Yuba County Water District

Recommendations 3

• R1

  Page 121
  The definition of the term "meeting" contained in section 54952.2(a) includes any congregation of a majority of the members of a body at the same time and place to hear, discuss or deliberate on any issue under the subject matter jurisdiction of the body. This definition makes it clear that the body need not take any action in order for a gathering to be defined as a meeting. A gathering is a meeting if a majority of the members of the body merely receive information or discuss their views on an issue. A meeting also covers a body's deliberations, including the consideration, analysis or debate of an issue, and any vote which may ultimately be taken. Under this construction, any gathering of a majority of the members of a body to receive information, hear a proposal, discuss an issue or take any action on an issue under the subject matter jurisdiction of the body is a meeting subject to the notice and open meeting requirements of the Act. Under section 54952.2, as well as prior case law, a gathering need not be formally convened in order to be covered by the Act. In Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, the court held that a huncheon gathering which included five county supervisors, the county counsel, a variety of county officers, and representatives of a union to discuss a strike which was under way against the county was a meeting within the meaning of the Act. Therefore, the meeting should have been noticed and members of the t 8 Attachment 37 115 Yuba County Grand Jury Final Report committee by testifying, asking questions or providing information. In addition, the opinion concluded that observers could not sit at the dias. D. Social or Ceremonial Occasions Attendance by a majority of the members of the legislative body at a purely social or ceremonial occasion is not deemed to be a meeting, so long as the members do not discuss among themselves specific business within the jurisdiction of the body. (§ 54952.2(c)(5).) This has long been the law in California. (Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41; 43 Ops.Cal.Atty.Gen. 36, 38 (1964).) In practice, this prohibition may sometimes be difficult to observe since persons attending social or ceremonial occasions frequently wish to discuss specific issues with their governmental officials. However, where a majority of a legislative body is present, the members must not discuss specific business within the jurisdiction of the body to avoid violating the Act.
• R2

  Page 122
  Serial Meetings The issue of serial meetings stands at the vortex of two significant public policies; first, the constitutional right of citizens to address grievances and communicate with their elected representatives; and second, the Act's policy favoring public deliberation by multimember boards, commissions and councils. The purpose of the serial meeting prohibition is not to prevent citizens from communicating with their elected representatives, but rather to prevent public bodies from circumventing the requirement for open and public deliberation of issues. The Act expressly prohibits serial meetings that are conducted through direct communications, personal intermediaries or technological devices for the purpose of developing a concurrence as to action to be taken. (§ 54952.2(b); Stockton Newspapers, Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95, 103.) This provision raises two questions: first, what is a serial meeting for purposes of this definition; and second, what does it mean to develop a concurrence as to action to be taken. Typically, a serial meeting is a series of communications, each of which involves less than a quorum of the legislative body, but which taken as a whole involves a majority of the body's members. For example, a chain of communications involving contact from member A to member B who then communicates with member C would constitute a serial meeting in the case of a five-person body. Similarly, when a person acts as the hub of a wheel (member A) and communicates individually with the various spokes (members B and C), a serial meeting has occurred. In addition, a serial meeting occurs when intermediaries for board members have a meeting to discuss issues. For example, when a representative of member A meets with representatives of members B and C to discuss an agenda item, the members have conducted a serial meeting through their representatives as intermediaries. The statutory definition also applies to situations in which technological devices are used to connect people at the same time 11 Attachment 37 Yuba County Grand Jury Final Report 116 - war and the second of the second of the second who are in different locations (but see the discussion below concerning the exception for teleconference meetings). Once serial communications are found to exist, it must be determined whether the communications were used to develop a concurrence as to action to be taken. If the serial communications were not used to develop a concurrence as to action to be taken, the serial communications do not constitute a meeting and the Act is not applicable. In construing these terms, one should be mindful of the ultimate purposes of the Act — to provide the public with an opportunity to monitor and participate in the decision-making processes of boards and commissions. As such, substantive conversations among members concerning an agenda item prior to a public meeting probably would be viewed as contributing to the development of a concurrence as to the ultimate action to be taken. Conversations which advance or clarify a member's understanding of an issue, or facilitate an agreement or compromise among members, or advance the ultimate resolution of an issue, are all examples of communications which contribute to the development of a concurrence as to action to be taken by the legislative body. Accordingly, with respect to items that have been placed on an agenda or that are likely to be placed upon an agenda, members of legislative bodies should avoid serial communications of a substantive nature concerning such items. Problems arise when systematic communications begin to occur which involve members of the board acquiring substantive information for an upcoming meeting or engaging in debate,
• R3

