BILL NUMBER: SB 1003	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  AUGUST 13, 2012
	AMENDED IN ASSEMBLY  JUNE 19, 2012
	AMENDED IN SENATE  MAY 3, 2012
	AMENDED IN SENATE  APRIL 11, 2012

INTRODUCED BY   Senator Yee
    (   Principal coauthor:   Assembly Member
  Alejo   ) 

                        FEBRUARY 6, 2012

   An act to amend Sections 54960 and 54960.5 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: cease
and desist letters.
   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  actions  of the legislative
body.
   This bill would prohibit a district attorney or an interested
person from filing an action for an alleged violation of the Brown
Act for past actions of a legislative body, unless certain conditions
are met, including, but not limited to, a requirement that the
district attorney or interested person submit a cease and desist
letter to the legislative body being accused of the violation setting
forth the alleged violation, and the legislative body has failed to
issue an unconditional commitment to cease and desist from the
alleged past action within 30 days of receiving the letter. The bill
would require the unconditional commitment to cease and desist from
the alleged past action to meet certain requirements. The bill would
require that an action filed to challenge an alleged violation of the
Brown Act pursuant to these provisions be dismissed with prejudice
if the legislative body enters into an unconditional commitment to
cease and desist from the alleged past action. The bill would
authorize the legislative body to enter into an unconditional
commitment to cease and desist from the alleged action at any time,
unless the plaintiff succeeds in a civil action against the
legislative body and is awarded attorney's fees. The bill would
provide that if an action filed to challenge an alleged violation of
the Brown Act pursuant to these provisions is dismissed with
prejudice because the legislative body has entered into an
unconditional commitment to cease and desist from the alleged action
after the 30-day period described above, and if the filing of that
action caused the legislative body to enter into the unconditional
commitment, then a court shall award costs and reasonable 
attorney's   attorney  fees to the plaintiff. The
bill would require a legislative body that wishes to rescind a
commitment to do so by a majority vote of the membership of the
legislative body.
   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
ongoing actions or threatened future  action  
actions  of the legislative body, or to determine the
applicability of this chapter to past actions of the legislative
body, subject to Section 54960.2, 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   This  section
shall  not  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) The district attorney or any interested person may
file an action to determine the applicability of this chapter to past
actions of the legislative body pursuant to subdivision (a) of
Section 54960 only if all of the following conditions are met:
   (1) The district attorney or interested person alleging a
violation of this chapter first submits a cease and desist letter by
postal mail or facsimile transmission to the clerk or secretary of
the legislative body being accused of the violation, as designated in
the statement pertaining to that public agency on file pursuant to
Section 53051, or if the agency does not have a statement on file
designating a clerk or a secretary, to the chief executive officer of
that agency, clearly describing the past action of the legislative
body and nature of the alleged violation.
   (2) The cease and desist letter required under paragraph (1) is
submitted to the legislative body within nine months of the alleged
violation.
   (3) The time during which the legislative body may respond to the
cease and desist letter pursuant to subdivision (b) has expired and
the legislative body has not provided an unconditional commitment
pursuant to subdivision (c).
   (4) Within 60 days of receipt of the legislative body's response
to the cease and desist letter, other than an unconditional
commitment pursuant to subdivision (c), or within 60 days of the
expiration of the time during which the legislative body may respond
to the cease and desist letter pursuant to subdivision (b), whichever
is earlier, the party submitting the cease and desist letter shall
commence the action pursuant to subdivision (a) of Section 54960 or
thereafter be barred from commencing the action.
   (b) The legislative body may respond to a cease and desist letter
submitted pursuant to subdivision (a) within 30 days of receiving the
letter. This subdivision shall not be construed to prevent the
legislative body from providing an unconditional commitment pursuant
to subdivision (c) at any time after the 30-day period has expired,
except that in that event the court shall award court costs and
reasonable  attorney's   attorney  fees to
the plaintiff in an action brought pursuant to this section, in
accordance with Section 54960.5.
   (c) (1) If the legislative body elects to respond to the cease and
desist letter with an unconditional commitment to cease, desist
from, and not repeat the past action that is alleged to violate this
chapter, that response shall be in substantially the following form:

   To ______________________:

   The name of legislative body] has received your cease and desist
letter dated date] alleging that the following described past action
of the legislative body violates the Ralph M. Brown Act:

   Describe alleged past action, as set forth in the cease and desist
letter submitted pursuant to subdivision (a)]

   In order to avoid unnecessary litigation and without admitting any
violation of the Ralph M. Brown Act, the name of legislative body]
hereby unconditionally commits that it will cease, desist from, and
not repeat the challenged past action as described above.

