The California Senate, on a 32-0 vote, today passed SB 1732 by Senator Gloria Romero, intended to correct one effect of a 2006 ruling by the Court of Appeal in a Brown Act case. That case, Wolfe v. City of Fremont,144 Cal.App.4th 533, held that a violation of the prohibition on serial meetings occurs only the meetings result in a collective concurrence to do or not do something.
SB 1732 would instead prohibit a majority of the members of a local government body from using, outside a meeting authorized by the act, 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. But it would also provide that
the changes made by this bill shall not be construed as preventing an employee or official of a local agency from engaging in separate conversations or communications, outside of a meeting authorized by the Brown Act, 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 body.
In short, local government staff would be free to brief members of the body in serial fashion about pending or future agenda items so long as they did not pass on the members views to one another in doing so.
The sponsoring California Newspaper Publishers Association would have preferred to eliminate these behind-the-scenes staff briefings as well, but resistance from the League of California Cities and other local government lobbies eliminated that option in a similar Romero bill last spring, and that bill was vetoed in any event, for reasons that remain unclear. What this bill does correct from the Wolfe decision, however, is the notion that so long as a majority of the members of a local body do not succeed in achieving collective concurrence or agreement through serial discussions, the Brown Act is not violated.
The bill would also end discrimination against certain local body members in providing access to agency records, amending the California Public Records Act to state:
when the members of a legislative body of a local agency are authorized to access a writing of the body or of the agency as permitted by law in the administration of their duties, the local agency . . . shall not discriminate between or among any of those members as to which writing or portion thereof is made available or when it is made available.