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  Individual Contacts Between Members of the Public and Board Members The prohibition against serial meetings must be reconciled with the exemption for individual contacts and communications contained in section 54952.2(c)(1). Individual contacts or communications between a member of a legislative body and any other person are specifically exempt from the definition of a meeting. (§ 54952.2(c)(1).) The purpose of this exception appears to be to protect the constitutional rights of individuals to contact their government representatives regarding issues which concern them. To harmonize this exemption with the serial meeting prohibition, the term "any other person" is construed to mean any person other than a board member or agency employee. Thus, while this provision exempts from the Act's coverage conversations between board members and members of the public, it does not exempt conversations among board members, or between board members and their staff. By using the words "individual contacts or conversations" it appears that the Legislature was attempting to ensure that individual contacts would not be defined as a meeting, while still preventing the members of a body from orchestrating contacts between a private party and a quorum of the body. Accordingly, if a member of the public requests a conversation with an individual member of the board, who then acts independently of the board and its other members in deciding whether to talk with the member of the public, no meeting will have occurred even if the member of the public ultimately meets with a quorum of the body. Attachment 37 Yuba County Grand Jury Final Report 118 to report back to the body at a subsequent meeting concerning any matter, or take action to direct staff to place a matter of business on a future agenda. (§ 54954.2(a).) Section 54954.2 also contains specific procedures by which the agenda requirement may be avoided in other specified circumstances as well. (§ 54954.2(b).) В. Exceptions to Agenda Requirements The Act identifies three situations in which a body is permitted to discuss or take action on a matter at a regular meeting where the matter was not first described on a duly noticed agenda. (§ 54954.2(b).) Prior to discussing a matter which was not previously placed on an agenda, the item must be publicly identified so that interested members of the public can monitor or participate in the consideration of the item in question. The body may discuss a nonagenda item at a regular meeting if, by majority vote, the body determines that the matter in question constitutes an emergency pursuant to section 54956.5. (§ 54954.2(b)(1).) Any discussion held pursuant to this exception must be conducted in open session, since emergency meetings held pursuant to section 54956.5 cannot be conducted in closed session. The body may discuss an item which was not previously placed upon an agenda at a regular meeting, when the body determines that there is a need for immediate action which cannot reasonably wait for the next regularly scheduled meeting. (§ 54954.2(b)(2).) However, the Act specifies that in order to take advantage of this agenda exception, the need for immediate action must have come to the attention of the local "agency" after the agenda had already been posted. (§ 54954.2(b)(2).) The Legislature's choice of the term "agency" rather than "body" seems calculated to limit use of this exception by prohibiting its usage if the local agency i.e. staff, and not merely the body, had knowledge of the situation requiring action prior to the posting of the agenda. Lastly, the determination that a need for immediate action exists must be made by two-thirds of the members present or, if two-thirds of the body is not present, by a unanimous vote of those remaining. (§ 54954.2(b)(2).) Finally, where an item has been posted on an agenda for a prior meeting, the item may be continued to a subsequent meeting that is held within five days of the meeting for which the item was properly posted. Under these circumstances, the items need not be posted for the subsequent meeting. (§ 54954.2(b)(3); see also, §§ 54955-55.1 [concerning adjournment and continuances], infra at p. 25.) C. Public Testimony Every agenda for a regular meeting shall provide an opportunity for members of the public to directly address the legislative body on any item under the subject matter 18 Attachment 37 Yuba County Grand Jury Final Report 119 jurisdiction of the body. With respect to any item which is already on the agenda, or in connection with any item which the body will consider pursuant to the exceptions contained in section 54954.2(b), the public must