BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1827|
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THIRD READING
Bill No: AB 1827
Author: Cohn (D)
Amended: 7/12/04 in Senate
Vote: 21
SENATE GOVERNMENTAL ORG. COMMITTEE : 11-0, 6/15/04
AYES: Vincent, Johnson, Battin, Brulte, Cedillo, Chesbro,
Dunn, Karnette, Margett, Morrow, Soto
NO VOTE RECORDED: Machado, Murray
SENATE LOCAL GOVERNMENT COMMITTEE : 5-1, 6/23/04
AYES: Torlakson, Margett, Ackerman, Machado, Soto
NOES: Hollingsworth
NO VOTE RECORDED: Perata
ASSEMBLY FLOOR : 70-7, 5/17/04 - See last page for vote
SUBJECT : Closed sessions: state audits
SOURCE : Author
DIGEST : This bill creates a new exception to both state
and local government open meeting laws that allows state
and local government bodies to meet in closed session for
the purpose of discussing a confidential final draft audit
report from the State Auditor.
Senate floor amendments of 7/12/04 correct an inaccurate
code reference.
ANALYSIS : Existing law:
CONTINUED
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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 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.
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 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.
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4. Makes additional changes to existing law (Section
54954.5 of the Government Code), proposed by AB 2782
(Benoit), to become operative only if this bill and AB
2782 are enacted and become effective on or before
January 1, 2005, and this bill is enacted last, and
corrects an inaccurate code reference contained in the
double-jointing amendments.
Comments
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, a
number of exceptions have been carved out to provide local
agencies with some flexibility where the Legislature has
found it to be warranted.
The Bagley-Keene Act (1) 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, (2)
requires these public meetings to be noticed with an agenda
that contains the items of business that may be acted upon
at the meeting, and (3) 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 allows closed
session discussion of a confidential draft audit report
from the State Auditor.
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
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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 that the author introduce this bill.
In December 2003, the State Auditor published a report
regarding the California Integrated Waste Management Board
(CIWMB). CIWMB is organized under the California
Environmental Protection Agency and as such is subject to
state open meeting laws. While the subject of the report
is not relevant to this bill, CIWMB specifically mentioned
in its official response that it could not thoroughly
respond to the report because it is bound by State Auditor
confidentiality requirements. CIWMB 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."
According to the author's office, 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 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. This bill permits state and
local governmental bodies to meet in closed session for the
narrow purpose of discussing its response to the
confidential draft report.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/12/04)
Association of California Water Agencies
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California School Boards Association
California Special Districts Association
East Bay Municipal Utility District
Santa Clara Valley Water District
ASSEMBLY FLOOR :
AYES: Aghazarian, Bates, Benoit, Berg, Bermudez, Calderon,
Campbell, Canciamilla, Chan, Chavez, Chu, Cogdill, Cohn,
Corbett, Correa, Cox, Daucher, Diaz, Dutton, Dymally,
Frommer, Garcia, Goldberg, Hancock, Harman, Jerome
Horton, Shirley Horton, Houston, Jackson, Keene, Kehoe,
Koretz, La Malfa, La Suer, Laird, Leno, Leslie, Levine,
Lieber, Liu, Longville, Lowenthal, Maddox, Maldonado,
Matthews, Maze, McCarthy, Montanez, Mountjoy, Mullin,
Nakanishi, Negrete McLeod, Oropeza, Pacheco, Parra,
Pavley, Reyes, Richman, Ridley-Thomas, Runner, Salinas,
Samuelian, Simitian, Steinberg, Strickland, Vargas,
Wesson, Wiggins, Wolk, Nunez
NOES: Bogh, Dutra, Haynes, Plescia, Spitzer, Wyland, Yee
NO VOTE RECORDED: Firebaugh, Nakano, Nation
TSM:mel 7/13/04 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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