: Monthly Update Reports. Recommended Action: Receive Monthly Update Reports from: - Cupertino Community Librarian - County Librarian Monthly Update - Friends of the Library - Cupertino Library Foundation - Commissioners - Poet Laureate - Staff COMMISSIONER ATTENDANCE AT UPCOMING MEETINGS AND EVENTS FUTURE AGENDA SETTING ADJOURNMENT Page 4 Library Commission Agenda May 12,2021 In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to attend this teleconference meeting who is visually or hearing impaired or has any disability that needs special assistance should call the City Clerk's Office at 408-777-3223, at least 48 hours in advance of the meeting to arrange for assistance. In addition, upon request, in advance, by a person with a disability, meeting agendas and writings distributed for the meeting that are public records will be made available in the appropriate alternative format. Any writings or documents provided to a majority of the members after publication of the agenda will be made available for public inspection. Please contact the City Clerk's Office in City Hall located at 10300 Torre Avenue during normal business hours. IMPORTANT NOTICE: Please be advised that pursuant to Cupertino Municipal Code 2.08.100 written communications sent to the Cupertino City Council, Commissioners or City staff concerning a matter on the agenda are included as supplemental material to the agendized item. These written communications are accessible to the public through the City's website and kept in packet archives. You are hereby admonished not to include any personal or private information in written communications to the City that you do not wish to make public; doing so shall constitute a waiver of any privacy rights you may have on the information provided to the City. Members of the public are entitled to address the members concerning any item that is described in the notice or agenda for this meeting, before or during consideration of that item. If you wish to address the members on any other item not on the agenda, you may do so during the public comment. Page 5 CITY OF CUPERTINO CUPERTINO Legislation Text File#: 21-9242, Version: 1 Subject: Meeting Minutes for April 7, 2021. Review and approve the meeting minutes for the April 7, 2021 Library Commission meeting. CITY OF CUPERTINO Page 1 of 1 Printed on 5/12/2021 powered by LegistarTM CITY OF 11 DRAFT MINUTES CUPERTINO LIBRARY COMMISSION Wednesday, April 7, 2021 LIBRARY COMMISSION MEETING CALL TO ORDER At 7:01 p.m., Chair Pan called the meeting to order via remote teleconference. ROLL CALL Commissioners: Qin Pan,Rahul Vasanth, Archana Panda, Liyan Zhao, Sheela Sreekanth City/County Staff:Joanne Magrini, Dianne Thompson, Susan Michael,Roger Lee,Jason Bisely, Whitney Zeller, Clare Varesio,Jennifer Weeks Presenters: None Absent: None CEREMONIAL MATTERS AND PRESENTATIONS None APPROVAL OF MINUTES 1. Subject: Meeting Minutes for the March 3, 2021 Library Commission Meeting. Recommended Action: Review and approve the minutes for the March 3,2021 Library Commission meeting. Vice Chair Vasanth motioned to approve the minutes. Chair Pan seconded the motion. Motion carried unanimously with five votes yes. POSTPONEMENTS None ORAL COMMUNICATIONS None WRITTEN COMMUNICATIONS Written communications were received for item 5 on the agenda. Old BUSINESS 2. Subject: Update on the Library Expansion Project and Civic Center Parking Measures. Recommended Action: Receive an update on the Library Expansion Project and Civic Center parking measures. Public Works Project Manager, Susan Michael, provided an update on the Library Expansion Project as submitted. She noted that she would like to bring back options for the donor wall at an upcoming meeting. Director of Public Works, Roger Lee, provided an update on Civic Center Parking as submitted. Community member Liana Crabtree public comment and inquired about encroachment on the north side of Library Field. 3. Subject: Senior Services Presentation and Addressing the Digital Divide. Recommended Action: Receive a presentation on senior services and discuss addressing the digital divide. Recreation Coordinator,Jason Bisely, and Cupertino Librarian, Clare Varesio, provided a presentation on the item as submitted. Chair Pan motioned to form a subcommittee of Commissioner Zhao and herself to focus on seniors and addressing the digital divide. Commissioner Sreekanth seconded the motion. Motion carried unanimously with five votes yes. NEW BUSINESS 4. Subject: Cupertino Poet Laureate Program and 2021-23 Poet Laureate Selection Process. Recommended Action: Discuss the Poet Laureate Program and the 2021-24 Poet Laureate selection process. Administrative Assistant, Whitney Zeller, provided an overview on the Cupertino Poet Laureate Program and the 2021-23 Poet Laureate selection process. Chair Pan clarified the requirements for the selection committee members.The Commission and staff concluded the Library Commission Chair is not required to be one of the two Commissioners on the Poet Laureate Selection Committee. Chair Panda volunteered to lead the Poet Laureate selection efforts. Cupertino Poet Laureate,Jing Jing Yang provided feedback on the Poet Laureate program and recommended providing stipends for guest speakers at programs. Commissioner Panda agreed with compensating artists and poets. The Commission inquired about the Commission and Poet Laureate budget. Staff responded that they would provide additional information. Chair Pan motioned to form the Selection Committee for the 2021-23 Poet Laureate Selection Process to be led by Commissioner Panda and Commissioner Zhao. Commissioner Sreekanth seconded the motion. Motion carried unanimously with five votes yes. 5. Subject: Superfest Disability Film Festival. Recommended Action: Discuss the Superfest Disability Film Festival and consider recommending as a future program. The Commissioners discussed the Superfest Disability Film Festival and agreed to table the item to get more information before forwarding it for recommendation. The Commissioners agreed it was a beneficial program. Vice Chair Vasanth motioned to bring the item back at the next regular meeting. Commissioner Panda seconded the motion.Motion carried unanimously with five votes yes. STAFF AND COMMISSION REPORTS 4. Subject: Monthly Update Reports. Recommended Action: Receive monthly update reports from: - Cupertino Community Librarian Clare Varesio reported as submitted. - County Librarian Monthly Update - Jennifer Weeks reported as submitted. - Library Expansion Working Group - Friends of the Library - Cupertino Library Foundation Chair Pan provided an update on the fundraising website. - Commissioners Chair Pan provided an overview on the items discussed at the Mayor's meeting. - Poet Laureate Cupertino Poet Laureate,Jing Jing Yang provided an update as submitted. - Staff None COMMISSIONER ATTENDANCE AT UPCOMING MEETINGS AND EVENTS City staff confirmed that they will coordinate attendance information for the Mayor's meeting in April. FUTURE AGENDA SETTING ADJOURNMENT: Chair Pan adjourned the meeting 9:09 p.m. Respectfully Submitted by, Whitney Zeller,Administrative Assistant Minutes approved at the meeting. CITY OF CUPERTINO CUPERTINO Legislation Text File M 21-9243, Version: 1 Subject: Update on the Library Expansion Project. Receive an update on the Library Expansion Project. CITY OF CUPERTINO Page 1 of 1 Printed on 5/12/2021 powered by LegistarTM Library Commission Progress Report May 2021 Library Expansion Project Iii CUPERTINO i, Construction Progress Construction _ Progress +I .......... F - r -rJ f. � - i - . ��'��� a ;w d �_ k ..l c `1' ._ .. ;Y1�11 . �, a '� -ra. � �. �, �. Mi - !� �� - � � .. i - ,� �� ;� �, � , , � �. ��� , �`� �� r!; 11 �I� � i _. r"r i � _ � € �1 ' 1 :� I + � i� �, t' � �� �► - . �1 �7 � i • • • 5 iA Construction t Progress ._a Public Outreach event dates • Livestream camera is in place & functional • Tour # 1 : end of August • Tour #2: end of October • Q&A/Forum event: after summer (mid-Sept) • Monthly Social Media updates • Website updates & Fact Sheet posted Donor & Art Wall ART WALL low Ems— May 24, 5pm t �� Thank You 112 1 1 UPERTINJ CITY OF CUPERTINO CUPERTINO Legislation Text File#: 21-9244, Version: 1 Subject: Overview of Conducting Commission Meetings and Review of Subcommittees. Receive an overview of conducting Commission meetings and a review of subcommittees. CITY OF CUPERTINO Page 1 of 1 Printed on 5/12/2021 powered by LegistarTM CITY OF PARKS AND RECREATION DEPARTMENT QUINLAN COMMUNITY CENTER 10185 NORTH STELLING ROAD • CUPERTINO, CA 95014-5732 TELEPHONE: (408) 777-3120 • FAX: (408) 777-1305 CUPERTINO CUPERTINO.ORG LIBRARY COMMISSION STAFF REPORT Meeting: May 12, 2021 Subject Overview of Conducting Commission Meetings and Review of Subcommittees. Recommended Action Receive an overview of conducting Commission meetings and a review of subcommittees. Discussion When conducting and participating in Commission meetings,there are certain protocol that have been established by the City through implementation of Rosenberg's Rules of Order(Attachment A), the Commissioner Handbook (Attachment B), and compliance with the Ralph M. Brown Act (Attachment C). These resources also outline the guidelines for establishing and managing subcommittees. Rosenberg's Rules of Order Rosenberg's Rules of Order provide a simplified version of the rules of parliamentary procedure, which have been adopted by the City of Cupertino.They include establishing a quorum,the role of the chair,basic format for discussing an agenda item,motions, voting, courtesy and decorum, and public input. The Commission Chair will implement the rules of conduct and facilitate meetings and agenda item discussion. The basic sequence for each agenda item is as follows: a. The Chair announces the agenda item number and subject. b. The Chair invites the appropriate person to report on the item. c. The Chair asks Commissioners if they have any technical questions of clarification. d. he Chair invites public comment. The Chair may limit the time of public speakers. At the conclusion of public comment, the Chair will announce that public input has concluded. e. The Chair will facilitate discussion, limited to the scope of the item,by having Commissioners provide comment one at a time. f. If required for the item, the Chair will invite a motion as well as a second to the motion. g. If a motion is made and seconded, the chair should ensure everyone understands the standing motion before moving to discussion. h. The Chair initiates a vote and Commissioners respond with "aye', "nay" or "abstain'. i. The result of the vote is announced. Commissioner Handbook The updated Commissioner's Handbook was adopted by City Council on January 19 and outlines the expectations and resources for Commissioners to successfully serve in their position.The City Clerk provided a training on the Commissioner Handbook at the February 3 Library Commission meeting. Ralph M. Brown Act The Brown Act ensures all meetings of the Commission are open and public, and all persons are permitted to attend. Meetings are defined as any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location as permitted to hear, discuss, deliberate, or take any action on any item that is within the subject matter jurisdiction of the legislative body. The Brown Act outlines requirements for meeting agendas and notices to ensure appropriate access for the public. Subcommittees The Chair may appoint special subcommittees of less than a quorum of the commission who then may meet at their convenience to carry out the purpose of the subcommittee.If the subcommittee has a continuing subject matter or regularly scheduled meeting time, it may qualify as a Brown Act committee and public notice provisions would apply. Subcommittees must serve a limited or single purpose,that is not perpetual,and that will be dissolved once its specific task is completed. Sustainability Impact No sustainability impact. Fiscal Impact No fiscal impact. Prepared by: Whitney Zeller, Administrative Assistant Reviewed bv:Joanne Magrini,Director of Parks and Recreation Approved for Submission by:Joanne Magrini,Director of Parks and Recreation Attachments: A-Rosenberg's Rules of Order B-Commissioner Handbook C-A Guide to the Ralph M.Brown Act r i h T• Rosenberg' s Rules of Order REVISED 2011 Simple Rules of Parliamentary Procedure for the list Century By Judge Dave Rosenberg L LFE ACALIGU E® CITIES MISSION AND CORE BELIEFS To expand and protect local control for cities through education and advocacy to enhance the quality of life for all Californians. VISION To be recognized and respected as the leading advocate for the common interests of California's cities. About the League of California Cities Established in 1898,the League of California Cities is a member organization that represents California's incorporated cities. The League strives to protect the local authority and automony of city government and help California's cities effectively serve their residents.In addition to advocating on cities'behalf at the state capitol,the League provides its members with professional development programs and information resources,conducts education conferences and research,and publishes Western City magazine. ©2011 League of California Cities.All rights reserved. ABOUT THE AUTHOR Dave Rosenberg is a Superior Court Judge in Yolo County.He has served as presiding judge of his court,and as presiding judge of the Superior Court Appellate Division.He also has served as chair of the Trial Court Presiding Judges Advisory Committee(the committee composed of all 58 California presiding judges)and as an advisory member of the California Judicial Council.Prior to his appointment to the bench,Rosenberg was member of the Yolo County Board of Supervisors,where he served two terms as chair.Rosenberg also served on the Davis City Council,including two terms as mayor.He has served on the senior staff of two governors,and worked for 19 years in private law practice.Rosenberg has served as a member and chair of numerous state,regional and local boards.Rosenberg chaired the California State Lottery Commission,the California Victim Compensation and Government Claims Board,the Yolo-Solano Air Quality Management District,the Yolo County Economic Development Commission,and the Yolo County Criminal Justice Cabinet.For many years,he has taught classes on parliamentary procedure and has served as parliamentarian for large and small bodies. II TABLE OF CONTENTS Aboutthe Author............................................................................................................ii Introduction....................................................................................................................2 Establishinga Quorum...................................................................................................2 TheRole of the Chair......................................................................................................2 The Basic Format for an Agenda Item Discussion........................................................2 Motionsin General.........................................................................................................3 The Three Basic Motions................................................................................................3 Multiple Motions Before the Body.................................................................................4 To Debate or Not to Debate............................................................................................4 Majority and Super-Majority Votes...............................................................................5 CountingVotes................................................................................................................5 TheMotion to Reconsider..............................................................................................6 Courtesy and Decorum..................................................................................................7 Special Notes About Public Input..................................................................................7 1 INTRODUCTION The rules of procedure at meetings should be simple enough for Establishing a Quorum most people to understand.Unfortunately,that has not always been The starting point for a meeting is the establishment of a quorum. the case.Virtually all clubs,associations,boards,councils and bodies A quorum is defined as the minimum number of members of the follow a set of rules—Roberts Rules of Order—which are embodied body who must be present at a meeting for business to be legally in a small,but complex,book.Virtually no one I know has actually transacted.The default rule is that a quorum is one more than half read this book cover to cover.Worse yet,the book was written for the body.For example,in a five-member body a quorum is three. another time and for another purpose.If one is chairing or running When the body has three members present,it can legally transact a parliament,then Robert's Rules of Order is a dandy and quite useful business.If the body has less than a quorum of members present,it handbook for procedure in that complex setting.On the other hand, cannot legally transact business.And even if the body has a quorum if one is running a meeting of say,a five-member body with a few to begin the meeting,the body can lose the quorum during the members of the public in attendance,a simplified version of the rules meeting when a member departs(or even when a member leaves the of parliamentary procedure is in order. dais).When that occurs the body loses its ability to transact business Hence,the birth of Rosenberg's Rules of Order. until and unless a quorum is reestablished. What follows is my version of the rules of parliamentary procedure, The default rule,identified above,however,gives way to a specific based on my decades of experience chairing meetings in state and rule of the body that establishes a quorum.For example,the rules of local government.These rules have been simplified for the smaller a particular five-member body may indicate that a quorum is four bodies we chair or in which we participate,slimmed down for the members for that particular body.The body must follow the rules it 21st Century,yet retaining the basic tenets of order to which we have has established for its quorum.In the absence of such a specific rule, grown accustomed.Interestingly enough,Rosenberg's Rules has found the quorum is one more than half the members of the body. a welcoming audience.Hundreds of cities,counties,special districts, committees,boards,commissions,neighborhood associations and The Role of the Chair private corporations and companies have adopted Rosenberg's Rules While all members of the body should know and understand the in lieu of Robert's Rules because they have found them practical, rules of parliamentary procedure,it is the chair of the body who is logical,simple,easy to learn and user friendly. charged with applying the rules of conduct of the meeting.The chair This treatise on modern parliamentary procedure is built on a should be well versed in those rules.For all intents and purposes,the foundation supported by the following four pillars: chair makes the final ruling on the rules every time the chair states an action.In fact,all decisions by the chair are final unless overruled by I. Rules should establish order.The first purpose of rules of the body itself parliamentary procedure is to establish a framework for the Since the chair runs the conduct of the meeting,it is usual courtesy orderly conduct of meetings. for the chair to play a less active role in the debate and discussion 2. Rules should be clear.Simple rules lead to wider understanding than other members of the body.This does not mean that the chair and participation.Complex rules create two classes:those should not participate in the debate or discussion.To the contrary,as who understand and participate;and those who do not fully a member of the body,the chair has the full right to participate in the understand and do not fully participate. debate,discussion and decision-making of the body.What the chair 3. Rules should be user friendly.That is,the rules must be simple should do,however,is strive to be the last to speak at the discussion enough that the public is invited into the body and feels that it and debate stage.The chair should not make or second a motion has participated in the process. unless the chair is convinced that no other member of the body will 4. Rules should enforce the will of the majority while protecting do so at that point in time. the rights of the minority.The ultimate purpose of rules of procedure is to encourage discussion and to facilitate decision The Basic Format for an Agenda Item Discussion making by the body.In a democracy,majority rules.The rules Formal meetings normally have a written,often published agenda. must enable the majority to express itself and fashion a result, Informal meetings may have only an oral or understood agenda.In while permitting the minority to also express itself,but not either case,the meeting is governed by the agenda and the agenda dominate,while fully participating in the process. constitutes the body's agreed-upon roadmap for the meeting.Each agenda item can be handled by the chair in the following basic format: 2 First,the chair should clearly announce the agenda item number and Ninth,the chair takes a vote.Simply asking for the"ayes"and then should clearly state what the agenda item subject is.The chair should asking for the"nays"normally does this.If members of the body do then announce the format(which follows)that will be followed in not vote,then they"abstain."Unless the rules of the body provide considering the agenda item. otherwise(or unless a super majority is required as delineated later Second,following that agenda format,the chair should invite the in these rules),then a simple majority(as defined in law or the rules appropriate person or persons to report on the item,including any of the body as delineated later in these rules)determines whether the recommendation that they might have.The appropriate person or motion passes or is defeated. persons may be the chair,a member of the body,a staff person,or a Tenth,the chair should announce the result of the vote and what committee chair charged with providing input on the agenda item. action(if any)the body has taken.In announcing the result,the chair Third,the chair should ask members of the body if they have any should indicate the names of the members of the body,if any,who technical questions of clarification.At this point,members of the voted in the minority on the motion.This announcement might take body may ask clarifying questions to the person or persons who the following form:"The motion passes by a vote of 3-2,with Smith reported on the item,and that person or persons should be given and Jones dissenting.We have passed the motion requiring a 10-day time to respond. notice for all future meetings of this body." Fourth,the chair should invite public comments,or if appropriate at Motions in General a formal meeting,should open the public meeting for public input. Motions are the vehicles for decision making by a body.It is usually If numerous members of the public indicate a desire to speak to the subject,the chair may limit the time of public speakers.At the best to have a motion before the body prior to commencing conclusion of the public comments,the chair should announce that discussion of an agenda item.This helps the body focus. public input has concluded(or the public hearing,as the case may be, Motions are made in a simple two-step process.First,the chair is closed). should recognize the member of the body.Second,the member Fifth,the chair should invite a motion.The chair should announce of the body makes a motion by preceding the member's desired the name of the member of the body who makes the motion. approach with the words"I move..." Sixth,the chair should determine if any member of the body wishes A typical motion might be:"I move that we give a 10-day notice in to second the motion.The chair should announce the name of the the future for all our meetings." member of the body who seconds the motion.It is normally good The chair usually initiates the motion in one of three ways: practice for a motion to require a second before proceeding to 1. Inviting the members of the body to make a motion,for ensure that it is not just one member of the body who is interested example,"A motion at this time would be in order." in a particular approach.However,a second is not an absolute requirement,and the chair can proceed with consideration and vote 2. Suggesting a motion to the members of the body,"A motion on a motion even when there is no second.This is a matter left to the would be in order that we give a 10-day notice in the future for all discretion of the chair. our meetings.' Seventh,if the motion is made and seconded,the chair should make 3. Making the motion.As noted,the chair has every right as a sure everyone understands the motion. member of the body to make a motion,but should normally do so only if the chair wishes to make a motion on an item but is This is done in one of three ways: convinced that no other member of the body is willing to step 1. The chair can ask the maker of the motion to repeat it; forward to do so at a particular time. 2. The chair can repeat the motion;or 3. The chair can ask the secretary or the clerk of the body to repeat The Three Basic Motions the motion. There are three motions that are the most common and recur often Eighth,the chair should now invite discussion of the motion by the at meetings: body.If there is no desired discussion,or after the discussion has The basic motion.The basic motion is the one that puts forward a ended,the chair should announce that the body will vote on the decision for the body's consideration.A basic motion might be:"I motion.If there has been no discussion or very brief discussion,then move that we create a five-member committee to plan and put on the vote on the motion should proceed immediately and there is no our annual fundraiser." need to repeat the motion.If there has been substantial discussion, then it is normally best to make sure everyone understands the motion by repeating it. 3 The motion to amend.If a member wants to change a basic motion First,the chair would deal with the third(the last)motion on the that is before the body,they would move to amend it.A motion floor,the substitute motion.After discussion and debate,a vote to amend might be:"I move that we amend the motion to have a would be taken first on the third motion.If the substitute motion 10-member committee.'A motion to amend takes the basic motion passed,it would be a substitute for the basic motion and would that is before the body and seeks to change it in some way. eliminate it.The first motion would be moot,as would the second The substitute motion.If a member wants to completely do away motion(which sought to amend the first motion),and the action on with the basic motion that is before the body,and put a new motion the agenda item would be completed on the passage by the body of before the body,they would move a substitute motion.A substitute the third motion(the substitute motion).No vote would be taken on motion might be:"I move a substitute motion that we cancel the the first or second motions. annual fundraiser this year." Second,if the substitute motion failed,the chair would then deal "Motions to amend"and"substitute motions"are often confused,but with the second(now the last)motion on the floor,the motion they are quite different,and their effect(if passed)is quite different. to amend.The discussion and debate would focus strictly on the A motion to amend seeks to retain the basic motion on the floor,but amendment(should the committee be five or 10 members).If the modify it in some way.A substitute motion seeks to throw out the motion to amend passed,the chair would then move to consider the basic motion on the floor,and substitute a new and different motion main motion(the first motion)as amended.If the motion to amend for it.The decision as to whether a motion is really a"motion to failed,the chair would then move to consider the main motion(the amend"or a"substitute motion"is left to the chair.So if a member first motion)in its original format,not amended. makes what that member calls a"motion to amend,"but the chair Third,the chair would now deal with the first motion that was placed determines that it is really a"substitute motion,"then the chair's on the floor.The original motion would either be in its original designation governs. format(five-member committee),or if amended,would be in its A"friendly amendment"is a practical parliamentary tool that is amended format(10-member committee).The question on the floor simple,informal,saves time and avoids bogging a meeting down for discussion and decision would be whether a committee should with numerous formal motions.It works in the following way:In the plan and put on the annual fundraiser. discussion on a pending motion,it may appear that a change to the motion is desirable or may win support for the motion from some To Debate or Not to Debate members.When that happens,a member who has the floor may The basic rule of motions is that they are subject to discussion and simply say,"I want to suggest a friendly amendment to the motion., debate.Accordingly,basic motions,motions to amend,and substitute The member suggests the friendly amendment,and if the maker and motions are all eligible,each in their turn,for full discussion before the person who seconded the motion pending on the floor accepts and by the body.The debate can continue as long as members of the the friendly amendment,that now becomes the pending motion on body wish to discuss an item,subject to the decision of the chair that the floor.If either the maker or the person who seconded rejects the it is time to move on and take action. proposed friendly amendment,then the proposer can formally move to amend. There are exceptions to the general rule of free and open debate on motions.The exceptions all apply when there is a desire of the body to move on.The following motions are not debatable(that Multiple Motions Before the Body is,when the following motions are made and seconded,the chair There can be up to three motions on