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. SB 1003 -- APTBA -- Page 2 In a 2011 unpublished opinion in McKee v. Tulare County Board of Supervisors, the Court of Appeal, Fifth Appellate District, held that the Brown Act addresses current and potential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, 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 SB 1003 -- APTBA -- Page 3 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 SB 1003 -- APTBA -- Page 4 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; SB 1003 -- APTBA -- Page 5 Community College League of California; League of California Cities; Regional Council of Rural Counties, Urban Counties Caucus.