BILL ANALYSIS Ó
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: SB 1003 HEARING: 5/2/12
AUTHOR: Yee FISCAL: No
VERSION: 4/11/12 TAX LEVY: No
CONSULTANT: Ewing and Miller
BROWN ACT ENFORCEMENT
Clarifies that legal action can be pursued, under the Brown
Act, for prior actions of local agencies.
Background and Existing Law
The Ralph M. Brown Act requires the meetings of local
governments' legislative bodies be "open and public,"
thereby ensuring people's access to information so that
they may retain control over the public agencies that serve
them.
Private discussions among a majority of a legislative body
are prohibited, unless expressly authorized under the Brown
Act. Legislative bodies can meet in closed sessions only
for the following reasons:
Discussions with legal counsel on pending
litigation or liability claims;
Threats to public buildings or access to public
services;
Public employee personnel issues;
Conferences with the body's representative on labor
negotiations;
A conference with real property negotiators;
Multi-jurisdictional drug cases;
District hospital peer reviews, quality assurance
committees, or reports involving trade secrets, and
A license or permit determination for those with
criminal records.
Local officials must place a closed meeting item on an
agenda and cite their statutory authority to meet behind
closed doors. They must report on any action taken in
closed session and provide the vote of every elected member
present. The Act authorizes any person to seek court
action to stop or prevent violations of the Act.
SB 1003 -- 4/11/12 -- Page 2
In a 2011 unpublished opinion in McKee v. Tulare County
Board of Supervisors, the Court of Appeal, Fifth Appellate
District, held that the Brown Act addresses current and
potential future violations, but does not provide for
relief for past actions.
Under the case, plaintiffs alleged that the Tulare County
Board of Supervisors had a history of holding lunch
meetings, without public notice, which were attended by a
majority of board members and where official business was
discussed. Prior to the court's review, the Board of
Supervisors passed a resolution ending the practice of
eating lunch together before meetings.
The Court held that because the practice of lunching
together had been suspended, there was no "present"
violation of the Brown Act and that "speculative
allegations of past violations?cannot reasonably be read to
allege any 'threatened future' violations." The Court
interpreted the Brown Act to apply only to present and
future actions and thus indicated that it did not authorize
relief for past violations.
In response to the court's ruling, Senate Bill 1003
clarifies that the Brown Act applies to past actions.
Proposed Law
Senate Bill 1003 amends the Brown Act to specify that a
district attorney or any interested person may commence an
action by mandamus, injunction, or declaratory relief to
determine whether the Brown Act applies to a local
legislative body's past actions, as well as threatened
future actions. The bill establishes a procedure for
filing an action, limiting filings for past actions to one
year, requiring a letter be submitted to the local agency
setting forth the alleged violation, and allowing the local
agency 30 days to respond prior to proceeding with a legal
action.
SB 1003 declares the Legislature's intent to supersede the
decision of the court in McKee v. Tulare County Board of
Supervisors, and declares the bill to be declaratory of
existing law.
SB 1003 -- 4/11/12 -- Page 3
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . SB 1003 clarifies that remedies
available under the Brown Act extend to past actions,
reaching back just one year, as well as future actions of
legislative bodies of local agencies. SB 1003 provides a
procedure for an interested person to challenge the actions
of a local agency and to seek relief before pursuing legal
action. The bill clarifies the meaning of existing law,
fortifying public accountability for local agencies.
2. Certain costs, uncertain benefits . SB 1003 changes the
Brown Act, which may open a floodgate on litigation for
past actions. These actions may not be able to be cured
under the Act, and remedies may not be available, either
because those actions happened in the past, they have been
stopped, or both. The bill subjects local agencies to
significant legal costs without substantively improving
public accountability.
3. Similar legislation . SB 1003 is similar to AB 1234
(Shelley, 1999), which clarified that the relief provisions
of the Bagley-Keene Open Meeting Act apply to past actions.
Similar to the Brown Act, the Bagley-Keene Open Meeting
Act applies to the meetings of state entities. AB 1234 was
introduced in response to a legal case similar to McKee v.
Tulare County Board of Supervisors in which the Court ruled
the Legislature did not intend the relief available under
Bagley-Keene to apply to past actions. AB 1234 clarified
that Bagley-Keene applies to past actions. It is unclear,
since the passage of AB 1234, if state agencies have faced
additional legal challenges under Bagley-Keene or if that
history is a sufficient guide on whether local agencies
will face additional, unwarranted scrutiny under SB 1003.
Support and Opposition (4/26/12)
Support : American Federation of State, County and
Municipal Employees, AFL-CIO; California Teachers
Association; Californians Aware; California Newspaper
SB 1003 -- 4/11/12 -- Page 4
Publishers Association; First Amendment Coalition.
Opposition : Association of California School
Administrators; California State Association of Counties;
Community College League of California; League of
California Cities; Regional Council of Rural Counties,
Urban Counties Caucus.