Transparency Laws: Brown Act and Public Records Act for Public Education Agencies

Transcription

1 Transparency Laws: Brown Act and Public Records Act for Public Education Agencies Presented By: Mary Dowell February 22, 2017

2 Today s Agenda Brown Act Public Meeting Law Who is covered? Meetings and agendas Closed sessions Remedies for violations of the Act Public Records Act What records are covered and exempt under the Act? Responding to requests for records 2

3 Brown Act Public Meeting Law

4 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. - Ralph M. Brown Act,

5 The Brown Act is contained in Gov. Code section 54950, et seq. Enacted to respond to the then increasing utilization of secret and informal meetings by legislative bodies Generally requires for meetings of legislative bodies to be open and public open meeting requirement 5

6 Who is Covered by the Brown Act?

7 Agencies and Legislative Bodies Subject to the Act Local agencies covered by the Act: Counties, cities, city and county, towns, school districts, municipal corporations, districts, political subdivisions, community college districts, joint powers agencies. 7

8 Agencies and Legislative Bodies Subject to the Act Legislative bodies covered by the Act: Governing body of local agency or other local body created by state or federal statute Boards and Personnel Commissions What about associations of local government? 8

9 Agencies and Legislative Bodies Subject to the Act Legislative bodies covered by the Act: Other bodies of local agencies created by charter, ordinance resolution or formal action of a legislative body Academic Senate Associated Students Bond Oversight Committees (EC 15280) 9

10 Agencies and Legislative Bodies Subject to the Act Standing Committees A standing committee is one with Continuing subject matter jurisdiction OR Meeting fixed by statute or rule Not just standing committees of the Board; also committees of entities created by the Board, such as Senate, AS 10

11 Agencies and Legislative Bodies Subject to the Act Legislative bodies covered by the Act: Bodies that govern private corporations or similar entities that are created by the legislative body or receive funds from a local agency i.e. auxiliary organizations or foundations for CCDs 11

12 What is NOT a Legislative Body? Advisory committees composed solely of the members of the legislative body which are less than a quorum of the legislative body 12

13 Who is a Member of a Legislative Body? Any individual who is elected or appointed to sit on a legislative body and vote on and make decisions with other such individuals Applies to individuals who have not yet assumed elected office 13

14 Meetings and Agendas

15 What is a Meeting? Congregation of a majority of the members of the legislative body at the same time and place to hear, discuss or deliberate upon any item within its subject matter jurisdiction No collective concurrence necessary. So be careful when you communicate with members! 15

16 What is a Meeting? A meeting may occur during: Informal sessions or conferences designed for discussion of public business, including retreats Telephone conversations (i.e. group telephone conference) 16

17 What is NOT a Meeting? Attendance of majority of members at Conferences/seminars, community meetings, social events But there must be no discussion of specific business 17

18 What is NOT a Meeting? Contacts/conversations between administrators and individual board members or less than a quorum No communication of other members comments or position 18

19 Types of Meetings Regular meetings Special meetings Emergency meetings 19

20 What is a Regular Meeting? Meeting that is held at a time and place specified by ordinance, resolution, bylaws, or whatever other rule is required for the conducting of business by the legislative body Occurs at a regularly scheduled time Agenda must be posted at least 72 hours before the regular meeting Posting location must be freely accessible Agenda encompasses notice 20

21 Posting Requirements Must mail agenda upon written request Request valid for the calendar year in which it is filed 21

22 Agenda Content Date, time and location of meeting Brief general description of items Closed session items Public comment Disability access 22

23 Items NOT on Agenda General rule no action OR discussion on an item that is not on the posted agenda Limited exceptions Brief response, but no action Emergency Immediate action required after agenda posted Item from agenda of prior meeting If within 5 days 23

24 What is a Special Meeting? Meeting that is called at any time by the presiding officer of the legislative body or by a majority of the members 24

25 Special Meeting Posting Requirements Notice must be posted at least 24 hours before the meeting Notice must be delivered to members and press at least 24 hours before the meeting Can be by phone, fax, , Date, time and location of meeting Brief description of matter to be discussed Only matters in notice may be discussed at meeting 25

26 What is an Emergency Meeting? Emergency = a work stoppage, crippling activity or disaster, or other activity that severely impairs or threatens to impair the public s health and/or safety (e.g. earthquake, terrorist act, or sickout/blue flu labor action) 26

