lozano smith on brown act
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lozano smith on brown act

The following is a transcription of a letter from Lozano Smith partner Harold Freiman to West Contra Costa Unified Associate Superintendent Bill Fay. The subject of the letter is specifically citizens' bond oversight committee (CBOC) subcommittees in relation to open meeting law, but the letter offers insight into the tortured, and sometimes self-servingly loose, reasoning used to place the CBOC itself under the Brown Act.

Districts too often use lawyers as shields ("our lawyer said it was legal") to deflect admission or responsibility for suspect or illegal actions. Mr. Freiman is to be commended for his thoughtful and considered approach and for the fortitude to put it writing.

Is it conceivable that, in the year 2000, after almost 50 years of use, dozens of appellate court decisions, thousands of trial court determinations, and perhaps hundreds of thousands of complaints to district attorneys around the state, that the legislature would not have dealt with Brown Act issues in the Strict Accountability in Local School Construction Bonds Act of 2000 (Act of 2000)? One might ask then why the legislature would not have even mentioned it. The answer is actually rather simple. Legislative acts are positive law, whether mandatory or prohibitory. Positive law is any express written command of the government. It never address things that it is not commanding its subject to do. When it did not expressly make the independent citizens' oversight committee a legislative body subject to the Brown Act, it meant to.

The history of the thinking that Mr. Freiman uses in this letter dates back to the passage of Proposition 39 when a group of school bonds cartel lawyers and advisors, under the auspices of C.A.S.H., got together to devise a scheme to suppress any fledging oversight that may actually negatively effect the huge profits they expected to yield from Proposition 39's passage. Initially published in 2003 and revised on April 25, 2006, the C.A.S.H. Proposition 39 Handbook is a monument to the command and control which the school bonds cartel has exerted over the gold mine that Proposition 39 bonds represent to it. It freely makes baseless, unattributed legal conclusions that, in many respects, are purposely conflated with Proposition 39 and its related statutes. In effect, it's written its own law, stacked against the taxpayers and in favor of its own self-interests. Lozano Smith lawyers, of which Freiman is one, contributed to the project, so their bias may be presumed.

The law, as written, not as the school bonds cartel wishes it were written, is clear that a CBOC is an independent oversight body, neither a part of nor subject to the district which it oversees. Additionally, its proceedings are not subject to the Brown Act, but instead are subject to the directive found in Education Code 15280(b).

NOTES: My analysis of Freiman's opinion is interspersed within the body of the letter in blocks that have this appearance.

Is there one specific portion of Freiman's opinion that completely obliterates his own conclusion. For those of you with a short attention span, here it is.


January 23, 2014

By U.S. Mail & E-Mail: bfay@wccusd.net

Bill Fay
Associate Superintendent, Chief Operations Officer
West Contra Costa Unified School District
1108 Bissell Ave., Room 200
Richmond, CA 94801

Re: Brown Act Issues related to the Subcommittees
of the Citizens' Bond Oversight Committee

Dear Mr. Fay,

You have asked for our opinion on a number of issues related to the Citizens' Bond Oversight Committee ("CBOC") and the Brown Act. Please note that several of these issues were touched on in a Brown Act training that our firm provided to the CBOC in 2012. Specifically, you've asked:

1. Whether subcommittees of the CBOC such as the audit subcommittee are "standing committees" governed by the Brown Act?

2. Whether the subcommittee agendas should be posted on a website regardless of whether the subcommittee is governed by the Brown Act?

3. Are there any legal concerns regarding the proposed revision of the CBOC By-laws that is being considered by the CBOC in relation to the Brown Act questions above?

NOTES: Why is the district so concerned about the CBOC's activities that it will spend its own precious funds (a common theme near the end of the opinion) asking for a legal opinion? Human action is always based on self-interest or, if you want to stretch it, based on charity. The tenor of the questions indicate a bias toward the kind of answer the district wants. Freiman will now put on a show for the CBOC to give the district what it wants couched in confusing legal jargon that completely avoids examining the actual nature of the CBOC, which would cause the district to lose control over the oversight function.

Our summary conclusions, discussed in greater detail below, are as follows:

1. There is no clear legal guidance as to whether and how the Brown Act may or may not apply to the CBOC's audit subcommittee. The consensus of authorities appears to support the conclusion that the subcommittees are not, and should not be, bound by the Brown Act. Additionally, there does not appear to be a compelling reason to apply the Brown Act to such subcommittees, or to seek to establish the subcommittees as "standing" committees of the CBOC within the meaning of the Brown Act.

Bill Fay
January 23, 2014
Page 2

2. While the Brown Act does not appear to compel posting the subcommittee agendas on-line or otherwise, the District and CBOC could elect to do so. There may be certain legal and practical limitations or downsides to doing so, as outlined below.

3. There are legal concerns raised by the proposed By-law revisions regarding subcommittees. These revisions may unnecessarily complicate an already complex area of law, and do not appear to fully track the requirements of the Brown Act as it has been interpreted by the courts and the California Attorney General.

Analysis

1. Are subcommittees of the CBOC such as the audit subcommittee "standing committees" governed by the Brown Act?

Nothing in the Smaller Classes, Safer Schools and Financial Accountability Act (Proposition 39) or in the Strict Accountability in Local School Construction Bonds Act of 2000 (Ed. Code §§15264, et seq.), which created the CBOC requirement, expressly addresses subcommittees. As a result, there is no specific legal requirement that subcommittees of a CBOC be standing committees, or, for that matter, that there be subcommittees at all.

NOTES: Why would it? Subcommittees are fully and adequately addressed in parliamentary law (Robert's Rules of Order Newly Revised (11th Ed.), p. 497, ll. 14-19.), which are adopted by any body of people who wish to operate with some degree of order and fairness.

