Attorney General Opines on Open Meeting Rules

Fall River
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Attorney General Opines on Open Meeting Rules

  • By: Andrew Plett

On April 18, 2024, the Attorney General’s Office issued formal opinion Number 23-102 which provides useful instruction on the application of the Brown Act (Gov. Code, § 54950 et seq.) and several of its exceptions. The Attorney General was asked to opine whether it would be a violation of the Brown Act’s “open meeting” requirement if a majority of a City Council attended a “state of the city” speech made by one of the council members at an event hosted by a local community organization which was open only to members of the public who had purchased tickets. Attendance at the event was the only method of watching the speech in real time.

As the Brown Act only applies to meetings of local legislative bodies, the Attorney General first analyzed whether the speech and event constituted a “meeting” of the city council. Since Government Code section 54952.2(a) defines a meeting as “a congregation of a majority of the members of the legislative body … to hear, discuss, deliberate or take action … [on an] item that is within the [body’s] subject matter jurisdiction”, the Attorney General easily determined that the event would be a meeting. This is because a majority of the council would be present to “hear” a speech regarding matters within their subject matter jurisdiction—the condition of, and various issues facing, their city. Additionally, because the event was open only to paying ticket holders, this meeting ran afoul of Government Code sections 54953.3 and 54961(a) which respectively prohibit a legislative body from requiring citizens to fulfill a condition precedent to his or her attending a meeting, and holding a meeting at a location that members of the public may not be present without making a payment or purchase.

Determining that the event met the definition of a “meeting” was not the end of the analysis, as like with many rules in the law, there are potential exceptions to the “open meeting” requirement that had to be considered. Due to the nature of the event, the Attorney General was asked to review two very similar but distinct “open meeting” exceptions.

The Attorney General was first asked to weigh in regarding whether the meeting would qualify for the “conference or similar gathering” exception under Government Code section 54952.2(c). This exception allows a majority of a legislative body to attend events, even if an admission ticket must be purchased by the public, without following the “open meeting” requirement so long as the majority “do not discuss among themselves, other than as part of the scheduled program, business of a specified nature that is within [the body’s] subject matter jurisdiction”.

In other words, this exception allows a majority to attend, for example, a conference regarding land use issues and to discuss and exchange ideas regarding land use issues facing their jurisdiction with other attendees at the conference. It is this last part that the Attorney General felt was lacking for the “state of the city” event that it was being asked to analyze. Specifically, in the Attorney General’s view in order for the “conference” exception to apply, the event must include multiple presentations on a topic of general interest to the public so as to facilitate a discussion and interchange of differing ideas and points of view amongst attendees. Because the “state of the city” event consisted of a single speech regarding issues facing a single city, there wasn’t the opportunity for differing points of view to be expressed or exchanged, and moreover, the state of a single city is limited to the interest of its citizenry, and not the “capital-P” Public at large. For those reasons, the Attorney General opined that the event did not qualify for the “conference or similar gathering” exception.

The next exception the Attorney General was asked to consider was the “community meetings” exception provided by Government Code section 54952.2(c)(3). This exception allows a majority of a legislative body to attend “an open and publicized meeting organized to address a topic of local community concern by a person or organization other than [the body].” While probably the most promising exception for the “state of the city” event, the Attorney General’s analysis focused on the “open” requirement. While the “state of the city” was open in the sense that it was not secret and any member of the public willing and able to purchase a ticket could attend, it was still insufficiently open for the purposes of this exception because of the fact that members of the public had to buy tickets to attend in the first place.

So why is it ok for the public to pay for tickets under the “conference or similar gathering” exception, but not for the “community meeting” exception?  The answer is because Government Code section 54952.2(c)(2) states that “[n]othing in this paragraph is intended to allow members of the public free admission to a conference or similar gathering”. This crucial language that enables a conference to charge members of the public to see and participate in the same program as the majority of a legislative body is completely absent from Government Code section 54952.2(c)(3). Thus, any community meeting that requires an admission price, like the “state of the city” event, is ineligible for the Brown Act’s “community meeting” exception.

Finally, the Attorney General considered one additional potential exception applicable to the “state of the city” event, even though it was not directly requested to do so. This additional exception is for a “purely social or ceremonial occasion” as provided by Government Code section 54952.2(c)(5). This exception allows a majority of a legislative body to attend “a purely social or ceremonial occasion, provided that [the body] do[es] not discuss business of a specific nature that is within the subject matter jurisdiction of the [the body].” The Attorney General noted that there are social and ceremonial aspects to an event like the “state of the city” speech it was analyzing; however, those aspects were slight compared to the potential impact and influence on legislative priorities a “state of the city” speech might have. These types of speeches are often used to outline plans and goals for the legislative body, highlight specific initiatives or projects, and set the agenda for the legislative body—thereby taking themselves out of the realm of “purely social or ceremonial occasions” and into the realm of the people’s business which should be open and public.