BILL ANALYSIS Ó
SB 1003
Page 1
SENATE THIRD READING
SB 1003 (Yee)
As Amended August 13, 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 last nine months
have violated those 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, if other than
an unconditional commitment, or within 60 days of the
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expiration of the time during which the legislative body
may respond to the cease and desist letter, whichever is
earlier.
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 a 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 the Brown Act 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.
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11)Declares that a violation of an unconditional commitment
shall constitute an independent violation of the Brown Act,
without regard to whether the challenged action would
otherwise violate the Brown Act.
12)Authorizes a legislative body 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)States 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, 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
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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
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 authorize a
district attorney or any interested person to take legal action
to determine whether or not an ongoing or past action (up to
nine months) of a local legislative body has violated the Brown
Act. It also creates a process by which plaintiffs can secure
an enforceable commitment against future violations, and also
seek an award of court costs and attorneys' fees in certain
cases.
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."
This bill is co-sponsored by Californians Aware and the
California Newspaper Publishers Association (CNPA).
In practice, this bill 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 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.
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SB 1003 permits the plaintiff to seek court costs and reasonable
attorneys' fees for actions brought pursuant to this bill. 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 generally requires that 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 only meet in closed
sessions for: 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 currently authorizes any person to seek court
action to stop or prevent violations. Civil remedies include
injunctive, mandatory or declaratory relief, and the ability to
void actions taken in violation of the Brown Act within 90 days
from the date the action was taken (except for agenda posting
violations, in which case the deadline is 30 days). Attorneys'
fees are available to prevailing plaintiffs. Criminal sanctions
may also apply, 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
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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 Tulare Board of Supervisors passed a
resolution ending the practice of eating lunch together before
meetings.
The McKee 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) in 1999 to clarify that the relief
provisions would apply to past actions.
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
actions and did not authorize relief for past violations. This
bill would address McKee head-on by explicitly applying the
Brown Act to past actions of legislative bodies.
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
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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..."
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
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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
FN: 0004804