27 Requirements No written notice required Notice to media Posting of minutes Limited closed sessions 27

28 Conducting the Meeting Location of meetings Within local agency s territory/district Emergency location Non-discriminatory 28

29 Conducting the Meeting Adjournment of meetings e.g. less than quorum of body attends Notice of adjournment 29

30 Conducting the Meeting Continuance of hearing Must be announced at meeting Notice and posting requirements same as for adjournment 30

31 Rights of the Public Public attendance at meetings Registries, attendance lists may not be required but voluntary lists okay Teleconference locations must be identified and held in a place accessible by public 31

32 Rights of the Public Right to record meeting Right to broadcast meeting 32

33 Rights of the Public Right to inspect documents and recordings Agendas and attached documents Writings distributed at meetings Tapes/films that record meetings 33

34 Rights of the Public Disorderly conduct during meeting Willful interruption may result in clearing of the meeting room Establish procedure for re-admission of nondisturbing persons Media may remain if did not participate in disruption 34

35 Rights of the Public Public agenda documents provided to legislative body members less than 72 hours before a meeting must be provided to the public at the same time (Gov. Code ) 35

36 Public Right to Participate in Meetings Must permit the public to address items on the agenda Must allow speakers to speak before the items are voted on Tip: If agency begins with closed session must first have public comment on that agenda 36

37 Public Right to Participate in Meetings Must permit members of the public to place items on the Board s agenda for action EC ; Items must relate to the district s business Can enact reasonable regulations that insure the proper functioning of governing board meetings 37

38 Public Right to Participate in Meetings Must allow public to address items not on the agenda which are within the Boards subject matter jurisdiction 38

39 Public Right to Participate in Meetings May adopt reasonable regulations for public comment Time limit on particular issues and for each speaker May not prohibit public criticism of the staff, policies, procedures, programs, services or acts of the legislative body May prohibit making comments outside of the body s jurisdiction 39

40 Closed Sessions

41 Closed Sessions Closed sessions are generally prohibited Can only be held if the purpose fits a specific statutory exception 41

42 Closed Sessions Common exceptions for closed session Pending litigation Personnel matters Labor negotiations/relations Real property transactions Student discipline/complaints 42

43 Pending Litigation Exception Pending litigation exception legislative body confers with or receives advice from its legal counsel Necessary to avoid prejudicing the position of the local agency in the litigation 43

44 Pending Litigation Exception Pending litigation includes: Ongoing litigation Significant exposure to litigation Decisions to initiate litigation 44

45 Pending Litigation Exception Settlement discussions typically discussed during closed session BUT, may not decide matters in closed session that must be decided after a public hearing even if part of settlement 45

46 Personnel Matters There is no general Personnel Matters exception Closed session must be to consider appointment, employment, evaluation of performance, discipline/dismissal/release There are other requirements depending on the type of personnel matter 46

47 Personnel Matters Includes appointment of high level managers Does not include appointment of board members Does not include independent contractors (unless the latter is functioning as an officer or employee) or consultants (e.g. architects, law firms) 47

48 Personnel Matters Complaints or charges against employees 24 hours written notice of right for open session If notice not given, action taken is void Hearing vs. deliberating on complaints/charges Written notice must be delivered 24 hours before session If employee does not request open session, it is heard in closed 48

49 Personnel Matters Performance evaluations Does not constitute hearing of complaints/charges 24 hours notice not required May take disciplinary action following review of adverse performance BUT watch out for accusations made during closed session Conservative approach - 24 hours notice that addresses performance evaluation and complaints/charges 49

50 Personnel Matters Compensation/salary setting Only reduction resulting from discipline Probationary employees Probation determination is not complaint/charge Specific employees only Discussions that relate to broad classification of employees must be held in open session 50

51 Labor Negotiations Exception The legislative body may meet with its designated representatives in closed session to give directions But may not act on proposed compensation in closed session Agency s representatives must be identified in an open and public session 51

52 Labor Negotiations Exception Purpose of closed session meeting: To review position and instruct the local agency s designated representative, or To discuss any other matter related to represented employees within the scope of bargaining Closed session may also take place prior to and during consultations and discussions with employee representatives and unrepresented employees 52

53 Real Property Transaction Exception The legislative body may meet in closed session with an agency s real property negotiator prior to the purchase, sale, exchange or lease of property To discuss price and term of payment Must identify property, negotiator and party he or she is negotiating with on public agenda 53

