BILL ANALYSIS Ó SB 1003 Page 1 Date of Hearing: June 27, 2012 ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT Cameron Smyth, Chair SB 1003 (Yee) - As Amended: June 19, 2012 SENATE VOTE : 23-12 SUBJECT : Local government: open meetings. SUMMARY : Amends local government open meeting laws to authorize legal action against a legislative body to determine if certain ongoing or past actions of that body within the past nine months have violated those open meeting laws. Specifically, this bill : 1)Authorizes a district attorney or any interested person to file an action, as specified, to determine the applicability of the Ralph M. Brown Act (Brown Act) to a past or ongoing action of a legislative body. 2)Prohibits any action to be filed by a district attorney or interested person to determine the applicability of the Brown Act to past actions of a legislative body unless all of the following requirements are met: a) The plaintiff submits a cease and desist letter to the legislative body, clearly describing the past action and the nature of the alleged violation; b) The plaintiff submits the cease and desist letter within nine months of the alleged violation; c) The legislative body fails to respond to the cease and desist letter within the allotted time while also failing to provide an unconditional commitment to cease the violation; and, d) The plaintiff commences the action within 60 days of receipt of the legislative body's response, other than an unconditional commitment, or within 60 days of the expiration of the time during which the legislative body may respond to the cease and desist letter, whichever is earlier, or is thereafter barred from doing so. SB 1003 Page 2 3)Permits the legislative body to respond to a cease and desist letter within 30 days of receipt, after which time an unconditional commitment may still be provided but the court must award court costs and reasonable attorney's fees to the plaintiff. 4)Provides the form of an unconditional commitment to cease and desist, as specified. 5)Requires that an unconditional commitment 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. 6)Prohibits the commencement of an action to determine the applicability of the Brown Act to any past action of the legislative body for which it has provided an unconditional commitment. 7)Provides that if the court determines that the legislative body has provided an unconditional commitment during any action seeking judicial determination regarding the applicability of the Brown Act to any past action of the legislative body, the action shall be dismissed with prejudice. 8)States that the protection afforded by an unconditional commitment does not 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. 9)Clarifies that the provision of an unconditional commitment by a legislative body shall not be construed or admissible as evidence of a violation of the Brown Act. 10)Requires that, if the legislative body provides an unconditional commitment, it shall not thereafter take or engage in the challenged action described in the cease and desist letter, except as otherwise provided. 11)Declares that a violation of that commitment shall constitute an independent violation of this chapter, without regard to whether the challenged action would otherwise violate this chapter. SB 1003 Page 3 12)Authorizes a legislative body to resolve to rescind an unconditional commitment 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 as specified. Upon rescission, the district attorney or any interested person may commence an action. 13)Requires, when an action is dismissed with prejudice because a legislative body has provided an unconditional commitment at any time after the allotted 30-day period, the court to award court costs and reasonable attorney's fees to the plaintiff if the filing of that action caused the legislative body to issue the unconditional commitment. 14)Provides that the provisions of this bill shall not apply to past actions taken by a legislative body before January 1, 2013. EXISTING LAW : 1)Requires, pursuant to the Brown Act, 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. 2)Prohibits private discussions or closed session meetings among a majority of a legislative body unless expressly authorized under the Brown Act. 3)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 Brown Act to actions or threatened future action of the legislative body. 4)Authorizes the district attorney or any interested person to commence an action by mandamus or injunction to obtain a judicial determination that an action taken by a legislative body in violation of specified provisions is null and void, SB 1003 Page 4 provided that a written demand is first made of the legislative body to cure or correct the alleged violation within 90 days from the date the action was taken, except in cases where the violation relates to the posting of the agenda in which case the demand must be made within 30 days of the violation. FISCAL EFFECT : None COMMENTS : 1)This bill amends the Brown Act to specify that a district attorney or any interested person may take legal action to determine whether the Brown Act applies to the ongoing or past actions (up to nine months) of a local legislative body and permits plaintiffs to seek court costs and attorneys' fees. According to the author, "İt]he language currently in the Brown Act does not provide injunctive and declaratory relief for past actions. SB 1003 adds language to extend the Brown Act to cover past violations. The bill also establishes a procedure for an interested party to notify the board accused of violating the Brown Act before pursuing legal action." The bill is co-sponsored by Californians Aware and the California Newspaper Publishers Association. 2)This bill creates a process by which plaintiffs can secure an enforceable commitment or a court declaration regarding past violations of the Brown Act by a local legislative body. It establishes procedures for filing an action to determine whether the Brown Act applies to the past or ongoing actions of a local legislative body, including a requirement that a prospective plaintiff submit a cease and desist letter with the legislative body within nine months of the alleged violation prior to filing suit, while providing timelines for responses and the submission of an 'unconditional commitment' to cease and desist from the action in question. The bill further provides that an unconditional commitment acts as a absolute defense against legal action for determination of past actions yet is inadmissible as evidence of a violation, but carries with it requirements that it be approved in open session by the legislative body, and that it SB 1003 Page 5 be rescinded only with 30 days' public notice and a vote. SB 1003 permits the plaintiff to seek court costs and reasonable attorneys' fees for actions brought pursuant to this bill. Furthermore, if an unconditional commitment is submitted more than 30 days after the allotted time and leads to the dismissal of a suit, a court must award costs and fees if the filing of the action caused the legislative body to issue the unconditional commitment. These provisions would apply only to actions of legislative bodies that take place after January 1, 2013. 