104-C - San Francisco Policy.pdfwould require a separate notice and posting of an agenda for a meeting of that particular
committee.
3. Voting requirements
Secret or anonymous ballots are prohibited Govt. Code § 54953(c); see generally Charter
§§ 2,109, 4.104(a)(3); Admin, Code §§ 1.29, 67.16. Even if members of the policy body
think that a public vorc on an item would be awkward or unpleasant, as sometirnes
happens when the body is electing officers, the body must conduct a public vote. Only
votes during closed sessions may occur in secret - and the body must disclose manor of
those votes at the end of the dosed session. See Section TV(H)(1)(F) below.
An absent member of a policy body may not vorc by proxy. See generally Charter §§
2.104(b), 4,104(b); Admin. Code §§ 1.29, 67,16. The Brown Act and Sunshine Ordinance
presuppose that members of policy bodies will render decisions at meetings. To permit an
absent member to cast a vote without being at the meeting, by communicating the vote to
another member or the clerk of the body, is inconsistent with these laws. Further, proxy
voting is at odds with the City's requirement that members of appointive boards,
commissions, and other units of government, and members of bodies created by legislation,
be "Presen.t" at meetings. See Section LV(E)(4) below.
Members of appointive boards, commissions, and other units of government, and members
of bodies created by legislation, must vote on every matter before them, with two
exceptions. As rioted elsewhere in this Ouide, a member must not vote on a matter where
the member's vote would violate a conflict of interest law. In addition, the body by a
motion adopted by a majority of members present may excuse a member from voting for
any reason. Charter §§ 2.104(b), 4.104 [b); Admin. Code § 1.29,
For appointive boards, commissions, and other units of government, when determining
whether action on an agenda item is approved, the policy body must count the vote based
on the total number of seats comprising the body rather than the number of seats currently
filled or number of members present. Charter § 4.104(b). The policy body's rules may
provide For votes on procedural matters to be determined by a majority of the rnernbers
present, so long as a quorum is present. Charter § 4.104(b). The Charter does not define a
"procedural" matter for this purpose, and context may be critical to the definition, I there
is a question whether a particular vote is on a procedural matter, we recommend
consulting the City Attorney's Office, preferably in advance of the meeting if the presiding
officer or others anticipate that the question may arise.
4. Meetings by teleconference
"Teleconference" means a meeting of a pal icy body, the members of which are in more than
one location. connected by electronic means, through either audio or video, or both. Govt.
Code § 5495(b)(4). Under the Brown Act, policy bodies may elect to meet by
teleconferences, if certain requirements are satisFied. Govt. Code §§ 54953{b){1), (). But
the Charter requires the physical presence at one meeting site of the members of
appointive hoards, conunission% or other units of government, and the Administrative
Code contains a similar preserve requirement for policy bodies created by legislation.
Part three: Public records and meetings laws 113
Char -ter§ 4,104(b); Admin. Code§ 1.29. Therefore, these bodies may not meet by
teleconference.
Policy bodies not covered by the proscription against teleconferencing may elect to meet
by teleconference iF the Brown Act' requirements are satisfied: Each teleconference
location must be identified on the agenda; the agenda must be pos Led at each location; each
location must be accessible to the general public and to disabled persons; members of the
public must have an opportunity to address the rest of the body directly from each
teteconference location; and during the teleconference at least a quorum of the body must
participate from within the geographic boundaries of the City, Govt. Code §§ 54953(b)(3),
54961. As a practical matter, these requirements may be difficult to satisfy.
There is ono exception to the Charter's proscription of teleconferencing. The voters have
amended the Chaner to permit teleconferencing pursuant to ordinance when a member of
a policy body is physically unable to attend a meeting in person, as certified by a health
care provider, due to the member's pregnancy, childbirth, or relaLed condition, and also
when a member is absent to care for his or her child after birth of the child, or alter
placement of the child with the rnemher or the member's immediate family for adoption or
Foster care. Charter §§ 4.104(b), 4,104(c). But the Board of Supervisors has not enacted an
implemendrig ordinance. Sec also Charter §§ .104(a), (c) [parallel previsions applicable
to the Board of Supervisors).
5. Text messaging dudng meetings
Neither the Brown Act nor Sunshine Ordinance addresses text messaging during meetings,
and there is no definitive case law on the subject. The City Attorney's Office strongly
discourages the practice.
Text messaging or use of other personal electronic communications devices during
meetings is especially problematic when the policy body is holding an adjudicative hearing,
such as a herring to grant or suspend a permit, that will aFfect individual private interes Ls.
Text messaging during such a hearing could enable a member to surreptitiously
communicate with one of the parties, or receive evidence or dirertion as to how to vote,
from an outside party, that other members of the body and the parties do not see. These
circumstances may undermine the integrity or the proceeding and raise due proccrss
COncernS.
Even outside the adjudicative context, text messaging or use of other personal electronic
communications devices during any meeting of a policy body presents serious problems.
The Brown Act and Sunshine Ordinance presume that public input during a meeting wilt be
"on the record" and visible to those who attend or view a tape of the meeting. But
members of the public will not observe the text messages that members of the policy body
receive during the meeting, Hence the public will not be able to raise all reasonable
questions regarding the basis for the policy body's actions. And Lext messaging among
rnembei-s of the policy body concerning an agenda item or ether business of the body rould
lead Lo an unlawful seriatim meeting in the midst of a formal meeting.
Ol' course, text messages that policy body members send or receive during a rneeting may
have nothing to do with the body's business. But a member of the public observing the
124 Good Government Guide. 20 10-11 Edidon