While there is nothing in the foregoing legislation about standing committees, the Brown Act (Gov. Code §§54950, et seq.) applies to any "legislative body." Government Code section 54952(b) defines a legislative body for these purposes:

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.
NOTES: For a full analysis of Government Code 54952, including the crucial term, see Is a CBOC a Legislative Body Subject to the Brown Act?

Whether the CBOC's subcommittees are a "legislative body" pursuant to the foregoing definition depends on a number of elements that can be derived from section 54952(b):

1. Is the subcommittee created by formal action of a legislative body?

2. Is the subcommittee an advisory body composed solely of a non-quorum number of members of the legislative body?

3. If the answer to question 2 is "yes," then does the subcommittee have:

Bill Fay
January 23, 2014
Page 3

a. Continuing subject matter jurisdiction?

b. A meeting schedule fixed by formal action of a legislative body?

NOTES: Note how Freiman completely ignores what should be the first and most crucial element. Is the CBOC "[a] ... committee ... of a local agency?" That is, in fact, the threshold issue. By ignoring it and, therefore, not having to deal with it, he does not have to consider whether a CBOC is a "local agency" unto itself, which it is clearly not. A CBOC, by the Act of 2000, is created independent from the local agency over which it has oversight authority. Once that crucial element is presumed in favor of the district, it leads to all the confusion that Freiman later laments. Of course, a discussion of the Brown Act is a red herring because the Act of 2000 does not make the independent CBOC subject to the Brown Act's jurisdiction to begin with. So Freiman merrily avoids two threshold issues, so that he can start off his analysis in his comfort zone.

Before examining how each of these elements apply to subcommittees, an initial threshold question is whether the CBOC itself also meets these tests, and thus is a "legislative body" within the meaning of the Brown Act. Pursuant to Education Code section 15378(a), a governing board of a school district "shall establish and appoint members to an independent citizens' oversight committee...." The CBOC is thus required to be created by a formal action of the Board, meeting the first part of the definition of a "legislative body" for Brown Act purposes. Because the subcommittee is not solely composed of less than a quorum of the Board, it does not meet the criteria to be an advisory committee, typically referred to as an "ad hoc" committee, within the meaning of Government Code 54942(b). Even if the CBOC could be such an advisory committee, it has ongoing subject matter jurisdiction as set forth in Education Code 15278, et seq., for as long as the Proposition 39 bond program remains in place. For these reasons, it is commonly understood that the Brown Act does apply to bond oversight committees such as the CBOC.

NOTES: Although he claims, he's going to analyze the issue of the CBOC itself, Freiman quickly mucks it up with the subcommittee issue.
NOTES: Indeed, this is the threshold question. Freiman quotes the only language that gives the governing board any authority with respect to the CBOC and promptly and completely ignores the most crucial word, "independent". The Act of 2000 does not define it as a term, therefore, it is a common English word with a common English meaning.

Black's Law Dictionary

INDEPENDENT. Not dependent; not subject to control, restriction, modification, or limitation from a given outside source.

Dictionary.com

1. not influenced or controlled by others in matters of opinion, conduct, etc.; thinking or acting for oneself:
an independent thinker.

2. not subject to another's authority or jurisdiction; autonomous; free:
an independent businessman.

The CBOC was created by the legislature, universally and uniformly, for every school and community college district in California. The governing board's authority is explicitly limited to an appointment authority to fill it with members for each instance that a CBOC is required by the Act of 2000. Furthermore, a CBOC is not "[a] commission, committee, board, or other body of a local agency...." That would make it dependent. The district's governing board has no statutory authority over it. It is independent, as is necessary to fulfill its watchdog role. How then can Freiman say that it is "commonly understood?" By whom? By the school bonds cartel, of course. It wants control, the exact opposite of independence.
NOTES: To avoid an exception, Freiman jumps to yet another conclusion, perhaps based on that vaunted legal principle of "common understanding," with respect to a term of his own invention, "ongoing," which he substitutes for "continuing" in the statute. Did the legislature set this "ongoing subject matter jurisdiction?" In what statute, specifically? Freiman doesn't say. In fact, he resorts to "et seq." to avoid specificity, perhaps because there isn't any such language. He just creates it out of whole cloth. Does Freiman have some special insight about "continuing" being associated with a specific period of time? What if the governing board had its ducks all in a row and spent the entire bond proceeds in a month? What about a year? What about two years? What if it spent the bond proceeds from a single issuance of bonds in six months and didn't issue additional bonds for two years when it was ready to spend them. Would the CBOC have jurisdiction over anything during that two year gap? So what makes it either continuing or ongoing? One expenditure a year? One a quarter? One a month? Continuing connotes uninterrupted existence, not the discrete, choppy reality of bond expenditures. The shady manipulations of the school bonds cartel are, in fact, self-evident. The argument that Freiman uses closely tracks the position of the school bonds cartel. The way it acts, you'd think it was writing the law. In a sense it is, because no one questions it.

Turning to subcommittees of the CBOC, the law is silent on whether the same rules that apply to a Board-created standing committee also apply to a subcommittee thereafter appointed by that standing committee. While the CBOC is a "legislative body" for Brown Act purposes, we are aware of no guidance from the courts or otherwise as to whether a subcommittee of a committee similarly becomes a "legislative body," and bound by the same rules as are applicable to the committee itself.