3)The Brown Act requires the meetings of local governments' legislative bodies be "open and public," thereby ensuring public access to information and promoting transparency in government. Private discussions among a majority of a legislative body are prohibited, unless expressly authorized by the Brown Act. Legislative bodies may 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, labor negotiation conferences, real property negotiation conferences, multi-jurisdictional drug cases, specified district hospital matters, and license/permit determinations for individuals with criminal records. Local officials are required to place a closed meeting item on the agenda and cite their statutory authority to meet behind closed doors. Local officials must report on any action taken in closed session and provide the vote of every elected member present. The Brown Act authorizes any person to seek court action to stop or prevent violations of the Act. Civil remedies for violations include injunctive, mandatory or declaratory relief, and the ability to void actions taken in violation of the Brown Act. Attorneys' fees are available to prevailing plaintiffs. Criminal sanctions are also available, including misdemeanor penalties against a member of a body who attends a meeting where action is taken in violation of the Brown Act and where the member intended to deprive the public of SB 1003 Page 6 information which the member knew or has reason to know the public was entitled to receive. Notably, the enforcement provisions of the Brown Act are focused on "stopping or preventing violations or threatened violations of this chapter ? İor determining] the applicability of this chapter to actions or threatened future action of the legislative body?" which the courts have construed as applying only to current or prospective actions - not past ones. 4)In a 2011 unpublished opinion in McKee v. Tulare County Board of Supervisors, the California Court of Appeals, Fifth Appellate District, held that the Brown Act addresses current and potential future violations but does not provide for relief for past actions. In that case, plaintiffs alleged that the Tulare County Board of Supervisors had a history of holding closed 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 drew upon the earlier Regents of University of California v. Superior Court (1999) (20 Cal. 4th 509) as authority for the proposition that the Brown Act's "right of action extends only to present and future actions and violations and not past ones" because the language in question in McKee was, at the time, identical to the language found in the Bagley-Keene Act. (The Bagley-Keene Act was subsequently amended by AB 1234 (Shelley), Chapter 393, Statutes of 1999, to clarify that the relief provisions would apply to past actions - see Comment #8 below.) The McKee Court held that because the practice of privately 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 therefore interpreted the Brown Act to apply only to present and future SB 1003 Page 7 actions and did not authorize relief for past violations. This bill would make explicit that the Brown Act applies to past actions. 5)The California Newspaper Publishers Association (CNPA), a co-sponsor of the bill, contends that "İi]n the wake of the McKee case, when a member of the public files an action alleging a meeting of a legislative body violated the Brown Act, the agency can simply declare it will no longer meet in the offending manner. Since there is no longer a threat, as a matter of law, the court would be required to dismiss the action. This anomalous result strikes at the very heart of the Brown Act rendering it of little value. Local governments have no incentive to adhere to the open meetings law knowing they can extricate themselves from a lawsuit by simply stopping the illegal behavior." 6)Opponents of the bill make the following arguments regarding its provisions: a) The City of Ventura argues that current law is sufficient to deal with Brown Act violations: "İt]he court's rationale in McKee applies to our opposition to this bill: past activities of a local agency are a moot point even if they may have been questionable under the Brown Act when they occurred. Should a questionable activity commence again, or be threatened as future action, the Act's sanctions may clearly apply and provide the District Attorney or any interested party with an adequate remedy at that time. In addition, İcurrent law] already provides for judicial relief to invalidate actions that took place in the preceding 90 days, although the provision covers more narrow circumstances." b) The City of Salinas expresses concerns that the measure would increase litigation costs: "İg]iven the exposure to litigation that SB 1003 would invite we believe your measure would only add to local government costs. We believe strongly in the principles of open, transparent and accountable government. Unfortunately, your bill seems more about retribution than achieving those goals..." 7)AB 1234 (Shelley), Chapter 393, Statutes of 1999, clarified that the relief provisions of the Bagley-Keene Act apply to SB 1003 Page 8 past actions. The bill 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. 8)Support arguments : According to CNPA, "İb]y conforming the Brown Act to the Bagley-Keene Act with respect to relief for past actions, SB 1003 would close this loophole in the law and reinforce the bedrock principle that the people's business should be conducted openly and publicly." Opposition arguments : According to the Madera County Board of Supervisors, "İc]urrent law allows individuals to pursue litigation over an allegation that a local agency failed to adhere to the Brown Act...Litigation also can be used to nullify an action of a local agency if the decision was reached in violation of the Brown Act. When a violation has been corrected, and there is no genuine threat that the agency will repeat the violation in the future, litigation is not necessary. Allowing for expensive legal proceedings when the matter is resolved does not further serve the people we represent." REGISTERED SUPPORT / OPPOSITION : Support Californians Aware (CalAware) İCO-SPONSOR] California Newspaper Publishers Association İCO-SPONSOR] American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO California Teachers Association First Amendment Coalition Opposition California Association of Sanitation Agencies (5/8) City of Salinas (4/17) City of Ventura (4/2) Community College League of California (4/26) County of Madera, Board of Supervisors (6/19) Analysis Prepared by : Hank Dempsey / L. GOV. / (916) 319-3958 SB 1003 Page 9