the floor at the same time. must immediately call for a vote of the body without debate on the The chair can reject a fourth motion until the chair has dealt motion): with the three that are on the floor and has resolved them.This Motion to adjourn.This motion,if passed,requires the body to rule has practical value.More than three motions on the floor at immediately adjourn to its next regularly scheduled meeting.It any given time is confusing and unwieldy for almost everyone, requires a simple majority vote. including the chair. Motion to recess.This motion,if passed,requires the body to When there are two or three motions on the floor(after motions and immediately take a recess.Normally,the chair determines the length seconds)at the same time,the vote should proceed first on the last of the recess which maybe a few minutes or an hour.It requires a motion that is made.For example,assume the first motion is a basic simple majority vote. "motion to have a five-member committee to plan and put on our annual fundraiser."During the discussion of this motion,a member Motion to fix the time to adjourn.This motion,if passed,requires might make a second motion to"amend the main motion to have a the body to adjourn the meeting at the specific time set in the 10-member committee,not a five-member committee to plan and motion.For example,the motion might be:"I move we adjourn this put on our annual fundraiser."And perhaps,during that discussion,a meeting at midnight."It requires a simple majority vote. member makes yet a third motion as a"substitute motion that we not have an annual fundraiser this year."The proper procedure would be as follows: 4 Motion to table.This motion,if passed,requires discussion of the Motion to close nominations.When choosing officers of the agenda item to be halted and the agenda item to be placed on"hold." body(such as the chair),nominations are in order either from a The motion can contain a specific time in which the item can come nominating committee or from the floor of the body.A motion to back to the body."I move we table this item until our regular meeting close nominations effectively cuts off the right of the minority to in October."Or the motion can contain no specific time for the nominate officers and it requires a two-thirds vote to pass. return of the item,in which case a motion to take the item off the Motion to object to the consideration of a question.Normally,such table and bring it back to the body will have to be taken at a future a motion is unnecessary since the objectionable item can be tabled or meeting.A motion to table an item(or to bring it back to the body) defeated straight up.However,when members of a body do not even requires a simple majority vote. want an item on the agenda to be considered,then such a motion is Motion to limit debate.The most common form of this motion is to in order.It is not debatable,and it requires a two-thirds vote to pass. say,"I move the previous question"or"I move the question"or"I call Motion to suspend the rules.This motion is debatable,but requires the question"or sometimes someone simply shouts out"question." a two-thirds vote to pass.If the body has its own rules of order, As a practical matter,when a member calls out one of these phrases, conduct or procedure,this motion allows the body to suspend the the chair can expedite matters by treating it as a"request"rather rules for a particular purpose.For example,the body(a private club) than as a formal motion.The chair can simply inquire of the body, might have a rule prohibiting the attendance at meetings by non-club "any further discussion?"If no one wishes to have further discussion, members.A motion to suspend the rules would be in order to allow then the chair can go right to the pending motion that is on the floor. a non-club member to attend a meeting of the club on a particular However,if even one person wishes to discuss the pending motion date or on a particular agenda item. further,then at that point,the chair should treat the call for the "question"as a formal motion,and proceed to it. Counting Votes When a member of the body makes such a motion("I move the previous question"),the member is really saying:"I've had enough The matter of counting votes starts simple,but can become p q y � g� g complicated. debate.Let's get on with the vote.'When such a motion is made,the chair should ask for a second,stop debate,and vote on the motion to Usually,it's pretty easy to determine whether a particular motion limit debate.The motion to limit debate requires a two-thirds vote of passed or whether it was defeated.If a simple majority vote is needed the body. to pass a motion,then one vote more than 50 percent of the body is NOTE: A motion to limit debate could include a time limit.For required.For example,in a five-member body,if the vote is three in example:"I move we limit debate on this agenda item to 15 minutes." favor and two opposed,the motion passes.If it is two in favor and Even in this format,the motion to limit debate requires a two- three opposed,the motion is defeated. thirds vote of the body.A similar motion is a motion to object to If a two-thirds majority vote is needed to pass a motion,then how consideration of an item.This motion is not debatable,and if passed, many affirmative votes are required?The simple rule of thumb is to precludes the body from even considering an item on the agenda.It count the"no"votes and double that count to determine how many also requires a two-thirds vote. "yes"votes are needed to pass a particular motion.For example,in a seven-member body,if two members vote"no"then the"yes"vote Majority and Super Majority Votes of at least four members is required to achieve a two-thirds majority In a democracy,a simple majority vote determines a question.A tie vote to pass the motion. vote means the motion fails.So in a seven-member body,a vote of What about tie votes?In the event of a tie,the motion always fails since 4-3 passes the motion.A vote of 3-3 with one abstention means the an affirmative vote is required to pass any motion.For example,in a motion fails.If one member is absent and the vote is 3-3,the motion five-member body,if the vote is two in favor and two opposed,with still fails. one member absent,the motion is defeated. All motions require a simple majority,but there are a few exceptions. Vote counting starts to become complicated when members The exceptions come up when the body is taking an action which vote"abstain"or in the case of a written ballot,cast a blank(or effectively cuts off the ability of a minority of the body to take an unreadable)ballot.Do these votes count,and if so,how does one action or discuss an item.These extraordinary motions require a count them?The starting point is always to check the statutes. two-thirds majority(a super majority)to pass: In California,for example,for an action of a board of supervisors to Motion to limit debate.Whether a member says,"I move the be valid and binding,the action must be approved by a majority of the previous question,"or"I move the question,"or"I call the question," board.(California Government Code Section 25005.)Typically,this or"I move to limit debate,"it all amounts to an attempt to cut off the means three of the five members of the board must vote affirmatively ability of the minority to discuss an item,and it requires a two-thirds in favor of the action.A vote of 2-1 would not be sufficient.A vote of vote to pass. 3-0 with two abstentions would be sufficient.In general law cities in 5 California,as another example,resolutions or orders for the payment of Now,exactly how does a member cast an"abstention"vote? money and all ordinances require a recorded vote of the total members Any time a member votes"abstain"or says,"I abstain,"that is an of the city council.(California Government Code Section 36936.)Cities abstention.However,if a member votes"present"that is also treated with charters may prescribe their own vote requirements.Local elected as an abstention(the member is essentially saying,"Count me for officials are always well-advised to consult with their local agency purposes of a quorum,but my vote on the issue is abstain.")In fact, counsel on how state law may affect the vote count. any manifestation of intention not to vote either"yes"or"no"on After consulting state statutes,step number two is to check the rules the pending motion may be treated by the chair as an abstention.If of the body.If the rules of the body say that you count votes of"those written ballots are cast,a blank or unreadable ballot is counted as an present"then you treat abstentions one way.However,if the rules of abstention as well. the body say that you count the votes of those"present and voting," Can a member vote"absent"or"count me as absent?"Interesting then you treat abstentions a different way.And if the rules of the question.The ruling on this is up to the chair.The better approach is body are silent on the subject,then the general rule of thumb(and for the chair to count this as if the member had left his/her chair and default rule)is that you count all votes that are"present and voting." is actually"absent."That,of course,affects the quorum.However,the Accordingly,under the"present and voting"system,you would NOT chair may also treat this as a vote to abstain,particularly if the person count abstention votes on the motion.Members who abstain are does not actually leave the dais. counted for purposes of determining quorum(they are"present"), but you treat the abstention votes on the motion as if they did not The Motion to Reconsider exist(they are not"voting").On the other hand,if the rules of the There is a special and unique motion that requires a bit of body specifically say that you count votes of those"present"then you explanation all by itself;the motion to reconsider.A tenet of DO count abstention votes both in establishing the quorum and on parliamentary procedure is finality.After vigorous discussion,debate the motion.In this event,the abstention votes act just like"no"votes. and a vote,there must be some closure to the issue.And so,after a How does this work in practice? vote is taken,the matter is deemed closed,subject only to reopening Here are a few examples. if a proper motion to consider is made and passed. Assume that a five-member city council is voting on a motion that A motion to reconsider requires a majority vote to pass like other requires a simple majority vote to pass,and assume further that the garden-variety motions,but there are two special rules that apply body has no specific rule on counting votes.Accordingly,the default only to the motion to reconsider. rule kicks in and we count all votes of members that are"present and First,is the matter of timing.A motion to reconsider must be made voting.' If the vote on the motion is 3-2,the motion passes.If the at the meeting where the item was first voted upon.A motion to motion is 2-2 with one abstention,the motion fails. reconsider made at a later time is untimely.(The body,however,can Assume a five-member city council voting on a motion that requires always vote to suspend the rules and,by a two-thirds majority,allow a two-thirds majority vote to pass,and further assume that the body a motion to reconsider to be made at another time.) has no specific rule on counting votes.Again,the default rule applies. Second,a motion to reconsider may be made only by certain If the vote is 3-2,the motion fails for lack of a two-thirds majority.If members of the body.Accordingly,a motion to reconsider may be the vote is 4-1,the motion passes with a clear two-thirds majority.A made only by a member who voted in the majority on the original vote of three"yes,"one"no"and one"abstain"also results in passage motion.If such a member has a change of heart,he or she may of the motion.Once again,the abstention is counted only for the make the motion to reconsider(any other member of the body purpose of determining quorum,but on the actual vote on the —including a member who voted in the minority on the original motion,it is as if the abstention vote never existed—so an effective motion—may second the motion).If a member who voted in the 3-1 vote is clearly a two-thirds majority vote. minority seeks to make the motion to reconsider,it must be ruled Now,change the scenario slightly.Assume the same five-member out of order.The purpose of this rule is finality.If a member of city council voting on a motion that requires a two-thirds majority minority could make a motion to reconsider,then the item could be vote to pass,but now assume that the body DOES have a specific rule brought back to the body again and again,which would defeat the requiring a two-thirds vote of members"present! Under this specific purpose of finality. rule,we must count the members present not only for quorum but If the motion to reconsider passes,then the original matter is back also for the motion.In this scenario,any abstention has the same before the body,and a new original motion is in order.The matter may force and effect as if it were a"no"vote.Accordingly,if the votes were be discussed and debated as if it were on the floor for the first time. three"yes,"one"no"and one"abstain,"then the motion fails.The abstention in this case is treated like a"no"vote and effective vote of 3-2 is not enough to pass two-thirds majority muster. 6 Courtesy and Decorum Appeal.If the chair makes a ruling that a member of the body The rules of order are meant to create an atmosphere where the disagrees with,that member may appeal the ruling of the chair.If the members of the body and the members of the public can attend to motion is seconded,and after debate,if it passes by a simple majority business efficiently,fairly and with full participation.At the same vote,then the ruling of the chair is deemed reversed. time,it is up to the chair and the members of the body to maintain Call for orders of the day.This is simply another way of saying, common courtesy and decorum.Unless the setting is very informal, "return to the agenda."If a member believes that the body has drifted it is always best for only one person at a time to have the floor,and from the agreed-upon agenda,such a call maybe made.It does not it is always best for every speaker to be first recognized by the chair require a vote,and when the chair discovers that the agenda has before proceeding to speak. not been followed,the chair simply reminds the body to return to The chair should always ensure that debate and discussion of an the agenda item properly before them.If the chair fails to do so,the agenda item focuses on the item and the policy in question,not the chair's determination may be appealed. personalities of the members of the body.Debate on policy is healthy, Withdraw a motion.During debate and discussion of a motion, debate on personalities is not.The chair has the right to cut off the maker of the motion on the floor,at any time,may interrupt a discussion that is too personal,is too loud,or is too crude. speaker to withdraw his or her motion from the floor.The motion Debate and discussion should be focused,but free and open.In the is immediately deemed withdrawn,although the chair may ask the interest of time,the chair may,however,limit the time allotted to person who seconded the motion if he or she wishes to make the speakers,including members of the body. motion,and any other member may make the motion if properly recognized. Can a member of the body interrupt the speaker?The general rule is "no.' There are,however,exceptions.A speaker may be interrupted Special Notes About Public Input for the following reasons: The rules outlined above will help make meetings very public- The chair would then ask the interrupter to"state your point:' Privilege.The proper interruption would be,"point of privilege:' friendly.But in addition,and particularly for the chair,it is wise to remember three special rules that apply to each agenda item: Appropriate points of privilege relate to anything that would interfere with the normal comfort of the meeting.For example,the Rule One:Tell the public what the body will be doing. room may be too hot or too cold,or a blowing fan might interfere Rule Two:Keep the public informed while the body is doing it. with a person's ability to hear. Rule Three:When the body has acted,tell the public what the Order.The proper interruption would be,"point of order."Again, body did. the chair would ask the interrupter to"state your point.'Appropriate points of order relate to anything that would not be considered appropriate conduct of the meeting.For example,if the chair moved on to a vote on a motion that permits debate without allowing that discussion or debate. 7 LE AIGUE® CITIES 1400 K Street,Sacramento,CA 95814 (916)658-8200 1 Fax(916)658-8240 www.cacities.org To order additional copies of this publication,call(916)658-8200. $10 ©2011 League of California Cities.All rights reserved. ®Printed on recycled paper. COMMISSIONER ' S HANDBOOK CUPERTINO 2021 WELCOME AND ORIENTATION Welcome and thank you for your willingness to serve as a member of a City of Cupertino Commission. Advisory bodies play an important role in City governance by assisting the City Council in addressing specific issues in detail and facilitating community decision-making. The City of Cupertino has a number of advisory bodies, each with distinct responsibilities. As a new advisory body member, you should familiarize yourself with the documents governing your particular body including City ordinances, City Council resolutions, relevant element(s) of the General Plan, and other documents, all available from your staff liaison. Reviewing these documents will help you get a sense of your responsibilities. This Handbook is designed to serve as a reference for the basic protocols that apply generally to all City advisory bodies.Orientation is necessarily an active process.As a new member you may want to meet with the Chair of your advisory body to get a better sense of your role and the business of the body, as well as with the staff liaison assigned to the body. Along with familiarizing yourself with your advisory body's foundational documents, you may want to review agendas and minutes from recent meetings to see what current issues have been under consideration, as well as the City Work Program to familiarize yourself with current goals. Learning your role and developing an effective voice takes time and familiarity. We hope this Handbook will assist you towards a satisfying and productive experience. Your participation is deeply appreciated by the City Council, by city staff, and by your community. The vitality and strength of our community results from the willingness of people like you to serve. Darcy Paul ay r City of Cuper no ii Table of Contents WELCOME AND ORIENTATION ii STRUCTURE OF GOVERNMENT 4 Form of Government 4 City Council 4 City Manager and Staff 4 Commissions 5 COMMISSION MEMBERSHIP 6 Quorum and Attendance 6 Vacancies 6 Resignations and Removals 6 MEETINGS 6 Regular Meetings 6 Adjourned Meetings 6 Special Meetings 7 Subcommittees 7 Agendas 7 Preparation for Meetings 7 Minutes 8 Procedure 8 Decorum at Meetings 8 Basis for your Decision 8 CITY WORK PROGRAM 9 COMMUNICATIONS 9 Staying Informed 9 Use of City Email 10 Resources 10 iii THE STRUCTURE OF GOVERNMENT A. FORM OF GOVERNMENT The City of Cupertino operates as a general law city with a City Council-City Manager form of government where the City Council sets policy and the City Manager manages the implementation and administration of those policies. B. CITY COUNCIL The City Council is the governing legislative body of the City, consisting of five members elected in odd numbered years to staggered four-year terms.These councilmembers then elect the mayor and vice mayor to one-year terms. It sets goals and priorities and establishes policies. The Mayor is the presiding officer of the Council, and the official spokesperson and representative of the City. C. CITY MANAGER AND STAFF Ci , Manager The City Manager has complete responsibility and authority for the administration of the City's government. This individual is appointed by and serves at the pleasure of the Council and is the appointing authority for the City, selecting the department heads and other employees.The City Manager coordinates and directs the services of the City staff, and commissioners should not attempt to direct or prioritize work for departments or individual staff. Ci Clerk The City Clerk plays an important role for advisory bodies. The City Clerk accepts and maintains applications,processes appointments,updates membership rosters, bylaws, informational booklets, and yearly attendance records. The City Clerk is the filing officer for Statements of Economic Interests,and any other required filing as identified by the City Council and the State. Staff When assigned by the City Manager, staff assist and act in a technical advisory capacity to the commissions. It is not expected that every staff recommendation will be followed; however, because of the staff's technical knowledge, full consideration should be given to their recommendation.Staff are at liberty to make their recommendation to the City Council through the City Manager,even though the commission may have taken a different position. However, in these cases, the commission recommendation will be made clear to the City Council. Staff Liaison A staff liaison is assigned to each commission. Their main duties include facilitating meetings, preparing agendas, advising commissioners, and writing 4 meeting minutes. Commissioners should reach out to their liaison if they have any questions regarding matters of the commission or if they would like to contact other staff regarding official business. D. COMMISSIONS The primary purpose of the City's commissions is to serve as advisory bodies to Council by weighing public input and rendering recommendations to the City Council. There are times when the advisory body's recommendation will not be sustained or will be modified by the City Council.It is important to recognize this not as a rejection of the integrity of the recommendation,but as an inevitable part of the process of community decision-making. The Council has appointed commissioners as advisors to them. This underlying philosophy makes it improper for an individual commissioner, acting in their official capacity, to try to persuade the Council into the acceptance of a recommendation other than that voted by the majority of the commission.The role of a commission is to assist the City Council in the formation of policy, having been created for the purpose of advising. The scope of work, purpose, and other primary functions for each commission can be found in the City Municipal Code Chapter 2. Chair and Vice Chair Each year,every commission will elect from its membership a Chairperson (Chair) and a vice Chairperson(Vice Chair) who serve at the pleasure of the commission for a one-year term. The Vice Chair acts in this capacity when the Chair is not available. The Chair should: • Maintain order of the meeting, ensure respect for all opinions, protect commissioners,staff, and the public from personal attacks. • Keep discussion focused on the issue at hand. • Solicit opinions from commissioners.Encourage evaluation of new,tentative, or incomplete ideas. Discourage overly dominant commissioners from having disproportionate control over the discussion. • Attempt to reach decisions expeditiously on action items. At those times when action would be premature, guide discussion toward a timeline or framework for responsible action. • Set meeting rules early and make sure everyone abides by them without exception. • Set an acceptable time limit for public testimony(generally three minutes per individual and 10 minutes per group)and stick to it.At the Chair's discretion, the public can interact with the members of the commission beyond the public-comment time limit in order to facilitate better communication of the agendized topic. • Provide periodic written updates, approved by the full body, to Council regarding the status of their activities at least every six months. 5 COMMISSION MEMBERSHIP A. QUORUM AND ATTENDANCE A quorum consists of a majority of the members of the commission. A quorum is required to conduct business at any meeting whether it is a regular, adjourned, or special meeting. While it is expected that members be present at all meetings, the Chair should be notified if a member knows in advance that he/she will be absent. A member shall be considered removed from an advisory body under the following conditions: • A member misses more than three consecutive meetings • A member misses more than 25% of the advisory body's meetings in a calendar year(Resolution 10-048) B. VACANCIES Vacancies are filled by appointment by the Council.Appointments made in the middle of a term are for the unexpired portion of that term. Council-appointed Alternates will automatically fill a vacancy. C. RESIGNATIONS AND REMOVALS If a member is unable to continue serving because of health, business requirements or personal reasons, a letter of resignation should be submitted to the City Council. The position of any member is automatically vacated when the member ceases to meet the qualifications for office, when Council accepts the member's resignation, or when the Council so declares. MEETINGS A. REGULAR MEETINGS Commissions are required to hold regular meetings open to the public as provided by the enabling ordinance. The agenda for this meeting must be posted at least 72 hours prior to the meeting. B. ADJOURNED MEETINGS If the business to be considered at a regular meeting cannot be completed,the commission then may designate a time and date for an adjourned meeting. 6 C. SPECIAL MEETINGS A special meeting may be called by the Chair or a majority of the members with coordination with the staff liaison. D. SUBCOMMITTEES The Chair may appoint special subcommittees of less than a quorum of the commission who then may meet at their convenience to carry out the purpose of the subcommittee. If the subcommittee has a continuing subject matter or a regularly scheduled meeting time, it may qualify as a Brown Act committee and public notice provisions will apply. E. AGENDAS Each commission has a staff liaison responsible for preparing agendas in consultation with the Chair. If a commissioner or staff member intends to bring up an item for discussion or action, the item must be included on the agenda in accordance with the Brown Act.For each meeting,a date should be scheduled for the Chair and staff liaison to set the agenda. Commissioners can propose agenda items within the purpose of the commission to the staff liaison prior to the agenda setting date. Future Agenda Setting The staff liaison will maintain a list of future agenda items that the commission plans to discuss.The Chair,the staff liaison, or any two commissioners can add an agenda item within their purpose to the future agenda item list and it will be scheduled at the discretion of the Chair and staff liaison. To provide commissioners an opportunity to discuss whether to add an item to the future agenda item list, each regularly-scheduled agenda will include a "Future Agenda Setting" item. Once an item is added to the future agenda item list, it cannot be removed until it is discussed for removal at a regularly scheduled meeting during the item for"Future Agenda Setting." In addition, the item will not be removed if the Chair or at least two commissioners wish for the item to remain on the future agenda item list. Staff Updates and Commissioner Activity Report Each regularly scheduled agenda will also include a "Staff Updates and Commissioner Activity Report" item for staff to report on updates and the members to report any activities they have taken part in related to the commission since the prior regularly scheduled meeting. F. PREPARATION FOR MEETINGS • Thoroughly review the agenda packet, including agenda reports,and any other materials before the meeting. Check if you may have a conflict of interest with any of the items due to property or monetary interests.If it is unclear,the commissioner 7 can explain the situation to the staff liaison who can seek legal counsel from the City Attorney.For more information on conflicts of interest,please review the Fair Political Practices Commission(FPPQ Conflicts of Interest Rules. • Understand what action you are being called upon to take for each particular agenda item. • Contact the Chair or your staff liaison before the meeting to clarify questions about the agenda or request further information. • Understand the responsibilities of your commission. As a member of an advisory body you will be asked to provide recommendations to the City Council about specific issues. Keep in mind that your appointment does not empower you to supervise or direct City staff. G. MINUTES The approved minutes are placed on file by the City Clerk for public access. Commissions should strive to keep summary minutes as opposed to action minutes. If automatic transcription is made available to supplement official minutes, action minutes may be sufficient. H. PROCEDURE Commissions follow the guidelines on parliamentary procedure contained in Rosenberg's Rules of Order (Rules). These Rules outline how motions are made and the basic format for an agenda item discussion. I. DECORUM AT MEETINGS • Discourage outward signs of agreement or disagreement from the audience such as cheering or clapping. Such demonstrations can intimidate those wishing to express alternate views and delay the meeting. Also see Conduct of Members in the Cupertino Ethics Policy. • Limit your own comments to the issues before the commission. Avoid the appearance of straying from the subject or"grandstanding". J. BASIS FOR YOUR DECISION Commission decisions should be based principally on the information presented to you in the open public meeting process. If you collect pertinent information outside of the public process through a meeting with stake holders or site visits,you should share that information with your fellow commissioners in the public meeting.This sharing of information will ensure that other commissioners and members of the public have a better understanding of the rationale for your decision. Commissioners are free to meet or refuse to meet with residents, resident groups, 8 developers or prospective contractors or any persons outside of the public meeting process concerning issues before the commission. If you meet with any individuals outside of the public meeting you should disclose the content of that meeting in the public meeting to again ensure that everybody is aware of the facts and have similar information upon which to base their decision;this disclosure is required for quasi- judicial matters'. All governmental procedures and process must follow due process and allow an affected party a right to be heard, and to present controverting fact or testimony on the question of right in the matter involved.Unfair determinations, such as bias, predetermination, refusal to hear, etc.,may invalidate actions. Keep an open mind. An objective,balanced, and receptive approach will help you assess the facets of a given issue and evaluate new ideas.When receiving written and oral public testimony it will be necessary to discern between fact and opinion, as well as between those concerns which are relevant and those which are secondary to the issue at hand. Keeping an open mind will make it easier for you to understand all sides of an issue before you make a judgment or take a position. CITY WORK PROGRAM The City Council approves an annual City Work Program to guide the work of the City. Prior to the first draft of the City Work Program each year, staff will reach out to the commissions to ask for recommendations of items to add. These recommendations will be provided to the City Council for consideration,but ultimately the City Council will determine the final items on the City Work Program. Commissions support City Work Program items within their scope by reviewing the items and making recommendations to City Council. Since the City Council sets the City Work Program to guide the priority efforts in the City, commission agendas should be aligned accordingly.By August 15, each commission should provide an annual report of all of the topics the commission has addressed in the prior year. COMMUNICATIONS A. STAYING INFORMED Commissioners should sign up for City email notifications to stay informed of various community events and public meetings. Council encourages commissioners to attend at least two community meetings or meetings of other commissions each year. The City uses social media outlets, surveys, email notifications, the Scene, and the City website to perform outreach for City business. For appropriate conduct on social media, 'More information on quasi-judicial proceedings can be found in the Imposed Restraints document in the Commission Resources folder. 