BILL ANALYSIS                                                                                                                                                                                                    Ó



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          SENATE THIRD READING
          SB 1003 (Yee)
          As Amended  June 19, 2012
          Majority vote 

           SENATE VOTE  :23-11  
           
           LOCAL GOVERNMENT    9-0                                         
           
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          |Ayes:|Smyth, Alejo, Bradford,   |     |                          |
          |     |Campos, Davis, Gordon,    |     |                          |
          |     |Hueso, Knight, Norby      |     |                          |
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          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 








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               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.

          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 








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            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.

          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 








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            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, 
            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  :  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. 

          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 








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          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 an absolute defense against legal action for determination of 
          past actions and is inadmissible as evidence of a violation but 
          carries with it requirements that it be approved in open session 
          by the legislative body, and may 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.

          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 








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          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 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.

          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 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 








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          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 
          actions and did not authorize relief for past violations.  This 
          bill would make explicit that the Brown Act applies to past 
          actions.

          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."

          Opponents of the bill make the following arguments regarding its 
          provisions:

          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." 

          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..."









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          AB 1234 (Shelley), Chapter 393, Statutes of 1999, clarified that 
          the relief provisions of the Bagley-Keene Act apply to 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.  

          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."


           Analysis Prepared by  :    Hank Dempsey / L. GOV. / (916) 319-3958 



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