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The Brown Act

22 Sep

Several people have suggested to me that the recent “suspension” of the Brown Act by the California Legislature means local educational boards and governance entities do not have to follow it.  I do not agree with that interpretation.  For one thing, the Brown Act is a federal issue, and for another, the California bill did not suspend the act – it suspended funding for local agencies that had been receiving funds to help implement the act.

Further, both the Ed. Code and Title V have similar provisions for transparency in public education.  The main intent of all of this is to make sure meetings are open and no one can be turned away, asked to involuntarily sign in, or be “vetted” in any way in order to attend and  listen/view the meeting.  These are values I strongly believe in, as do the members of the Oxnard College Academic Senate and Oxnard College Administration, as they agreed to follow these principles in our manual of shared governance.

Having said that, the Legislature is recognizing that funds are lacking for the actual staff and resources to comply with the Brown Act.  Yes, that’s how bad it is, budget wise.

But in researching the Brown Act, rather obsessively, for the last few days, I learned some very interesting things.

Indoor bulletin boards in regular office buildings are a NO-NO

Posting on an indoor bulletin board of any kind, while nice, does not meet the requirements of the Brown Act unless that building is open and accessible to the public 24 hours a day for the 3 days prior to the meeting.  24 hours a day.  Not 8 or 9 or 12 hours.  It can be a window that’s visible from outside.  It is good practice to include at the bottom of every agenda exactly where the place should be.  Our own VCCCD Board of Trustees (Patty Blair is an expert in this, btw, if you have questions), has a glassed in bulletin board outside the building, which is accessible 24 hours a day.  They post in advance of the 72 hours (good job, VCCCD BOT).

This is an easy fix.  Any kiosk will do.  Post as low as needed for a seated person in a wheelchair to read it.  The kiosk is probably best located near to where the meeting is going to be held.  Windows are okay, too – and probably more likely to be seen.  We’ll have to talk about that.

Now, this sounds primitive.  Everyone and their brother knows that what we really do is post on the internet.  That’s perfectly okay as long as you also post in a totally FREE spot (the internet costs money; libraries aren’t open 24 hours a day, etc., etc).  

Some people think that California’s AB 1344 makes it okay to JUST use an online posting.  Nope.  What it says is that if the posting body (in this case, our Academic Senate) has its own webpage (we don’t), then we CAN post there IN ADDITION to posting in the free, publicly available space.  Here is what AB 1344 amended:

SEC. 8. Section 54954.2 of the Government Code is amended to read:

54954.2. (a) (1) At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an item generally need not exceed 20 words. The agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public AND on the local agency’s Internet Web site, if the local agency has one.  (my emphasis added).

We (the Academic Senate) are the local educational association in question (and by the way, local educational entities made up entirely of employees, as we are, are specifically exempted from some other rules about online posting that have recently been proposed but not yet enacted).  The website you are reading now is my own website (it does not belong to the Academic Senate, it may be useful to the Academic Senate – just like an indoor bulletin board).  The Academic Senate does not have its own website but our local governance document (the Participatory Governance Manual) provides for our use of the College’s website, which is as it should be.  

So we don’t have to post on the internet – but we do it anyway.  In two places:  sharepoint and on the college’s webpage.  It is voluntary, which is useful, because our Academic Senate President is off raising money to cure Breast Cancer right now and we had to have a flurry of emails while she’s trying to focus on her run in order to post our revised agenda (which went out by email, and was – yes – posted on TWO kiosks near to the meeting place!)  Revised agendas, by the way, do not need to be posted 72 hours in advance (obviously) but 24 hours in advance – and we exceeded that.   Not because we have to.  But because we believe, and affirm, that following the Brown Act (even if we don’t have to) is part of a representative, democratic, anti-backroom politics kind of transparency.  Who would disagree with that, right?