9 see the City's Social Media Policv. For questions about City outreach, speak with your staff liaison. B. USE OF CITY EMAIL All newly appointed City commissioners will be assigned a mandatory City email address after reviewing and signing the Technology Use Policy. As noted under the Brown Act, care should be taken with regard to emails. Never select "Reply All" to an email to all commissioners or forward an email sent to you by one commissioner to another commissioner since that would constitute a quorum. All questions and concerns should be directed to the Chair and staff liaison. All City emails are subject to the Public Records Act and you should use your City email only to conduct City business as a commissioner.Please do not forward or reply to a City email from your personal email address.Once your term on the commission is over,your City email will be terminated. RESOURCES Commissioners should familiarize themselves with the following resources: City policies relating to ethics, social media, commissions, diversity, and technology, as well as the City organizational chart, a Rosenberg's Rules of Order cheat sheet, and guidance on imposed restraints, can be found online in the Commission Resources folder. League of California Cities Rosenberg's Rules of Order, Brown Act, Public Records Act, and other resources Institute for Local Government Parliamentary Procedure Simplified Ethics and Transparency 10 Open & Publ 'ic V A GUIDE TO THE RALPH M. BROWN ACT s r REVISED APRIL 2016 I dw :t PUBLIC COMMENT. The nt to the Bros Act, city Council vaLues yotir comments; however, purl Council cannot take action On items pi d on the is Limited posted agenda. The public commentperiod _ to 201-ninutes, with 2 minutes allotted for each speaker. This pUbtic comment period �el�s other �e�d� city council on Consent cafe r�dar items (iF the m rnber of the public cannot be present `-- t the tame #.he item is considered) or items of i o EAGRNIA CITIES � 1 1 ACKNOWLEDGEMENTS The League thanks the following individuals for their work on this publication: Brown Act Committee Michael Jenkins,Committee Chair City Attorney,Hermosa Beach,Rolling Hills and West Hollywood Michael W. Barrett City Attorney,Napa Damien Brower City Attorney,Brentwood Ariel Pierre Calonne City Attorney,Santa Barbara Veronica Ramirez Assistant City Attorney,Redwood City Malathy Subramanian City Attorney,Clayton and Lafayette Paul Zarefsky Deputy City Attorney,San Francisco Gregory W.Stepanicich 1st Vice President City Attorneys'Department City Attorney Fairfield,Mill Valley,Town of Ross League Staff Patrick Whitnell,General Counsel Koreen Kelleher,Assistant General Counsel Corrie Manning,Senior Deputy General Counsel Alison Leary,Deputy General Counsel Janet Leonard,Legal Assistant �� OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT A Open & Publ 'ic A GUIDE TO THE RALPH M. BROWN ACT REVISED APRIL 2016 CHAPTER 1: IT IS THE PEOPLE'S BUSINESS....................................................5 CHAPTER 2: LEGISLATIVE BODIES.................................................................11 CHAPTER3: MEETINGS.................................................................................17 CHAPTER 4:AGENDAS, NOTICES,AND PUBLIC PARTICIPATION...................29 CHAPTER 5: CLOSED SESSIONS....................................................................41 CHAPTER 6: REMEDIES.................................................................................55 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 7 TABLE OF CONTENTS TABLE OF CONTENTS CHAPTER 1: IT IS THE PEOPLE'S BUSINESS ..........................................5 Theright of access...................................................................................................................6 Broadcoverage........................................................................................................................6 Narrowexemptions .................................................................................................................7 Public participation in meetings..............................................................................................7 Controversy..............................................................................................................................8 Beyond the law—good business practices............................................................................8 Achievingbalance....................................................................................................................9 Historicalnote..........................................................................................................................9 CHAPTER 2: LEGISLATIVE BODIES ............................................. . What is a"legislative body"of a local agency? ......................................................................12 What is not a"legislative body"for purposes of the Brown Act?.........................................14 CHAPTER 3: MEETINGS........................................................................ 17 BrownAct meetings...............................................................................................................18 Six exceptions to the meeting definition...............................................................................18 Collectivebriefings.................................................................................................................21 Retreats or workshops of legislative bodies..........................................................................21 Serialmeetings.......................................................................................................................21 Informalgatherings................................................................................................................24 Technological conferencing...................................................................................................24 Locationof meetings..............................................................................................................25 CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION ......: Agendas for regular meetings................................................................................................30 Mailed agenda upon written request.....................................................................................31 Notice requirements for special meetings............................................................................32 Notices and agendas for adjourned and continued meetings and hearings........................32 Notice requirements for emergency meetings.....................................................................32 Notice of compensation for simultaneous or serial meetings..............................................33 Educational agency meetings................................................................................................33 Notice requirements for tax or assessment meetings and hearings....................................33 2 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Non-agenda items..................................................................................................................34 Respondingto the public.......................................................................................................34 The right to attend and observe meetings............................................................................35 Records and recordings.........................................................................................................36 The public's place on the agenda..........................................................................................37 CHAPTER 5: CLOSED SESSIONS..................................................... Agendasand reports..............................................................................................................42 Litigation.................................................................................................................................43 Realestate negotiations ........................................................................................................45 Publicemployment................................................................................................................46 Labornegotiations .................................................................................................................47 Labor negotiations—school and community college districts............................................48 Other Education Code exceptions.........................................................................................48 Joint Powers Authorities........................................................................................................48 License applicants with criminal records..............................................................................49 Publicsecurity........................................................................................................................49 Multijurisdictional law enforcement agency.........................................................................49 Hospital peer review and trade secrets.................................................................................49 Other legislative bases for closed session.............................................................................50 Who may attend closed sessions..........................................................................................50 The confidentiality of closed session discussions.................................................................50 CHAPTER 6: REMEDIES.................................................................... Invalidation.............................................................................................................................56 Applicability to Past Actions ..................................................................................................57 Civil action to prevent future violations.................................................................................57 Costs and attorney's fees......................................................................................................58 Criminalcomplaints...............................................................................................................58 Voluntaryresolution...............................................................................................................59 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 3 4 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT AT Chapter |T |S THE PEOPLE'S BUSINESS Theright of access..............................................................................................................6 Broadcoverage...................................................................................................................6 Narrowexemptions............................................................................................................7 Public participation in meetings.........................................................................................7 Controversy......................................................................................................................... 8 Beyond the law--good business practices......................................................................8 Achievingbalance...............................................................................................................9 Historicalnote.....................................................................................................................9 CHAPTER PEOPLE'S ' BUSINESS Chapter 1 IT IS THE PEOPLE'S BUSINESS The right of access Two key parts of the Brown Act have not changed since its adoption in 1953.One is the Brown Act's initial section,declaring the Legislature's intent: "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 it business. It is the intent of the law that their actions be taken a 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."' The people reconfirmed that intent 50 years later in the November 2004 election by adopting Proposition 59,amending the California Constitution to include a public right of access to government information: "The people have the right of access to information concerning the conduct of the PRACTICE TIP:The key to the people's business,and,therefore, the meetings of public bodies and the writings of Brown Act is a single sentence. public officials and agencies shall be open to public scrutiny'2 In summary,all meetings shall The Brown Act's other unchanged provision is a single sentence: be open and public except when the Brown Act authorizes 'All meetings of the legislative body of a local agency shall be open and public,and otherwise. all persons shall be permitted to attend any meeting of the legislative body of a local agency,except as otherwise provided in this chapter."3 That one sentence is by far the most important of the entire Brown Act. If the opening is the soul, that sentence is the heart of the Brown Act. Broad coverage The Brown Act covers members of virtually every type of local government body,elected or appointed,decision-making or advisory.Some types of private organizations are covered,as are newly-elected members of a legislative body,even before they take office. Similarly,meetings subject to the Brown Act are not limited to face-to-face gatherings.They also include any communication medium or device through which a majority of a legislative body 6 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT discusses,deliberates or takes action on an item of business outside of a noticed meeting.They include meetings held from remote locations by teleconference. New communication technologies present new Brown Act challenges. For example,common email practices of forwarding or replying to messages can easily lead to a serial meeting prohibited by the Brown Act,as can participation by members of a legislative body in an internet chatroom or blog dialogue.Communicating during meetings using electronic technology(such as laptop computers,tablets,or smart phones)may create the perception that private communications are influencing the outcome of decisions;some state legislatures have banned the practice.on the other hand,widespread cablecasting and web streaming of meetings has greatly expanded public access to the decision-making process. Narrow exemptions The express purpose of the Brown Act is to assure that local government agencies conduct the PRACTICE TIP:Think of the public's business openly and publicly.Courts and the California Attorney General usually broadly government's house as being construe the Brown Act in favor of greater public access and narrowly construe exemptions to its made of glass.The curtains may general rules.' be drawn only to further the public's interest.A local policy Generally,public officials should think of themselves as living in glass houses,and that they may on the use of laptop computers, only draw the curtains when it is in the public interest to preserve confidentiality.Closed sessions tablets,and smart phones during may be held only as specifically authorized by the provisions of the Brown Act itself. Brown Act meetings may help The Brown Act,however,is limited to meetings among a majority of the members of multi- avoid problems. member government bodies when the subject relates to local agency business. It does not apply to independent conduct of individual decision-makers. It does not apply to social,ceremonial, educational,and other gatherings as long as a majority of the members of a body do not discuss issues related to their local agency's business.Meetings of temporary advisory committees—as distinguished from standing committees—made up solely of less than a quorum of a legislative body are not subject to the Brown Act. The law does not apply to local agency staff or employees,but they may facilitate a violation by acting as a conduit for discussion,deliberation,or action by the legislative body.' The law,on the one hand,recognizes the need of individual local officials to meet and discuss matters with their constituents.on the other hand,it requires—with certain specific exceptions to protect the community and preserve individual rights—that the decision-making process be public.Sometimes the boundary between the two is not easy to draw. Public participation in meetings In addition to requiring the public's business to be conducted in open,noticed meetings,the Brown Act also extends to the public the right to participate in meetings.Individuals,lobbyists, and members of the news media possess the right to attend,record,broadcast,and participate in public meetings.The public's participation is further enhanced by the Brown Act's requirement that a meaningful agenda be posted in advance of meetings,by limiting discussion and action to matters listed on the agenda,and by requiring that meeting materials be made available. Legislative bodies may,however,adopt reasonable regulations on public testimony and the conduct of public meetings,including measures to address disruptive conduct and irrelevant speech. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 7 Controversy Not surprisingly,the Brown Act has been a source of confusion and controversy since its inception. News media and government watchdogs often argue the law is toothless,pointing out that there has never been a single criminal conviction for a violation.They often suspect that closed sessions are being misused. Public officials complain that the Brown Act makes it difficult to respond to constituents and requires public discussions of items better discussed privately—such as why a particular person should not be appointed to a board or commission.Many elected officials find the Brown Act inconsistent with their private business experiences.Closed meetings can be more efficient;they eliminate grandstanding and promote candor.The techniques that serve well in business—the working lunch,the sharing of information through a series of phone calls or emails,the backroom conversations and compromises—are often not possible under the Brown Act. As a matter of public policy,California(along with many other states)has concluded that there is more to be gained than lost by conducting public business in the open.Government behind PRACTICE TIP:Transparency closed doors may well be efficient and business-like,but it may be perceived as unresponsive and is a foundational value for untrustworthy. ethical government practices. The Brown Act is a floor,not a Beyond the law—good business practices ceiling,for conduct. Violations of the Brown Act can lead to invalidation of an agency's action,payment of a challenger's attorney fees,public embarrassment,even criminal prosecution. But the Brown Act is a floor,not a ceiling for conduct of public officials.This guide is focused not only on the Brown Act as a minimum standard,but also on meeting practices or activities that, legal or not,are likely to create controversy.Problems may crop up,for example,when agenda descriptions are too brief or vague,when an informal get- { _ together takes on the appearance of a meeting,when an agency conducts too much of its business in closed session or discusses A matters in closed session that are beyond the authorized scope,or when controversial issues arise that are not on the agenda. The Brown Act allows a legislative body to adopt practices and ' requirements for greater access to meetings for itself and its � f w subordinate committees and bodies that are more stringent than the law itself requires.b Rather than simply restate the basic requirements of the Brown Act,local open meeting policies should strive to anticipate and prevent problems in areas where the Brown Act does not provide full guidance.As with the adoption of any other significant policy,public comment should be solicited. A local policy could build on these basic Brown Act goals: ■ A legislative body's need to get its business done smoothly; 6- The public's right to participate meaningfully in meetings,and to review documents used in decision-making at a relevant point in time; ■ A local agency's right to confidentially address certain negotiations,personnel matters, claims and litigation;and ■ The right of the press to fully understand and communicate public agency decision-making. $ OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT An explicit and comprehensive public meeting and information policy,especially if reviewed periodically,can be an important element in maintaining or improving public relations.Such a policy exceeds the absolute requirements of the law—but if the law were enough,this guide would be unnecessary.A narrow legalistic approach will not avoid or resolve potential controversies.An agency should consider going beyond the law,and look at its unique circumstances and determine if there is a better way to prevent potential problems and promote public trust.At the very least,local agencies need to think about how their agendas are structured in order to make Brown Act compliance easier.They need to plan carefully to make sure public participation fits smoothly into the process. Achieving balance - The Brown Act should be neither an excuse for hiding the ball nor a mechanism for hindering PRACTICE TIP:The Brown Act efficient and orderly meetings.The Brown Act represents a balance among the interests of should be viewed as a tool constituencies whose interests do not always coincide.It calls for openness in local government, to facilitate the business of yet should allow government to function responsively and productively. local government agencies. There must be both adequate notice of what discussion and action is to occur during a meeting Local policies that go beyond as well as a normal degree of spontaneity in the dialogue between elected officials and their the minimum requirements constituents. of law may help instill public confidence and avoid problems. The ability of an elected official to confer with constituents or colleagues must be balanced against the important public policy prohibiting decision-making outside of public meetings. In the end,implementation of the Brown Act must ensure full participation of the public and preserve the integrity of the decision-making process,yet not stifle government officials and impede the effective and natural operation of government. Historical note In late 1951,San Francisco Chronicle reporter Mike Harris spent six weeks looking into the way local agencies conducted meetings.State law had long required that business be done in public, but Harris discovered secret meetings or caucuses were common.He wrote a 10-part series on "Your Secret Government"that ran in May and June 1952. Out of the series came a decision to push for a new state open meeting law.Harris and Richard (Bud)Carpenter,legal counsel for the League of California Cities,drafted such a bill and Assembly Member Ralph M.Brown agreed to carry it.The Legislature passed the bill and Governor Earl Warren signed it into law in 1953. The Ralph M.Brown Act,known as the Brown Act,has evolved under a series of amendments and court decisions,and has been the model for other open meeting laws—such as the Bagley-Keene Act,enacted in 1967 to cover state agencies. Assembly Member Brown is best known for the open meeting law that carries his name. He was elected to the Assembly in 1942 and served 19 years,including the last three years as Speaker.He then became an appellate court justice. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 9 CHAPTER PEOPLE'S BUSINESS ENDNOTES: 1 California Government Code section 54950 2 California Constitution,Art.1,section 3(b)(1) 3 California Government Code section 54953(a) 4 This principle of broad construction when it furthers public access and narrow construction if a provision limits public access is also stated in the amendment to the State's Constitution adopted by Proposition 59 in 2004.California Constitution,Art.1,section 3(b)(2). 5 California Government Code section 54952.2(b)(2)and(c)(1);Wolfe v.City of Fremont(2006) 144 Cal.AppAth 533 6 California Government Code section 54953.7 Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernmen .A current version of the Brown Act may be found at www.leginfo.ca.gov. 10 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Mm Chapter 2 LEGISLATIVE BODIES What isu"legislative body"nfa local agency?................................................................ 12 BODIESCHAPTER 2: LEGISLATIVE Chapter 2 LEGISLATIVE BODIES The Brown Act applies to the legislative bodies of local agencies.It defines"legislative body" broadly to include just about every type of decision-making body of a local agency.' What is a "legislative body" of a local agency? A"legislative body"includes: The"governing body of a local agency"and certain of its subsidiary 'M bodies;"or any other local body created by state or federal statute."z This includes city councils,boards of supervisors,school boards and boards 4 of trustees of special districts.A"local agency"is any city,county,city and county,school district,municipal corporation,successor agency to a redevelopment agency,district,political subdivision or other local public agency.3 A housing authority is a local agency under the Brown Act even though it is created by and is an agent of the state.