BILL NUMBER: SB 1003	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 3, 2012
	AMENDED IN SENATE  APRIL 11, 2012

INTRODUCED BY   Senator Yee

                        FEBRUARY 6, 2012

   An act to amend Section 54960 of, and to add Section 54960.2 to,
the Government Code, relating to local government.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1003, as amended, Yee. Local government: open meetings.
   Existing law, the Ralph M. Brown Act (Brown Act), requires each
legislative body of a local agency to provide the time and place for
holding regular meetings and requires that all meetings of a
legislative body be open and public and all persons be permitted to
attend unless a closed session is authorized. Existing law authorizes
the district attorney or any interested person to file an action by
mandamus, injunction, or declaratory relief to, among other things,
determine the applicability of the act to actions or threatened
future action of the legislative body.
   This bill would prohibit an interested person from filing an
action for an alleged violation of the Brown Act, or as specified,
unless certain conditions are met, including, but not limited to, a
requirement that the interested person submit a letter to the
legislative body being accused of the violation setting forth the
alleged violation. The bill would authorize the legislative body to
respond to the letter within 30 days of receiving the letter. The
bill would additionally authorize the district attorney or any
interested person to file an action to determine the applicability of
the act to past actions of the legislative body that occur after
January 1, 2013, as specified  . 
   This bill would state that the provisions related to past actions
are intended to supersede the decision of the California Court of
Appeal for the Fifth District in McKee v. Tulare County Bd. of Sup'rs
(Nov. 2, 2011, F061146) in a nonpublished opinion. 

   This bill would state that the provisions related to past actions
are declaratory of existing law.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 54960 of the Government Code is amended to
read:
   54960.  (a) The district attorney or any interested person may
commence an action by mandamus, injunction, or declaratory relief for
the purpose of stopping or preventing violations or threatened
violations of this chapter by members of the legislative body of a
local agency or to determine the applicability of this chapter to
past actions or threatened future action of the legislative body, or
to determine whether any rule or action by the legislative body to
penalize or otherwise discourage the expression of one or more of its
members is valid or invalid under the laws of this state or of the
United States, or to compel the legislative body to audio record its
closed sessions as hereinafter provided.
   (b) The court in its discretion may, upon a judgment of a
violation of Section 54956.7, 54956.8, 54956.9, 54956.95, 54957, or
54957.6, order the legislative body to audio record its closed
sessions and preserve the audio recordings for the period and under
the terms of security and confidentiality the court deems
appropriate.
   (c) (1) Each recording so kept shall be immediately labeled with
the date of the closed session recorded and the title of the clerk or
other officer who shall be custodian of the recording.
   (2) The audio recordings shall be subject to the following
discovery procedures:
   (A) In any case in which discovery or disclosure of the audio
recording is sought by either the district attorney or the plaintiff
in a civil action pursuant to Section 54959, 54960, or 54960.1
alleging that a violation of this chapter has occurred in a closed
session that has been recorded pursuant to this section, the party
seeking discovery or disclosure shall file a written notice of motion
with the appropriate court with notice to the governmental agency
that has custody and control of the audio recording. The notice shall
be given pursuant to subdivision (b) of Section 1005 of the Code of
Civil Procedure.
   (B) The notice shall include, in addition to the items required by
Section 1010 of the Code of Civil Procedure, all of the following:
   (i) Identification of the proceeding in which discovery or
disclosure is sought, the party seeking discovery or disclosure, the
date and time of the meeting recorded, and the governmental agency
that has custody and control of the recording.
   (ii) An affidavit that contains specific facts indicating that a
violation of the act occurred in the closed session.
   (3) If the court, following a review of the motion, finds that
there is good cause to believe that a violation has occurred, the
court may review, in camera, the recording of that portion of the
closed session alleged to have violated the act.
   (4) If, following the in camera review, the court concludes that
disclosure of a portion of the recording would be likely to
materially assist in the resolution of the litigation alleging
violation of this chapter, the court shall, in its discretion, make a
certified transcript of the portion of the recording a public
exhibit in the proceeding.
   (5) Nothing in this section shall permit discovery of
communications that are protected by the attorney-client privilege.
  SEC. 2.  Section 54960.2 is added to the Government Code, to read:
   54960.2.  (a)  An   The district attorney or
any  interested person may  not  file an action
 to determine the applicability of this chapter to past 
 actions of a legislative body  pursuant to subdivision (a)
of Section 54960  unless   if  all of the
following conditions are met:
   (1) The  district attorney or  interested person alleging
a violation of  the   this  chapter,
 or as specified in subdivision (a) of Section 54960,
 first submits a letter to the legislative body being
accused of the violation setting forth the alleged violation.
   (2) The letter required under paragraph (1) is submitted to the
legislative body within one year of the alleged violation.
   (3) The time during which the legislative body may respond to the
letter pursuant to subdivision (b) has expired. 
   (4) The district attorney or interested person alleging the
violation commences the action pursuant to subdivision (a) within 30
days of receipt of the legislative body's response to the letter
alleging a violation or within 30 days of the legislative body
receiving the letter pursuant to subdivision (b), whichever is
earlier. 
   (b) The legislative body may respond to a letter submitted
pursuant to subdivision (a) within 30 days of receiving the letter.

   (c) This section shall not apply to past actions of a legislative
body that have occurred before January 1, 2013.  
  SEC. 3.    It is the intent of the Legislature, in
amending Section 54960 of the Government Code, to supersede the
decision of the California Court of Appeal for the Fifth District in
McKee v. Tulare County Bd. of Sup'rs (Nov. 2, 2011, F061146) in a
nonpublished opinion, in which the court held that injunctive and
declaratory relief were not available to determine the applicability
of this chapter to a past action or practice of a legislative body of
a local agency that the body, while resolving not to repeat it,
nevertheless continued to maintain was lawful.
   The Legislature finds and declares that the amendments made to
Section 54960 of the Government Code by this act are declaratory of
existing law.