NOTES: In so many words, Freiman has now stated that a CBOC is a "Board-created standing committee." If it were true that the governing board created it, then it must have also set its purpose, set its scope and duties, set the duration of its existence, delegated whatever authority it deemed advisable, appointed its chair, and selected and appointed its members along with their terms. In summary, the governing board must have set the rules of the CBOC. That is the relationship between governing bodies and subsidiary bodies. The problem is that all those actions, with the exception of the maximum number of members, has been preempted by the legislature in the Act of 2000. What statutory authority did the governing board have to do anything other than appoint the members? Note that it's very common in both statutory and parliamentary law to separate the appointment authority from the other powers.

In the absence of clarity on this issues, we consider the possible application of the elements of 54952(b) to the CBOC subcommittees. To the extent that the CBOC is a "legislative body" within the meaning of that section, then the subcommittee was arguably "created by formal action of a legislative body." That leads to consideration of the next question, which is whether the subcommittee is an advisory body composed solely of a non-quorum of the members of the CBOC. Our understanding is that this is the case, meaning that even if the Brown Act did apply to the subcommittee, the subcommittee may be an advisory or ad hoc committee that is not required to follow the Act. Assuming that the subcommittee sets its own schedule, that leaves the sole question of whether the subcommittee has continuing subject matter jurisdiction within the meaning of the Act.

NOTES: This is very rich indeed. Freiman finds only arguable support for the proposition that the CBOC can create a subcommittee. As you'll realize when you understand the background that instigated the questions being answered in this letter, the CBOC was planning to exercise all the creation powers that I described earlier, however unartfully. As an independent oversight committee, there would be no question that the CBOC has all the committee creation powers described under parliamentary law.

The answer to this last question is a complex one that is determined on a case-by-case basis. For example, in Joiner v. City of Sebastopol 125 Cal.App.3d 799 (1981), the court recognized that if a legislative body designates less than a quorum of its members to meet with representatives of another legislative body to exchange information and report back to the legislative body, the Brown Act would not apply to the meetings in question. (Id., at 805.) The court continued on, however, to state that if the committee was appointed to perform a specific task, such as making a particular recommendation, the committee would be covered by the Brown Act. (Id.) Similarly, the California Attorney General has concluded that the Brown Act does not apply to a committee that has no delegated decision-making authority, and is only compiling information

NOTES: In almost all of the rest of the opinion, all the citations address subsidiary bodies of a governing board and none address subcommittees. Therefore, all my commentary focuses on the CBOC itself. The subcommittee is, in the parlance of the day, a nothing burger.

NOTES: Freiman cites the Attorney General's conclusion that "the Brown Act does not apply to a committee that has no delegated decision-making authority" with approval. See Opinion of Attorney General 06-404, 89 Ops.Cal.Atty.Gen. 241 (2006).

The Brown Act broadly defines the term "meetings" to include "any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body . . . ." (Gov. Code, § 54952.2, subd. (a).) A "legislative body" is likewise broadly defined to include "[a] commission, committee, board, or other body of a local agency, whether permanent or temporary, decision making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body." (Gov. Code, § 54952, subd. (b).)

Nevertheless, these broad definitions do not encompass the kinds of meetings described here, involving staff employees and potential solid waste haulers, in which no member of the board of supervisors will be present and where no decision-making authority has been delegated to those in attendance. The county employees in question do not act as a subsidiary board or commission or a standing committee of the board of supervisors.

Instead, their task is to meet with interested parties, compile information about a specific problem, consider possible alternatives, and formulate proposals for the board's consideration.

Hence, in terms of the Brown Act, an essential factor is missing in these meetings: the staff members do not constitute a "legislative body of a local agency" within the meaning of Government Code section 54953. (Cf. 80 Ops.Cal.Atty.Gen. 270, 273-274 (1997).)3 However, if any proposals are developed at these meetings for consideration by the board, members of the public will have an opportunity to review the proposals, monitor the board's deliberations, and address the board before any action is taken, as discussed in answer to the second question.

89 Ops.Cal.Atty.Gen. 241, 247-8. (Complete context. Emphasis added.)

Freiman thinks it's accurate and persuasive. After all, he cites it to support his own conclusion. Under what conceivable notion then, if you follow the Attorney General's conclusion, would the Brown Act apply to the CBOC? This one is easy. You see, the CBOC is not a legislative body within the contemplation of the Brown Act. Neither did the legislature grant, nor did the governing board delegate any decision-making authority to the CBOC. In fact, if you read the typical rules the school bonds cartel espouses, you'll see a litany of prohibitory clauses disabusing the CBOC of the idea that it has any decision-making or even advisory authority. The school bonds cartel wants to have its cake and eat it too. But there are still hours to bill, so Freiman continues obfuscating and confusing the reader -- for the kids of course.

Bill Fay
January 23, 2014
Page 4

and formulating proposals to the legislative body. (89 Ops.Cal.Atty.Gen. 241 (2006).)1 The Attorney General has attempted to illustrate these nuanced differences by giving the following two examples, the first of which the Attorney General advises is a standing committee covered by the Brown Act, and the second of which is not a standing committee:

(California Attorney General's Office, The Brown Act: Open Meetings for Local Legislative Bodies (2003), p. 6, available at http://ag.ca.gov/publications/2003_Intro_BrownAct.pdf.)

NOTES: Written in 2003, three years after the Act of 2000, the Attorney General classifies legislative bodies as "GOVERNING BODIES" (54952(a)) and "SUBSIDIARY BODIES" (54952(b)). This classification agrees perfectly with the statutory language and all the court opinions on the subject. Even though Freiman pulls the two examples (above) from it, he doesn't reference the 100-page companion publication, in which there is no mention of citizens' oversight committees AT ALL. And why should there be? Citizens, after all, even as a group, are neither local agencies nor governing bodies of anything. All the Attorney General's examples are for governing bodies of local agencies with legislative, executive, or judicial authority and for subsidiary bodies in which members of the governing body are members. A CBOC has no authority or power to do anything but review bond expenditures and report its findings to the public. It has no statutory duty to the governing board to report or to do anything else. Meanwhile, the governing board has several statutory duties to the CBOC. Just more evidence that the CBOC is an independent committee at the same, top level as the governing board, but with a comparatively tiny jurisdiction.