°The California Attorney General has opined that air pollution control districts and regional open space districts are also covered.'Entities created pursuant 1440 to joint powers agreements are also local agencies within the meaning of the Brown Act.6 Newly-elected members of a legislative body who have not yet assumed office must conform to the requirements of the Brown Act as if already in office.'Thus,meetings between incumbents and newly-elected members of a legislative body,such as a meeting between two outgoing members and a member-elect of a five-member body,could violate PRACTICE TIP:The prudent the Brown Act. presumption is that an advisory committee or task force is On the morning following the election to a five-member legislative body of a local subject to the Brown Act.Even agency,two successful candidates,neither an incumbent,meet with an incumbent if one clearly is not,it may want member of the legislative body for a celebratory breakfast.Does this violate the to comply with the Brown Act. Brown Act? Public meetings may reduce the It might,and absolutely would if the conversation turns to agency business.Even possibility of misunderstandings though the candidates-elect have not officially been sworn in,the Brown Act applies. and controversy. If purely a social event,there is no violation but it would be preferable if others were invited to attend to avoid the appearance of impropriety. Appointed bodies—whether permanent or temporary,decision-making or advisory —including planning commissions,civil service commissions and other subsidiary committees,boards,and bodies.volunteer groups,executive search committees,task forces,and blue ribbon committees created by formal action of the governing body are legislative bodies.When the members of two or more legislative bodies are appointed to serve on an entirely separate advisory group,the resulting body may be subject to the 12 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Brown Act.In one reported case,a city council created a committee of two members of the city council and two members of the city planning commission to review qualifications of prospective planning commissioners and make recommendations to the council.The court held that their joint mission made them a legislative body subject to the Brown Act. Had the two committees remained separate;and met only to exchange information and report back to their respective boards,they would have been exempt from the Brown Act!, ■ Standing committees of a legislative body,irrespective of their composition,which have either:(1)a continuing subject matter jurisdiction;or(2)a meeting schedule fixed by charter,ordinance,resolution,or formal action of a legislative body.9 Even if it comprises less than a quorum of the governing body,a standing committee is subject to the Brown Act.For example,if a governing body creates long-term committees on budget and finance - or on public safety,those are standing committees subject to the Brown Act. Further, PRACTICE TIP: It can be according to the California Attorney General,function over form controls.For example, difficult to determine whether a statement by the legislative body that the advisory committee"shall not exercise a subcommittee of a body falls continuing subject matter jurisdiction"or the fact that the committee does not have a fixed into the category of a standing meeting schedule is not determinative.1'"Formal action"by a legislative body includes committee or an exempt authorization given to the agency's executive officer to appoint an advisory committee temporary committee.Suppose a pursuant to agency-adopted policy." committee is created to explore ■ The governing body of any private organization either:(1)created by the legislative the renewal of a franchise or a body in order to exercise authority that may lawfully be delegated by such body to a topic of similarly limited scope private corporation,limited liability company or other entity;or(2)that receives agency and duration. Is it an exempt funding and whose governing board includes a member of the legislative body of the local temporary committee or a non- agency appointed by the legislative body as a full voting member of the private entity's exempt standing committee?The governing board.12 These include some nonprofit corporations created by local agencies.13 answer may depend on factors If a local agency contracts with a private firm for a service(for example,payroll,janitorial, such as how meeting schedules or food services),the private firm is not covered by the Brown Act.14 When a member of are determined,the scope of the a legislative body sits on a board of a private organization as a private person and is not committee's charge,or whether appointed by the legislative body,the board will not be subject to the Brown Act.Similarly, the committee exists long enough when the legislative body appoints someone other than one of its own members to such to have"continuing jurisdiction." boards,the Brown Act does not apply. Nor does it apply when a private organization merely _ receives agency funding.15 The local chamber of commerce is funded in part by the city.The mayor sits on the chamber's board of directors.Is the chamber board a legislative body subject to the Brown Act? Maybe.If the chamber's governing documents require the mayor to be on the board and the city council appoints the mayor to that position,the board is a legislative body.If,however,the chamber board independently appoints the mayor to its board,or the mayor attends chamber board meetings in a purely advisory capacity,it is not. Q. If a community college district board creates an auxiliary organization to operate a campus bookstore or cafeteria,is the board of the organization a legislative body? Yes.But,if the district instead contracts with a private firm to operate the bookstore or cafeteria,the Brown Act would not apply to the private firm. ■ Certain types of hospital operators.A lessee of a hospital (or portion of a hospital) OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 13 first leased under Health and Safety Code subsection 32121(p)after January 1, 1994,which exercises"material authority"delegated to it by a local agency,whether or not such lessee is organized and operated by the agency or by a delegated authority.16 What is not a "legislative body"for purposes of the Brown Act? ■ A temporary advisory committee composed solely of less than a quorum of the legislative body that serves a limited or single purpose,that is not perpetual,and that will be dissolved once its specific task is completed is not subject to the Brown Act.17 Temporary committees are sometimes called ad hoc committees,a term not used in the Brown Act.Examples include an advisory committee composed of less than a quorum created to interview candidates for a vacant position or to meet with representatives of other entities to exchange information on a matter of concern to the agency,such as traffic congestion." ■ Groups advisory to a single decision-maker or appointed by staff are not covered.The Brown Act applies only to committees created by formal action of the legislative body and not to committees created by others.A committee advising a superintendent of schools would not be covered by the Brown Act.However,the same committee,if created by formal action of the school board,would be covered.19 Q. A member of the legislative body of a local agency informally establishes an advisory committee of five residents to advise her on issues as they arise. Does the Brown Act apply to this committee? A. No,because the committee has not been established by formal action of the legislative body. Q. During a meeting of the city council,the council directs the city manager to form an advisory committee of residents to develop recommendations for a new ordinance.The city manager forms the committee and appoints its members;the committee is instructed to direct its recommendations to the city manager. Does the Brown Act apply to this committee? Possibly,because the direction from the city council might be regarded as a formal action of the body notwithstanding that the city manager controls the committee. ■ Individual decision makers who are not elected or appointed members of a legislative body are not covered by the Brown Act.For example,a disciplinary hearing presided over by a department head or a meeting of agency department heads are not subject to the Brown Act since such assemblies are not those of a legislative body.20 ■ Public employees,each acting individually and not engaging in collective deliberation on a specific issue,such as the drafting and review of an agreement,do not constitute a legislative body under the Brown Act,even if the drafting and review process was established by a legislative body.21 ■ County central committees of political parties are also not Brown Act bodies.22 ENDNOTES: 1 Taxpayers for Livable Communities v.City of Malibu(2005) 126 Cal.AppAth 1123,1127 14 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 2 California Government Code section 54952(a)and(b) 3 California Government Code section 54951;Health and Safety Code section 34173(g) (successor agencies to former redevelopment agencies subject to the Brown Act).But see Education Code section 35147,which exempts certain school councils and school site advisory committees from the Brown Act and imposes upon them a separate set of rules. 4 Torres v.Board of Commissioners of Housing Authority of Tulare County(1979)89 Cal.App.3d 545,549- 550 5 71 Ops.Cal.Atty.Gen.96(1988);73 Ops.Cal.Atty.Gen.1 (1990) 6 McKee v.Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force(2005) 134 Cal. AppAth 354,362 7 California Government Code section 54952.1 8 Joiner v.City of Sebastopol(1981) 125 Cal.App.3d 799,804-805 9 California Government Code section 54952(b) 10 79 Ops.Cal.Atty.Gen.69(1996) 11 Frazer x Dixon Unified School District(1993) 18 Cal.AppAth 781,793 12 California Government Code section 54952(c)(1).Regarding private organizations that receive local agency funding,the same rule applies to a full voting member appointed prior to February 9, 1996 who,after that date,is made a non-voting board member by the legislative body.California Government Code section 54952(c)(2) 13 California Government Code section 54952(c)(1)(A);International Longshoremen's and Warehousemen's Union v.Los Angeles Export Terminal,Inc.(1999)69 Cal.AppAth 287,300;Epstein v.Hollywood Entertainment Dist.II Business Improvement District(2001)87 Cal.AppAth 862,876; see also 85 Ops.Cal.Atty.Gen.55(2002) 14 International Longshoremen's and Warehousemen's Union v.Los Angeles Export Terminal(1999)69 Cal. AppAth 287,300 fn.5 15 "The Brown Act,Open Meetings for Local Legislative Bodies,"California Attorney General's Office (2003),p.7 16 California Government Code section 54952(d) 17 California Government Code section 54952(b);see also Freedom Newspapers,Inc.v.Orange County Employees Retirement System Board of Directors(1993)6 CalAth 821,832. 18 Taxpayers for Livable Communities v City of Malibu(2005) 126 Cal.AppAth 1123,1129 19 56 Ops.Cal.Atty.Gen.14,16-17(1973) 20 Wilson v.San Francisco Municipal Railway(1973)29 Cal.App.3d 870,878-879 21 Golightly v.Molina(2014)229 Cal.AppAth 1501,1513 22 59 Ops.Cal.Atty.Gen.162,164(1976) Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment.A current version of the Brown Act may be found at www.leginfo.ca.gov. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 15 16 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 4 Y { r` Chapter 3MEETINGS BrownAct meetings ......................................................................................................... 18 Six exceptions to the meeting definition.......................................................................... 18 Collectivebriefings............................................................................................................ 21 Retreats or workshops of legislative bodies.....................................................................21 Serialmeetings .................................................................................................................21 Informalgatherings...........................................................................................................24 Technological conferencing..............................................................................................24 Locationof meetings........................................................................................................25 TO THE RALPH M. BROWN Chapter 3MEETINGS The Brown Act only applies to meetings of local legislative bodies.The Brown Act defines a meeting as:"... and any congregation of a majority of the members of a legislative body at the same time and location,including teleconference location as permitted by Section 54953,to hear,discuss, deliberate,or take any action on any item that is within the subject matter k* k- jurisdiction of the legislative body."'The term"meeting"is not limited to gatherings at which action is taken but includes deliberative gatherings as well.A hearing before an individual hearing officer is not a meeting under 9W. the Brown Act because it is not a hearing before a legislative body. G Brown Act meetings Brown Act meetings include a legislative body's regular meetings,special meetings,emergency meetings,and adjourned meetings. "Regular meetings"are meetings occurring at the dates,times,and location set by resolution,ordinance,or other formal action by the legislative body and are subject to 72- hour posting requirements.3 "Special meetings"are meetings called by the presiding officer or majority of the legislative body to discuss only discrete items on the agenda under the Brown Act's notice requirements for special meetings and are subject to 24-hour posting requirements.° "Emergency meetings"are a limited class of meetings held when prompt action is needed due to actual or threatened disruption of public facilities and are held on little notice., "Adjourned meetings"are regular or special meetings that have been adjourned or re-adjourned to a time and place specified in the order of adjournment,with no agenda required for regular meetings adjourned for less than five calendar days as long as no additional business is transacted.6 Six exceptions to the meeting definition The Brown Act creates six exceptions to the meeting definition Individual Contacts The first exception involves individual contacts between a member of the legislative body and any other person.The Brown Act does not limit a legislative body member acting on his or her own.This exception recognizes the right to confer with constituents,advocates,consultants,news reporters, local agency staff,or a colleague. Individual contacts, however,cannot be used to do in stages what would be prohibited in one step.For example,a series of individual contacts that leads to discussion,deliberation,or action among a majority of the members of a legislative body is prohibited.Such serial meetings are discussed below. is OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Conferences VW The second exception allows a legislative body majority to attend a conference or similar gathering open to the public that addresses — 5�t issues of general interest to the public or to public agencies of the type represented by the legislative body. ti Among other things,this exception permits legislative body members to attend annual association conferences of city,county,school,community } college,and other local agency officials,so long as those meetings are open to the public.However,a majority of members cannot discuss _ 4 ; among themselves,other than as part of the scheduled program, business of a specific nature that is within their local agency's subject ' p1 matter jurisdiction. Community Meetings The third exception allows a legislative body majority to attend an open and publicized meeting held by another organization to address a topic of local community concern.A majority cannot discuss among themselves,other than as part of the scheduled program,business of a specific nature that is within the legislative body's subject matter jurisdiction.Under this exception,a legislative body majority may attend a local service club meeting or a local candidates' night if the meetings are open to the public. "I see we have four distinguished members of the city council at our meeting tonight,"said the chair of the Environmental Action Coalition."I wonder if they have anything to say about the controversy over enacting a slow growth ordinance?" The Brown Act permits a majority of a legislative body to attend and speak at an open and publicized meeting conducted by another organization.The Brown Act may nevertheless be violated if a majority discusses,deliberates,or takes action on an item during the meeting of the other organization.There is a fine line between what is permitted and what is not;hence,members should exercise caution when participating in these types of events. The local chamber of commerce sponsors an open and public candidate debate during an election campaign.Three of the five agency members are up for re-election and all three participate.All of the candidates are asked their views of a controversial project scheduled for a meeting to occur just after the election.May the three incumbents answer the question? Yes,because the Brown Act does not constrain the incumbents from expressing their views regarding important matters facing the local agency as part of the political process the same as any other candidates. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 19 CHAPTER 3: MEETINGS Other Legislative Bodies The fourth exception allows a majority of a legislative body to attend an open and publicized meeting of:(1)another body of the local agency; and(2)a legislative body of another local agency.$Again,the majority cannot discuss among themselves,other than as part of the scheduled meeting,business of a specific nature that is within their subject matter jurisdiction.This exception allows,for example,a city council or a majority of a board of supervisors to attend a controversial meeting of the planning commission. - Nothing in the Brown Act prevents the majority of a legislative body from sitting together at such a meeting.They may choose not to,however,to preclude any possibility of improperly discussing local agency business and to avoid the appearance of a Brown Act violation. Further,aside from the Brown Act,there may be other reasons,such as due process considerations,why the members should avoid giving public testimony or trying to influence the outcome of proceedings before a subordinate body. 0 The entire legislative body intends to testify against a bill before the Senate Local Government Committee in Sacramento.Must this activity be noticed as a meeting of the body? No,because the members are attending and participating in an open meeting of another governmental body which the public may attend. The members then proceed upstairs to the office of their local Assembly member to discuss issues of local interest.Must this session be noticed as a meeting and be open to the public? Yes,because the entire body may not meet behind closed doors except for proper closed sessions.The same answer applies to a private lunch or dinner with the Assembly member. Standing Committees The fifth exception authorizes the attendance of a majority at an open and noticed meeting of a standing committee of the legislative body,provided that the legislative body members who are not members of the standing committee attend only as observers(meaning that they cannot speak or otherwise participate in the meeting).9 The legislative body establishes a standing committee of two of its five members,which meets monthly.A third member of the legislative body wants to attend these meetings and participate.May she? A. She may attend,but only as an observer,'she may not participate. 20 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Social or Ceremonial Events The final exception permits a majority of a legislative body to attend a purely social or ceremonial occasion.Once again,a majority cannot discuss business among themselves of a specific nature that is within the subject matter jurisdiction of the legislative body. Nothing in the Brown Act prevents a majority of members from attending the same football game, party,wedding,funeral,reception,or farewell.The test is not whether a majority of a legislative body attends the function,but whether business of a specific nature within the subject matter jurisdiction of the body is discussed.So long as no such business is discussed,there is no violation of the Brown Act. Grand Jury Testimony In addition,members of a legislative body,either individually or collectively,may give testimony in private before a grand jury.10 This is the equivalent of a seventh exception to the Brown Act's definition of a"meeting." Collective briefings None of these exceptions permits a majority of a legislative body to meet together with staff in advance of a meeting for a collective briefing.Any y such briefings that involve a majority of the body in the same place and time must be open to the public and satisfy Brown Act meeting notice and slaw agenda requirements. '} " F �•„ Retreats or workshops of legislative bodies .y y Gatherings by a majority of legislative body members at the legislative body's retreats,study sessions,or workshops are covered under the Brown Act.This is the case whether the retreat,study session,or workshop focuses on long-range agency planning,discussion of critical local issues, or team building and group dynamics." Q The legislative body wants to hold a team-building session to improve relations among its members.May such a session be conducted behind closed doors? A No,this is not a proper subject for a closed session,and there is no other basis to exclude the public. Council relations are a matter of public business. Serial meetings One of the most frequently asked questions about the Brown Act involves serial meetings.At any one time,such meetings involve only a portion of a legislative body,but eventually involve a majority.The Brown Act provides that"[a]majority of the members of a legislative body shall not,outside a meeting... use a series of communications of any kind,directly or through intermediaries,to discuss,deliberate,or take action on any item of business that is within the subject matter jurisdiction of the legislative body."12 The problem with serial meetings is the process,which deprives the public of an opportunity for meaningful observation of and participation in legislative body decision-making. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 21 The serial meeting may occur by either a"daisy chain"or a"hub and spoke"sequence. In the daisy chain scenario,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.The hub and spoke process involves at least two scenarios.In the first scenario,Member A(the hub)sequentially contacts Members B, C,and D and so on(the spokes),until a quorum has been contacted.In the second scenario,a staff member(the hub),functioning as an intermediary for the legislative body or one of its members, communicates with a majority of members(the spokes) one-by-one for for discussion,deliberation,or a decision on - a proposed action.13 Another example of a serial meeting is r, - when a chief executive officer(the hub)briefs a majority of ' members(the spokes)prior to a formal meeting and,in the process,information about the members' respective views is revealed.Each of these scenarios violates the Brown Act. A legislative body member has the right,if not the duty, to meet with constituents to address their concerns.That member also has the right to confer with a colleague(but ` not with a majority of the body,counting the member)or appropriate staff about local agency business.An employee or official of a local agency may engage in separate conversations or communications outside of an open and 7 noticed meeting"with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body."14 The Brown Act has been violated,however,if several one-on-one meetings or conferences leads to a discussion,deliberation,or action by a majority.In one case,a violation occurred when a quorum of a city council,by a letter that had been circulated among members outside of a formal meeting, directed staff to take action in an eminent domain proceeding.15 A unilateral written communication to the legislative body,such as an informational or advisory memorandum,does not violate the Brown Act.16 Such a memo,however,may be a public record.17 The phone call was from a lobbyist."Say, I need your vote for that project in the south area. How about it?" "Well, I don't know;"replied Board Member Aletto."That's kind of a sticky proposition.You sure you need my vote?" "Well, I've got Bradley and Cohen lined up and another vote leaning.With you I'd be over the top." Moments later,the phone rings again."Hey, I've been hearing some rumbles on that south area project;'said the newspaper reporter."I'm counting noses. How are you voting on it?" Neither the lobbyist nor the reporter has violated the Brown Act,but they are facilitating 22 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT a violation.The board member may have violated the Brown Act by hearing about the positions of other board members and indeed coaxing the lobbyist to reveal the other board members'positions by asking"You sure you need my vote?"The prudent course is to avoid such leading conversations and to caution lobbyists,staff,and news media against revealing such positions of others. The mayor sat down across from the city manager."From now on,"he declared,"I want you to provide individual briefings on upcoming agenda - items.Some of this material is very technical,and the council members don't want to sound like idiots asking about it in public. Besides that, briefings will PRACTICE TIP:When briefing speed up the meeting." legislative body members, staff must exercise care not to Agency employees or officials may have separate conversations or communications disclose other members'views outside of an open and noticed meeting"with members of a legislative body in order to and positions. answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body."'$Members should always be vigilant when discussing local agency business with anyone to avoid conversations that could lead to a discussion,deliberation or action taken among the majority of the legislative body. "Thanks for the information,"said Council Member Kim."These zoning changes can be tricky,and now I think I'm better equipped to make the right decision." "Glad to be of assistance;"replied the planning director."I'm sure Council Member Jones is OK with these changes. How are you leaning?" "Well,"said Council Member Kim,"I'm leaning toward approval. I know that two of my colleagues definitely favor approval." The planning director should not disclose Jones'prospective vote,and Kim should not disclose the prospective votes of two of her colleagues. Under these facts,there likely has been a serial meeting in violation of the Brown Act. Q. The agency's website includes a chat room where agency employees and officials participate anonymously and often discuss issues of local agency business.Members of the legislative body participate regularly.Does this scenario present a potential for violation of the Brown Act? Yes,because it is a technological device that may serve to allow for a majority of members to discuss,deliberate,or take action on matters of agency business. A member of a legislative body contacts two other members on a five-member body relative to scheduling a special meeting.Is this an illegal serial meeting? No,the Brown Act expressly allows a majority of a body to call a special meeting, though the members should avoid discussing the merits of what is to be taken up at the meeting. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 23 Particular care should be exercised when staff briefings of legislative body members occur by email because of the ease of using the"reply to all"button that may inadvertently result in a Brown Act violation. Informal gatherings often members are tempted to mix business with pleasure—for example,by holding a post- meeting gathering.Informal gatherings at which local agency business is discussed or transacted violate the law if they are not conducted in conformance with the Brown Act.19 A luncheon gathering in a crowded dining room violates the Brown Act if the public does not have an opportunity to attend,hear,or participate in the deliberations of members. Thursday at 11:30 a.m.,as they did every week,the board of directors of the Dry Gulch Irrigation District trooped into Pop's Donut Shoppe for an hour of talk and fellowship.They sat at the corner window,fronting on Main and Broadway,to show they had nothing to hide.Whenever he could,the managing editor of the weekly newspaper down the street hurried over to join the board. A gathering like this would not violate the Brown Act if board members scrupulously avoided talking about irrigation district issues—which might be difficult.This kind of situation should be avoided.The public is unlikely to believe the board members could meet regularly without discussing public business.A newspaper executive's presence in no way lessens the potential for a violation of the Brown Act. Q. The agency has won a major victory in the Supreme Court on an issue of importance. The presiding officer decides to hold an impromptu press conference in order to make a statement to the print and broadcast media.All the other members show up in order to make statements of their own and be seen by the media.Is this gathering illegal? Technically there is no exception for this sort of gathering,but as long as members do not state their intentions as to future action to be taken and the press conference is open to the public,it seems harmless. Technological conferencing Except for certain nonsubstantive purposes,such as scheduling a special meeting,a conference call including a majority of the members of a legislative body is an unlawful meeting.But,in an effort to keep up with information age technologies,the Brown Act specifically allows a legislative body to use any type of teleconferencing to meet,receive public comment and testimony,deliberate,or conduct a closed session.21 While the Brown Act contains specific requirements for conducting a teleconference,the decision to use teleconferencing is entirely discretionary with the body.No person has a right under the Brown Act to have a meeting by teleconference. "Teleconference"is defined as"a meeting of a legislative body,the members of i which are in different locations,connected by electronic means,through either 24 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT audio or video,or both."21 In addition to the specific requirements relating to teleconferencing,the meeting must comply with all provisions of the Brown Act otherwise applicable.The Brown Act contains the following teleconferencing requirements:22 ■ Teleconferencing may be used for all purposes during any meeting; ■ At least a quorum of the legislative body must participate from locations within the local agency's jurisdiction; ■ Additional teleconference locations may be made available for the public; ■ Each teleconference location must be specifically identified in the notice and agenda of the meeting,including a full address and room number,as may be applicable; ■ Agendas must be posted at each teleconference location,even if a hotel room or a residence; ■ Each teleconference location,including a hotel room or residence,must be accessible to the public and have technology,such as a speakerphone,to enable the public to participate; ■ The agenda must provide the opportunity for the public to address the legislative body directly at each teleconference location;and ■ All votes must be by roll call. Q. A member on vacation wants to participate in a meeting of the legislative body and vote by cellular phone from her car while driving from Washington,D.C.to New York.May she? A. She may not participate or vote because she is not in a noticed and posted teleconference location. The use of teleconferencing to conduct a legislative body meeting presents a variety of issues beyond the scope of this guide to discuss in detail.Therefore,before teleconferencing a meeting, legal counsel for the local agency should be consulted. Location of meetings The Brown Act generally requires all regular and special meetings of a legislative body,including retreats and workshops,to be held within the boundaries of the territory over which the local agency exercises jurisdiction.23 An open and publicized meeting of a legislative body may be held outside of agency boundaries if the purpose of the meeting is one of the following:24 ■ Comply with state or federal law or a court order,or attend a judicial conference or administrative proceeding in which the local agency is a party; ■ Inspect real or personal property that cannot be conveniently brought into the local agency's territory,provided the meeting is limited to items relating to that real or personal property; Q. The agency is considering approving a major retail mall.The developer has built other similar malls,and invites the entire legislative body to visit a mall outside the jurisdiction.May the entire body go? A. Yes,the Brown Act permits meetings outside the boundaries of the agency for specified reasons and inspection of property is one such reason.The field trip must be treated as a meeting and the public must be allowed to attend. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 25 Participate in multiagency meetings or discussions;however,such meetings must be held within the boundaries of one of the participating agencies,and all of those agencies must give proper notice; ■ Meet in the closest meeting facility if the local agency has no meeting facility within its boundaries,or meet at its principal office if that office is located outside the territory over which the agency has jurisdiction; Meet with elected or appointed federal or California officials when a local meeting would be impractical,solely to discuss a legislative or regulatory issue affecting the local agency and over which the federal or state officials have jurisdiction; Meet in or nearby a facility owned by the agency,provided that the topic of the meeting is limited to items directly related to the facility;or 1L visit the office of its legal counsel for a closed session on pending litigation,when to do so would reduce legal fees or costs.25 In addition,the governing board of a school or community college district may hold meetings outside of its boundaries to attend a conference on nonadversarial collective bargaining techniques,interview candidates for school district superintendent,or interview a potential employee from another district.26 A school board may also interview members of the public residing in another district if the board is considering employing that district's superintendent. Similarly,meetings of a joint powers authority can occur within the territory of at least one of its member agencies,and a joint powers authority with members throughout the state may meet anywhere in the state.27 Finally,if a fire,flood,earthquake,or other emergency makes the usual meeting place unsafe,the presiding officer can designate another meeting place for the duration of the emergency.News media that have requested notice of meetings must be notified of the designation by the most rapid means of communication available.28 r� 26 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Endnotes: 1 California Government Code section 54952.2(a) 2 Wilson v.San Francisco Municipal Railway(1973)29 Cal.App.3d 870 3 California Government Code section 54954(a) 4 California Government Code section 54956 5 California Government Code section 54956.5 6 California Government Code section 54955 7 California Government Code section 54952.2(c) 8 California Government Code section 54952.2(c)(4) 9 California Government Code section 54952.2(c)(6) 10 California Government Code section 54953.1 11 "The Brown Act,"California Attorney General(2003),p.10 12 California Government Code section 54952.2(b)(1) 13 Stockton Newspaper Inc.v.Redevelopment Agency(1985) 171 Cal.App.3d 95 14 California Government Code section 54952.2(b)(2) 15 Common Cause v.Stirling(1983) 147 Cal.App.3d 518 16 Roberts v.City of Palmdale(1993)5 Cal.4th 363 17 California Government Code section 54957.5(a) 18 California Government Code section 54952.2(b)(2) 19 California Government Code section 54952.2;43 Ops.Cal.Atty.Gen.36(1964) 20 California Government Code section 54953(b)(1) 21 California Government Code section 54953(b)(4) 22 California Government Code section 54953 23 California Government Code section 54954(b) 24 California Government Code section 54954(b)(1)-(7) 25 94 Ops.Cal.Atty.Gen.15(2011) 26 California Government Code section 54954(c) 27 California Government Code section 54954(d) 28 California Government Code section 54954(e) Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment.A current version of the Brown Act may be found at www.leginfo.ca.gov. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 27 28 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT ��'� a n�,yrYJe sir' A � 4 4F fy'f� Chapter 4 AGENDAS, NOTICES, AND PUBLIC PARTICIPATION Agendas for regular meetings..........................................................................................30 Mailed agenda upon written request............................................................................... 31 Notice requirements for special meetings.......................................................................32 Notices and agendas for adjourned and continued meetings and hearings...................32 Notice requirements for emergency meetings................................................................ 32 Notice of compensation for simultaneous or serial meetings.........................................33 Educational agency meetings...........................................................................................33 Notice requirements for tax or assessment meetings and hearings............................... 33 Non-agenda items.............................................................................................................34 Respondingto the public..................................................................................................34 The right to attend and observe meetings....................................................................... 35 Records and recordings....................................................................................................36 The public's place on the agenda.....................................................................................37 TO THE RALPH M. BROWN AGENDAS,CHAPTER 4: NOTICES, ' PUBLIC PARTICIPATION Is Chapter 4 AGENDAS, NOTICES, AND PUBLIC PARTICIPATION Effective notice is essential for an open and public meeting. Whether a meeting is open or how the public may participate in that meeting is academic if nobody knows about the meeting. Agendas for regular meetings Every regular meeting of a legislative body of a local agency— including advisory committees,commissions,or boards,as well _ as standing committees of legislative bodies—must be preceded i by a posted agenda that advises the public of the meeting and the matters to be transacted or discussed. The agenda must be posted at least 72 hours before the regular :w meeting in a location"freely accessible to members of the public." The courts have not definitively interpreted the"freely accessible" requirement.The California Attorney General has interpreted this provision to require posting in a location accessible to the public 24 hours a day during the 72-hour period,but any of the 72 hours may fall on a weekend.2 This provision may be satisfied by posting on a touch screen electronic kiosk accessible without charge to the public 24 hours a day during the 72-hour period.3 While posting an agenda on an agency's Internet website will not,by itself, satisfy the"freely accessible"requirement since there is no universal access to the internet,an agency has a supplemental obligation to post the agenda on its website if:(1)the local agency has a website;and(2)the legislative body whose meeting is the subject of the agenda is either(a)a governing body,or(b)has members that are compensated,with one or more members that are also members of a governing body.' Q. May the meeting of a governing body go forward if its agenda was either inadvertently not posted on the city's website or if the website was not operational during part or all of the 72-hour period preceding the meeting? A. At a minimum,the Brown Act calls for"substantial compliance"with all agenda posting requirements,including posting to the agency website.5 Should website technical difficulties arise,seek a legal opinion from your agency attorney.The California Attorney General has opined that technical difficulties which cause the website agenda to become inaccessible for a portion of the 72 hours preceding a meeting do not automatically or inevitably lead to a Brown Act violation,provided the agency can demonstrate substantial compliance.6 This inquiry requires a fact-specific examination of whether the agency or its legislative body made"reasonably effective efforts to notify interested persons of a public meeting"through online posting and other available means.'The Attorney General's opinion suggests that this examination would include an evaluation of how long a technical problem persisted,the efforts made to correct the problem or otherwise ensure that the public was informed,and the actual effect the problem had on public 30 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT awareness,among other factors.$The City Attorneys'Department has taken the position that obvious website technical difficulties do not require cancellation of a meeting, provided that the agency meets all other Brown Act posting requirements and the agenda is available on the website once the technical difficulties are resolved. The agenda must state the meeting time and place and must contain"a brief general description of each item of business to be transacted or discussed at the meeting,including items to be discussed in closed session."9 Special care should be taken to describe on the agenda each distinct action to be taken by the legislative body,and avoid overbroad descriptions of a"project" PRACTICE TIP: Putting together if the"project"is actually a set of distinct actions that must each be separately listed on the a meeting agenda requires agenda.10 careful thought. Q. The agenda for a regular meeting contains the following items of business: • Consideration of a report regarding traffic on Eighth Street;and • Consideration of contract with ABC Consulting. Are these descriptions adequate? If the first is,it is barely adequate.A better description would provide the reader with some idea of what the report is about and what is being recommended.The second is not adequate.A better description might read"consideration of a contract with ABC Consulting in the amount of$50,000 for traffic engineering services regarding traffic on Eighth Street." The agenda includes an item entitled City Manager's Report,during which time the city manager provides a brief report on notable topics of interest,none of which are listed on the agenda. Is this permissible? Yes,so long as it does not result in extended discussion or action by the body. A brief general description may not be sufficient for closed session agenda items.The Brown Act provides safe harbor language for the various types of permissible closed sessions.Substantial compliance with the safe harbor • language is recommended to protect legislative bodies and elected officials i from legal challenges. Mailed agenda upon written request The legislative body,or its designee,must mail a copy of the agenda or,if requested,the entire agenda packet,to any person who has filed a written ` ML �. request for such materials.These copies shall be mailed at the time the agenda is posted.If requested,these materials must be made available in appropriate alternative formats to persons with disabilities. - A request for notice is valid for one calendar year and renewal requests mustY- be filed following January 1 of each year.The legislative body may establish a fee to recover the cost of providing the service.Failure of the requesting person to receive the agenda does not constitute grounds for invalidation of actions taken at the meeting." OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 31 AGENDAS,CHAPTER 4: NOTICES, ' PUBLIC PARTICIPATION Notice requirements for special meetings There is no express agenda requirement for special meetings,but the notice of the special meeting effectively serves as the agenda and limits the business that may be transacted or discussed. Written notice must be sent to each member of the legislative body(unless waived in writing by that member)and to each local newspaper of general circulation,and radio or television F station that has requested such notice in writing.This notice must be delivered by personal delivery or any other means that ensures receipt,at least 24 hours before the time of the meeting. 41 The notice must state the time and place of the meeting,as well as all business to it be transacted or discussed.It is recommended that the business to be transacted or discussed be described in the same manner that an item for a regular meeting would be described on the agenda—with a brief general description.As noted above, closed session items should be described in accordance with the Brown Act's safe y harbor provisions to protect legislative bodies and elected officials from challenges of noncompliance with notice requirements. The special meeting notice must also be posted at least 24 hours prior to the special meeting using the same methods as posting an agenda for a regular meeting:(1)at a site that is freely accessible to the public,and(2)on the agency's website if:(1)the local agency has a website;and (2)the legislative body whose meeting is the subject of the agenda is either(a)a governing body,or(b)has members that are compensated,with one or more members that are also members of a governing body.12 - Notices and agendas for adjourned and continued meetings and __ -- - hearings A regular or special meeting can be adjourned and re-adjourned to a time and place specified in the order of adjournment.13 If no time is stated,the meeting is continued to the hour for regular meetings.Whoever is present(even if they are less than a quorum)may so adjourn a meeting;if no member of the legislative body is present,the clerk or secretary may adjourn the meeting. If a meeting is adjourned for less than five calendar days,no new agenda need be posted so long as a new item of business is not introduced.14 A copy of the order of adjournment must be posted within 24 hours after the adjournment,at or near the door of the place where the meeting was held. A hearing can be continued to a subsequent meeting.The process is the same as for continuing adjourned meetings,except that if the hearing is continued to a time less than 24 hours away,a copy of the order or notice of continuance must be posted immediately following the meeting." Notice requirements for emergency meetings The special meeting notice provisions apply to emergency meetings,except for the 24-hour notice.16 News media that have requested written notice of special meetings must be notified by telephone at least one hour in advance of an emergency meeting,and all telephone numbers provided in that written request must be tried.If telephones are not working,the notice requirements are deemed waived.However,the news media must be notified as soon as possible of the meeting and any action taken. 32 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT News media may make a practice of having written requests on file for notification of special or emergency meetings.Absent such a request,a local agency has no legal obligation to notify news media of special or emergency meetings—although notification may be advisable in any event to avoid controversy. Notice of compensation for simultaneous or serial meetings A legislative body that has convened a meeting and whose membership constitutes a quorum of another legislative body,may convene a simultaneous or serial meeting of the other legislative body only after a clerk or member of the convened legislative body orally announces:(1)the amount of compensation or stipend,if any,that each member will be entitled to receive as a result of convening the meeting of the other legislative body;and(2)that the compensation or stipend is provided as a result of convening the meeting of that body 17 No oral disclosure of the amount of the compensation is required if the entire amount of such compensation is prescribed by statute and no additional compensation has been authorized by the local agency.Further,no disclosure is required with respect to reimbursements for actual and necessary expenses incurred in the performance of the member's official duties,such as for travel, meals,and lodging. Educational agency meetings The Education Code contains some special agenda and special meeting provisions.18 However, they are generally consistent with the Brown Act.An item is probably void if not posted.19 A school district board must also adopt regulations to make sure the public can place matters affecting the district's business on meeting agendas and to address the board on those item S.20 Notice requirements for tax or assessment meetings and hearings The Brown Act prescribes specific procedures for adoption by a city,county,special - district,or joint powers authority of any new or increased tax or assessment ` imposed on businesses.21 Though written broadly,these Brown Act provisions do not apply to new or increased real property taxes or assessments as those are a governed by the California Constitution,Article XIIIC or MID,enacted by Proposition :I 218.At least one public meeting must be held to allow public testimony on the tax - 4 I or assessment.In addition,there must also be at least 45 days notice of a public r P hearing at which the legislative body proposes to enact or increase the tax or i assessment. Notice of the public meeting and public hearing must be provided at , f r+ f 'r the same time and in the same document.The public notice relating to general taxes r must be provided by newspaper publication.The public notice relating to new or f increased business assessments must be provided through a mailing to all business # r owners proposed to be subject to the new or increased assessment.The agency may recover the reasonable costs of the public meetings,hearings,and notice. The Brown Act exempts certain fees,standby or availability charges,recurring assessments,and new or increased assessments that are subject to the notice and hearing requirements of the Constitution.22 As a practical matter,the Constitution's notice requirements have preempted this section of the Brown Act. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 33 Non-agenda items The Brown Act generally prohibits any action or discussion of items not on the posted agenda. However,there are three specific situations in which a legislative body can act on an item not on the agenda?3 ■ When a majority decides there is an"emergency situation"(as defined for emergency meetings); When two-thirds of the members present(or all members if less than two-thirds are present)determine there is a need for immediate action and the need to take action "came to the attention of the local agency subsequent to the agenda being posted."This exception requires a degree of urgency.Further,an item cannot be considered under this provision if the legislative body or the staff knew about the need to take immediate action before the agenda was posted.A new need does not arise because staff forgot to put an item on the agenda or because an applicant missed a deadline;or When an item appeared on the agenda of,and was continued from,a meeting held not more than five days earlier. The exceptions are narrow,as indicated by this list.The first two require a specific determination PRACTICE TIP:Subject to very by the legislative body.That determination can be challenged in court and,if unsubstantiated,can lead to invalidation of an action. limited exceptions,the Brown Act prohibits any action or "I'd like a two-thirds vote of the board,so we can go ahead and authorize discussion of an item not on the commencement of phase two of the East Area Project,"said Chair Lopez. posted agenda. "It's not on the agenda. But we learned two days ago that we finished phase one ahead of schedule—believe it or not—and I'd like to keep it that way. Do I hear a motion?" The desire to stay ahead of schedule generally would not satisfy"a need for immediate action."Too casual an action could invite a court challenge by a disgruntled resident. The prudent course is to place an item on the agenda for the next meeting and not risk invalidation. "We learned this morning of an opportunity for a state grant,"said the chief engineer at the regular board meeting,"but our application has to be submitted in two days.We'd like the board to give us the go ahead tonight,even though it's not on the agenda." A legitimate immediate need can be acted upon even though not on the posted agenda by following a two-step process: ■ First,make two determinations: 1)that there is an immediate need to take action, and 2)that the need arose after the posting of the agenda.The matter is then placed on the agenda. ■ Second,discuss and act on the added agenda item. Responding to the public The public can talk about anything within the jurisdiction of the legislative body,but the legislative body generally cannot act on or discuss an item not on the agenda.What happens when a member of the public raises a subject not on the agenda? 34 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT While the Brown Act does not allow discussion or action on items not on the agenda,it does allow members of the legislative body,or its staff,to"briefly respond"to comments or questions from members of the public,provide a reference to staff or other resources for factual information,or direct staff to place the issue on a future agenda.In addition,even without a comment from the public,a legislative body member or a staff member may ask for information,request a report back,request to place a matter on the agenda . ; for a subsequent meeting(subject to the body's rules or procedures),ask a question for clarification,make a brief announcement,or briefly report on his or her own activities.24 However,caution should be used to avoid any discussion or action on such items. Council Member Jefferson: I would like staff to respond to - Resident Joe's complaints during public comment about the repaving project on Elm Street—are there problems with this — y � project? City Manager Frank:The public works director has prepared a 45-minute power point presentation for you on the status of this project and will give it right now. Council Member Brown:Take all the time you need;we need to get to the bottom of this.Our residents are unhappy. It is clear from this dialogue that the Elm Street project was not on the council's agenda, but was raised during the public comment period for items not on the agenda. Council Member A properly asked staff to respond;the city manager should have given at most a brief response.If a lengthy report from the public works director was warranted,the city manager should have stated that it would be placed on the agenda for the next meeting. Otherwise,both the long report and the likely discussion afterward will improperly embroil the council in a matter that is not listed on the agenda. The right to attend and observe meetings A number of Brown Act provisions protect the public's right to attend,observe,and participate in meetings. Members of the public cannot be required to register their names,provide other information, complete a questionnaire,or otherwise"fulfill any condition precedent"to attending a meeting. Any attendance list,questionnaire,or similar document posted at or near the entrance to the meeting room or circulated at a meeting must clearly state that its completion is voluntary and that all persons may attend whether or not they fill it out.25 No meeting can be held in a facility that prohibits attendance based on race,religion,color, national origin,ethnic group identification,age,sex,sexual orientation,or disability,or that is inaccessible to the disabled. Nor can a meeting be held where the public must make a payment or purchase in order to be present.26 This does not mean,however,that the public is entitled to free entry to a conference attended by a majority of the legislative body.27 While a legislative body may use teleconferencing in connection with a meeting,the public must be given notice of and access to the teleconference location. Members of the public must be able to address the legislative body from the teleconference location.28 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 35 AGENDAS,CHAPTER 4: NOTICES, ' PUBLIC PARTICIPATION —I Iq Action by secret ballot,whether preliminary or final,is flatly prohibited.29 All actions taken by the legislative body in open session,and the vote of each member thereon, must be disclosed to the public at the time the action is taken.30 p' The agenda calls for election of the legislative body's officers.Members of the legislative body want to cast unsigned written ballots that would be tallied by the clerk,who would announce the results.Is this voting process permissible? No.The possibility that a public vote might cause hurt feelings among members of the legislative body or might be awkward—or even counterproductive—does not justify a secret ballot. The legislative body may remove persons from a meeting who willfully interrupt proceedings.31 Ejection is justified only when audience members actually disrupt the proceedings.32 If order cannot be restored after ejecting disruptive persons,the meeting room may be cleared.Members of the news media who have not participated in the disturbance must be allowed to continue to attend the meeting.The legislative body may establish a procedure to re-admit an individual or individuals not responsible for the disturbance.33 Records and recordings The public has the right to review agendas and other writings distributed by any person to a 8} majority of the legislative body in connection with a matter subject to discussion or consideration "'� ,, at a meeting. Except for privileged documents,those materials are public records and must be made available upon request without delay.34 A fee or deposit as permitted by the California Public Records Act may be charged for a copy of a public record.3-1 _ In connection with an upcoming hearing on a discretionary use permit,counsel for the --,. legislative body transmits a memorandum to all members of the body outlining the litigation risks in granting or denying the permit.Must this memorandum be included in - the packet of agenda materials available to the public? A: No.The memorandum is a privileged attorney-client communication. r �1 Q: In connection with an agenda item calling for the legislative body to approve a contract, staff submits to all members of the body a financial analysis explaining why the terms of the contract favor the local agency.Must this memorandum be included in the packet of agenda materials available to the public? A. Yes.The memorandum has been distributed to the majority of the legislative body,relates to the subject matter of a meeting,and is not a privileged communication. 36 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT A legislative body may discuss or act on some matters without considering written materials.But if writings are distributed to a majority of a legislative body in connection with an agenda item,they must also be available to the public.A non-exempt or otherwise privileged writing distributed to a majority of the legislative body less than 72 hours before the meeting must be made available for inspection at the time of distribution at a public office or location designated for that purpose;and the agendas for all meetings of the legislative body must include the address of this office or location.36 A writing distributed during a meeting must be made public: ■ At the meeting if prepared by the local agency or a member of its legislative body;or ■ After the meeting if prepared by some other person.37 Any tape or film record of an open and public meeting made for whatever purpose by or at the direction of the local agency is subject to the California Public Records Act;however,it may be erased or destroyed 30 days after - the taping or recording.Any inspection of a video or tape recording is to be Y provided without charge on a video or tape player made available by the local agency.38 The agency may impose its ordinary charge for copies that is consistent with the California Public Records Act.39 In addition,the public is specifically allowed to use audio or video tape recorders or still or motion picture cameras at a meeting to record the proceedings,absent a reasonable finding by the legislative body that noise,illumination,or obstruction of view caused by recorders or cameras would persistently disrupt the proceedings.40 Similarly,a legislative body cannot prohibit or restrict the public broadcast of its open and public meetings without making a reasonable finding that the noise,illumination,or obstruction of view would persistently disrupt the proceedings.41 PRACTICE TIP: Public speakers The public's place on the agenda cannot be compelled to give Every agenda for a regular meeting must allow members of the public to speak on any item of their name or address as a interest,so long as the item is within the subject matter jurisdiction of the legislative body.Further, condition of speaking.The clerk the public must be allowed to speak on a specific item of business before or during the legislative or presiding officer may request body's consideration of it.42 speakers to complete a speaker card or identify themselves for the record,but must respect a Must the legislative body allow members of the public to show videos or make a power speaker's desire for anonymity. point presentation during the public comment part of the agenda,as long as the subject matter is relevant to the agency and is within the established time limit? Probably,although the agency is under no obligation to provide equipment. Moreover,the legislative body cannot prohibit public criticism of policies,procedures,programs, or services of the agency or the acts or omissions of the legislative body itself.But the Brown Act provides no immunity for defamatory statemen ts.43 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 37 AGENDAS,CHAPTER 4: NOTICES, ' PUBLIC PARTICIPATION —I Iq Q. May the presiding officer prohibit a member of the audience from publicly criticizing an agency employee by name during public comments? A. No,as long as the criticism pertains to job performance. Q. During the public comment period of a regular meeting of the legislative body,a resident urges the public to support and vote for a candidate vying for election to the body.May the presiding officer gavel the speaker out of order for engaging in political campaign speech? A. There is no case law on this subject.Some would argue that campaign issues are outside the subject matter jurisdiction of the body within the meaning of Section 54954.3(a). Others take the view that the speech must be allowed under paragraph(c)of that section because it is relevant to the governing of the agency and an implicit criticism of the incumbents. The legislative body may adopt reasonable regulations,including time limits, # on public comments.Such regulations should be enforced fairly and without regard to speakers'viewpoints.The legislative body has discretion to modify its regulations regarding time limits on public comment if necessary.For example, . the time limit could be shortened to accommodate a lengthy agenda or w� lengthened to allow additional time for discussion on a complicated matter.44 - r The public does not need to be given an opportunity to speak on an item that has v already been considered by a committee made up exclusively of members of the legislative body at a public meeting,if all interested members of the public had the opportunity to speak on the item before or during its consideration,and if the item has not been substantially changed.41 Notices and agendas for special meetings must also give members of the public the opportunity to speak before or during consideration of an item on the agenda but need not allow members of the public an opportunity to speak on other matters within the jurisdiction of the legislative body.46 Endnotes: 1 California Government Code section 54954.2(a)(1) 2 78 Ops.Cal.Atty.Gen.327(1995) 3 88 Ops.Cal.Atty.Gen.218(2005) 4 California Government Code sections 54954.2(a)(1)and 54954.2(d) 5 California Government Code section 54960.1(d)(1) 6 Ops.Cal.Atty.Gen. ,No.14-1204(January 19,2016) 16 Cal.Daily Op.Serv.937(Cal.A.G.), 2016 WL 375262 7 North Pacifica LLC v. California Coastal Commission(2008) 166 Cal.AppAth 1416,1432 8 Ops.Cal.AttyGen. ,No.14-1204(January 19,2016) 16 Cal.Daily Op.Serv.937(Cal.A.G.), 2016 WL 375262,Slip Op.at p.8 9 California Government Code section 54954.2(a)(1) 10 San Joaquin Raptor Rescue v.County of Merced(2013)216 Cal.AppAth 1167(legislative body's approval of CEQA action(mitigated negative declaration)without specifically listing it on the agenda violates Brown Act,even if the agenda generally describes the development project that is the subject of the CEQA analysis.) 