BILL ANALYSIS
AB 1945
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1945 (Simitian)
As Amended August 26, 2002
Majority vote
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|ASSEMBLY: |69-3 |(May 28, 2002) |SENATE: |25-4 |(August 27, |
| | | | | |2002) |
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Original Committee Reference: L. GOV.
SUMMARY : Subjects the willful disclosure of confidential
information discussed during local legislative closed meetings
to formalized penalties.
The Senate amendments :
1)Specify nine closed session "safe harbor" exceptions where a
person may not disclose confidential information that arises
out of that closed session.
2)Allow any person, not just local agencies, to seek injunctive
relief, take disciplinary action, or refer any person to grand
jury.
3)Include, in addition to the penalty provisions of this bill,
any current remedy available by law to be applied when
confidential information from a closed session is disclosed.
4)State that a local agency cannot penalize any person in any of
the following three instances when a member of a governing
body: a) makes a confidential inquiry or complaint to a
district attorney or grand jury concerning a perceived
violation of law; b) expresses an opinion concerning the
propriety or legality of actions taken by a local agency
governing body in closed session; and, c) discloses
information acquired by being present in a closed session
under this chapter that is not confidential information.
5)Add, to the above instances, disclosures protected by the
whistleblower statutes (Labor Code Section 1102.5 et seq., and
Government Code Section 53296 et seq.).
6)Specify that when a local agency takes a disciplinary action
AB 1945
Page 2
against an employee who has willfully disclosed confidential
information that the employee in question has either already
received training or has been given prior notice of the
requirements of this bill.
AS PASSED BY THE ASSEMBLY , this bill:
1)Specified that no person can disclose confidential information
derived from a local agency closed meeting, unless the
governing body authorizes the disclosure.
2)Defined "confidential information" as information that has
been acquired by being present
in the closed session and which consists of: a) a communication
concerning pending litigation within the attorney-client
privilege; b) a communication concerning matters posing a
threat to the security of public buildings, access to public
services, or personnel matters; or, c) strategies or
instructions discussed between the legislative body and its
negotiator.
3)Specified that if a local agency member is found to have
willfully disclosed confidential information that one of the
following may apply: a) a local agency may seek injunctive
relief to prevent the disclosure of confidential information;
b) a local agency may take disciplinary action against an
employee who has willfully disclosed confidential information;
or, c) a local agency may refer the matter to the grand jury
for investigation and possible indictment.
FISCAL EFFECT : Unknown
COMMENTS : The 1953 Ralph M. Brown Act (Brown Act) governs the
rules for meetings conducted by local governing bodies, such as
boards of supervisors, city councils, and school boards. The
Brown Act represents the Legislature's determination of how to
strike a balance between public access to meetings of
multi-member public bodies on the one hand, and the need for
confidential candor, debate, and information gathering on the
other. The Legislature has established a presumption in favor
of public access requiring most local agency meetings be open to
the public. However, there are generally exceptions to every
rule and the Brown Act contains eleven.
This bill seeks to penalize those members that sit on a local
AB 1945
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agency governing board who "leak" confidential information
obtained from a closed session hearing. An example of a leak
would be a mayor that passes a maximum bid price onto a
developer resulting in an unfair advantage for that developer.
Current law subjects members of a governing body to a
misdemeanor if they are found to have deprived the public of
information. However, in the reverse, there are no formal
penalties for divulging confidential information - members
operate on the honor code system. The author states that
penalties are needed to protect against misuse of the
confidential information in regards to certain specified
exceptions.
Under this bill, there are three formal penalty options for the
use of any person to mitigate the disclosure of confidential
information; two remedies for local agency members and one for
employees. The first allows for the local agency to seek
injunctive relief to prevent further disclosure. The second
allows the local agency to refer the member to the grand jury
for investigation or accusation if he or she is found to have
willfully disclosed the confidential information. The third
option is intended to deal with the personnel related exceptions
that deal with matters such as employee salaries and
performance. For the third penalty, employees that willfully
disclose confidential information may be subject to
"disciplinary action" by the local agency. However, recent
amendments to this bill specify that an employee must have
received training or knowledge of the requirements of this bill
prior to the disciplinary action. Other amendments allow for
any person to initiate any one of the three penalties provided
in the bill and not limit them to just local agencies. In
addition, the bill now expressly states that penalties are no
longer limited to these three - any current remedy available by
law can also be applied when confidential information from a
closed session is disclosed.
Analysis Prepared by : Frances Chacon / L. GOV. / (916)
319-3958
FN: 0007250