is cboc legislative body
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is cboc legislative body

Every once in a while, one should re-evaluate what one believes one knows to be true. This is especially important when it comes to acts of government, like statutes, codes, ordinances, and regulations.

Acts of government are always written. They are written in legalese using terms that have specially defined meanings that never mean what people commonly know them to mean.

In the last two weeks, as a result of contacts with lawyers who claim to be experts in Brown Act issues and as a result of writing a set of model bylaws for the citizens' bond oversight committee (CBOC), I had a drafting difficulty. There was conflict among common sense, parliamentary authority, and the seemingly stifling restrictions of the Brown Act.

To resolve the conflict, I pressed the reset button and took another look at the statutes that I thought were causing me difficulty.

The Act of 20001

The only statutory language that addresses the CBOC with regard to public meetings is the following:

All citizens' oversight committee proceedings shall be open to the public and notice to the public shall be provided in the same manner as the proceedings of the governing board of the district.

EDC2 15280(b)

When the legislature wanted to apply the corruption provisions of the Government Code to the CBOC, it used excruciating detail and explicitly referenced those provisions in EDC 15282(b). As a rule of construction of legislative enactments, a legislative act is always presumed to mean what it says and the legislature is always presumed to intend what it says.

The legislature could have easily made a CBOC subject to "Chapter 9 of Part 1 of Division 2 of Title 5 of the Government Code." (That's the legalese for the Brown Act.) It could have easily stated that a CBOC is a legislative body within the meaning of GOV 54952. It could have easily stated that a CBOC proceeding is a meeting within the meaning of GOV 54952.2. It did none of these things. It didn't even use the terms legislative body or meeting.

Instead the legislature merely stated that the CBOC "proceedings shall be open to the public" and that "notice to the public shall be provided in the same manner as the proceedings of the governing board."

This hardly sounds like a legislative directive that the Brown Act applies to CBOC meetings.

The Brown Act

Let's not stop there, however. While there is no language in the Act of 2000 that brings the CBOC under the Brown Act's provisions, perhaps, the Brown Act, all on its own, brings the CBOC under it.

It's quite settled that the Brown Act applies only to a "legislative body" of a "local agency." That is, then, the focus of our inquiry.

Is a CBOC a legislative body?

The Brown Act defines that term in four subsections of GOV 54952.

(a) The governing body of a local agency or any other local body created by state or federal statute.

GOV 54952(a) (Underline added.)

The CBOC, with it's limited power and authority, is clearly not a governing body, so that subsection doesn't bring the CBOC under the provisions of the Brown Act.

Similarly, subsections (c) and (d) cannot apply as the CBOC neither governs a private entity nor leases a hospital.

The only subsection that's left is (b).

(b) A commission, committee, board, or other body of a local agency, whether permanent or temporary, decisionmaking or advisory, created by charter, ordinance, resolution, or formal action of a legislative body. However, advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter.

GOV 54952(b) (Underline added.)

In an unfortunate legislative hiccup, subsection (b) uses the term being defined in its own definition. The reference to legislative body in both sentences can only make sense when it means the same as "governing body" in the preceding subsection. Members of the governing body are explicitly prohibited (EDC 15282(b)) from being members of a CBOC. Therefore, a CBOC is not a "governing body" when "legislative body" is used in the first sentence. As used in the second sentence, CBOCs are also neither "standing committees of a legislative body" nor is the CBOC "meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body."

The first sentence is critical. "A ... committee ... of a local agency ... created by ... a legislative body."

The district is a local agency. The district's governing board is its legislative body. The CBOC, however, is neither a committee of the district nor created by its legislative body. The legislature created the CBOC as an "independent citizens' oversight committee." The governing board's only statutory directive is to "establish and appoint members" to it when required to do so in connection with Proposition 39 bond measures.

While the independence of the CBOC is indisputable, let's look at one more point.

Who are CBOC members? They, like juries and grand juries, ARE the people. They are not "public servants" as described in GOV 54950. In fact, EDC 15282(b) specifically excludes public servants from CBOC membership. (In my opinion, it should go further and exclude all public employees and all those receiving a public pension.) The Brown Act is intended, therefore, for public servants. The CBOC members, on the other hand, are the people watching over its public servants.

Conclusion

The CBOC is an independent committee of the people. The people are always free to associate and watch over their public servants. This power is inherent in the people. No law is required to authorize oversight. In the case of the CBOC, the legislature has mandated, with respect to Proposition 39 bond measures, that the district has no choice but to "establish and appoint members" to it. The Act of 2000 also imposes many statutory duties on the district's governing board. Without those duties having been imposed, the people would have been left to their own devices with varying, and likely very limited, results. The district's governing board has no choice. It can ignore its statutory duties only at its own peril.

If the CBOC were a "committee ... of a local agency," it could be dissolved by that local agency. It can't. The Act of 2000 grants neither authority nor power to the district's governing to dissolve, rearrange, reconstitute, redefine, restrict, or otherwise interfere with a CBOC. Whether the district has 50 students or millions of students, a seven-member CBOC is, nevertheless, the minimum requirement. That's part of the bargain when a district wants to avail itself of the 55% voter approval threshold.

Where do all the references to the Brown Act come from then? Why, from school bonds cartel lawyers, of course. Cartel lawyers, as part of an overarching scheme to restrict the activities of the CBOC, intimidate unsophisticated CBOC members into believing that they may be subject to criminal penalties if they don't do as the lawyers tell them. It's a complete fabrication.

The language of the Act of 2000 is clear. The legislature intentionally did not make the CBOC subject to the Brown Act. Perhaps it couldn't impose the Brown Act on people who are not its subjects. It wanted fairness. It wanted CBOC meetings open to the public and it wanted the public to have notice. Those two things are easily accomplished without making the CBOC subject to the Brown Act and all the judicial opinions surrounding it.

Do you disagree? Then provide your analysis. Make sure to address the actual words and terms of the statutes. Self-serving pronouncements by a district or its ever-present gaggle of taxpayer-paid lawyers, without supporting legal analysis, have no weight.

I've looked and have yet to find a court opinion covering CBOC meetings. I've also been unable to find a notice from a district attorney or from a member of the public that a CBOC has violated the Brown Act. If you're aware of any such material, please share it. I'll append written, contrary opinions to the end of this article.


1 The Act of 2000 refers to the Strict Accountability in Local School Construction Bonds Act of 2000 found at EDC 15264 - 15288.

2 In this article, Education Code is abbreviated EDC and Government Code is abbreviated GOV.

 


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