BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 1003
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          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.









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          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.








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          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, 








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            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 








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            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 








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            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 








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            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 








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            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 









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