BILL ANALYSIS                                                                                                                                                                                                    Ó




                     SENATE GOVERNANCE & FINANCE COMMITTEE
                            Senator Lois Wolk, Chair
          

          BILL NO:  SB 1003                     HEARING:  5/9/12
          AUTHOR:  Yee                          FISCAL:  No
          VERSION:  5/3/12                      TAX LEVY:  No
          CONSULTANT:  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 by 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.  




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          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, allowing the local 
          agency 30 days to respond prior to proceeding with a legal 
          action, and require that a legal filing commence within 30 
          days after the response from the local agency.  No more 
          than 14 months may elapse after the alleged violation 
          before the legal proceeding commences.  This provision may 
          only apply to alleged violations after January 1, 2013.

          As amended, this bill makes three significant changes from 





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          the April 11, 2012 version:
             1.   Deletes all intent language, including all findings 
               and declarations 
             2.   Only prospectively applies to alleged violations 
               that occur after January 1, 2013
             3.   Sets forth a time limit for legal proceedings so 
               that no more than 14 months may elapse after the 
               alleged violation.


                               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 author states that when actions in violation 
          (secretive) or in closed session, interested parties 
          deserve the right to investigate over a one year period.  
          The bill clarifies the meaning of existing law, fortifying 
          public accountability for local agencies.

          2.   Opposition points  .  SB 1003 changes the Brown Act to 
          account for alleged past actions by local governments.  
          Local governments remain concerned about both the process 
          and timing in the bill stating that one year of discovery 
          is too long and may increase litigation costs at a time 
          when they cannot afford to pay them.  The opponents issued 
          this statement in response to the 1-year time period:

               Under the bill as proposed-to-be amended, a county's 
               past actions can be disputed for up to one year from 
               the date of alleged violation.  That is twice the 
               amount of time under the Tort Claims Act and four 
               times longer than current law for "threatened future 
               actions."  We have suggested to the author a narrowing 
               of the time frame to bring forth alleged violations of 
               past actions that occurred in closed session to 90 





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               days and those for open sessions a 30 day period.   It 
               should be noted that this is the time frame that 
               currently exists when pursuing litigation for 
               "threatened future actions."  The Legislature has seen 
               the wisdom of a narrow time frame in order for the 
               public's business to be conducted in an expedited and 
               efficient manner.

          Supporters of this bill state that they have amended the 
          bill with strict parameters around the timing (no more than 
          14 months before legal action commences), apply the bill 
          prospectively (actions after January 1, 2013) and remove 
          the intent language the opponents strongly resisted.  They 
          further state that the 90-day proposal offered by the 
          opponents does not allow sufficient time for the discovery 
          of past actions, especially if they are done in closed 
          session or without public disclosure.  The one-year time 
          period, especially with a prospective bill (only for 
          actions after January 1, 2013), gives local government 
          significant time to review and accommodate for this 
          expansion of the Brown Act. 

          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  (5/3/12)

           Support  :  American Federation of State, County and 
          Municipal Employees, AFL-CIO; California Teachers 
          Association; Californians Aware; California Newspaper 
          Publishers Association; First Amendment Coalition.

           Opposition  :  Association of California School 
          Administrators; California State Association of Counties; 





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          Community College League of California; League of 
          California Cities; Regional Council of Rural Counties, 
          Urban Counties Caucus.