Which brings me to another lesson (my own lesson, I am learning it).  Who is subject to the Brown Act in the first place?  Why aren’t all those District Committees subject to the Brown Act (or are they?)  They do post “notes” but not minutes.  Sometimes they ratify their notes (usually, not always).  Consultation Council is clearly a body designed to influence the actions of the Board, it should be Brown Act (MY opinion; but also the opinion of Michelle Pilati, if I understood her correctly today – and she referred me to someone she says is expert in this area).  Our own PGM specifically states that committees follow the Brown Act (and I hope to do a little revising to make that even more clear; I think that some of the subcommittees of the Academic Senate are specifically bound to follow the Brown Act – but some Academic Senates have language in their charters that exempt them from the Brown Act; so go figure).

But…does CUDS (for example) fall under the Brown Act?  Here are the triggers for the Brown Act:

Are you a Board of Trustees for a state educational institution?  (No, we are not; CUDS is not).

Are you a group specifically created by or authorized to provide direct feedback to the Board? (Yes, the Academic Senate is; CUDS is not).

Do you constitute a regularly meeting group that advises a group that is authorized to give direct feedback to the Board?  (Well, hmmm.  Last year CUDS didn’t report back to Senate, even once; it recommended actions by M & O, it recommended actions to the police; it’s in our shared governance handbook BUT it does say that it “advises” or “recommends” to the Senate).  But here’s the good part:  in our own Participatory Governance Handbook, we say that we, as a local group, expect PGM committees to behave as Brown Act entities.  This is by local decision.  Probably a very good idea.  By the way, CUDS is supposed to report back to the Senate.  Is reporting considered “advice”?  No.  Should we add the word “advice” to our PGM.  Yes.  That’s what CUDS does, so we should be clear about it – and then CUDS falls under the Brown Act.  

So, I think we should revise the PGM just a tiny bit (we’re revising anyway) to make sure that each of the PGM committees says specifically in its charge that it reports to and advises the Senate as needed.  Right?

Now – after all that, what if we really don’t have staff to post on the internet and the State has passed a bill exempting us, for budgetary reasons, from posting.  Well, we don’t have to post, we will not be prosecuted in the State of California.

But my new mantra is:

KIOSKS.  There’s one right by the library, there’s another one between the OE building and the Admin Building – let’s pick one and use it regularly.  And, while we’re at it, we will bring all of our agendas into compliance with the ADA, which currently they are not.  Maybe windows (although for some reason that bothers me aesthetically).  I’m hoping to get a nice label on the Kiosk near the Library and put a little notice to reserve one half of one of the three sides for Academic Senate and PGM postings.  Then, our workers will only have to post in one place (as required) and there won’t be so much running around and potential for missing Brown Act requirements.  Remember, only the physical posting is required; the electronic posting is voluntary – but we will continue to do it.  However, should the servers go down, and we’ve posted properly according to Federal rules we can proceed.  This isn’t just my opinion, there’s case law here too.

These are scary times.  Apparently the County of Mendocino and a few other places are no longer posting agendas anywhere (just how much can that cost?  It can be taped in a window!)  The “cost reimbursement” was originally supposed to be for ADA compliance (people who need a Braille agenda, for example).  It got up to about $98,000,000 in claims for state money for Braille agendas, large print agendas, spoken word agendas, etc.  So they had to suspend all public support of the Brown Act for that reason – but that does not mean that we can’t volunteer to safeguard our freedoms.

KIOSKS.   Am I going to stop putting things up on sharepoint?  Of course not.  But on a day when I revise an agenda and our AS Secretary is off duty, and I don’t yet have Omniupdate permissions, I know now that KIOSKS are my friend.  I will continue to pester all of you with agenda changes, supporting documents (don’t have to be mailed at any particular time or put on kiosks OR sharepoint – but we will but them on sharepoint, NOT kiosks).  And btw, the other co-chairs of PGM committees might want to think through their practices too.  I am eagerly looking forward to suggestions from other AS Presidents (past and present) as well as the State AS expert on procedure.

Further references.  ASCCC 1991 Overview

By the way, it is firmly my belief that when the Board okayed the District’s Participatory Governance Handbook it established committees that have regular, on-going advisory roles, and by so establishing, subjected them to the Brown Act – but the PGH disagrees.

What a kiosk may look like – ours are nicer

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