   The name of legislative body] may rescind this commitment only by
a majority vote of its membership taken in open session at a regular
meeting and noticed on its posted agenda as "Rescission of Brown Act
Commitment." You will be provided with written notice, sent by any
means or media you provide in response to this message, to whatever
address or addresses you specify, of any intention to consider
rescinding this commitment at least 30 days before any such regular
meeting. In the event that this commitment is rescinded, you will
have the right to commence legal action pursuant to subdivision (a)
of Section 54960 of the Government Code. That notice will be
delivered to you by the same means as this commitment, or may be
mailed to an address that you have designated in writing.

   Very truly yours,
   ________________________________________________
   Chairperson or acting chairperson of the legislative body]

   (2) An unconditional commitment pursuant to this subdivision shall
be approved by the legislative body in open session at a regular or
special meeting as a separate item of business, and not on its
consent agenda.
   (3) An action shall not be commenced to determine the
applicability of this chapter to any past action of the legislative
body for which the legislative body has provided an unconditional
commitment pursuant to this subdivision. During any action seeking a
judicial determination regarding the applicability of this chapter to
any past action of the legislative body pursuant to subdivision (a),
if the court determines that the legislative body has provided an
unconditional commitment pursuant to this subdivision, the action
shall be dismissed with prejudice. Nothing in this subdivision shall
be construed to modify or limit the existing ability of the district
attorney or any interested person to commence an action to determine
the applicability of this chapter to ongoing actions or threatened
future actions of the legislative body.
   (4) Except as provided in subdivision (d), the fact that a
legislative body provides an unconditional commitment shall not be
construed or admissible as evidence of a violation of this chapter.
   (d) If the legislative body provides an unconditional commitment
as set forth in subdivision (c), the legislative body shall not
thereafter take or engage in the challenged action described in the
cease and desist letter, except as provided in subdivision (e).
Violation of this subdivision shall constitute an independent
violation of this chapter, without regard to whether the challenged
action would otherwise violate this chapter. An action alleging past
violation or threatened future violation of this subdivision may be
brought pursuant to subdivision (a) of Section 54960, without regard
to the procedural requirements of this section.
   (e) The legislative body may resolve to rescind an unconditional
commitment made pursuant to subdivision (c) by a majority vote of its
membership taken in open session at a regular meeting as a separate
item of business not on its consent agenda, and noticed on its posted
agenda as "Rescission of Brown Act Commitment," provided that not
less than 30 days prior to such regular meeting, the legislative body
provides written notice of its intent to consider the rescission to
each person to whom the unconditional commitment was made, and to the
district attorney. Upon rescission, the district attorney or any
interested person may commence an action pursuant to subdivision (a)
of Section 54960. An action under this subdivision may be brought
pursuant to subdivision (a) of Section 54960, without regard to the
procedural requirements of this section.
  SEC. 3.  Section 54960.5 of the Government Code is amended to read:

   54960.5.  A court may award court costs and reasonable attorney
fees to the plaintiff in an action brought pursuant to Section 54960,
54960.1, or 54960.2 where it is found that a legislative body of the
local agency has violated this chapter. Additionally, when an action
brought pursuant to Section 54960.2 is dismissed with prejudice
because a legislative body has provided an unconditional commitment
pursuant to paragraph (1) of subdivision (c) of that section at any
time after the 30-day period for making such a commitment has
expired, the court shall award court costs and reasonable 
attorney's   attorney  fees to the plaintiff if the
filing of that action caused the legislative body to issue the
unconditional commitment. The costs and fees shall be paid by the
local agency and shall not become a personal liability of any public
officer or employee of the local agency.
   A court may award court costs and reasonable attorney fees to a
defendant in any action brought pursuant to Section 54960 or 54960.1
where the defendant has prevailed in a final determination of such
action and the court finds that the action was clearly frivolous and
totally lacking in merit.
  SEC. 4.  The provisions of this act shall not apply to past actions
of a legislative body that occurred before January 1, 2013.