38 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 11 California Government Code section 54954.1 12 California Government Code sections 54956(a)and(c) 13 California Government Code section 54955 14 California Government Code section 54954.2(b)(3) 15 California Government Code section 54955.1 16 California Government Code section 54956.5 17 California Government Code section 54952.3 18 Education Code sections 35144,35145 and 72129 19 Carlson v.Paradise Unified School District(1971) 18 Cal.App.3d 196 20 California Education Code section 35145.5 21 California Government Code section 54954.6 22 See Cal.Const.Art.XIIIC,XIIID and California Government Code section 54954.6(h) 23 California Government Code section 54954.2(b) 24 California Government Code section 54954.2(a)(2) 25 California Government Code section 54953.3 26 California Government Code section 54961(a);California Government Code section 11135(a) 27 California Government Code section 54952.2(c)(2) 28 California Government Code section 54953(b) 29 California Government Code section 54953(c) 30 California Government Code section 54953(c)(2) 31 California Government Code section 54957.9. 32 Norse v.City of Santa Cruz(9th Cir.2010)629 F.3d 966(silent and momentary Nazi salute directed towards mayor is not a disruption);Acosta v.City of Costa Mesa(9th Cir.2013)718 EM 800(city council may not prohibit"insolent"remarks by members of the public absent actual disruption). 33 California Government Code section 54957.9 34 California Government Code section 54957.5 35 California Government Code section 54957.5(d) 36 California Government Code section 54957.5(b) 37 California Government Code section 54957.5(c) 38 California Government Code section 54953.5(b) 39 California Government Code section 54957.5(d) 40 California Government Code section 54953.5(a) 41 California Government Code section 54953.6 42 California Government Code section 54954.3(a) 43 California Government Code section 54954.3(c) 44 California Government Code section 54954.3(b);Chaffee v.San Francisco Public Library Com.(2005) 134 Cal.AppAth 109;75 Ops.Cal.Atty.Gen.89(1992) 45 California Government Code section 54954.3(a) 46 California Government Code section 54954.3(a) Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment.A current version of the Brown Act may be found at www.leginfo.ca.gov. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 39 40 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Chapter 5 CLOSED SESSIONS Agendasand reports.........................................................................................................42 Litigation............................................................................................................................43 Real estate negotiations...................................................................................................45 Publicemployment...........................................................................................................4h Labornegotiations............................................................................................................47 Labor negotiations--school and community college districts.......................................48 other Education Code exceptions....................................................................................48 Joint Powers Authorities...................................................................................................48 License applicants with criminal records.........................................................................4Y Public security--------------------------------------.49 K8ukUurisdicdnna| law enforcement agency....................................................................49 Hospital peer review and trade secrets...........................................................................49 other legislative bases for closed session ....................................................................... 5O Who may attend closed sessions..................................................................................... 5O Chapter 5 CLOSED SESSIONS A closed session is a meeting of a legislative body conducted in private without the attendance of the public or press.A legislative body is authorized to meet in closed session only to the extent expressly authorized by the Brown Act.' As summarized in Chapter 1 of this Guide,it is clear that the Brown Act must be interpreted liberally in favor of open meetings,and exceptions that limit public access(including the exceptions for closed session meetings) must be narrowly construed.2 The most common purposes of the closed session provisions in the Brown Act are to avoid revealing confidential information(e.g.,prejudicing the city's position in litigation or compromising the privacy interests of employees). Closed sessions should be conducted keeping those narrow # purposes in mind.It is not enough that a subject is sensitive, embarrassing,or controversial.Without specific authority in the Brown Act for a closed session,a matter to be considered by a legislative body must be discussed in public.As an example,a board of police commissioners cannot meet in closed session to provide general policy guidance to a police chief,even though some matters are sensitive and the commission considers their disclosure contrary to the public interest.3 In this chapter,the grounds for convening a closed session are called"exceptions"because - they are exceptions to the general rule that meetings must be conducted openly. In some circumstances,none of the closed session exceptions apply to an issue or information the PRACTICE TIP: Some problems legislative body wishes to discuss privately. In these cases,it is not proper to convene a closed over closed sessions arise session,even to protect confidential information.For example,although the Brown Act does because secrecy itself breeds authorize closed sessions related to specified types of contracts(e.g.,specified provisions of real distrust.The Brown Act does property agreements,employee labor agreements,and litigation settlement agreements),4 the not require closed sessions and Brown Act does not authorize closed sessions for other contract negotiations. legislative bodies may do well to resist the tendency to call a Agendas and reports closed session simply because Closed session items must be briefly described on the posted agenda and the description must it may be permitted.A better state the specific statutory exemption.'An item that appears on the open meeting portion of the practice is to go into closed agenda may not be taken into closed session until it has been properly agendized as a closed session only when necessary. session item or unless it is properly added as a closed session item by a two-thirds vote of the body after making the appropriate urgency findings.b The Brown Act supplies a series of fill in the blank sample agenda descriptions for various types of authorized closed sessions,which provide a"safe harbor"from legal attacks.These sample 42 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT agenda descriptions cover license and permit determinations,real property negotiations,existing or anticipated litigation,liability claims,threats to security,public employee appointments, evaluations and discipline, labor negotiations,multi-jurisdictional law enforcement cases,hospital boards of directors,medical quality assurance committees,joint powers agencies,and audits by the California State Auditor's Office.7 If the legislative body intends to convene in closed session,it must include the section of the Brown Act authorizing the closed session in advance on the agenda and it must make a public announcement prior to the closed session discussion.In most cases,the announcement may simply be a reference to the agenda item.8 Following a closed session,the legislative body must provide an oral or written report on certain actions taken and the vote of every elected member present.The timing and content of the report varies according to the reason for the closed session and the action taken.9 The announcements may be made at the site of the closed session,so long as the public is allowed to be present to hear them. PRACTICE TIP: Pay close If there is a standing or written request for documentation,any copies of contracts,settlement attention to closed session agreements,or other documents finally approved or adopted in closed session must be provided agenda descriptions. Using to the requestor(s)after the closed session,if final approval of such documents does not rest the wrong label can lead with any other party to the contract or settlement. If substantive amendments to a contract or to invalidation of an action settlement agreement approved by all parties requires retyping,such documents may be held until taken in closed session if not retyping is completed during normal business hours,but the substance of the changes must be substantially compliant. summarized for any person inquiring about them.10 The Brown Act does not require minutes,including minutes of closed sessions.However,a legislative body may adopt an ordinance or resolution to authorize a confidential"minute book" be kept to record actions taken at closed sessions.11 If one is kept,it must be made available to members of the legislative body,provided that the member asking to review minutes of a particular meeting was not disqualified from attending the meeting due to a conflict of interest.12 A court may order the disclosure of minute books for the court's review if a lawsuit makes sufficient claims of an open meeting violation. Litigation There is an attorney/client relationship,and legal counsel may use it to protect the confidentiality of privileged written and oral communications to members of the legislative body—outside of meetings.But protection of the attorney/client privilege cannot by itself be the reason for a closed session.13 The Brown Act expressly authorizes closed sessions to discuss what is considered pending litigation.The rules that apply to holding a litigation closed session involve complex,technical definitions and procedures.The essential thing to know is that a closed session can be held by the body to confer with,or receive advice from,its legal counsel when open discussion would prejudice the position of the local agency in litigation in which the agency is,or could become,a party.14 The litigation exception under the Brown Act is narrowly construed and does not permit activities beyond a legislative body's conferring with its own legal counsel and required support staff.15 For example,it is not permissible to hold a closed session in which settlement negotiations take place between a legislative body,a representative of an adverse party,and a mediator.16 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 43 KIM AIN1 The California Attorney General has opined that if the agency's attorney is not a participant,a litigation closed session cannot be held."In any event, local agency officials should always consult the agency's attorney before placing this type of closed session on the agenda in order to be certain that it is being done properly. Before holding a closed session under the pending litigation exception,the legislative body must publicly state the basis for the closed session by identifying one of the following three types of matters:existing litigation,anticipated exposure to litigation,or anticipated initiation of litigation." Existing litigation Q. May the legislative body agree to settle a lawsuit in a properly-noticed closed session, without placing the settlement agreement on an open session agenda for public approval? A. Yes,but the settlement agreement is a public document and must be disclosed on request.Furthermore,a settlement agreement cannot commit the agency to matters that are required to have public hearings. Existing litigation includes any adjudicatory proceedings before a court,administrative body exercising its adjudicatory authority,hearing officer,or arbitrator.The clearest situation in which a closed session is authorized is when the local agency meets with its legal counsel to discuss a pending matter that has been filed in a court or with an administrative agency and names the local agency as a party.The legislative body may meet under these circumstances to receive updates on the case from attorneys, participate in developing strategy as the case develops,or consider alternatives for resolution of the case.Generally, an agreement to settle litigation may be approved in closed session.However,an agreement to settle litigation cannot be approved in closed session if it commits the city to take an action that is required to have a public hearing.19 ++ Anticipated exposure to litigation against the local agency Closed sessions are authorized for legal counsel to inform the legislative body of a significant exposure to litigation against the local agency,but only if based on"existing facts and circumstances"as defined by the Brown Act.20 The legislative body may also meet under this exception to determine whether a closed session is authorized based on information provided by legal counsel or staff.In general,the"existing facts and circumstances"must be publicly disclosed unless they are privileged written communications or not yet known to a potential plaintiff. Anticipated initiation of litigation by the local agency A closed session may be held under the exception for the anticipated initiation of litigation when the legislative body seeks legal advice on whether to protect the agency's rights and interests by initiating litigation. Certain actions must be reported in open session at the same meeting following the closed 44 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT session.Other actions,as where final approval rests with another; party or the court,may be announced when they become final and ' upon inquiry of any person.21 Each agency attorney should be aware of and make the disclosures that are required by the particular circumstances. Real estate negotiations A legislative body may meet in closed session with its negotiator _ to discuss the purchase,sale,exchange,or lease of real property by or for the local agency.A"lease"includes a lease renewal or renegotiation.The purpose is to grant authority to the legislative l n body's negotiator on price and terms of payment.22 Caution should be exercised to limit discussion to price and terms of payment without straying to other related issues such as site design,architecture,or other aspects of the project for which the transaction is contemplated.23 May other terms of a real estate transaction,aside from price and terms of payment, be addressed in closed session? No.However,there are differing opinions over the scope of the phrase"price and terms of payment"in connection with real estate closed sessions.Many agency attorneys argue that any term that directly affects the economic value of the transaction falls within the ambit of"price and terms of payment."Others take a narrower,more literal view of the phrase. The agency's negotiator may be a member of the legislative body itself.Prior to the closed session, or on the agenda,the legislative body must identify its negotiators,the real property that the negotiations may concern24 and the names of the parties with whom its negotiator may negotiate.21 After real estate negotiations are concluded,the approval and substance of the agreement must be publicly reported.If its own approval makes the agreement final,the body must report in open session at the public meeting during which the closed session is held. If final approval rests with another party,the local agency must report the approval and the substance of the agreement upon inquiry by any person,as soon as the agency is informed of it.26 "Our population is exploding,and we have to think about new school sites," said Board Member Jefferson. "Not only that,"interjected Board Member Tanaka,"we need to get rid of a couple of our older facilities." "Well,obviously the place to do that is in a closed session;"said Board Member O'Reilly."Otherwise we're going to set off land speculation.And if we even mention closing a school,parents are going to be in an uproar." A closed session to discuss potential sites is not authorized by the Brown Act.The exception is limited to meeting with its negotiator over specific sites—which must be identified at an open and public meeting. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 45 1 ' 1 1 1 Public employment The Brown Act authorizes a closed session"to consider the appointment,employment,evaluation of performance,discipline,or dismissal of a public employee or to hear complaints or charges brought against the employee."27 The purpose of this exception—commonly referred to as the"personnel exception"—is to avoid undue publicity or embarrassment for an employee or applicant for employment and to allow full and candid discussion by the legislative body;thus, it is restricted to discussing individuals,not general personnel policies.28 The body must possess the power to appoint,evaluate,or dismiss the employee to hold a closed session under this exception.29 That authority may be delegated to a subsidiary appointed body.30 An employee must be given at least 24 hours notice of any closed session convened to hear PRACTICE TIP: Discussions of specific complaints or charges against him or her.This occurs when the legislative body is who to appoint to an advisory reviewing evidence,which could include live testimony,and adjudicating conflicting testimony body and whether or not to offered as evidence.A legislative body may examine(or exclude)witnesses,31 and the California censure a fellow member of Attorney General has opined that,when an affected employee and advocate have an official or the legislative body must be essential role to play,they may be permitted to participate in the closed session.32 The employee held in the open. has the right to have the specific complaints and charges discussed in a public session rather than closed session.33 If the employee is not given the 24-hour prior notice,any disciplinary action is null and void.34 However,an employee is not entitled to notice and a hearing where the purpose of the closed session is to consider a performance evaluation.The Attorney General and the courts have determined that personnel performance evaluations do not constitute complaints and charges, which are more akin to accusations made against a person.31 Q. Must 24 hours notice be given to an employee whose negative performance evaluation is to be considered by the legislative body in closed session? A. No,the notice is reserved for situations where the body is to hear complaints and charges from witnesses. Correct labeling of the closed session on the agenda is critical.A closed session agenda that identified discussion of an employment contract was not sufficient to allow dismissal of an employee.36 An incorrect agenda description can result in invalidation of an action and much embarrassment. For purposes of the personnel exception,"employee"specifically includes an officer or an independent contractor who functions as an officer or an employee.Examples of the former include a city manager,district general manager or superintendent. Examples of the latter Include a legal counsel or engineer hired on contract to act as local agency attorney or chief engineer. Elected officials,appointees to the governing body or subsidiary bodies,and independent contractors other than those discussed above are not employees for purposes of the personnel exception.37 Action on individuals who are not"employees"must also be public—including discussing and voting on appointees to committees,or debating the merits of independent contractors,or considering a complaint against a member of the legislative body itself. 46 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT The personnel exception specifically prohibits discussion or action on proposed compensation in _ closed session,except for a disciplinary reduction in pay.Among other things,that means there can be no personnel closed sessions on a salary change(other than a disciplinary reduction) PRACTICE TIP:The personnel between any unrepresented individual and the legislative body. However,a legislative body may exception specifically prohibits address the compensation of an unrepresented individual,such as a city manager,in a closed discussion or action on session as part of a labor negotiation(discussed later in this chapter),yet another example of the proposed compensation in importance of using correct agenda descriptions. closed session except for a disciplinary reduction in pay. Reclassification of a job must be public,but an employee's ability to fill that job may be considered in closed session. Any closed session action to appoint,employ,dismiss,accept the resignation of,or otherwise affect the employment status of a public employee must be reported at the public meeting during which the closed session is held.That report must identify the title of the position,but not the names of all persons considered for an employment position.38 However,a report on a dismissal or non-renewal of an employment contract must be deferred until administrative remedies,if any,are exhausted.39 "I have some important news to announce,"said Mayor Garcia."We've decided to terminate the contract of the city manager,effective immediately. The council has met in closed session and we've negotiated six months severance pay." "Unfortunately,that has some serious budget consequences,so we've had to delay phase two of the East Area Project." This may be an improper use of the personnel closed session if the council agenda described the item as the city manager's evaluation.In addition,other than labor negotiations,any action on individual compensation must be taken in open session. Caution should be exercised to not discuss in closed session issues,such as budget impacts in this hypothetical,beyond the scope of the posted closed session notice. Labor negotiations The Brown Act allows closed sessions for some aspects of labor negotiations. Different provisions (discussed below)apply to school and community college districts. A legislative body may meet in closed session to instruct its bargaining representatives,which may be one or more of its members'40 on employee salaries and fringe benefits for both represented ("union")and non-represented employees.For represented employees,it may also consider working conditions that by law require negotiation.For the purpose of labor negotiation closed sessions,an"employee"includes an officer or an independent contractor who functions as an officer or an employee,but independent contractors who do not serve in the capacity of an officer or employee are not covered by this closed session exception.41 These closed sessions may take place before or during negotiations with employee representatives. Prior to the closed session,the legislative body must hold an open and public session in which it identifies its designated representatives. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 47 During its discussions with representatives on salaries and fringe benefits,the legislative body may also discuss available funds and funding priorities,but only to instruct its representative.The body PRACTICE TIP: Prior to the may also meet in closed session with a conciliator who has intervened in negotiations.42 closed session,the legislative body must hold an open The approval of an agreement concluding labor negotiations with represented employees must and public session in which be reported after the agreement is final and has been accepted or ratified by the other party.The it identifies its designated report must identify the item approved and the other party or parties to the negotiation.43 The representatives. labor closed sessions specifically cannot include final action on proposed compensation of one or more unrepresented employees. Labor negotiations—school and community college districts Employee relations for school districts and community college districts are governed by the Rodda Act,where different meeting and special notice provisions apply.The entire board,for example, may negotiate in closed sessions. Four types of meetings are exempted from compliance with the Rodda Act: 1. A negotiating session with a recognized or certified employee organization; 2. A meeting of a mediator with either side; 3. A hearing or meeting held by a fact finder or arbitrator;and 4. A session between the board and its bargaining agent,or the board alone,to discuss its position regarding employee working conditions and instruct its agent.44 Public participation under the Rodda Act also takes another form.45 All initial proposals of both sides must be presented at public meetings and are public records.The public must be given reasonable time to inform itself and to express its views before the district may adopt its initial proposal. In addition,new topics of negotiations must be made public within 24 hours.Any votes on such a topic must be followed within 24 hours by public disclosure of the vote of each member.46 The final vote must be in public. Other Education Code exceptions The Education Code governs student disciplinary meetings by boards of school districts and community college districts.District boards may hold a closed session to consider the suspension or discipline of a student,if a public hearing would reveal personal,disciplinary,or academic information about the student contrary to state and federal pupil privacy law.The student's parent or guardian may request an open meeting.47 Community college districts may also hold closed sessions to discuss some student disciplinary matters,awarding of honorary degrees,or gifts from donors who prefer to remain anonymous.43 Kindergarten through 12th grade districts may also meet in closed session to review the contents PRACTICE TIP:Attendance of the statewide assessment instrument.49 by the entire legislative body before a grand jury would not Joint Powers Authorities constitute a closed session The legislative body of a joint powers authority may adopt a policy regarding limitations on meeting under the Brown Act. disclosure of confidential information obtained in closed session,and may meet in closed session to discuss information that is subject to the policy.50 48 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT License applicants with criminal records A closed session is permitted when an applicant,who has a criminal record,applies for a license or license renewal and the legislative body wishes to discuss whether the applicant is sufficiently rehabilitated to receive the license.The applicant and the applicant's attorney are authorized to attend the closed session meeting.If the body decides to deny the license,the applicant may withdraw the application.If the applicant does not withdraw,the body must deny the license in public,immediately or at its next meeting.No information from the closed session can be revealed without consent of the applicant,unless the applicant takes action to challenge the denial." Public security Orr Legislative bodies may meet in closed session to discuss matters posing a threat to the security of public buildings,essential public services,including water,sewer, gas,or electric service,or to the public's right of access to public services or facilities over which the legislative body has jurisdiction.Closed session meetings for these purposes must be held with designated security or law enforcement officials including the Governor,Attorney General,district attorney,agency attorney,sheriff or chief of police,or their deputies or agency security consultant or security operations manager.52 Action taken in closed session with respect to such public security issues is not reportable action. Multijurisdictional law enforcement agency A joint powers agency formed to provide law enforcement services(involving drugs;gangs;sex crimes;firearms trafficking;felony possession of a firearm;high technology, computer,or identity theft;human trafficking;or vehicle theft)to multiple jurisdictions may hold closed sessions to discuss case records of an on-going criminal investigation,to hear testimony from persons involved in the investigation,and to discuss courses of action in particular cases.53 The exception applies to the legislative body of the joint powers agency and to any body advisory to it.The purpose is to prevent impairment of investigations,to protect witnesses and informants, and to permit discussion of effective courses of action.54 Hospital peer review and trade secrets Two specific kinds of closed sessions are allowed for district hospitals and municipal hospitals, under other provisions of law." 1. A meeting to hear reports of hospital medical audit or quality assurance committees,or for related deliberations. However,an applicant or medical staff member whose staff privileges are the direct subject of a hearing may request a public hearing. 