Attorney General Determines That Use of E-Mail to “Develop a Collective Concurrence” Is Prohibited Under The Brown Act

In a recent opinion, the Attorney General addressed the use of e-mail under the Ralph M. Brown Act, Government Code §§ 54950-54962. (Opinion No. 00-906 (Feb. 20, 2001). The Brown Act under section 54952.2 prohibits the “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.” Applying this section, the Attorney General concluded that a majority of the members of the board of a local public agency may not use e-mail to develop collective concurrence on action to be taken by the board.

According to the Attorney General, sending e-mails would be the “use of . . . technological devices.” However, the Attorney General also noted that section 54952.2 applies only to the use of e-mails "by a majority of the members of the legislative body"; anything less is not covered by the statute. As for the issue of what constitutes use of e-mails “to develop a collective concurrence as to action to be taken on an item,” the Attorney General stated that such activity would include exchange of facts and substantive discussions to advance a member’s understanding of an issue or to facilitate an agreement or ultimate resolution of an issue.

The proposed question to the Attorney General assumed that the agency took the precautions of sending copies of the e-mails to the secretary and chairperson of the agency, posting the e-mails on the agency’s Internet website, and reporting the contents of the e-mails at the agency’s next public meeting. The Attorney General determined that these precautions were not sufficient to avoid violating the Brown Act. The Attorney General noted that persons without Internet access would be unable to monitor the deliberations as they occur and debate could well be over before the public could participate.

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