2020 amendments to the Ralph M. Brown Act (Gov. Code §§454950-54963)(“Brown Act” or “Act”) address how public officials may use social media, but not to conduct regular or specific business through those platforms. The new law (AB 992; 2020 Stat., Ch. 89 (Effective September 18, 2020) was designed to provide more clarity for elected officials on what types of discussions can be had over social media absent formal public notice under the Brown Act. More specifically, the modifications to the Act do not bar public officials from using social media, but it restricts use of social media where a prohibited “serial meeting” (a chain of communications that ultimately involves a majority of a legislative body) could occur.
The law prior to the amendments defined a “meeting” to include a quorum of the majority of members of a legislative body at the same time and location including teleconferencing. (Gov. Code § 54952.2(a)). A legislative body is defined as a commission, committee, board, or other body of a local agency. (Gov. Code §54953(a).) It further stated that the majority of members of a legislative body shall not use an intermediary to communicate business matters that are the jurisdiction of the legislative body. (Gov. Code § 54952.2(b)(1).)
The amendments to the Brown Act include the following additions to Section 54952.2:
- The Brown Act does not prevent members of a legislative body from independent conversations via social media platforms to answer or clarify generalized public questions;
- The members using social media shall not respond to specific communications or direct messaging from one another through social media;
- Members may not discuss specific issues among themselves on social media outside of the formal notice process; and
- Social media shall be considered any open access, free social media internet platform excluding any private chat rooms or forums equivalent to a private chat room.
The Brown Act specifies that while members of a governing body may post or solicit information from the public generally, they may not directly communicate with other public officials from the same governing body about issues with any specificity outside of the formal notice process under the Brown Act. Discussing said issues among members of the legislative body includes but is not limited to any express reaction to a post made by another member of the governing body (such as a thumbs up).
The Brown Act further provides that direct messaging and communications between members of a legislative body may be a violation of the Brown Act. This form of communication includes one on one communication where the chain of custody between the one on one communication could be linked to a majority of the legislative member’s opinions on an official matter for consideration. Nothing in the amendment prohibits a public official from providing information on a government action through social media. It does, however, prohibit a forum for input or debate between other legislative member’s outside of the regular restrictions of the Brown Act.
For more information see the bill.
William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi are attorneys at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.