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Home My WebLink AboutPowerPoint Presentation�' CALIFORNIA p$LONAXLCIrT INCORPORATED The Intersection of the Brown Act, Social Media and Modern Technology City Council Presentation May 21, 2013 The Brown Act aka Open Meeting Law Purpose: facilitate public participation in local government decisions and curb misuse of the democratic process by secret legislation by public bodies. Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547,555. How to Meet the Purpose of the Brown Act . Ensure deliberations and actions of the local agency legislative bodies are open and public . no secret ballots • Ensure there is meaningful public access to decision making . no private meetings, except in closed session . texting, e-communication & social media can deny public access to decision making . Meetings must be open to the public, held on a regular schedule, and adhere to the agenda available prior to the meeting What Qualifies as a Meeting? • Any congregation of a majority of the members . at the same time and place . to hear, discuss or deliberate • on any issue under the subject matter jurisdiction of the body. El No action is required . If a majority of members merely receive information or discuss their view on an issue, that is a meeting. What Else Is a Meeting? . E-mails: a majority of the body cannot e- mail each other regarding current issues under the body's jurisdiction because such discussions are not open to the public and are not accessible to the public. • Serial Communications: a chain of communications from member A to member B, then member 6 to member C (until a quorum of members contacted) is prohibited. Social Media an a .ecome a T ee ing . • City's Social Media Sites • City's Facebook • City's Twitter • Administrative Policy 1.13 • Tweeting • Facebook • Other issues —bias, impartiality? Managing Social Media : •Am_ • • Case law has not specifically addressed Limited policies exist: • City social media sites shall be managed consistent with the Brown Act. Members of the City Council, Commissions and/or Boards shall not respond to, "like", "share", retweet or otherwise participate in any published postings, or use e SI e or any orm o e ec ronic communica ion o respond to, blog or engage in serial meetings, or otherwise discuss, deliberate, or express opinions on any issue within the subject matter jurisdiction of the body. (City of West Hollywood) Texting and E-communication: When is it a Meeting? . Text messaging is not specifically addressed in the Brown Act • Caution: • Serial meetings . Adjudicatory hearings —due process . Transparency . Inattentiveness . Texts received during the meeting : how is decision based "on the record?" Managing Texting & E-communication Public Records Act —unanswered questions . City of Tracy (private e-mail accts) . City of San Jose (texts are public records) Policies • City Council members shall not use E-Communication at any time during a meeting of the City Council at which he or she is in attendance. No Commissioner may use E-Communication at any time during a meeting of the Commission of which he or she is a member at which he or she is in attendance. The foregoing limitation shall not apply to receipt of telephone calls or text messages from family members in the event of an urgent family matter; a Council member or Commissioner wishing to respond to such a message during the meeting shall do so during a recess or shall excuse him or herself from the meeting to place the return call or text in a manner that does not disrupt the meeting. (City of Saratoga) iPads, Tablets & Smartphones . Modern technology provides a means of communications with others Provides a means to quickly access information via the Internet . Technology gives individuals greater access to information, but that access can be outside of the public process . Result: denying the public access to what is being considered by decision makers Ensuring Meaningful Public Participation • Access to information considered by the Council • What about: Information received via text, e-mail, social media Information from the Internet How do we ensure meaningful public participation Due process and quasi-judicial matters • Disclosure of information is key What about meeting with a member of the public? . Individual contacts between a member of the legislative body and a member of the public is exempt from the act (ex parte contacts). • Council Policy 116 requires keeping a written record of ex pane contacts, and disclosure of any ex pane contacts either prior to or when the agenda item is called. . Due process concerns: quasi-judicial matters — ex parte contacts raise fairness, bias, and impartiality concerns What is not a meeting? . Majority of members at a: . Conference open to the public . Local public meeting . Open meeting of another body . Social or ceremonial event But, cannot discuss any city matters amongst the members. Holding Meetings . When . Regular Meetings: agenda posted 72 hours prior (time set by ordinance, reso, or by-laws) • Special Meetings: called by chair or majority, agenda posted 24 hours prior . Emergency Meetings: immediately —"work stoppage, crippling activity, or other activity that severely impairs public health, safety, or both, as determined by a majority of the members" (real emergency — one hour notice to media outlets that have requested notice) Location of Meetings . Where can a meeting be held? • In the City (within jurisdictional boundaries), unless a specific exemption applies • Specific exemptions: Comply with a law or court order Inspect property outside of city Multiagency meeting No meeting facility within the jurisdiction Meeting with federal or state officialss on a legislative or regulatory issue At a facility outside of the jurisdiction, which is the topic of discussion Closed session at legal counsel's office regarding pending litigation when it would reduce legal fees or costs • Must be ADA accessible Agenda Requirements �a Brief description of each item (20 words or less ok) Reference what is sought regarding the item (approval, direction, information, etc) • Date, time & location of meeting • Post agenda 72 hours prior (or 24 hours for special meeting), accessible by public 24 hours a day Closed Session Brown Act limits closed session Behind closed doors - - a confidential meeting Must be noticed on the agenda Announcement of items to be discussed in closed session • Reconvene in open session upon completion of closed session and may require reporting out (in certain instances) Rights of the Public Attendance • To attend any public meeting with no conditions for attendance (e.g. registering, but voluntary sign -in ok) iN To record the meeting with audio or video recorder; take photographs To review agendas and other documents distributed to a majority of the board Rights of the Public Commenting . To comment on any matters . Regular Meeting Agenda Item: reasonable time limits can be adopted (e.g. 3 minutes) Non -agenda items may be commented upon (non - agenda public comment), but no action or discussion can occur • Can refer to staff for information; request a report back; request item be placed on future agenda Public Comment - continued • Special Meeting Agenda Item Non -agenda comment not required but permissible . What about criticisms or complaints? Must be allowed (GC 54954.3) Disruptive behavior does not have to be tolerated . Behavior must actually disrupt the meeting . When should comments be allowed? For agenda items - -before any action is taken paqsod senn epua6e aye aa4e asoae uonDe aleipauawi a)1e1 oq. pou aye saupaal.ap aeon (S jo -17) spaiup.-onnl ■ (uoildaDxa nnoaaesu AJA) s4si(a joua6aawa„ ue sauiwaa4ap a40n kl!JO[2N. :ssaiun 'epua6p an uo you saallpw uo uonDp a)1e1 JO ai.eaaqqap 'ssnDsp 'aap!suop 10UU2J• epue6 aye uj TON sJeTTEVJ Violations of the Brown Act • Civil Remedies . Any interested party may sue (incl'g DA) . Opportunity to cure and correct action(s) . Action void if violation occurred . Costs & attorney fees may be awarded is Criminal Penalties - Misdemeanor . Intent to deprive public of information and take action in violation of Act . Disclosure of closed session discussion Conclusion . Meetings are to be open and public . Actions & deliberations are to be in the open • Social Media, texting and e- communication all subject to Brown Act • All persons have a right to attend and participate in the meetings . Transparency and accountability . w0 ui U -0 C0 (n 0 in°