2. A meeting to discuss"reports involving trade secrets"—provided no action is taken. A"trade secret"is defined as information which is not generally known to the public or competitors and which: 1)"derives independent economic value,actual or potential"by virtue of its restricted knowledge;2)is necessary to initiate a new hospital service or program or facility; and 3)would,if prematurely disclosed,create a substantial probability of depriving the hospital of a substantial economic benefit. The provision prohibits use of closed sessions to discuss transitions in ownership or management, or the district's dissolution.16 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 49 CLOSEDCHAPTER 5: SESSIONS i Other legislative bases for closed session Since any closed session meeting of a legislative body must be authorized by the Legislature,it is important to carefully review the Brown Act to determine if there is a provision that authorizes a closed a . session for a particular subject matter.There are some less frequently encountered topics that are authorized to be discussed by a legislative body in closed session under the Brown Act,including:a response to a confidential final draft audit report from the Bureau of State Audits,"' consideration of the purchase or sale of particular pension fund investments by a legislative body of a local agency that invests pension funds,"$hearing a charge or complaint from a member enrolled in a health plan by a legislative body of a local agency that provides Medi-Cal services,59 discussions by a county board of supervisors that governs a health plan licensed pursuant to the Knox-Keene Health Care Services Plan Act related to trade secrets or contract negotiations concerning rates of payment,60 and discussions by an insurance pooling joint powers agency related to a claim filed against,or liability of,the agency or a member of the agen Cy.61 Who may attend closed sessions PRACTICE TIP: Meetings are Meetings of a legislative body are either fully open or fully closed;there is nothing in between. either open or closed.There is Therefore,local agency officials and employees must pay particular attention to the authorized nothing"in between."62 attendees for the particular type of closed session.As summarized above,the authorized attendees may differ based on the topic of the closed session.Closed sessions may involve only the members of the legislative body and only agency counsel,management and support staff, and consultants necessary for consideration of the matter that is the subject of closed session, with very limited exceptions for adversaries or witnesses with official roles in particular types of hearings(e.g.,personnel disciplinary hearings and license hearings). In any case,individuals who do not have an official role in the closed session subject matters must be excluded from closed session s.63 Q. May the lawyer for someone suing the agency attend a closed session in order to explain to the legislative body why it should accept a settlement offer? A. No,attendance in closed sessions is reserved exclusively for the agency's advisors. The confidentiality of closed session discussions The Brown Act explicitly prohibits the unauthorized disclosure of confidential information acquired in a closed session by any person present,and offers various remedies to address breaches of confidentiality.64 It is incumbent upon all those attending lawful closed sessions to protect the confidentiality of those discussions.One court has held that members of a legislative body cannot be compelled to divulge the content of closed session discussions through the discovery process.65 Only the legislative body acting as a body may agree to divulge confidential closed session information;regarding attorney/client privileged communications,the entire body is the holder of the privilege and only the entire body can decide to waive the privilege.66 50 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Before adoption of the Brown Act provision specifically prohibiting disclosure of closed session communications,agency attorneys and the Attorney General long opined that officials have a fiduciary duty to protect the confidentiality of closed session discussions.The Attorney General PRACTICE TIP:There is a issued an opinion that it is"improper"for officials to disclose information received during a closed strong interest in protecting the session regarding pending litigation'67 though the Attorney General has also concluded that a local confidentiality of proper and agency is preempted from adopting an ordinance criminalizing public disclosure of closed session lawful closed sessions. discussions.68 In any event,in 2002,the Brown Act was amended to prescribe particular remedies for breaches of confidentiality.These remedies include injunctive relief;and,if the breach is a willful disclosure of confidential information,the remedies include disciplinary action against an employee,and referral of a member of the legislative body to the grand jury.69 The duty of maintaining confidentiality,of course,must give way to the responsibility to disclose improper matters or discussions that may come up in closed sessions.In recognition of this public policy,under the Brown Act,a local agency may not penalize a disclosure of information learned during a closed session if the disclosure: 1)is made in confidence to the district attorney or the grand jury due to a perceived violation of law;2)is an expression of opinion concerning the propriety or legality of actions taken in closed session,including disclosure of the nature and extent of the illegal action;or 3)is information that is not confidential.70 The interplay between these possible sanctions and an official's first amendment rights is complex and beyond the scope of this guide.Suffice it to say that this is a matter of great sensitivity and controversy. "I want the press to know that I voted in closed session against filing the eminent domain action,"said Council Member Chang. "Don't settle too soon,"reveals Council Member Watson to the property owner, over coffee."The city's offer coming your way is not our bottom line." The first comment to the press may be appropriate if it is a part of an action taken by the City Council in closed session that must be reported publicly.71 The second comment to the property owner is not—disclosure of confidential information acquired in closed session is expressly prohibited and harmful to the agency. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 51 CHAPTER 5: CLOSED SESSIONS ENDNOTES: 1 California Government Code section 54962 2 California Constitution,Art.1,section 3 3 61 Ops.Cal.Atty.Gen.220(1978);but see California Government Code section 54957.8 (multijurisdictional law enforcement agencies are authorized to meet in closed session to discuss the case records of ongoing criminal investigations,and other related matters). 4 California Government Code section 54957.1 5 California Government Code section 54954.5 6 California Government Code section 54954.2 7 California Government Code section 54954.5 8 California Government Code sections 54956.9 and 54957.7 9 California Government Code section 54957.1(a) 10 California Government Code section 54957.1(b) 11 California Government Code section 54957.2 12 Hamilton v.Town of Los Gatos(1989)213 Cal.App.3d 1050;2 Cal.Code Regs.section 18707 13 Roberts v City of Palmdale(1993)5 CalAth 363 14 California Government Code section 54956.9;Shapiro v.Board of Directors of Center City Development Corp.(2005) 134 Cal.AppAth 170(agency must be a party to the litigation). 15 82 Ops.Cal.Atty.Gen.29(1999) 16 Page v.Miracosta Community College District(2009) 180 Cal.AppAth 471 17 "The Brown Act,"California Attorney General(2003),p.40 18 California Government Code section 54956.9(g) 19 Trancas Property Owners Association v.City of Malibu(2006) 138 Cal.AppAth 172 20 Government Code section 54956.9(e) 21 California Government Code section 54957.1 22 California Government Code section 54956.8 23 Shapiro v.San Diego City Council(2002)96 Cal.AppAth 904;see also 93 Ops.Cal.Atty.Gen.51 (2010) (redevelopment agency may not convene a closed session to discuss rehabilitation loan for a property already subleased to a loan recipient,even if the loan Incorporates some of the sublease terms and includes an operating covenant governing the property);94 Ops.Cal.Atty.Gen.82(2011) (real estate closed session may address form,manner and timing of consideration and other items that cannot be disclosed without revealing price and terms). 24 73 Ops.Cal.Atty.Gen.1 (1990) 25 California Government Code sections 54956.8 and 54954.5(b) 26 California Government Code section 54957.1(a)(1) 27 California Government Code section 54957(b) 28 63 Ops.Cal.Atty.Gen.153(1980);but see Duvall v.Board of Trustees(2000)93 Cal.App.4th 902(board may discuss personnel evaluation criteria,process and other preliminary matters in closed session but only if related to the evaluation of a particular employee). 29 Gillespie v.San Francisco Public Library Commission(1998)67 Cal.AppAth 1165;85 Ops.Cal.Atty.Gen. 77(2002) 30 Gillespie v.San Francisco Public Library Commission(1998)67 Cal.AppAth 1165;80 Ops.Cal.Atty. Gen.308(1997).Interviews of candidates to fill a vacant staff position conducted by a temporary committee appointed by the governing body may be done in closed session. 52 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 31 California Government Code section 54957(b)(3) 32 88 Ops.Cal.Atty.Gen.16(2005) 33 Morrison v Housing Authority of the City of Los Angeles(2003) 107 Cal.AppAth 860 34 California Government Code section 54957(b);but see Bollinger v.San Diego Civil Service Commission (1999)71 Cal.App.4th 568(notice not required for closed session deliberations regarding complaints or charges,when there was a public evidentiary hearing prior to closed session). 35 78 Ops.Cal.Atty.Gen.218(1995);Bell v.Vista Unified School District(2000)82 Cal.AppAth 672; Furtado v.Sierra Community College(1998)68 Cal.AppAth 876;Fischer a Los Angeles Unified School District(1999)70 Cal.AppAth 87 36 Moreno v.City of King(2005) 127 Cal.App.4th 17 37 California Government Code section 54957 38 Gillespie v.San Francisco Public Library Commission(1998)67 Cal.AppAth 1165 39 California Government Code section 54957.1(a)(5) 40 California Government Code section 54957.6 41 California Government Code section 54957.6(b);see also 98 Ops.Cal.Atty.Gen.41 (2015) (a project labor agreement between a community college district and workers hired by contractors or subcontractors is not a proper subject of closed session for labor negotiations because the workers are not"employees"of the district). 42 California Government Code section 54957.6;and 51 Ops.Cal.Atty.Gen.201 (1968) 43 California Government Code section 54957.1(a)(6) 44 California Government Code section 3549.1 45 California Government Code section 3540 46 California Government Code section 3547 47 California Education Code section 48918;but see Rim of the World Unified School District v.Superior Court(2003) 104 Cal.AppAth 1393(Section 48918 preempted by the Federal Family Educational Right and Privacy Act in regard to expulsion proceedings). 48 California Education Code section 72122 49 California Education Code section 60617 50 California Government Code section 54956.96 51 California Government Code section 54956.7 52 California Government Code section 54957 53 McKee v.Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force(2005) 134 Cal. AppAth 354 54 California Government Code section 54957.8 55 California Government Code section 54962 56 California Health and Safety Code section 32106 57 California Government Code section 54956.75 58 California Government Code section 54956.81 59 California Government Code section 54956.86 60 California Government Code section 54956.87 61 California Government Code section 54956.95 62 46 Ops.Cal.Atty.Gen.34(1965) 63 82 Ops.Cal.Atty.Gen.29(1999) OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 53 CHAPTER 5: CLOSED SESSIONS 64 Government Code section 54963 65 Kleitman v.Superior Court(1999)74 Cal.App.4th 324,327;see also California Government Code section 54963. 66 Roberts v City of Palmdale(1993)5 Ca1.4th 363 67 80 Ops.Cal.Atty.Gen.231 (1997) 68 76 Ops.Cal.Atty.Gen.289(1993) 69 California Government Code section 54963 70 California Government Code section 54963 71 California Government Code section 54957.1 Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment.A current version of the Brown Act may be found at www.leginfo.ca.gov. 54 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT _ W Chapter 6REMEDIES Invalidation........................................................................................................................ 56 Applicability to Past Actions............................................................................................. 57 Civil action to prevent future violations........................................................................... 57 Costs and attorney's fees................................................................................................. 58 Criminalcomplaints.......................................................................................................... 58 Voluntaryresolution.......................................................................................................... 59 • TO THE RALPH M. BROWN CHAPTER 6: REMEDIES Chapter 6REMEDIES Certain violations of the Brown Act are designated as misdemeanors,although by far the most commonly used enforcement provisions are those that authorize civil actions to invalidate specified actions taken in violation of the Brown Act and to stop or prevent future violations.Still,despite all the safeguards and remedies to enforce them,it is ultimately impossible for the public to monitor every aspect of public officials'interactions.Compliance ultimately results from regular training and a good measure of self-regulation on the part of public officials.This chapter discusses the s remedies available to the public when that self-regulation is ineffective. Invalidation . Any interested person,including the district attorney,may seek to invalidate ` certain actions of a legislative body on the ground that they violate the Brown Act.' Violations of the Brown Act,however,cannot be invalidated if they involve the following types of actions: ■ Those taken in substantial compliance with the law.No Brown Act violation is found when the given notice substantially complies with the Brown Act,even when the notice erroneously cites to the wrong Brown Act section,but adequately advises the public that the Board will meet with legal counsel to discuss potential litigation in closed session;z ■ Those involving the sale or issuance of notes,bonds or other indebtedness,or any related contracts or agreements; Those creating a contractual obligation,including a contract awarded by competitive bid for other than compensation for professional services,upon which a party has in good faith relied to its detriment; F Those connected with the collection of any tax;or ■ Those in which the complaining party had actual notice at least 72 hours prior to the regular meeting or 24 hours prior to the special meeting,as the case may be,at which the action is taken. Before filing a court action seeking invalidation,a person who believes that a violation has occurred must send a written"cure or correct"demand to the legislative body.This demand must clearly describe the challenged action and the nature of the claimed violation.This demand must be sent within 90 days of the alleged violation or 30 days if the action was taken in open session but in violation of Section 54954.2,which requires(subject to specific exceptions)that only properly agendized items are acted on by the governing body during a meeting.3 The legislative body then has up to 30 days to cure and correct its action. If it does not act,any lawsuit must be filed within the next 15 days.The purpose of this requirement is to offer the body an opportunity to consider whether a violation has occurred and to weigh its options before litigation is filed. 56 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT Although just about anyone has standing to bring an action for invalidation,4 the challenger must show prejudice as a result of the alleged violation.'An action to invalidate fails to state a cause of action against the agency if the body deliberated but did not take an action.6 Applicability to Past Actions Any interested person,including the district attorney,may file a civil action to determine whether - past actions of a legislative body occurring on or after January 1,2013 constitute violations of the Brown Act and are subject to a mandamus,injunction,or declaratory relief action.'Before filing PRACTICE TIP:A lawsuit to an action,the interested person must,within nine months of the alleged violation of the Brown invalidate must be preceded by Act,submit a"cease and desist"letter to the legislative body,clearly describing the past action a demand to cure and correct and the nature of the alleged violation."The legislative body has 30 days after receipt of the letter the challenged action in order to provide an unconditional commitment to cease and desist from the past action.9 If the body to give the legislative body fails to take any action within the 30-day period or takes an action other than an unconditional an opportunity to consider its commitment,a lawsuit may be filed within 60 days.10 options.The Brown Act does not The legislative body's unconditional commitment must be approved at a regular or special meeting specify how to cure or correct as a separate item of business and not on the consent calendar.11 The unconditional commitment a violation;the best method must be substantially in the form set forth in the Brown Act.12 No legal action may thereafter be is to rescind the action being commenced regarding the past action.13 However,an action of the legislative body in violation complained of and start over,or of its unconditional commitment constitutes an independent violation of the Brown Act and a reaffirm the action if the local legal action consequently may be commenced without following the procedural requirements for agency relied on the action and challenging past actions.14 rescinding the action would prejudice the local agency. The legislative body may rescind its prior unconditional commitment by a majority vote of its membership at a regular meeting as a separate item of business not on the consent calendar.At least 30 days written notice of the intended rescission must be given to each person to whom the unconditional commitment was made and to the district attorney.Upon rescission,any interested person may commence a legal action regarding the past actions without following the procedural requirements for challenging past actions." Civil action to prevent future violations The district attorney or any interested person can file a civil action asking the court to: ■ Stop or prevent violations or threatened violations of the Brown Act by members of the legislative body of a local agency; ■ Determine the applicability of the Brown Act to actions or threatened future action of the legislative body; ■ Determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid under state or federal law;or ■ Compel the legislative body to tape record its closed sessions. OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 57 ' 1 It is not necessary for a challenger to prove a past pattern or practice of violations by the local agency in order to obtain injunctive relief.A court may presume when issuing an injunction that a single violation will continue in the future where the public agency refuses to admit to the alleged violation or to renounce or curtail the practice.16 Note, however,that a court may not compel elected officials to disclose their recollections of what transpired in a closed session.17 Upon finding a violation of the Brown Act pertaining to closed sessions, a court may compel the legislative body to tape record its future closed sessions.In a subsequent lawsuit to enforce the Brown Act alleging a violation occurring in closed session,a court may upon motion of the plaintiff review the tapes if there is good cause to think the Brown Act has been violated,and make public the relevant portion of the closed session recording. Costs and attorney's fees Someone who successfully invalidates an action taken in violation of the Brown Act or who successfully enforces one of the Brown Act's civil remedies may seek court costs and reasonable attorney's fees.Courts have held that attorney's fees must be awarded to a successful plaintiff unless special circumstances exist that would make a fee award against the public agency unjust.18 When evaluating how to respond to assertions that the Brown Act has been violated, elected officials and their lawyers should assume that attorney's fees will be awarded against the agency if a violation of the Act is proven. An attorney's fee award may only be directed against the local agency and not the individual members of the legislative body.If the local agency prevails,it may be awarded court costs and attorney's fees if the court finds the lawsuit was clearly frivolous and lacking in merit.19 - Criminal complaints PRACTICE TIP:Attorney's A violation of the Brown Act by a member of the legislative body who acts with the improper fees will likely be awarded if intent described below is punishable as a misdemeanor.20 a violation of the Brown Act is A criminal violation has two components.The first is that there must be an overt act—a member proven. of a legislative body must attend a meeting at which action is taken in violation of the Brown Act.21 "Action taken"is not only an actual vote,but also a collective decision,commitment or promise by a majority of the legislative body to make a positive or negative decision.22 If the meeting involves mere deliberation without the taking of action,there can be no misdemeanor penalty. A violation occurs for a tentative as well as final decision.23 In fact,criminal liability is triggered by a member's participation in a meeting in violation of the Brown Act—not whether that member has voted with the majority or minority,or has voted at all. The second component of a criminal violation is that action is taken with the intent of a member "to deprive the public of information to which the member knows or has reason to know the public is entitled"by the Brown Act.24 58 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT As with other misdemeanors,the filing of a complaint is up to the district attorney.Although criminal prosecutions of the Brown Act are uncommon,district attorneys in some counties aggressively monitor public agencies'adherence to the requirements of the law. Some attorneys and district attorneys take the position that a Brown Act violation may be pursued criminally under Government Code section 1222.21 There is no case law to support this view; if anything,the existence of an express criminal remedy within the Brown Act would suggest otherwise.26 Voluntary resolution Arguments over Brown Act issues often become emotional on all sides. Newspapers trumpet relatively minor violations,unhappy residents fume over an action,and legislative bodies clam up about information better discussed in public. Hard lines are drawn and rational discussion breaks down.The district attorney or even the grand jury occasionally becomes involved.Publicity surrounding alleged violations of the Brown Act can result in a loss of confidence by constituents in the legislative body.There are times when it may be preferable to consider re-noticing and rehearing,rather than litigating,an item of significant public interest,particularly when there is any doubt about whether the open meeting requirements were satisfied. At bottom,agencies that regularly train their officials and pay close attention to the requirements of the _ Brown Act will have little reason to worry about enforcement. ENDNOTES: 1 California Government Code section 54960.1. Invalidation is limited to actions that violate the following sections of the Brown Act:section 54953 (the basic open meeting provision);sections 54954.2 and 54954.5(notice and agenda requirements for regular meetings and closed sessions);54954.6(tax hearings); 54956(special meetings);and 54596.5(emergency situations).Violations of sections not listed above cannot give rise to invalidation actions,but are subject to the other remedies listed in section 54960.1. 2 Castaic Lake Water Agency v.Newhall County Water ^ District(2015)238 Cal.AppAth 1196,1198 = 3 California Government Code section 54960.1 (b)and (c)(1) r � 4 McKee v.Orange Unified School District(2003) 110 Cal. AppAth 1310,1318-1319 5 Cohan v. City of Thousand Oaks(1994)30 Cal.AppAth 547,556,561 6 Boyle v.City of Redondo Beach(1999)70 Cal.AppAth 1109,1116-17,1118 7 Government Code Section 54960.2(a);Senate Bill No.1003,Section 4(2011-2012 Session) 8 Government Code Sections 54960.2(a)(1),(2) 9 Government Code Section 54960.2(b) OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT 59 CHAPTER 10 Government Code Section 54960.2(a)(4) 11 Government Code Section 54960.2(c)(2) 12 Government Code Section 54960.2(c)(1) 13 Government Code Section 54960.2(c)(3) 14 Government Code Section 54960.2(d) 15 Government Code Section 54960.2(e) 16 California Alliance for Utility Safety and Education(CAUSE)v City of San Diego(1997)56 Ca1.App.4th 1024;Common Cause v.Stirling(1983) 147 Cal.App.3d 518,524;Accord Shapiro v.San Diego City Council(2002)96 Cal.App.4th 904,916&fn.6 17 Kleitman v.Superior Court(1999)74 Cal.AppAth 324,334-36 18 Los Angeles Times Communications,LLC v Los Angeles County Board of Supervisors(2003) 112 Cal. AppAth 1313,1327-29 and cases cited therein 19 California Government Code section 54960.5 20 California Government Code section 54959.A misdemeanor is punishable by a fine of up to$1,000 or up to six months in county jail,or both.California Penal Code section 19.Employees of the agency who participate in violations of the Brown Act cannot be punished criminally under section 54959. However,at least one district attorney instituted criminal action against employees based on the theory that they criminally conspired with the members of the legislative body to commit a crime under section 54949. 21 California Government Code section 54959 22 California Government Code section 54952.6 23 61 Ops.Cal.Atty.Gen.283(1978) 24 California Government Code section 54959 25 California Government Code section 1222 provides that"[e]very wilful omission to perform any duty enjoined by law upon any public officer,or person holding any public trust or employment,where no special provision is made for the punishment of such delinquency,is punishable as a misdemeanor." 26 The principle of statutory construction known as expressio unius est exclusio alterius supports the view that section 54959 is the exclusive basis for criminal liability under the Brown Act. Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment.A current version of the Brown Act may be found at www.leginfo.ca.gov. 60 OPEN & PUBLIC V: A GUIDE TO THE RALPH M. BROWN ACT � OEA"GUI° CITIES 1400 K Street,Suite 400,Sacramento,CA 95814 Phone:(916)658-8200 1 Fax:(916)658-8240 www.cacities.org www.cacities.org/events www.westerncity.com 'I I I" r4 _jP 5 ®Printed on Recycled Paper Library Commission Meeting 5.12.21 Item 3 Commission Meetings • • Subcommittees Library Commission May 12, 2021 CUPERTINO Agenda • Resources • Rosenberg's Rules of Order • Commissioner Handbook • Ralph M. Brown Act • Subcommittees • Public Comment and Commission Reports • Virtual Meetings 2 1 Library Commission Meeting 5.12.21 Item 3 Resources • Rosenberg's Rules of Order • Commissioner Handbook • Ralph M. Brown Act 3 Rosenberg's Rules of Order • Parliamentary Procedure • Establishing a quorum • Role of the Chair • Discussing an agenda item • Motions • Voting • Courtesy and Decorum • Public input 4 2 Library Commission Meeting 5.12.21 Item 3 Rosenberg's Rules of Order • Meetings are facilitated by the Chair • Sequence for each agenda item: • Chair announces item number and subject • Chair invites report on the item • Chair opens clarifying questions for Commissioners • Chair invites public comment • Chair facilitates discussion • If required, Chair invites a motion and a second • Chair ensures understanding of the motion • Chair initiates a vote • Result of the vote is announced 5 Commissioner Handbook • Adopted by City Council on January 19 • Outlines expectations and resources for Commissioners • Training provided by the City Clerk at the February 3 Commission meeting 6 3 Library Commission Meeting 5.12.21 Item 3 Ralph M. Brown Act • Ensures all meetings of the Commission are open and public, and all persons are permitted to attend • Congregation of a majority of the members regarding any item that is within the jurisdiction of the body Ralph M. Brown Act • Outlines requirements for agendas and notices • Regular meeting • 72-hour notice • Special meeting • 24-hour notice s 4 Library Commission Meeting 5.12.21 Item 3 Subcommittees • Appointed by the Chair • Less than a quorum of the Commission • Can meet at their convenience • Must serve a limited or single purpose • Must dissolve once the specific task is completed • Report progress at Commission meetings 9 Public Comment and Commission Reports • Oral Communications • Public Comment on an Agenda Item • Commission Reports • Brief updates pertaining to Commission's jurisdiction • Should not include discussion of matters not on the agenda • Items can be added to future agenda Zo 5 Library Commission Meeting 5.12.21 Item 3 Virtual Meetings • Use the "raise your hand" function • Allow for the Chair to call on participants • Ensure audio and video are functioning 11 Questions 12 6 CITY OF CUPERTINO CUPERTINO Legislation Text File M 21-9245, Version: 1 Subject: Superfest Disability Film Festival. Discuss the status of the proposed Superfest Disability Film Festival. CITY OF CUPERTINO Page 1 of 1 Printed on 5/12/2021 powered by LegistarTM CITY OF CUPERTINO CUPERTINO Legislation Text File M 21-9246, Version: 1 Subject: Update on the Library Commission Budget. Receive an update on the Library Commission budget. CITY OF CUPERTINO Page 1 of 1 Printed on 5/12/2021 powered by LegistarTM CITY OF PARKS AND RECREATION DEPARTMENT QUINLAN COMMUNITY CENTER 10185 NORTH STELLING ROAD • CUPERTINO, CA 95014-5732 TELEPHONE: (408) 777-3120 • FAX: (408) 777-1305 CUPERTINO CUPERTINO.ORG LIBRARY COMMISSION STAFF REPORT Meeting: May 12, 2021 Subject Update on the Library Commission Budget. Recommended Action Receive an update on the Library Commission budget. Discussion The City of Cupertino's fiscal year (FY) begins on the first of July and ends on June 30 the following year. On June 16, 2020 City Council approved a budget of $31,709 for the Library Commission program (Attachment A) which includes administrative costs, materials, contingencies, and contract services. With staffing costs and contract services removed, the Commission has $380 remaining in their budget for materials. Below is a breakdown of these costs. FY 1 1-21 Library CommissionBudget Category Amount Administrative Costs (employee compensation,benefits, cost allocation) $29,269 Contract Services (Poet Laureate Program) $2,000 Contingencies (2.5%of materials and contract services) $60 Materials $380 Poet Laureate Program The Poet Laureate Program budget is housed within the Library Commission budget as contract services.The budget is applied each fiscal year and funds do not roll over automatically if unused. The current balance for the Poet Laurate budget is$1,559.21,with$440.79 expensed for the poetry windows project. The next fiscal year will begin on July 1, 2021 and end on June 30, 2022. Some of the budget is typically used to support the Poet Laurate Celebration, which marks the transition between the outgoing and incoming Poet Laureates. It is also important to note that this transition occurs in the middle of the fiscal year, so the program budget would be shared between the outgoing and incoming Poet Laureates. If additional funds are needed for the program,the Poet Laureate can reach out to the Library Foundation or Friends of the Library and follow their process to request funding. Below is a breakdown of the current Poet Laureate FY 2020-21 budget and an estimated budget for FY 2021-22. FY 2020-21 Poet Laureate Budget Initial Funds Date Amount Source Description Notes 7/1/2020 $2,000 City of Annual Fiscal Year ends 6/30/21 Cupertino distribution of funds for Poet Laureate Program Expenses Date Amount Balance Funding Source Description Status Notes August 2020 $440.79 $1559.21 City Printing/ Paid Poetry Posters Windows Program FY 1 Budget Initial Funds Date Amount Source Description Notes 7/1/2021 $2,000 City of Annual Fiscal Year ends 6/30/22 Cupertino distribution of funds for Poet Laureate Program Expenses Date Amount Balance Funding Source Description Status Notes January 2022 $300 $1,700 City Poet Future Laureate Expense Celebration Event Sustainability Impact No sustainability impact. Fiscal Impact No fiscal impact. Prepared by: Whitney Zeller,Administrative Assistant, Kevin Khuu, Management Analyst Reviewed by.Joanne Magrini, Director of Parks and Recreation Approved for Submission by:Joanne Magrini,Director of Parks and Recreation Attachments: A-Library Commission Fiscal Year 2020-21 Budget Library Commission Budget Unit 100-11-140 General Fund-Commissions-Library Commission Budget at a Glance 2021 Adopted Budget Total Revenues $- Total Expenditures $31,709 Fund Balance $- General Fund Costs $31,709 %Funded by General Fund 100.0% Total Staffing 0.10 FTE Program Overview The Library Commission is a five-member commission appointed by the City Council to review and make recommendations related to the operations and services of the Cupertino Library. The Cupertino Library is operated by Santa Clara County Library Services. The building is provided by the City of Cupertino. County Library management serve as Commission staff and Parks and Recreation personnel serve as City liaison. Service Objectives . Monitor the various service activities of the library and make recommendations for improvements to appropriate bodies. • Support library advocacy groups, including Friends of the Cupertino Library and Cupertino Library Foundation. • Advocate library funding and service levels at the City,County,and state levels. . Represent the Cupertino library in the local community. . Participate in state and local library workshops and conferences. • Participate in the long-range planning of quality library services for the City. . Develop potential resources to expand volunteer efforts in the library. • Investigate ways to expand access to non-traditional media. • Continue library advocacy in Cupertino activities and with other organizations. . Coordinate and implement the annual Cupertino Poet Laureate program and provide staff support and City resources to sustain the program. • Continue emphasis on integrating additional technology into library services. Adopted Budget On June 16, 2020, City Council approved a budget of $31,709 for the Library Commission program. This represents an increase of$8,363(35.8%)from the FY 2019-20 Adopted Budget. Increased costs in cost allocation are due to a change in allocation methodology. Increased costs in compensation and benefits are due to the reallocation of staff time noted below. 195 Revenues and Expenditures The following table details revenues, expenditures, changes in fund balance and General Fund costs by category for two prior fiscal years, the Adopted Budget for the prior fiscal year, and the Adopted Budget for the current fiscal year: Category 2018 Actual 2019 Actual 2020 Adopted Budget 2021 Adopted Budget Revenues Total Revenues - Expenditures Employee Compensation $7,876 $8,601 $6,706 $9,915 Employee Benefits $3,377 $3,558 $2,672 $5,228 Materials $ 1,260 $46 $370 $380 Contract Services $525 $- $2,000 $2,000 Cost Allocation $7,253 $9,870 $11,479 $14,126 Contingencies $- $- $119 $60 Total Expenditures $20,291 $22,075 $23,346 $31,709 Fund Balance $- $- $- $- General Fund Costs $20,291 $22,075 $23,346 $31,709 Staffing Total current positions-0.00 FTE Total proposed positions-0.10 FTE Staff time is being reallocated to better reflect actual time spent in this program. 196 Library Commission Meeting 5.12.21 Item 5 Library Commission Budget May 12, 2021 CUPERTINO Budget Overview • The fiscal year begins on July 1 and ends on June 30 of the following year • City Council approved the Fiscal Year 2020-2021 budget on June 16, 2020 • The Library Commission's budget was approved for $31 ,709 2 1 Library Commission Meeting 5.12.21 Item 5 Budget Summary Budget Amount Employee Compensation $9,915 Administrative Employee Benefits $5,228 Costs Cost Allocation $14,126 Materials $380 Contract Services $2,000 Contingencies $60 Total $31,709 3 Budget - Poet Laureate Program - -.oudget Amount July 2020 $2,000 August 2020 ($440.79) Current Amount $1,559.21 Estimated Budget Amount July 2021 $2,000 January 2022 ($300) Total Available $1,700 4 2 Library Commission Meeting 5.12.21 Item 5 Budget - Website/Important Dates • Cupertino.org/budget • May 18 - Study Session for FY 21 -22 Proposed Budget • June 2021 - Review, Approval and Adoption 5 Library Commission Budget May 12, 2021 CUPERTINO 3 CITY OF CUPERTINO CUPERTINO Legislation Text File#: 21-9247, Version: 1 Subject: Monthly Update Reports. Receive Monthly Update Reports from: - Cupertino Community Librarian - County Librarian Monthly Update - Friends of the Library - Cupertino Library Foundation - Commissioners - Poet Laureate - Staff CITY OF CUPERTINO Page 1 of 1 Printed on 5/12/2021 powered by LegistarTM santa dara library• cupertino library "lino libr LIBRARY COMMISSION UPDATE 5/12/2021 - DOGZ ci.P READING MEETS DOG -: Welcome back. We have reopened Cupertino Library, upstairs and down, Ate, for browsing and public r f -_ fit ; � � £ . . � :` ®IH I�1 l F119C9 C.PY➢F computer � use. It is wonderful to see our _ patrons back at the library- thankyou for continuing to • ,� �, read, learn and use your a 'an library! - Clare Varesio, Community Librarian - -- --- i The library fosters life-long learning, promotes cultural enrichment, and supports education. n 0 ' ILSanta Clara county librarydi5«i« Boohmobile Gilroy Morgan Hill Campbell Los Altos Saratoga Cupertino Milpitas Woodland STU E SUPPORT • Student Portal • Resources for Students • Programs & Outreach x 5CCLD STUDENT student.sccld.org Search.-. PORTAL El....to ry School Middle High School All Ages Teachers&P.—m Slog Help LEARN ABOUT /Ol f YOUUIBRARY: c STUDENT SUPPOki Start Here Elementary School Middle&High School All Ages Homework Assistance Homework and study rasources for English Homeworkand study resourcesfor English K-12 resourres inclu ding dictionaries and Explore homeworkand study help with live language arts and reading,math,science, language arts,math,znceandtechnology, encyclopedias,science experiments,and online tutoring!In addition,dismver skill cial studies,and 6iagraphies.Find helpful vial studies,history,biographies,language language learning,plus music,eBooks and building tools and tutorials,as weH as other a tiara rL.-1pNow rary� ® _ Rosetta SlOr1E' ®E>ro.rr M.4 O v ®cai.eor.0 FFr •`:'�_,..ter — .r ..e."��_', ,� u , lo LEARN ABOUT � t Online Research Language YOU IBRARY: Tutoring Resources Learning STUDENT SUPP5iti I G.Kr _ All the'1Colars of tlx fiainbm .W teh the Story Reod th.8oek eBooks & STEAM . . . & More ! eMagazines Subjects LEARN ABOUT YOU I B R A R Y STUDENT SUPPO" Go�I dad.�d � GQe�inoLibrarY COP go � r +i t �J. Monday to Saturday, 1 - 6 pm APRIL • Browse the collection HIGHLIGHT • Pickup holds y • Computer/ printer use LIBRARY • Self-serve checkouts Ir • Limit visits up to 1 hour SERVICE - - • Face coverings and social distance required r 1 _ � f } ► APRIL = HIGHLIGHT - wrr. CE APRIL HIGHLIGHT l� LIBRARY SERVICE rM HIGHLIGHT � - - y - • `• `� CHECKOUTS BY MONTH JANUARY - APRIL 2021 APRIL bk ca cu gi hq I-a mh mi &a wa NUMBERS HE K T C C OU S 40r 1/2021 2/2021 3/2021 4/2021 BORROWERS BY MONTH JANUARY - APRIL 2021 APRIL — bk fa fu gi hq la mh mi s.a w� 12,OWAk NUMBERS 1�, — BORROWERS 4,OW 1/2021 2/2021 3/2021 4/2021 CUPERTINO LIBRARY - WEEKLY VISITORS MARCH / APRIL 2021 4000 3500 APRIL 3000 NUMBERS 2500 VISITORS 2000 1500 1000 500 0 Mar Mar Mar Mar Mar Mar Apr Apr Apr Apr Apr Apr Apr Apr May May 13 13 20 20 27 27 03 03 10 10 17 17 24 24 01 01 03 - Celebrate poetry - Enjoy virtual events OKING AHEAD - Follow our construction progress - Visit us at the library! santa Clara county ■ librarydistrict or vvv)vNvw . sccld Cupertino library • `� UPDATE 1111kiiiiin" CUPERTINO LIBRARY STOP BY YOUR LIBRARY Cupertino Library service hours have _ changed with expanded library CONSTRUCTION IS access. Stop by your library Monday COMING ALONG to Saturday, 1:00 - 6:00 pm to browse our collection or use a public Continue to keep up with our library computer. sccld.org/informed/ expansion by viewing project updates and our live feed of construction on the city of Cupertino's project website. BRINGING HOME THE BOOKS cupertino.org libraryexpansion Cupertino Library patrons �i checked out 68,884 items in the month of April, a16% SUPPORT YOUR STUDENT increase from March. As CUSD and FUHSD students Checkouts on Fridays and wrap up the school year, point Saturdays accounted for them to our SCCLD Student 40% of our April total. Portal, where they have free Keep reading! access to online tutoring, study resources, eBooks, language learning, and more. AWARD WINNING AUTHORS student.sccld.org Join us online for the final two events in our Distinguished Author Series, featuring renowned writers GROW GREAT BASIL Joyce Carol Oates and Jhumpa Learn from Master Gardeners in Lahiri. Register in advance for these this online event, which will cover virtual visits, held Saturdays May 8 how to grow basil from seeds and and May 22. transplants, and how to provide the garden culture it needs to � thrive. Register online for this program, held May 18 at 7:00 pm. santa Clara county libraryd strut Cupertino library STAFF PICKS - MAY 2021 CUPERTINO LIBRARY LIBRARIAN JUDITH RECOMMENDS... Bloom by Kenneth 0 ppel - An invasive species of plant comes out of nowhere and is threatening crops thereby endangering food supplies.They are growing in a rapid rate and show the ability to kill humans with their branches.A group of teens with severe allergies seem to be the hope to save the planet.Two books are out in the series;for pre-teen and teen readers. https://sccl.bibliocommons.com/item/show/771152118 p R. LIBRARIAN MATT RECOMMENDS... Dan Versus Nature by Don Calame- When his mom arranges a camping trip for Dan and his step-father-to-be, Dan seizes the opportunity to put him to the test through a series of embarrassing pranks.Aided by his friend Charlie,the two pranksters end up getting lost in the woods setting off a series of unfortunate and hilarious events. https://sccl.bibliocommons.com/item/show/4942S7118 -E-ANH-Rr LIBRARY PAGE RENELLE RECOMMENDS... Urveaurv❑ American History Unbound:Asians and Pacific Islanders by Gary Y. Okihiro- Asian (including East Asians, West Asians,and native Hawaiians/Pacific Islanders) history in its complexity,acknowledging the similarities and differences of experiences between Asian people, Black/African-American people,and mainland Native people. deeply appreciated the chance to dive into a complex history that is hard to find. https://sccl.bibliocommons.com/item/show/645871118 LIBRARIAN JENNY RECOMMENDS... The Story of Arthur Truluv by Elizabeth Berg-a warm-hearted novel about chosen family. While visiting his wife's grave, Arthur,who is in his eighties, meets 18 year old Maddie who has come to the cemetery to avoid the bullies at her high school. In time, the unlikely pair strike up a friendship which expands to include Arthur's grieving neighbor Lucille.The trio become a loving family,supporting each other through some tough times. https://sccl.bibliocommons.com/item/show/543160118 Use your library card for access to our entire online library, santa Clara available 2417, including eBooks, audiobooks, downloadable county i bra rydistrkt movies, music, magazines, newspapers, international content, online learning, research and more. Boohm" Don't have a library card? Sign up for an eCard at CupertinoCampbell Los Altos Saratoga Milpitas Woodlandsccid.org/card-application/. Santa Clara county I i bra rydisbict cuperrino library SCCLD County Librarian Report Distinguished Author Series 177 ------------- • The Santa Clara County Library District's four-part, virtual author series concludes in May. The Distinguished Author Series brings together great authors who spark new thoughts, ideas and deep discussion . rr CUFF. mo UHRARY FouPMAnON n r = Los Altos �jEndowment Friends of the Milpitas Library OF THE SARATOGA LIBRARIES Asian American / Pacific Islander Heritage Month 77 Celebrate Asian and Pacific Island Americans in May • Learn to and a chant from the last monarch of Hawaii- Queen Lili'uokalani • May 1 -31 • in Mandarin/English • for Adults • Distinguished Author • Recommended reading for , and Y R `off New SCCLD Mobite Library App SCCLD will introduce an all-new, modern library app, designed to bring you an exceptionally personalized mobile library experience. Features include: • User friendly navigation • In-app library card • Easy library account access • Improved relevant, accurate catalog search • Browse new titles, library events and staff lists • Access library hours and locations AVAILABLE MAY 10 for free download from the store or store out r Summer Reading Program 2021 W OR L 0. Reading helps all expand their world through kindness, growth , and community. • Pre-registration starts on May 1 , 2021 at • Reading Colors Your World runs from June 1 through July 31 • Fun virtual programs for all ages • Earn a reward by signing up, reading and logging 5 books, and completing 1 activity. • Register and track your books with WE ARE i Campbett • LO'VI - - ti .......... • Campbell Library: Last day of service for walkup or curbside holds pickup: May 8 • Book drops will remain open at Campbell Library through May 24 • Campbell Temporary Library: Opens Monday, May 24 • 1 W. Campbell Avenue, Building E, Room 46 (across the hall from Orchard City Banquet Hall in Campbell Community Center) • Limited browsing, computer and printer use, book returns For more information, including a map to the new location, visit Save Date • Library Joint Powers Authority Board Meeting • Thursday, June 3 C 12pm -� Ito r � 110 j%V -''.A 1 Praise for the Library • : Milpitas Library: My family's journey through the phased re-opening (yes, it's OPEN ! ) "On Monday, April 19th, the kids and I lugged 70 books back to the library, to receive the greatest surprise of our lives: It was fully open. The excitement in that building was palpable as my kids went crazy, exploring each aisle — eager learners with endless options once more. " santa Mara county i b ra rydistrict May 2021 Library Stakeholder Report Jennifer Weeks, County Librarian Distinguished Author Series The Santa Clara County Library District's four-part Distinguished Author Series concludes in May, bringing together great authors who spark new thoughts, ideas and deep discussion. Delve into the minds of celebrated authors Joyce Carol Oates and Jhumpa Lahiri this month. All talks are virtual and will include an opportunity for audience Q&A. Advanced registration required. All events are free, held online, and = open to the Ub11C. DISTINGUISHED p P AUTHOR SERIES Thank you to our generous sponsors to make the Distinguished Author Series possible! Los Altos Library Friends of the Endowment Milpitas LibraryE-OF THE CUPERTINo LIBRARY Fot)NDAnoN SARATOGA LIBRARIES Joyce Carol Oates Award-Winning Novelist, Poet, Playwright and Essayist Versatile and accomplished author Joyce Carol Oates has penned bestselling novels, critically acclaimed collections of short fiction, essays, plays and a memoir. Several of her stories have been adapted to films or television. Her writing has earned awards such as the National Book Award, O. Henry Awards, the National Humanities Medal and the Jerusalem Prize. Notable works include We Were the Mulvaneys (1996), The Falls (2004), Night. Sleep. Death. The Stars (2020) and The (Other) You (2021). Saturday, May 8 @ 3:00 pm REGISTER HERE Serving the unincorporated areas of Santa Clara County and the cities of Campbell I Cupertino I Gilroy I Los Altos I Los Altos Hills I Milpitas I Monte Sereno Morgan Hill I Saratoga santa Mara county i b ra rydistrict Jhumpa Lahiri Pulitzer Prize-Winning Short Story Writer and Novelist Jhumpa Lahiri received the Pulitzer Prize in 2000 for Interpreter of Maladies, her debut story collection that explores issues of love and identity among immigrants and cultural transplants. Her novel, The Namesake (2003), also received great acclaim, expanding the perplexities of the immigrant experience and search for identity. She was awarded the National Humanities Medal, the PEN/Hemingway Award and an O. Henry Prize, among others. See some of Jhumpa Lahiri's works. Lahiri will be in conversation with Author, Meg Clayton. Saturday, May 22 @ 3:00 pm REGISTER HERE This event is full but a waitlist is available. There will also be an opportunity to register to receive a passcode to view the full recorded program if you are unable to watch it live on May 22. sccld.org/authorseries Asian American and Pacific Islander Heritage Month May is Asian American and Pacific Islander Heritage Month, designated to recognize "the contributions and influence of Asian Americans and Pacific Islander Americans to the history, culture, and As I Ark K achievements of the United States." The library will be celebrating with some delightful and educational PACIFIC programs and booklists. Aloha! Learn some hula moves to a chant from the AMERICAN last monarch of Hawaii -- Queen Lili'uokalani. Watch and enjoy an olapa performance that takes you to the MONTHHERITAGE islands. Let's spread a little Aloha! This video will be available from May 1 through May 31. And, of course, we have our weekly streaming Bilingual Storytimes in Mandarin and English and our Virtual Yoga for Adults. Attend our Distinguished Author series program on May 22nd with Pulitzer Prize winner Jhumpa Lahiri. And be sure to check out the recommended reading for adults, teens, and kids. Serving the unincorporated areas of Santa Clara County and the cities of Campbell I Cupertino I Gilroy I Los Altos I Los Altos Hills I Milpitas I Monte Sereno Morgan Hill I Saratoga sanCa Mara County i b ra rydistrict A New SCCLD Mobile Library App Coming May 10! SCCLD will introduce an all-new, modern library app, designed to bring you an exceptional personalized mobile experience. Features include: • User friendly navigation =� • In-app library card • Easy library account access (place holds, renew checked out items, manage your account) • Improved relevant, accurate catalog search experience • Browse new titles, library events & staff lists • Access library hours & locations The SCCLD app will be available for free download in the Apple iTunes store and Google Play store on May 10. Visit our website for more information. Please note the current SCCLD app will be discontinued as of May 3. Summer Reading Program—Reading Colors Your World R L It is time to register yourself and each of your family members for the annual Summer Reading Program , 1 0� 2021—Reading Colors Your World. Reading helps all expand their world through kindness, growth, and ORL P. community. It is a feel-good activity that can last a lifetime. You're never too young to be introduced to books and you're never too old to enjoy reading. Pre-registration starts on May 1, 2021 at sccld.org/summer2021 and Reading Colors Your World officially runs from June 1 through July 30, _ 2021. This summer will be filled with fun virtual programs s�,p .,. M for adults, teens and kids including animals, book clubs, magic, storytimes, art, STEAM, LEGO, and # m more! Serving the unincorporated areas of Santa Clara County and the cities of Campbell Cupertino Gilroy Los Altos Los Altos Hills I Milpitas Monte Sereno Morgan Hill I Saratoga santa Clara County i b ra rydistrict Earn a reward by signing up, reading 5 books and completing 1 activity. You can register and track your books with Beanstack online, or download the free Beanstack App to track your reading on the go. If you participated last year, signing up is as easy as clicking a button. Getting all of your books for Summer Reading 2021 will be easier than last year as our Community Libraries are open to the public for full browsing! Come in during open hours and pick up books, magazines, comics, and more to count towards your reading goals. And for our online library fans, sccld.org is available 24/7 and online reading counts too! Get ready, get set, and get started at sccld.org/summer2021! Campbell Temporary Library Opening May 24 Thanks to Campbell residents voting to pass Measure O, Campbell can look forward to a fully renovated Library and a new Campbell Police facility. WE ARE The Campbell Library staff is preparing to move library MOVING services to a temporary facility, conveniently located in 1 W. Campbell Avenue, Building E, Room 46. It is next to the it Orchard City Banquet Hall in the Campbell Community Center. The last day of service at the Campbell Library to pick up holds using walkup or curbside service, is Saturday, May 8. The book drops at the Campbell Library will remain open until the temporary facility is available. We will welcome patrons to the new, temporary facility on Monday, May 24 to pick up holds, browse a limited collection, and use the public computer and printer. Items can be returned through a book drop at the new temporary facility starting May 24. Contactless curbside service is not available at the temporary location but is available at the other SCCLD libraries. Patrons are invited to visit the Cupertino, Saratoga or any other SCCLD library for additional services. SAVE THE DATE: The next JPA Board Meeting will be on Thursday, June 3 at 12:00 p.m. J Serving the unincorporated areas of Santa Clara County and the cities of Campbell I Cupertino I Gilroy I Los Altos I Los Altos Hills I Milpitas I Monte Sereno Morgan Hill I Saratoga santa Clara County i b ra rydistrict Praise for the Library As SCCLD Libraries continuously resumed more services throughout the year, our patrons have expressed their appreciation and thanks. This past year has been tough on everyone, and the Library is happy to be supporting our communities and bringing joy to our residents. Below is an article recently published in the Milpitas Beat. While this particular story is about the Milpitas Library, the many wonderful messages we receive from patrons shows that this sentiment is true for all of the Santa Clara County Library District locations. Thank you to our staff, our patrons, and our stakeholders for your support. Together, we are able to safely and successfully provide library services to our communities. Milpitas Library: My family's journey through the phased re- opening (yes, it's OPEN!) ByVanessa Dueck April 27, 2021 Milpitas Library is my family's y' absolute favorite place in the community — well-organized, 0 , friendly staff, and great _ �. �. programs. What's not to love? , The first thought that occurred to me last March when I found out about lockdown was We'd - better get to the library!The kids and I frantically gathered - up nearly a hundred books (we have a library book-specific bookshelf to keep track of them all...that's how much we frequent the place), and hightailed it down to the Milpitas Library, already talking strategy: who would go where and get which type of books and how many we would get to keep us entertained while we hunkered down at home. But to our horror, we saw the dreaded sandwich board informing us that the library was closed until further notice. There's nothing like holding a book in your hand — flipping through the pages, turning it over to read the summary, and feeling the excitement as you add it to your stack to take home. I don't care what anyone says — virtual books are not the same. I can't stand watching my kids staring at their computers after another day of online school. I need real life in the real world and I don't want some person on the internet reading to the kids...I want to read with them! Or have them read with each other and point at the pictures and share ideas. Virtual anything these days is starting to give me a sick feeling. But, you do what you have to. My kids, of course, loved the extra screen time. 1, on the other Serving the unincorporated areas of Santa Clara County and the cities of Campbell I Cupertino I Gilroy I Los Altos I Los Altos Hills I Milpitas I Monte Sereno Morgan Hill I Saratoga santa Mara county i b ra rydistrict hand, after refusing to buy a Kindle, started reading my 700-page novel on my phone screen, which turned it into a 3,000-teeny-page novel, and had a hard time staying engaged. A month or so later, we discovered we could start reserving books for pick-up. This drastically changed the way that we selected books. Gone were the days of browsing, meandering through aisles chock full of familiar favorites and budding authors with new and exciting stories. Now we had to remember which series we were enjoying before the shutdown (there had been so many!) and which books we had yet to read. I was impressed with the efficiency and staff through the whole process. I've always been amazed by the organization and efficiency of the library, but even more so now that the books were all ordered over computer and organized for pickup. I never knew quite what to choose, so I stuck with a tried and true favorite author. Just as his books were feeling stale to me, a new, glorious option came to Milpitas: book bundles. The kids excitedly began expanding their horizons with graphic novel bundles, a genre they hadn't known existed. And I started reading the "memoir bundles" and getting to know inspiring women I hadn't previously known. We devoured books. Every week, while returning full bags of them, we would choose new bundles, along with reservations of tried and true favorites. Then, one beautiful day about four weeks ago, it happened: the lobby opened up. Now, we had small tables of books for every age group to choose from. Our visits became even more frequent: twice a week, with more worlds to explore. On Monday, April 19th, the kids and I lugged 70 books back to the library, to receive the greatest surprise of our lives: It was fully open.The excitement in that building was palpable as my kids went crazy, exploring each aisle — eager learners with endless options once more. I watched smiling parents taking pictures and videos as children tore books off of shelves and marveled at all there was to see. My kids are already asking when we will go back. Maybe Milpitas Library will become a thrice-a-week ritual in our quiet schedule. Until then, I've got a stack of Garfields calling my name... Serving the unincorporated areas of Santa Clara County and the cities of Campbell I Cupertino I Gilroy I Los Altos I Los Altos Hills I Milpitas I Monte Sereno Morgan Hill I Saratoga