Relying on the Attorney General's examples, the courts have found that when less than a quorum of a legislative body is asked to report in a purely advisory manner to the legislative body, that forms an ad hoc committee not governed by the Brown Act. (Taxpayers for Livable Communities v. Malibu ("Malibu"), 126 Cal.App.4th 1123 (2005).) In the Malibu case, two city council members who were the members of a city land use committee held meetings to review a report from the Coastal Commission concerning a proposed development. They specifically did so after the city council's direction that they "go over" the report. The two city council members met, received input from other individuals, and came back to the city with a recommendation. The court concluded that the two city council members did not act as a legislative body, and were merely providing advice, meaning that there was no Brown Act violation resulting from the failure of the two city council members to invite the public in general to attend their meetings. (Id., at 1128-29.) The court was also persuaded by the fact that the two city councilmembers had no decision making authority, and were merely giving advice to the council.

NOTES: A CBOC does not inherit any decision-making or legislative authority from the governing board. It has no duty to the governing board whatsoever. The governing board does not delegate any of its authority to the CBOC.

What can be distilled from the foregoing cases and Attorney General opinions is that each committee or subcommittee must be considered on its own merits. Elements that may point to a standing committee are long-term, ongoing responsibility; jurisdiction over a particular topic; a particular responsibility, such as making a formal recommendation; and the ability to bind the legislative body that appointed the committee to the committee's recommendation. On the other hand, elements that point to an ad hoc committee include committees of relatively shorter duration; a purely advisory charge; a specific, more limited task, such as completing and submitting a specific report; and no authority to bind the legislative body who appointed the committee. As can be seen from the examples above, the lines often blur, and there can be very fine distinctions between aspects such as making a formal recommendation versus making a

1 California Attorney General opinions, while not binding on a court, are considered by the courts to be persuasive.

NOTES: Reasoning based on a faulty assumption must also be faulty. Notice how Freiman describes elements of a "standing committee" which he deems the CBOC to be. Yet he didn't apply those elements or the implied weighting test (due to blurred lines) to the earlier analysis of the CBOC itself.

Bill Fay
January 23, 2014
Page 5

specific report. The courts and Attorney General have clarified that whether the committee is called a "standing" or an "ad hoc" is not relevant, and the focus will be on the substance of what a committee does, rather than on what the committee is called. (Frazer v. Dixon Unified School Dist., 18 Cal.App.4th 781 (1993); 79 Ops.Cal.Atty.Gen.69 (1996).)

NOTES: The courts look at the function, not the name given a committee. The function of the CBOC is neither legislative nor advisory, it is investigative, like a civil grand jury.

We understand that a CBOC member has made reference to a 1996 Attorney General opinion which concluded that "The meetings of a standing committee composed of less than a quorum of the legislative body of a local public agency are subject to notice, agenda, and public participation requirements of the Ralph M. Brown Act, if the committee has the responsibility of providing advice concerning budgets, audits, contracts, and personnel matters to and upon request of the legislative body." (79 Ops.Cal.Atty.Gen. 69 (1996).) We do not believe that this statement by the Attorney General was intended to create a hard and fast rule that every time a committee or subcommittee gives advice on audits, it is necessarily a Brown Act committee. In the Attorney General's opinion, there was very little discussion of the specific nature of the committee, other than that is was a subcommittee of a legislative body that had "the authority to hear and consider issues related to budgets, audits, contracts, and personnel matters and that its authority needs no renewal." The Attorney General also noted that "[t]he purpose of the subcommittee is to advise the legislative body when requested on those matters within its continuing subject matter jurisdiction." From these comments, it appears that the committee in question had broad jurisdiction over a fairly wide range of topics, from financial issues to personnel and specific contracts. In these regards, the subcommittee in question appears to have been delegated significant authority by the legislative body, beyond a single topic. The opinion thus appears distinguishable from the CBOC's subcommittees because each subcommittee has its own singular topic area (by-laws, audit, annual report and website). Additionally, since this opinion was issued in 1996, other Attorney General opinions, publications and court decisions that are discussed in this letter have provided further guidance that there is no absolute rule. This is made clear, among other things, by the illustrations provided in the Attorney General's 2003 publication on the Brown Act and the 2005 Malibu case, as discussed above. Finally, the Attorney General did not address the question of subcommittees of a committee, further distinguishing the facts of the opinion from the present circumstance.

