OPEN GOVERNMENT -- Of course deciding which educational programs are to be cut when funds dry up is a painful process, even when done with the utmost fairness, objectivity, care and deliberation.  But Hartnell (Community) College in Salinas is providing an example of how not to do it—by excluding the public and even the students affected.

Eight years ago the Hartnell Board adopted a very thorough decision sequence for programs considered for the chop, consigning the advisory process to a committee of faculty, administrators and even one student—declaring in the phrasing dear to educrats everywhere, "The Discontinuance Process provides a summative evaluation of a program
or discipline’s viability and may lead to the termination of a program or
discipline."

Now we learn from the Salinas Californian not just that students enrolled in a program to train animal health technicians are protesting the threat posed to their majors by a recommendation of the Discontinuance Committee, but that they feel the committee proceedings should have been publicly noticed and open.

For the first time in seven years,
the board referred programs to the campus' discontinuance committee.
While the board requests the committee to assemble, the academic senate
picks its members, and its recommendations are sent to the college
president.
Declining enrollment and declining market
demand for animal-health technicians caused review concerns, (Associate Vice President Kathleen) Rose said.
The discontinuance committee, which Rose chairs, recommended cutting
the animal-health technology program Thursday. Hartnell President Phoebe Helm will present the recommendations to the board, Rose said. It is unclear when that may happen.

(Karen) Ivey
was a student observer to the discontinuance board—made up of deans,
instructors and a student representative—and she wasn't happy with
what she saw. She alleges that the committee never
interviewed students, didn't take statements from the program's adviser
and only reviewed the expenses but not the revenue from the
animal-health technology division. At the final meeting, Ivey said,
committee members instructed her to destroy her notes. "It
just seemed wrong to me," she said. Ivey and other students believe
that the meetings were closed to the public and thus violated the Brown
Act.

Rose countered that the meetings were open, although
information about the sessions wasn't posted. Moreover, she said the
Brown Act doesn't apply because the board isn't made by nor does it
respond to an elected body.

But those are not the standards for deciding whether an advisory body is subject to the Brown Act. The California Court of Appeal has concluded, in a case involving another educational ad hoc advisory group activated to address especially touchy situations, that the fact the committee was approved by the board originally as part of the approach to resolving a problem makes the questions of who appoints the members or voices their conclusions to the trustees beside the point.

Respondents do not deny that the committees were formed under the general authority of Board Policy 7138 but, rather, argue that creation pursuant to the Policy was not sufficient "formal action" within the meaning of section 54952.3. Respondents also appear to argue that section 54952.3 requires appellants to allege (and prove) that the Board itself appointed the members of the committees to fall within section 54952.3. definition of "legislative body." We do not believe that section 54952.3 contains such a requirement.

The issue under section 54952.3 is whether the Board "created" the advisory committee by some type of "formal action." We think the focus of our inquiry should first be on the authority under which the advisory committee was created. In this case, we believe that authority originates with the Board and not, as respondents imply, with the Superintendent. The next question is whether creation of the Committee pursuant to a standing policy is sufficient to constitute "formal action" within the meaning of section 54952.3. We believe that it is. The Brown Act applies to a wide variety of boards, councils, commissions, committees and other multimember "legislative" bodies that govern California's cities, counties, school districts, and other local public agencies. . . . Section 54952.3 clearly contemplates that many of these bodies will establish "advisory committees" to assist with "examination of facts and data," and that the mechanisms by which such advisory bodies are created will be equally varied. We must give that section a broad construction to prevent evasion.

We believe that adoption of a formal, written policy calling for appointment of a committee to advise the Superintendent and, in turn, the Board (with whom rests the final decision), whenever there is a request for reconsideration of "controversial reading matter" is sufficiently similar to the types of "formal action" listed in section 54952.3. Accordingly, allegations that the review and hearing committee were created pursuant to Board Policy 7138 were sufficient to bring those advisory bodies within the coverage of the Brown Act, and allegations that members of the public (appellants) were excluded from the meetings of these bodies were sufficient to state a cause of action for violation of section 54953.

Frazer v. Dixon Unified School District, 18 Cal. App. 4th 781, 793 (1993)