54 Closed Session Agenda Description The format for describing closed session items vary and depend on the item Section provides descriptions for the various closed session items No violation so long as the closed session items are described in substantial compliance with the section descriptions 54

55 Student Discipline Exception Suspension, expulsion or other action Closed session unless student requests open session within 48 hours of receiving notice of Board meeting If discussion will involve any other student, that must be in closed session Must act in open session Decision is public record 55

56 56 Closed Session Agenda Description Pending litigation state name of pending case If litigation is anticipated state potential action involving significant exposure to litigation Either on agenda OR at meeting, describe facts and circumstances leading to counsel s conclusion there is risk Personnel matters Public employment or appointment Evaluation of performance Public employee discipline/dismissal/release

57 Closed Session Agenda Description Student discipline Consideration of student discipline (suspension/expulsion/ other action) pursuant to Ed. Code Student #xxx 57

58 Closed Session Agenda Description Labor negotiations/relations specify names of designated representative and employee organization Real property transaction specify location of property, agency negotiator, negotiating parties and what will be instructed to the negotiator (e.g. price, terms of payment, etc.) 58

59 Announcement Before Closed Session Before conducting a closed session, the legislative body must announce in open session the items to be discussed in closed session and state the general reasons for the closed session Refer to agenda or make announcement orally Make sure to cite statute for closed session 59

60 Conducting Closed Session Meetings Closed session meetings should usually involve only the members of the legislative body of the local agency, plus any additional support staff required or any witnesses required Individuals not necessary to the meeting should be excluded 60

61 Reporting After Closed Session After the closed session, the legislative body must reconvene into open session and report the actions taken in the closed session Must include the roll call vote The nature of the report depends on the type of action taken 61

62 Reporting After Closed Session Real property negotiations approval and substance of final agreement Disposition of claim or settlement of litigation parties involved, monetary amount, substance of claim 62

63 Reporting After Closed Session Personnel decisions Shall be reported at the public meeting during which the closed session is held Identify the title of the position Report of a dismissal or non-renewal of employment contract must be deferred until the first public meeting following the exhaustion of administrative remedies 63

64 Reporting After Closed Session Labor negotiations Report approval of final and ratified agreement Report items approved and parties to the negotiation 64

65 Confidentiality of Closed Session No disclosure of personal recollection of closed session discussions Members of a legislative body are not permitted to disclose the contents of a closed session Disclosure of the personal recollections of participating members cannot be compelled 65

66 Confidentiality of Closed Session A person may not disclose confidential information that was acquired by being present in a closed session Confidential Information is a communication related to the basis for the legislative body to meet lawfully in closed session 66

67 Confidentiality of Closed Session Sanctions for improperly disclosing confidential information Injunctive relief to prevent disclosure Disciplinary action against an employee who willfully discloses Referral of a member of a legislative body to the grand jury 67

68 Confidentiality of Closed Session Exceptions to rule of non-disclosure Employee provides information to a district attorney or grand jury concerning a perceived violation of the Act Employee is expressing an opinion concerning the propriety or legality of actions taken by a legislative body 68

69 Remedies for Violations of the Brown Act

70 Remedies for Violations of the Act District attorney or other interested person may Bring an action to prevent violations or threatened violations Determine the applicability of the Act to actions or future actions 70

71 Remedies for Violations of the Act Correcting or curing an unlawful action there are specific procedures the DA or interested person must take to nullify/void action Written demand to cure Opportunity for legislative body to cure Interested party must have been prejudiced by the violation of the Act 71

72 Remedies for Violations of the Act Attorney fees and costs Court may award court costs and reasonable attorneys fees to the prevailing plaintiff Costs and fees must be paid by the local agency and is not a personal liability of any public officer or agency employee Agency may be awarded fees and costs for frivolous actions 72

73 Public Records Act

74 Public Records Act The California Public Records Act is contained in Gov. Code section 6250 et seq. General policy of the Act is to favor disclosure The Act recognizes protection of privacy interests implicated for certain records provides numerous exemptions to disclosure 74

75 Public Records Covered by the Act The Act applies to any writings containing information relating to the conduct of the business, prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics 75

76 Public Records Covered By the Act What about records contained on the private servers and phones of public officers and employees? Currently pending before California Supreme Court 76

