BILL ANALYSIS
Bill No: AB
1827
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Edward Vincent, Chair
2003-2004 Regular Session
Staff Analysis
AB 1827 Author: Cohn
As Amended: May 4, 2004
Hearing Date: June 15, 2004
Consultant: Art Terzakis
SUBJECT
Open Meetings: state audits
DESCRIPTION
AB 1827 allows a state body or the legislative body of a
local agency, including any other public agency subject to
open meeting laws, to hold a closed session to consider its
response to a confidential final draft audit report from
the Bureau of State Audits, unless the report has been
publicly released or is exempted from that requirement by
some other provision of law.
PRIOR/RELATED LEGISLATION
AB 569 (Cohn) Chapter 107, Statutes of 2003. Deleted
obsolete references to the Auditor General and made other
code maintenance and clarifying changes to various sections
of law that reference the duties of the State Auditor and
Bureau of State Audits.
EXISTING LAW
In 1993, Senators Maddy and Roberti authored SB 37 (Chapter
12, Statutes of 1993) which created the Bureau of State
Audits headed by the State Auditor to replace the former
Auditor General's Office that closed the previous year due
to budget reductions.
As the state's independent external auditor, the State
AB 1827 (Cohn) continued
Page 2
Auditor provides independent, nonpartisan, accurate, and
timely assessments of the government's financial and
operational activities in compliance with generally
accepted government auditing standards. The State Auditor
is within the Executive Branch and is funded by public
monies from the General Fund.
Existing law prohibits the release of any papers,
correspondence, memoranda, or any substantive information
pertaining to an audit not completed, and prohibits the
State Auditor and any employee or former employee of the
Bureau of State Audits from divulging or making known to
any person not employed by the bureau any particulars of
any record, document, or information not expressly
permitted by law.
The following statutory provisions govern the public's
access to government records and meetings of government
bodies:
(a) The Bagley-Keene Open Meeting Act (Government Code
Section 11120 et seq.) 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 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. In addition, the Act excludes from
that definition certain bodies of the Judiciary and
Legislature, among other things.
(b) The Ralph M. Brown Act (Government Code Section 54950
et seq.) which governs meetings of legislative bodies of
local agencies (e.g. boards of supervisors, city
councils, school boards) is substantially similar to the
Bagley-Keene Act and requires local legislative bodies
to hold meetings in open forum after public notice of
agenda items. The Brown Act also recognizes the need,
under limited circumstances, for these bodies to meet in
private in order to carry out their responsibilities in
the best interests of the public and provides for
specified exceptions. Both acts (Brown Act &
AB 1827 (Cohn) continued
Page 3
Bagley-Keene Act) provide that the covered entities
"exist to aid in the conduct of the people's business"
and that their actions "be taken openly and that their
deliberations be conducted openly."
Both acts also provide that? "The people of this state
do not yield their sovereignty to the agencies which
serve them. The people, in delegating authority, do not
give their public servants the right to decide what is
good for the people to know and what is not good for
them to know. The people insist on remaining informed
so that they may retain control over the instruments
they have created." (Sections 11120, 54950 of the
Government Code)
(c) The California Public Records Act (Government Code
Section 6250 et seq.) establishes the right of every
person to inspect and obtain copies of all state and
local government documents and records not exempt from
disclosure. The Act requires specified state and local
agencies to establish written guidelines for
accessibility of records, to post these guidelines at
their offices, and to make them available free of charge
to any person requesting that agency's records.
(d) The Legislative Open Records Act (Government Code
Section 9070 et seq.) provides that the public may
inspect legislative records, as defined, and mandates
that committee and floor analyses records be permanently
preserved either in the appropriate committee office or
with the State Archives. The Act declares that "access
to information concerning the conduct of the people's
business by the Legislature is a fundamental and
necessary right of every citizen in this state." The
Act provides for "nondisclosure" of certain records,
including, (1) records pertaining to pending litigation;
(2) preliminary drafts, notes, or legislative memoranda,
except as specified; (3) personnel, medical, or similar
files; (4) communications from private citizens; (5)
records in the custody of or maintained by the
Legislative Counsel; (6) correspondence of and to
individual Legislators and their staff; (7) records of
complaints to or investigations conducted by, or records
of security procedures of, the Legislature; and, (8)
records maintained by the majority and minority
caucuses.
AB 1827 (Cohn) continued
Page 4
(e) The Grunsky-Burton Open Meeting Act (Article 2.2 of
the Government Code, Sections 9027-9032) provides that
meetings of a house of the Legislature or a committee
shall be open and public and all persons shall be
permitted to attend the meetings. The Act permits the
Legislature or a committee thereof to hold closed
meetings solely for any of the following purposes: (1)
to consider certain personnel matters; (2) to consider
matters affecting safety and security; (3) to confer
with legal counsel regarding any litigation matter; and,
(4) a caucus of the Members of the Senate, the Members
of the Assembly, or the Members of both houses.
BACKGROUND
The author's office states that under existing open meeting
laws state boards and commissions and local legislative
bodies may not meet in closed session to discuss issues
pertaining to ongoing audits conducted by the Bureau of
State Audits. Moreover, those entities may not meet in
closed session to discuss or formulate responses to draft
audit reports provided to their staff. Also, those
entities may not meet to discuss audit work in an open
session because to do so would violate confidentiality
requirements pertaining to ongoing audit work and draft
audit reports.
The author's office provides as an example an audit report
on the California Integrated Waste Management Board
(CIWMB), released in December 2003, where, in its response,
the CIWMB Chair writes, "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 has
not been able to discuss this response. In order to ensure
sufficient time for public comment and Board discussion, I
have directed staff to prepare an agenda item to be heard
at an upcoming public meeting of the Board. This will
provide the Board with the opportunity to fully discuss the
issues presented in the report and to take actions it deems
appropriate."
The author's office emphasizes that this conflict prevents
the auditee's board members from meeting as a group to
discuss a report's accuracy amongst themselves or with
their staff. In addition, it does not allow board members
AB 1827 (Cohn) continued
Page 5
to formulate a plan of action based on the recommendations
nor to discuss their disagreement with the findings,
resulting in the board's plan of action not being included
in the report. Furthermore, this partial response hampers
the Legislature's ability to fulfill its oversight role.
This measure would essentially create a new exception to
both state and local government open meeting laws to enable
state and local bodies to meet in closed session for the
purpose of discussing a confidential final draft audit
report from the Bureau of State Audits.
SUPPORT: As of June 10, 2004:
Association of California Water Agencies
California School Boards Association
California Special Districts Association
East Bay Municipal Utility District
Santa Clara Valley Water District
OPPOSE: None on file as of June 10, 2004.
DUAL REFERRAL: Senate Committee on Local Government
FISCAL COMMITTEE: No.
**********