NOTES: Didn't Freiman just claim that Attorney General opinions are persuasive? Perhaps it's another case of something applying only when you agree with it.
NOTES: In all the court cases, a governing board of a local agency delegated powers to or charged its committee with a task. The governing board is preempted from delegating anything to a CBOC or from charging a CBOC with a task because the legislature has defined the CBOC's jurisdiction. No general power of creating customized committees to suit its needs was used by the governing board. The legislature intentionally created a committee that would be uniform everywhere in the state. A governing board has no authority to shape a CBOC to its wants or desires. It simply has a discrete appointment authority completely severed from its general powers.
NOTES: All the court cases and this opinion are substantively distinguishable because they address the discretionary powers of a legislative body. This is underscored by the independent nature of the CBOC.
NOTES: Just as function trumps form, the plain intent of the legislature must be given full effect.
NOTES: Just as a committee's name cannot disguise its actual function, a statement that a committee is subject to the Brown Act has no bearing on whether the committee is actually subject to it. A legislative body's mere declaration that a CBOC is subject to a particular law does not make it so.
NOTES: The legislature clearly presumed that a CBOC was not subject to the Brown Act when it imposed the language of 15280(b) on the CBOC. If the legislature believed it was subject to the Brown Act, this language is not only superfluous, but also loaded with conflict with the Brown Act itself.
NOTES: The whole notion of subcommittees of a committee is a topic of discussion only because of the unfortunate designation of this independent body as a "committee." The Brown Act presumes a hierarchy of a top-level legislative body, that has the inherent power to delegate work to a lower level subset of itself. The term subcommittee is not found anywhere in the Brown Act because it presumes that "commission, committee, board" represent the universe of lower-level bodies. It does not contemplate subcommittees because such a body could not be created by a second-level body under the law, as Freiman points out below. The only reason a CBOC uses "subcommittee" is to disambiguate a lower-level, subsidiary body. It would be highly confusing, much like Freiman's opinion, to call a CBOC's audit subcommittee an audit committee.
NOTES: The attempts to deal with the confusion surrounding the request that this opinion addresses is predicated on trying to fit a square peg into a round hole. The Brown Act is the round hole. The CBOC is not subject to the Brown Act. Trying to force it into the Brown Act demonstrates (Q.E.D.) that it is an impossible task. Once the CBOC is relieved of this artificial constraint, the so-called "confusion" disappears.

Taking all of the foregoing into consideration, it is difficult to conclude with certainty whether the CBOC subcommittees may be standing committees governed by the Brown Act. Weighing all of the elements, we believe that the most likely conclusion is that the subcommittees are ad hoc committees that are not governed by the Brown Act. They are appointed by the CBOC, but their meetings do not appear to be based on a schedule set by the CBOC. When it comes to audit review, the CBOC is statutorily charged to engage in that process on an annual cycle -- the process does not last does not last beyond that limited time period for each audit. (See Ed. Code §15278(c).) Again, this is a defined period, rather than an ongoing effort with no outside date. Additionally, as noted above, each subcommittee addresses a singular topic. While the subcommittee may review information related to a topic, there is no indication that it actually has jurisdiction over that topic. Again, giving such jurisdiction to a subcommittee would actually appear to run afoul of the statutory charge given by the voters and the Legislature to the CBOC in the first instance. Furthermore, it is clear that the CBOC's subcommittees are merely advisory in nature -- they do not, and cannot, bind the CBOC.

NOTES: Of course it's "difficult to conclude" because Freiman's trying to compare apples and oranges.
NOTES: "They are appointed by the CBOC, but their meetings do not appear to be based on a schedule set by the CBOC." Really? Freiman's rationale is incredibly disingenuous. He uses it to protect his initial erroneous conclusion, based entirely on that most sacrosanct legal principle of "common knowledge." (Sarcasm intended.) Let's replace some words in that sentence. "They [CBOC members] are appointed by the governing board, but their meetings do not appear to be based on a schedule set by the governing board." If Freiman had used that sentence four pages earlier, this opinion would have ended right there. This is how lawyers make a mountain out of a mole hill. So, even based on his own reasoning, a CBOC is not governed by the Brown Act. Of course, we can go around in circles with this reasoning because of the legislature's unfortunate substantive use of the term "legislative body" in the definition of "legislative body." See how I deal with that issue in Is a CBOC a Legislative Body Subject to the Brown Act?.
NOTES: Subcommittees are appointed by the CBOC, which is not a legislative body to begin with, so its subcommittees cannot inherit from the CBOC any characteristics of a legislative body.
NOTES: Pure fabrication. The CBOC is not statutorily charged with anything in 15278(c). The listed items are wholly discretionary. The voters (he's referring to Proposition 39) have nothing to do with the CBOC. It's unfortunate that broad statements are made without attention to the actual law. When an analysis of statutes is sloppy, as opposed to rigorous, the conclusions are likely to be just assumptions, as with the sloppy analysis of the limited appointment authority granted to the governing board.
NOTES: Likewise, the CBOC does not, and cannot, bind the district's governing board of which it is totally independent.

Bill Fay
January 23, 2014
Page 6

The Malibu case is again instructive. There, a committee of a non-quorum of members of the legislative body reviewed a report, discussed it among themselves, and also solicited input from certain others. They then made a non-binding recommendation to the legislative body. The court appropriately found that the members of the legislative body were not acting as a legislative body or a standing committee, and rather were in an ad hoc advisory body, and therefore not bound by the Brown Act. (Malibu, supra, 126 Cal.App.4th at 1228-29.) This appears to be very similar to how the CBOC subcommittees operate. For example, the audit subcommittee will presumably consider reports received from the audits provided for Education Code section 15278. They will then advise the CBOC on their observations and discussions, and nothing that they recommend will be binding on the CBOC. This is similar to the fact pattern in Malibu that led to the conclusion that the Brown Act does not apply.

NOTES: How instructive can a case that is about a legislative body (a city council) be to a non-legislative body like a CBOC? The two have nothing in common. How can members of a non-legislative body ever act as members of a legislative body? That would be criminal personation of a public official, wouldn't it?
NOTES: Similar to how the CBOC subcommittees operate? The CBOC members are not members of a legislative body. How could they ever operate like one?

As noted above, the subcommittees will be judged for Brown Act purposes not by what they are entitled or what their by-laws state, but rather what they actually do. Towards that end, it is literally correct, as stated in the CBOC's existing By-Law Section 9, that "Sub-committees may be subject to the Ralph M. Brown Act...." That will depend entirely on how the subcommittees operate in practice. If the By-Law language was changed as proposed to discuss what may constitute an ad hoc or a standing committee, that will not change the fact that a court examining the subcommittee would not be swayed by anything other than the actual conduct of the CBOC and of the subcommittees.

NOTES: "judged ... not by what they are entitled ..., but rather what they actually do." Perfect. The CBOC cannot, by its enabling statutes, operate as a legislative body, therefore it is NOT subject to the Brown Act. Of course, Freiman won't contradict the earlier baseless conclusion that the CBOC is a legislative body, so we must endure more analysis. At taxpayer expense, of course. How much do you think Lozano Smith charged the district for this 10-page analysis?

In addition to the consideration above, we wanted to mention that when we presented a Brown Act training to the CBOC in 2012, a question was raised as to whether other CBOC's also have subcommittees, and whether these subcommittees comply with the Brown Act. We thereafter looked into that issue, and while we found a few instances of other CBOC's that appointed subcommittees, we did not find any evidence that any have applied the Brown Act's requirements to subcommittees. This may reflect a consensus understanding that such subcommittees do not require Brown Act compliance. To our knowledge, no challenge has ever been brought against any of these CBOC's for failure to have its subcommittees comply with the Brown Act, which may also reflect an even broader understanding around the state that the Brown Act does not, and should not, apply.

NOTES: The district paid Lozano Smith to present Brown Act training to the CBOC. Where in the Act of 2000 does the legislature impose this duty on the governing board? Where does the Act of 2000 impose any duty to train the CBOC on anything? Why would a district voluntary spend its funds for this unless it was in its self-interest to do so? That's the rub. It exposes yet another facet of the school bonds cartel's scheme to control oversight to an acceptable (to it), non-existent level. As for Lozano Smith, its monetary interest makes its legal opinions somewhat suspect and, at the very least, biased. Otherwise, it would be out all that training revenue from all the districts that it represents. Can you hear the cash register ringing up sales? Analysis. Ka-ching! Training. Ka-ching! Looking into issue. Ka-ching! Like judges in court opinions, Lozano Smith decides the outcome it wants and then spends insufferable pages of legalese to demonstrate the correctness of its opinion.
NOTES: Here we go again with unimpeachable legal principles like "consensus understanding" and "broader understanding." Who's understanding? The school bonds cartel lawyers, of course. Why doesn't Freiman raise the lack of Brown Act challenges to any CBOCs anywhere in the state? Could it be that even the public understands that CBOCs are not legislative bodies? If the public can understand, then why can't the lawyers? Because its not in their self-interest or their clients' self-interest to have an independent oversight body looking into how they misuse bond funds on a grand scale. It's been going on for so long, aided and abetted by the lawyers, that the lawyers may, besides losing face, be subject to joint liability for their past advice that what the districts are doing is "legal."

When there is no law directly on point, a court will often look to public policy considerations when deciding ambiguous statutory issues. From a policy perspective, there is a strong argument that the subcommittee should not be governed by open meeting laws. The Brown Act protects against a local agency essentially stepping around open meeting requirements by allowing its business to be conducted by proxy through a committee, including a committee of composed of members of the elected body of that agency. A CBOC is less subject to that concern, as it functions as a quasi-independent oversight entity, rather than an extension of the Board. (See Ed. Code §15278.) The reasoning behind the extension of the Brown Act to a committee is therefore less clearly applicable to a subcommittee, particularly a subcommittee of a CBOC.

NOTES: There is law directly on point -- 15278(a) -- that makes the CBOC an independent watchdog body. The public policy is explicitly expressed in the need for the independence of the committee and the highly restricted appointment-only authority of the governing board.
NOTES: As to the overall policy considerations behind the oversight function, like the Brown Act's broad policy imperative at 59450, it is laid out in the very first section of the Act of 2000 at 15264.

It is the intent of the Legislature that all of the following are realized:

  1. Vigorous efforts are undertaken to ensure that the expenditure of bond measures, including those authorized pursuant to paragraph (3) of subdivision (b) of Section 1 of Article XIII-A of the California Constitution, are in strict conformity with the law.
  2. Taxpayers directly participate in the oversight of bond expenditures.
  3. The members of the oversight committees appointed pursuant to this chapter promptly alert the public to any waste or improper expenditure of school construction bond money.
  4. That unauthorized expenditures of school construction bond revenues are vigorously investigated, prosecuted, and that the courts act swiftly to restrain any improper expenditures.

Is that not clear enough for Freiman? Every single one of the four policy goals laid out identifies "expenditures" as the overriding concern of the legislature. Those policy directives can only be realized by an independent body which the legislature created, not a subsidiary body which the governing board may constrain. There it is, in black-letter law, for a second time, the governing board is restricted to an appointment authority only.

NOTES: "local agency ... business ... conducted ... by proxy through a committee" The business of the CBOC is a watchdog. It is not the business of the governing board. In fact, it is a watchdog over the governing board. Again, the analysis fails to recognize "what they actually do."
NOTES: Freiman admits that the CBOC is "not an extension of the Board," yet can't bring himself to the logical conclusion that it is neither a governing body nor a legislative body, and therefore not subject to the Brown Act at all. This is absolute dogma for the school bonds cartel. It must not permit a working, independent mechanism like an oversight committee to upset its apple cart.
NOTES: Consider the source. Lozano Smith makes its money representing government agencies. Its lawyers come to think like government. Government wants to expand its power and control as much as it can. So, when Freiman derogates the CBOC as a "quasi-independent" committee, he's expressing his learned bias against anything that cannot be controlled. Freiman's intentional failure to apply the same analysis he uses for the subcommittee issue to the CBOC itself must be attributed to either willful blindness or cognitive dissonance.