77 Public Records Covered by the Act Types of public records Financial data Personnel records Employment contracts Minutes of regular and special meetings s, faxes, photographs and photocopies 77

78 Inspection of Public Records Public records are subject to inspection at all times during the business hours of the state or local agency Agency may adopt regulations stating procedures to be followed when making public records available 78

79 Requests for Copies A member of the public has a right to receive exact photocopies of public records under the following conditions: Request describes an identifiable record Requester provides fees covering copy costs Providing an exact copy is not impracticable Agency is not obligated to reconstruct unavailable computer data 79

80 Right to Assistance from Agency An agency must assist the requester make a focused and effective request that reasonably describes an identifiable record Assist requester to identify records/information that is responsive to the request Describe the information technology and physical location of the records Provide suggestions for overcoming any practical basis for denying records 80

81 Responding to a Records Request An agency must determine whether or not the request is for discloseable records, and notify the requester of such determination within 10 days after receipt of the request. The documents themselves do not have to be produced within 10 days, but must be provided as soon as practicable. 81

82 Responding to a Records Request The response must provide the reasons for the determination Cite applicable disclosure exemptions For denials, must provide names and titles/positions of each person responsible for denial 82

83 Extension for Response Extension for response - when unusual circumstances exist, the agency may extend the 10 day response time by no more than 14 days Requires written notice from the head of the agency to the requesting person The written notice must set forth the reasons for the extension and the date for determination 83

84 Extension for Response Unusual circumstances Need to search and collect from separate facility Need to examine voluminous amount of records Need to consult another agency that has an interest in the determination Need to compile data or write computer program to extract data 84

85 Exempt Records The Act contains exemptions to the disclosure requirement BUT the exemptions must be narrowly construed and the local agency should be prepared to bear the burden to prove that the exemption applies 85

86 Exempt Records Section 6254 sets out categories of public records that are exempt from the disclosure requirements Common exemptions applicable to you: Personnel files Pending litigation records Peace officer records Catch-all exemption 86

87 Exemption: Personnel Files Personnel records are only exempt from disclosure where the disclosure of these records would subject the individual to whom the records pertain to an unwarranted invasion of privacy 87

88 Exemption: Personnel Files Examples of personnel files that must be disclosed Names, job titles and salaries of highranking employees Salary ranges of unidentified employees Employment agreements Certain disciplinary records that reflect allegations of a substantial nature 88

89 Exemption: Pending Litigation Conditions for Pending Litigation exemption: Document is specifically prepared for use in litigation Document is litigation-related and the parties intend that the document will not be shared outside of the litigation Exemption does not apply once litigation has concluded 89

90 Exemption: Peace Officer Records Peace officer personnel records and records of complaints against officers by citizens are confidential Only discoverable through Pitchess discovery motion procedure 90

91 Exempt Records: Student Information/Records Family Educational Rights and Privacy Act ( FERPA ) Any item of information which is directly related to an identifiable student, other than directory information Grade reports/papers Transcripts Financial aid forms Written consent of student (if 18 or older) or parents of minor student required 91

92 FERPA: Directory Information Defined by each District may include: Name Address Telephone number Date and place of birth Major field of study Student participation in activities Height and weight and high school of graduation for athletic team members 92

93 Catch-All Exemption Where no specific exemption exists, the agency may assert the catch-all exemption Agency must demonstrate that based on the facts of the particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record 93

94 Records Maintained by Law Enforcement Unit Only applies to records and information: Created by a law enforcement unit; Created for a law enforcement purpose; and Maintained by the law enforcement unit. FERPA does not apply to law enforcement records, even if a student is a victim, suspect, witness or other involved party. Distinguish records vs. information 94

95 Waiver of Exemption Generally, if the local agency discloses a public record that is exempt from the disclosure under the Act, the disclosure constitutes a waiver of the exemption Several exceptions to general rule 95

96 Legal Action to Compel Disclosure After denial of records request, requester may file an action in civil court to compel the local agency to disclose the records Local agency must be prepared to show cause why the records should not be disclosed 96

97 Attorney Fees and Costs The court shall award costs and reasonable attorney s fees to prevailing plaintiff The costs and fees are paid by the public agency, rather than the individual official who denied access to the records Local agency may be entitled to attorney fees/costs for clearly frivolous action 97

98 Thank You! Mary Dowell Partner Los Angeles Office Phone: