BILL ANALYSIS
AB 1827
Page 1
Date of Hearing: March 24, 2004
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Sim?n Salinas, Chair
AB 1827 (Cohn) - As Amended: March 15, 2004
SUBJECT : Bureau of State Audits: closed sessions.
SUMMARY : Creates a new exception to both state and local
government open meeting laws that would allow state and local
government bodies to meet in closed session for the purpose
of discussing a confidential final draft audit report from the
Bureau of State Audits.
Specifically, this bill :
1)Allows a legislative body of a local agency to meet in closed
session for the purpose of discussing its response to the
final draft audit report, a confidential document prepared by
the State Auditor, and further specifies that after the public
release of the audit report that a local agency must then meet
in open session if it wants to deliberate further.
2)Allows a state body to meet in closed session for the purpose
of discussing the final draft audit report, a confidential
document prepared by the Bureau of State Audits (State
Auditor), and further specifies that after the public release
of the audit report that a local agency must meet in open
session.
3)Allows a state body, or local agency to hold a closed session
to consider its response to a confidential draft audit report.
EXISTING LAW :
1)Provides, pursuant to the Ralph M. Brown Act (Brown Act), that
the meetings of the legislative body of a local agency are
required to be conducted openly, publicly, and after public
notice of agenda items, with specified exceptions.
2)Provides, pursuant to the Bagley-Keene Open Meeting Act
(Bagley-Keene Act), that all meetings of a state body shall be
open and public and all persons shall be permitted to attend
any meeting of a state body except as otherwise provided, and
that its purpose is to allow the public to attend, observe,
monitor, and participate as fully as possible in the
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decision-making process of state bodies.
3)Prohibits any officer or employee of any publicly created
entity that has assisted the State Auditor in the course of
any audit or that has received a draft copy of any report for
comment or review from divulging the particulars, and further
states that violation of this provision will result in a
misdemeanor.
FISCAL EFFECT : None
COMMENTS :
1)The Brown Act governs the rules for meetings conducted by
local legislative bodies, such as boards of supervisors, city
councils, and school boards. The Brown Act is meant 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 and requires most local agency meetings be open to the
public. However, the following exceptions have been carved
out to provide local agencies with some flexibility where the
Legislature has found it to be warranted:
a) License or permit determination;
b) Conference with real property negotiators;
c) Conference with legal counsel regarding existing or
anticipated litigation;
d) Liability claims;
e) Threat to public services or facilities;
f) Public employee appointment;
g) Public employment;
h) Public employee performance evaluation;
i) Public employee discipline/dismissal/release;
j) Conference with labor negotiations;
aa)Case review planning;
bb)Report involving trade secret;
cc)Hearings; and
dd)Charge or complaint involving information protected by
federal law.
2)The Bagley-Keene Act requires all meetings of a state body to
be open and public and grants the right to attend such
meetings to all persons, with certain exceptions. The act
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requires these public meetings to be noticed with an agenda
that contains the items of business that may be acted upon at
the meeting. The act defines a state body to mean every state
board, commission, or similar multimember body of the state
that is created by statute or required by law to conduct
official meetings and every commission created by executive
order. Neither the Brown Act nor the Bagley-Keene Act
includes an exception that would allow closed session
discussion of a confidential draft audit report from the State
Auditor.
3)The state's "accounting firm", the State Auditor, provides
independent, nonpartisan assessments of California
government's financial and operational activities. The State
Auditor is organized under the executive branch and is funded
by public monies via the General Fund. However, recognizing
the importance of audit independence, the statute creating the
Bureau of State Audits specifically states: "In order to be
free of organizational impairments to independence, the bureau
shall be independent of the executive branch and legislative
control." The State Auditor requested the author to introduce
AB 1827.
4)In December 2003, the State Auditor published a report
regarding the California Integrated Waste Management Board
(Board). The Board is organized under the State of
California's Environmental Protection Agency and as such is
subject to state open meeting laws. While the subject of the
report is not relevant to AB 1827, the Board specifically
mentioned in its official response that it could not
thoroughly respond to the report because it is bound by
State Auditor confidentiality requirements. The Board stated
that, "Due to the confidential nature of the document and the
fact that the Board may not deliberate except in a noticed
public meeting, the Board itself had not been able to discuss
this response."
5)According to the author, a state or local government body's
inability to meet in closed session to discuss ongoing audits
presents a persistent challenge for the State Auditor. While
state and local legislative bodies respond to the reports,
they are often incomplete due to the Catch-22 of
confidentiality and open meeting law requirements. The
conflict prevents the auditee's board members from meeting as
a group to discuss a report's accuracy amongst themselves or
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with their staff. More importantly, it does not allow board
members to formulate a plan of action based on the
recommendations or to discuss their disagreement with the
findings, resulting in the board's plan of action not being
included in the report. This partial response hampers the
Legislature's ability to fulfill its oversight role. AB 1827
permits state and local governmental bodies to meet in closed
session for the narrow purpose of discussing its response to
the confidential draft report.
6)This bill is double-referred to the Committee on Governmental
Organization, where issues relating to the Bagley-Keene Open
Meeting Act will be addressed.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Frances Chacon / L. GOV. / (916)
319-3958