be given the opportunity to comment before or during the legislative body's consideration of the item. (§ 54954.3(a).) The public testimony requirement appears to apply to closed sessions as well as open meetings, but see section 11125.7(d) of the Bagley-Keene Act, concerning state bodies, which was added in 1993 to expressly provide otherwise. Accordingly, this office believes that it would be prudent for legislative bodies to afford the public an opportunity to comment on closed-session items prior to the body's adjournment into closed session. The only exception to the public testimony requirement is where a committee comprised solely of members of the legislative body has previously considered the item at a public meeting in which all members of the public were afforded the opportunity to comment on the item before or during the committee's consideration of it, so long as the item has not substantially changed since the committee's hearing. (§ 54954.3(a).) Where a member of the public raises an issue which has not yet come before the legislative body, the item may be briefly discussed but no action may be taken at that meeting. (§ 54954.3(a).) The purpose of the discussion is to permit a member of the public to raise an issue or problem with the legislative body or to permit the legislative body to provide information to the public, provide direction to its staff, or schedule the matter for a future meeting. (§ 54954.2(a).) The Act specifically authorizes the legislative body to adopt regulations to assist in processing comments from the public. The body may establish procedures for public comment as well as specifying reasonable time limitations on particular topics or individual speakers. So long as the body acts fairly with respect to the interest of the public and competing factions, it has great discretion in regulating the time and manner, as distinguished from the content, of testimony by interested members of the public. (§ 54954.3(b).) When a member of the public testifies before a legislative body, the body may not prohibit the individual from criticizing the policies, procedures, programs or services of the agency or the acts or omissions of the legislative body. (§ 54954.3(c).) This provision does not confer on members of the public any privilege or protection not otherwise provided by law. Public meetings of governmental bodies have been found to be limited public fora. As such, members of the public have broad constitutional rights to comment on any subject relating to the business of the governmental body. Any attempt to restrict the content of such speech must be narrowly tailored to effectuate a compelling state interest. Specifically, the courts found that policies that prohibited members of the public from criticizing school district employees were unconstitutional. (Leventhal 19 Attachment 37 Yuba County Grand Jury Final Report 120 Schools . Yuba County Grand Jury Final Report 121 This page intentionally left blank. . Yuba County Grand Jury Final Report 122 Anna McKenney Intermediate School Reason for Investigation To assess the condition of the school property and facilities. Focus of Investigation The campus and physical layout of the Anna McKenney Intermediate School. Process of Investigation Anna McKenney School, built in 1957, is located in East Marysville and enrolls 6th, 7th and 8th grade students. The Yuba County Grand Jury Schools Committee met at the school for the limited purpose of viewing the premises and interviewing the principal, June Checchi, who took members on a tour of the campus. All of the classrooms were visited and found to be generally in good order, with each one reflecting the individuality of its occupants. Members next visited the library, gymnasium, and cafeteria. The librarian familiarized committee members with the layout and contents of the library which appeared well-organized. In the cafeteria, committee members noticed that decorating for an upcoming dance was underway. When asked about lunch service, the principal informed the Committee that due to the number of students, it is served in two shifts. The gym was found to be quite large and in good repair. There were four large restrooms, two for boys and two for girls, located on each end of the campus. They were clean, and, according to the principal, adequate in size. There is also a separate faculty restroom. Committee members spoke briefly with the security guard on duty. He is the only campus security at McKenney, patrolling the grounds during regular school hours. After touring the campus, the Committee interviewed Principal Checchi to learn more about the school. The following information was provided by Principal Checchi: