California school boards face some of the most detailed and stringent open-meeting requirements, spelled out in the Brown Act. Curiously, the act, which is dedicated to transparency and public participation, remains silent on a practice that significantly mitigates any semblance of government secrecy: posting minutes of meetings. While posting meeting minutes exceeds the letter of the law, it satisfies the spirit of the Brown Act, sending a clear signal that the school board has nothing to hide.
The Letter of the Law
The Brown Act lays out specific requirements for posting agendas of school board meetings in advance, providing all materials to the public as well as the board, preventing a rolling quorum, and including public remarks in meetings. While it mentions record keeping only in regard to closed sessions, the act mandates that public recordings of the broader public meeting are to be permitted.
Even for closed sessions, the Brown Act requires very little in the way of records. If the closed session resulted in final action, the board may be required to report on the action taken and the votes made when the public meeting resumes after the closed session. That report could be oral or written in form. In practice, most school boards keep a minute book of such closed-session reports.
For the broader school board meeting, the Brown Act only makes provisions for the possible recording and broadcasting of the meeting. The League of California Cities has summarized the part of the Brown Act found in section 54953.5(a) of the California Government Code that pertains to citizen recordings of meetings:
[T]he public is specifically allowed to use audio or video tape recorders or still or motion picture cameras at a meeting to record the proceedings, absent a reasonable finding by the legislative body that noise, illumination, or obstruction of view caused by recorders or cameras would persistently disrupt the proceedings.
If a constituent—or the press—records the meeting under this provision, the act goes on to insist that the school board must permit the footage to be broadcast. It is reasonable to presume that anyone in the pubic who takes advantage of this provision would do so to keep the board in line or to catch them in some suspected wrongdoing.
The act does not require the school board itself to make any recordings. It does, however, provide that any recording made at the school board’s discretion would become a matter of public record. Referencing California Government Code section 54953.5(b), the League of California Cities continues: “[a]ny tape or film record of an open and public meeting made for whatever purpose by or at the direction of the local agency is subject to the Public Records Act,” adding the curious caveat that the recording nevertheless “may be erased or destroyed 30 days after the taping or recording.”
The Brown Act’s silence on meeting minutes should not be taken as free license. After a school board in California stopped taking minutes altogether, a constituent asked the general counsel of the First Amendment Coalition if that practice violated the Brown Act. The attorney, Bryan Cave, responded that while the practice did not break any laws set forth in the Brown Act, it might violate the school board’s own bylaws.
The Spirit of the Law
The intent of the Brown Act was clearly to make local public meetings transparent to the public. California state legislator Ralph Brown wrote the act in 1953 specifically in response to widespread public concern when local elected officials appeared to be holding informal, undisclosed meetings. He made sure that future meetings in the state would give the public the right to attend all meetings and participate in them.
Reasons to Post Meeting Minutes
While not necessary to comply with the requirements of the Brown Act, taking minutes and posting them for the public certainly boosts the transparency that the law strives to promote. As transparency builds the trust that brings public support and participation, a school board cannot afford to miss any opportunity to create a spirit of openness. With today’s tools, posting minutes welcomes the public more than ever before.
Posting meeting minutes on a public-facing website brings them to the online world where the average American spends an astonishing 10 hours a day, according to a Nielsen survey. Most public-facing websites, though, leave documents unprotected from hackers. Posting the minutes on board-portal software gives them not only full 256-bit encryption and storage on a private server, but other features that are especially inviting:
The Brown Act marked a deliberate shift in the direction of greater meeting transparency. Today’s school boards know that such transparency sustains the community engagement, without which, it is lost. While the act does not require taking minutes, the smart school board volunteers minutes—even its own recordings of meetings—in the most accessible, user-friendly capacity possible.
Digital Media Law Project, “Open Meeting Laws in California.”
First Amendment Coalition, “A&A: Does the Brown Act Require Meeting Minutes?” April 13, 2015.
League of California Cities, Open & Public IV: A Guide to the Ralph M. Brown Act (second edition, revised July 2010).