Applying the Brown Act to a subcommittee of a committee could also lead to absurd results; what if the subcommittee then appoints a further subcommittee, and so on? At some point, it becomes unruly and confusing for the public to be receiving notice of and the opportunity to attend not just Board meetings, but also meetings of committees appointed by the Board,

NOTES: The absurd result is the unsupported conclusion that the CBOC is a creation of the governing board and thereby inherits legislative body characteristics despite members of the governing board being prohibited by 15282(b) from even being a member of the committee.

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meetings of subcommittees appointed by those committees, and possibly even meetings of subcommittees of subcommittees.

NOTES: Parliamentary authority stops division of work at subcommittees as do all legislative rules. There's a clear lack of knowledge of the workings of assemblies.

As an additional and significant policy consideration, the voters through Proposition 39, and then the Legislature through the implementing legislation, charged the CBOC with certain responsibilities. These include to "inform the public concerning the expenditure of bond revenues," to "advise the public as to whether a school district ... is in compliance" with Proposition 39, and to provide certain oversight duties. (Ed. Code §15278(b).) Additionally, a CBOC "may" receive and review annual audits. (Id., §15278(c).) The legislation is very express that it is the CBOC that is so charged -- not a subcommittee or some other body created by the CBOC. If the CBOC were to delegate its statutory responsibilities to subcommittees, it could violate its statutory charge. (See Bagley v. City of Manhattan Beach 18 Cal.3d 22, 24-25 (1976) (statutory obligations on a public entity are "in the nature of a public trust and may not be exercised by others in the absence of statutory authorization.").) Presumably, the subcommittees are therefore not being used to replace any duties of the CBOC, but rather simply to solicit and give input. This would further support the conclusion that they do not -- and arguably could not -- have any jurisdiction over a matter.

NOTES: Again we see a lack of knowledge of the scheme. The Act of 2000 was not implementing anything that the voters approved in Proposition 39. It was a ploy by the legislature to boost the chances of getting Proposition 39 passed. The money people behind Proposition 39 discovered through surveys, after it was too late to change the proposition, that voters would be more likely to pass it with independent oversight over the expenditure of bond funds. So, they do what money people do, they bought the legislature to help them out.
NOTES: Again, "it is the CBOC that is so charged" by the Act of 2000, not the governing board. The governing board is not delegating any of its authority. The authority comes from the legislature directly. This, of course, confounds the school bonds cartel which won't yield on any front, lest its hundred-billion-dollar fraud come a cropper.
NOTES: "If the CBOC were to delegate its statutory responsibilities" it would be illegal. How then can the governing board delegate its statutory responsibility to the superintendent, as a committee of one, to select the CBOC members? Legally, that is. We'll never get an answer to that from cartel lawyers.

As a final policy consideration, under Education Code section 15280(a)(1), the District is required to provide the CBOC with technical and other support, all "without expending bond funds." The District operates with limited funding for staff, as is the case with California public school districts in general. Adding additional tasks that are not otherwise contemplated in the laws implementing the CBOC requirements has the potential to overwhelm staff and unduly cut into the District's general fund. This, in turn, diverts resources from educating students. In this instance, if staff support will now be needed for subcommittees to prepare and post agendas and otherwise comply with the Brown Act, an unnecessary drain on District resources could result.

NOTES: The "drain on District resources" for this one letter is likely more than the posting of all the agendas of the all the CBOCs in the entire state for several years. It's nice to know that lawyers care about protecting the poor District.

2. Should the subcommittee agendas be posted on a website regardless of whether the subcommittee is governed by the Brown Act?

Education Code section 15280(b) provides that "[m]inutes of the proceedings of the citizens' oversight committee and all documents received and reports issued shall be a matter of public record and be made available on an Internet Web site maintained by the governing board of the district." (Emphasis added.) As this language plainly states, it is the minutes, documents and reports "of the citizens's oversight committee" that must be posted on a District web site. This does not expressly include agendas, minutes, documents or reports of a subcommittee of the CBOC. As a result, there is no specific requirement for posting a subcommittee's agendas.

NOTES: Why does Freiman suddenly get so precise about the language of the statute? Because it gives cover to the district to suppress the CBOC from putting anything else up on its web site that the district doesn't like. Freedom of speech be damned.
NOTES: Then see how Freiman suddenly converts "an Internet Web site maintained" by the district to "a District web site." It's subtle. The language clearly states the district is to maintain a web site for the CBOC. It can't just throw the CBOC's materials anywhere it wants on a district web site.
NOTES: The CBOC is an "independent" body. It's not part of some hierarchy of another governing body or agency. Even though it has no legislative authority, it sits at the top of and has all the powers of any other top-level body within its jurisdiction. Robert's Rules of Order Newly Revised describes in excruciating detail all those powers.

If the Brown Act were found to apply to a subcommittee, then the Brown Act's requirements for posting of agendas would be applicable, which includes the requirement of posting on "the local agency's Internet Web site, if the local agency has one." (Govt. Code §54954.2(a)(1).) However, as discussed above, there is a strong argument that subcommittees are not bound by the Brown Act.

As a result of the foregoing, it appears to be optional whether a subcommittee's agendas would be posted on a District or CBOC website. We note that if the agendas are posted, there is the possibility of some resulting confusion. A member of the public looking for information about

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the CBOC's meetings might be confused in seeing agendas for various subcommittees as to whether those agendas represent the proceedings of the CBOC itself.

It is also worth noting again that tasks such as preparing and posting agendas likely would fall to District staff. As discussed above, under Education Code section 15280(a)(1), the District is required to provide the CBOC with technical and other support at the District's cost. Having to prepare and/or post agendas could further diminish staff resources that would otherwise be available to fund the education of students.

NOTES: Too bad the district doesn't have that same concern when thinking about its luxurious facilities.

