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A&A: The Brown Act and Charter Schools

by F i r s tam en d m en
ent on June 13, 2009 in As
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The Brown Act and Charter Schools

Q: A local public charter school has elected eight people to their Board of Directors this year. This is
a public charter school. It is also a 501.c.3 non-profit corporation. The board of directors is selfselecting, self-electing.
Each time a person was elected to the board, either as an interim officer (Treasurer) or as a new
board member, the process was listed under Action Items on the Agenda. The word election has
never been used. The Action Item that resulted in a board member being elected is always listed
this way: Nominations Committee recommendation
At times, the Secretary even records the number of votes in favor or against, but still, no mention of
an election.
Is it legal to hold all these elections, without having listed them as elections?
A: The first issue that needs to be addressed is whether the charter school you refer to is subject to
the Brown Act. Below are some of the factors you might want to look at to determine whether it is.
However, even if the meetings of the charter schools board of directors are governed by the Brown
Act, the Brown Act does not address the organization or composition of legislative bodies nor does it
address the election/nomination of its members, and I am not aware of any other California statutes
that might apply. Such organizational issues are typically governed by the internal rules of the
governing body itself. You might want to ask the board for a copy of its bylaws to see if they
address the specific issue of director elections.
Applicability of Brown Act to Public Charter Schools:
Whether a charter school is subject to the Brown Act depends on whether the school was created

by an elected legislative bodyor receives funds from a government agency and whose governing
body includes a member of the legislative bodyfor the purposes of the Brown Act.
A body that governs a private (often non-profit) entity may be subject to the Brown Act if it is
created by an elected legislative body to perform governmental functions, or receive funds from a
local agency and has a member appointed by the local agency. The applicable provision of the
Brown Act is Government Code section 54952(c), which defines legislative body to mean, among
other things:
(c) (1) A board, commission, committee, or other multimember body that governs a private
corporation, limited liability company, or other entity that either:
(A) Is created by the elected legislative body in order to exercise authority that may lawfully be
delegated by the elected governing body to a private corporation, limited liability company, or other
entity.
(B) Receives funds from a local agency and the membership of whose governing body includes a
member of the legislative body of the local agency appointed to that governing body as a full voting
member by the legislative body of the local agency.
(2) Notwithstanding subparagraph (B) of paragraph (1), no board, commission, committee, or other
multimember body that governs a private corporation, limited liability company, or other entity that
receives funds from a local agency and, as of February 9, 1996, has a member of the legislative
body of the local agency as a full voting member of the governing body of that private corporation,
limited liability company, or other entity shall be relieved from the public meeting requirements
of this chapter by virtue of a change in status of the full voting member to a nonvoting member.
You should be able to determine whether the public charter school is receiving funding from a local
agency (for instance, by the school district) by reviewing its financial statements. You should be
able to determine if a local agency has the right to appoint a member of the board of directors by
reviewing the charter schools bylaws and/or articles of incorporation. (The articles of incorporation,
if they exist, are also available from the California Secretary of State.) If both of those conditions
exist, the public charter school is subject to the Brown Act and subject to its open meetings
requirements.
As to whether the public charter school was created by an elected legislative body, this can be
more difficult to determine. California case law indicates that, for example, if a city creates a special
local assessment district, collects assessments from local property owners, and provides by
ordinance that the programs paid for with those funds
will be governed by a non-profit association, the non-profit corporation set up to govern those
programs will be subject to the Brown Act. (This example comes from a case called Epstein v.
Hollywood Entertainment District II Business Improvement Dist., 87 Cal. App. 4th 862 (2001).) You
should look for some kind of direct involvement by the city or another local government agency, such

as the school district, in the creation of the charter school, such as an ordinance that calls for its
creation. In addition, the articles of incorporation and/or bylaws of the charter school may provide
evidence that the city, or other government entity, was responsible for its creation.
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Brown Act Drill Down

Government bodies covered
Committees of a legislative body
Nonprofits under the Brown Act
Publishing of meeting notice and agenda
Recording of meeting
Publics right to speak
Signing into meeting
Open voting; no secret ballots
Serial meeting
Notice and agenda requirements for closed meetings
Closed meeting for employee performance evaluation
Remedies for Brown Act violations
Open meetings required to evaluate elected officials
To discuss pending litigation
To buy and sell real estate
For labor negotiations
Discussing hiring, firing, disciplining employees

Drill Down: CPRA targeted searches

What records are covered by the CPRA?
Electronic records covered, yes,
But not software
Emails covered
Government entities covered by the law
How to access documents
Time for agency to respond
Copying records
Fees for copying of records
Exemption for drafts of records
Exemption for police investigative files
Partial access to information from police records
Exemption for records subject to attorney-client privilege
Exemption for records pertaining to pending litigation
Exemption for personnel, medical files
Salaries of public employees

Accessing public employees pension benefits

Officials appointments calendars
Investigation of public employee misconduct
Exemption for records subject to deliberative process privilege

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