The problem with serial meetings is the process, which deprives the public of an opportunity for meaningful participation in legislative body decision-making.Except for teleconferencing discussed below, the Brown Act specifically prohibits “any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the members of the legislative body.”10
The serial meeting may occur by either a “daisy-chain” or a “hub-and-spoke”
sequence. In the daisy-chain scenario Member A contacts Member B, Member B contacts Member C, Member C contacts Member D and so on, until a quorum and collective concurrence has been established. The hub-and-spoke process involves, for example, a staff member (the hub) communicating with members of a legislative body (the spokes) one-by-one for a decision on a proposed action,11 or a chief executive officer briefing a majority of redevelopment agency members prior to a formal meeting and, in the process, information about the members’ respective views is revealed. Each of these scenarios violates the Brown Act.
A legislative body member has the right, if not the duty, to meet with constituents to address their concerns. That member also has the right to confer with a colleague or appropriate staff about local agency business. However, if several one-on-one meetings or conferences leads to a “collective concurrence as to action to be taken” among a majority, the Brown Act has been violated. In one case, a violation occurred when a quorum of a city council directed staff by letter on an eminent domain action.12
On the other hand, a unilateral written communication to the legislative body, such as an informational or advisory memorandum, does not violate the Brown Act.13 Such a memo, however, may be a public record.14
The phone call was from a lobbyist. “Say, I need your vote for that project in the south area.
How about it?”
“Well, I don’t know,” replied Board Member Adams. “That’s kind of a sticky proposition. You sure you need my vote?”
“Well, I’ve got Baker and Charles lined up and another vote leaning. With you I’d be over the top …”
Moments later, the phone rings again. “Hey, I’ve been hearing some rumbles on that south area project,” said the newspaper reporter. “I’m counting noses. How are you voting on it?”
Neither the lobbyist nor the reporter has violated the Brown Act, but they are facilitating a violation.
The board member may have violated the Brown Act by hearing about the positions of other board members and indeed coaxing the lobbyist to reveal the other board members’ positions by asking “You sure you need my vote?” The prudent course is to avoid such leading conversations and to caution lobbyists, staff and news media against revealing such positions of others.
The mayor sat down across from the city manager. “From now on,” he declared, “I want you to provide individual briefings on upcoming agenda items. Some of this material is very technical, and the council members don’t want to sound like idiots asking about it in public. Besides that, briefings will speed up the meeting.”
A recent case supports the consensus among local agency attorneys that staff briefings of legislative body members are allowed if staff is not used as a conduit for developing collective concurrence on the matter, and if during such briefings staff does not disclose the views and positions of other members.15 Members should always be vigilant when discussing local agency business with anyone to avoid conversations that could lead to a collective concurrence among the majority of the legislative body.
“Thanks for the information,” said Council Member Smith. “These zoning changes can be tricky, and now I think I’m better equipped to make the right decision.”
“Glad to be of assistance,” replied the planning director. “Any idea what the other council members think of the problem?”
The planning director should not ask, and the member should not answer. A one-on-one meeting that involves a member of a legislative body takes a step toward collective concurrence if either person reveals or discusses the views of other members.
Particular care should be exercised when staff briefings of legislative body members occur by email because of the ease of using the “reply to all” button that may inadvertently result in a Brown Act violation.
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