The Brown Act and State Funding: “To Post, or Not to Post? That is the Question…”

On June 27, 2012, Governor Brown signed Assembly Bill 1464, the Budget Act of 2012 (“Budget Act”), and the Education Finance Budget Trailer Bill, Senate Bill 1016 (“Trailer Bill”). The Budget Act included a suspension of mandates concerning a body of law that is near and dear to the heart of public agencies, the Brown Act.

The Brown Act requires legislative bodies to prepare and post an agenda containing brief general descriptions of each item of business to be transacted or discussed in a place “freely accessible to the public” and on the agency’s website at least 72 hours prior to the meeting. (Government Code section 54954.2(a).) Agendas must also provide for an opportunity for the public to comment on matters that are within the subject matter jurisdiction of the legislative body, with certain exceptions. (Government Code section 54954.3(a).) The Brown Act also requires, prior to holding a closed session, that each item to be discussed in closed session be announced in open session. (Government Code section 54957.7(a).) In addition, formal action taken in closed session must be reported out in open session, and copies of final documents that were approved in closed session must be given to any person who submits a written request within specified timelines or to a person who has made a standing request for such documents. (Government Code section 54957.7(b).)

The Budget Act, as a cost savings measure, has suspended certain Brown Act mandates with regard to agenda preparation and posting and closed session activities requirements. Proposition 1A, a ballot initiative approved by voters in 2004, requires the “State to fund legislative mandates on local governments or suspend their operation.” In other words, if the State does not reimburse public agencies for compliance with legislative mandates, then there is no requirement for those public entities not receiving such reimbursement to follow those mandates. SF Gate has reported that the suspension of these mandates will result in a $96 million savings for the State.

As a result, an uproar has arisen amongst citizens and community watchdog groups who are concerned that public entities that are no longer required to comply with the Brown Act will conduct their business behind closed doors instead of deliberating openly before the public.

In light of all of the hype, many educational institutions are asking the question, “Do we need to continue to comply with Brown Act mandates?” The answer to that question is, “Yes.” The Trailer Bill continues funding Brown Act mandates for K-12 school districts, community college districts, county offices of education, and charter schools. Thus, all provisions of the Brown Act applicable to educational institutions with respect to agenda preparation and posting and closed session meetings remain unchanged.

What has changed as a result of the passage of the Budget Act and the Trailer Bill is the manner in which educational institutions may seek reimbursement for compliance with legislative mandates. Specifically, the Trailer Bill added Government Code sections 17581.6 and 17581.7, which gives K-12 school districts, community college districts, county offices of education, and charter schools the option of seeking reimbursement for costs associated with activities such as agenda posting and preparation and closed session reporting through a block grant. Those educational institutions that do not elect to seek reimbursement through a block grant may continue to seek reimbursement through the existing process outlined in Government Code section 17560.

In light of the above, governing boards of educational institutions must still ensure they comply with the Brown Act, and we encourage all new board members to go through Brown Act training. AALRR offers Brown Act training to public entities throughout the State of California. If you are interested in scheduling a Brown Act training, please do not hesitate to contact one of our seven offices.

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