3. Are there any legal concerns regarding the proposed revision to the CBOC By-laws that is being considered by the CBOC in relation to the Brown Act questions above?

For your convenience and that of the CBOC, I have attached a reprinted copy of the proposed revisions to By-Law Section 9 regarding subcommittees. I have added 'keynotes' to each of the components of the revised language; the following are my comments on each of those components.

[1] In addition to the Audit Subcommittee, the Committee, by vote, can establish other standing committees.

This statement assumes that the audit subcommittee is a standing committee. As discussed above, this may not be the case. At best, the issue is sufficiently unclear that this assertion is unsupported. It is also unclear why only the audit subcommittee is singled out here. We also note that the CBOC vote to appoint a subcommittee does not mean that the subcommittee is a standing committee bound by the Brown Act. As discussed above, CBOC action to appoint the subcommittee only meets one of several factors in considering whether the subcommittee is in fact a standing committee.

[2] The Committee, by vote, or the Chair can establish ad hoc subcommittees or appointed officers appointed by the Chair.

As with standing committees, simply naming a committee as an "ad hoc" committee is not determinative of whether a court would find that the Brown Act applies. The proposed language is also somewhat confusing, as it appears to allow either or both the CBOC or the Chair of the CBOC to establish ad hoc committees. This could lead to the proliferation of subcommittees, and potentially even overlapping or conflicting subcommittees. In addition to these issues, it is not clear what an "appointed" officer would do, or why such a role is necessary. Finally, the language of the proposed by-law is confusing. What is meant by the repetition of "appointed" twice, and is it both the CBOC and the Chair who can appoint officers? If it is both that make appointments, how will conflicting appointments be avoided, and is there the possibility that both the CBOC and the Chair would attempt to appoint the same type of officer to the same subcommittee?

[3] If a subcommittee has a "continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body" [Government Code section 54952, subdivision (b)], it is a standing subcommittee subject to the Brown Act like the Committee.

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As discussed at length above, it is not the case that these factors alone turn a subcommittee into a standing committee that is subject to the Brown Act. The statement included in the proposed by-laws is therefore not necessarily legally accurate without greater explanation.

[4] An ad hoc subcommittee does not have a continuing subject matter jurisdiction and does not have a fixed meeting schedule, so it is not subject to the Brown Act but may follow it in whole or in part.

As also discussed above, these factors do not in themselves assure that a committee is an ad hoc committee that is not subject to the Brown Act. As a result, this again is not a legally accurate statement to include in the By-laws.

[5] An officer is an individual with a specific task or ongoing jurisdiction.

This term "officer" is sufficiently general and undefined that it remains unclear what the role is of an officer, how many officers there can be, whether they must be CBOC members, and so on. This also opens the question as to whether officers are needed, and even if they are, how to avoid a proliferation of such officers. Perhaps most significantly, the officer position is presumably not one that holds more than ceremonial responsibility. Under the statutes that created CBOC's, and as addressed above, it is CBOC's that are responsible for the duties set forth in Education Code sections 15278, et seq. Just as there are concerns about attempts to delegate those duties to a subcommittee, there would be perhaps even more significant concerns about delegating any of those duties to an individual.

[6] The CBOC Chairperson shall appoint a chair for each subcommittee.

The appointment of a chair for a subcommittee does not in itself appear to lead to a particular conclusion about the applicability of the Brown Act. However, the interplay between this statement and earlier statements about appointment of officers is confusing, and possibly redundant or conflicting.

In light of the foregoing observations and the significant legal complexity, we would recommend against the proposed changes to Section 9 of the By-Laws.

Conclusion

In light of the considerations above, it remains unclear whether the Brown Act applies to subcommittees of the CBOC. While we believe that it likely does not apply, until there is a court precedent looking at the same situation, it is difficult to state with certainty whether the Brown Act should be followed. Please note that while we have identified many of the relevant Brown Act issues in this letter, we have not exhaustively researched all of the related issues in the time allotted for this assignment. We should be happy to discuss these complex issues further

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with you or with the CBOC, or to undertake additional research if desired. In the meantime, feel free to contact me with any questions or if I can provide anything further at this time.

Sincerely,

LOZANO SMITH

/s/

Harold M. Freiman

HMF/gm

Encl. (as referenced above)

WRAP UP: Let's look at one more aspect of CBOCs that is never raised by the school bonds cartel. Liability. It's plain as day that a local agency can be sued for actions of its legislative bodies. Freiman cites Frazer v. Dixon Unified School Dist. and Taxpayers for Livable Communities v. Malibu repeatedly. Can a district be sued, legitimately, for the actions of CBOC members when acting in that capacity? First off, one might ask what a CBOC has authorization to do that it might incur liability. The legislature is explicit and clear that a CBOC's jurisdiction is to review expenditures for compliance with Proposition 39 and report its findings to the public. Can it be sued for doing those things? Can it be sued for not doing those things? Who would be injured (have standing)? But most importantly, would the acts or omissions of a CBOC make the district liable? One might further ask whether CBOC members are bonded (like every public employee and elected official) or covered under a district's liability insurance policy. If a district were sued, don't you think that its lawyers and insurers would argue that a CBOC is not an agency of the district, but an "independent" body over which the district, by law, has no authority. Even with respect to Brown Act remedies, who would the complaint be directed to? The CBOC or the governing board? I don't know the answers to all these questions, but all reasoning and logic would suggest that a district would vigorously fight any assertion that it's responsible for anything a CBOC does. That militates against Freiman's conclusions about the CBOC. The simple answer is actually the correct answer. The CBOC is not subject to the Brown Act because it is independent of any local agency or legislative body.

 


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