Davis City Attorney Issues Guidance to Commissioners on Brown Act and Social Media in Light of AB 992

By David M. Greenwald

Davis, CA – Last year the California legislature updated the Brown Act with AB 992 to create guidance for local legislative bodies with regard to the use of social media by their members.

Naturally, prior to the passage of this legislation, the Brown Act—which requires public meetings, thereby governing communications and preventing members from holding non-public or quasi-non-public meetings—“was silent regarding social media and its use by members of a legislative body.

“This led to uncertainty as to whether certain uses of social media could result in unintended violations of the Brown Act,” City Attorney Inder Khalsa explained in a letter to City Commissioners.  “The new bill clarifies certain allowable uses of social media and provides guidance for applying the principles of the Brown Act to social media.”

At the same time, she said, it “also raises some new questions regarding what constitutes an ‘internet-based social media platform.’”

She said she is hopeful there will be additional guidance in terms of the application of the law within the next few years.

Under the Brown Act, meetings of legislative bodies must be open and sufficiently noticed.  The Brown Act defines a meeting as any sort of communication between a majority of members of the legislative body where they hear, discuss, deliberate or take action on an item before them.

In addition, “Members are also prohibited from using a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that
is within the subject matter jurisdiction of the legislative body. These types of interactions are often referred to as ‘serial meetings.’”

“As use of social media has grown more prevalent as a way of communicating with constituents and sharing information, we have been concerned that some social media interactions could be considered an illegal or serial meeting if multiple members are ‘interacting,’” Khalsa explained in the letter.  “The difficulty came with determining what could be considered a ‘communication’ for purposes of complying with the Brown Act.”

AB 992 creates more defined but also more stringent requirements.

Under the new law, the Brown Act is amended to specify “a member of a legislative body may engage in separate conversations or communications on an internet-based social media platform to answer questions, provide information to the public, or to solicit information from the public regarding a matter that is within the subject matter jurisdiction of the legislative body.”

However, two members of the legislative body “are prohibited from using an internet-based social media platform to discuss among themselves their public agency’s business.”

Khalsa directs: “You are now prohibited from responding directly to any communication on an internet-based social media platform regarding a matter that is within the subject matter jurisdiction of your Commission that is made, posted, or shared by any other member of your Commission.”

That means that “Commissioners cannot ‘like,’ ‘retweet,’ ‘share’ or otherwise react to a post made by another Commissioner that touches on topics within the subject matter jurisdiction of their Commission.”

She adds, “This prohibition applies to interactions between just two Commissioners, which is a unique element since an interaction between two Commissioners in person (or through another medium) would not otherwise be prohibited under the Brown Act.”

While this seems clear with regard to platforms such as Facebook and Twitter, she notes there are “some interpretative questions” as well.

“Internet-based social media platform” is defined by the bill to include any “online service that is open and accessible to the public.”

“Open and accessible to the public” is further defined to mean that “members of the general public have the ability to access and participate, free of charge, in the social media platform,” with the only requirement for entry or membership being compliance with platform protocols and rules.

She says, “The bill was clearly intended to include Facebook, Twitter, LinkedIn, and other platforms commonly referred to as ‘social media.’ It also includes forums and chatrooms that are accessible to members of the public.”

She does not believe, however, it applies to sites like NextDoor “that impose additional requirements (residency) on participants, private Facebook ‘groups,’ closed chat areas, or other internet sites that are not open to the public free of charge.”

She further notes that “the bill prohibits ‘responding directly’ to a post by another Commissioner or engaging in ‘discussion’ on a topic that relates to the subject matter jurisdiction of the Commission.”

But she said, “It does not appear to expressly prohibit Commissioners from separately responding to a communication regarding the Commission’s subject matter jurisdiction that was posted by someone who is not a Commissioner as long as they avoid any ‘discussion’ with each other.”

The question is whether local internet news sites or blogs constitute “internet-based social media platforms.”

She writes, “Generally speaking, a news site that allows a member of the public to read a certain number of posts for free before ‘paywalling’ additional content probably would not be considered ‘free of charge’ or subject to AB 992.

“Blogs are more difficult to analyze, as they do offer their content for free,” she said.

She writes, “Without additional guidance from the legislature, Attorney General, or courts on this point, it would be best to assume that the ‘comments’ fields on news sites or blogs could be considered ‘social media’ for the purposes of AB 992.”

Bottom line, she says, “the main takeaway for Commissioners is that while social media posting is allowed, Commissioners cannot interact with the posts of other members on topics within the subject matter jurisdiction of their respective Commissions.”

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Alan Miller

    Blogs are more difficult to analyze

    You can say that again.

    it would be best to assume that the ‘comments’ fields on news sites or blogs could be considered ‘social media’

    I am not on social media.

    Commissioners cannot interact with the posts of other members on topics within the subject matter jurisdiction of their respective Commissions

    I am so going to miss the old commissioner knock-downs on these pages.

  2. Bill Marshall

    Will have to look at the bill… only the Planning Commission is arguably a ‘legislative body’… and THAT’s heavily limited…

    Is the CA letter available on the City website?

  3. Don Shor

    The Tree Davis board welcomed the new Tree Commission members with an email. Someone replied that we should have a joint meeting some day. Someone else jumped in to say they couldn’t discuss that idea by email due to Brown Act.

    Tree ordinance comes up at Tree Davis board meeting. One board member is on the tree commission. That member would have to remove self from board meeting if we discussed it there.

    If the tree ordinance came up on the Vanguard, tree commissioners would probably be constrained from commenting on the topic here.

    It goes on. I don’t see how any commissioner can participate in public discussions on any public forum under this advisory.

    1. David Greenwald

      They can notice a meeting and then have a public discussion. To be honest though, suggesting a joint meeting is not Brown Act precluded. It has to be policy oriented. Scheduling a meeting is permissible.

    2. Richard_McCann

      A commissioner can participate so long as another commissioner is not. I’m on the NRC and participate. This might have been a problem while Alan Pryor was on the NRC but now that he’s gone, that potential conflict is gone.

      The Brown Act has gone from facilitating transparency to being used as a muzzle by local government staff to muzzle informed citizen discussion. In this day and age, it would be better to just make all email traffic by all government officials and staff readily available to the outside public.

      1. David Greenwald

        Interesting point on muzzling citizen discussion.

        I would point out, the Brown act prohibition only applies to items specifically before your commission and only prior to your commission voting on them – after the fact, you are free to go.

    1. Bill Marshall

      Interesting question… as I have seen it used, it is ‘by invitation only’… you need to ‘sign-in’ to use it, in responding to the invitation…

      So, it isn’t clear, if the “invitation” is publicly noticed (which is another vague area), how a Zoom meeting fits into the definitions in AB 992…

      Actually, is clear… as clear as the La Brea tar pits… (actually, not ‘tar’, but rather naturally occurring ‘asphalt’… which fits the point… how things are ‘defined’, and ‘interpreted’…) …

  4. Bill Marshall

    Bill Text – AB-992 Open meetings: local agencies: social media.

    Known as a ‘primary source’… always preferable to ‘secondary sources’…

    California Government Code Section 54952 – California Attorney Resources – California Laws (onecle.com)  

    Darn near ‘primary source’, and reads, in part:

    As used in this chapter, “legislative body” means:
    (a) The governing body of a local agency or any other local body created by state or federal statute.
    (b) 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.  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.

    AB 992 appears to be a “stupid” law, inconsistent with the intent of the term “quorum”, in the original law… a “quorum of two”?

    So David, you appear to be technically correct… in spite of relying on a ‘secondary source’…

    Still, a ‘stupid law’ that should be revised, in my opinion, as it flies in the face of what “quorum” means elsewhere in the Codes.



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