BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 1003| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ UNFINISHED BUSINESS Bill No: SB 1003 Author: Yee (D) Amended: 8/13/12 Vote: 21 SENATE GOVERNANCE & FINANCE COMMITTEE : 6-3, 5/9/12 AYES: Wolk, DeSaulnier, Hancock, Hernandez, Kehoe, Liu NOES: Dutton, Fuller, La Malfa SENATE FLOOR : 23-12, 5/31/12 AYES: Alquist, Calderon, Corbett, De León, DeSaulnier, Hancock, Hernandez, Kehoe, Leno, Lieu, Liu, Lowenthal, Negrete McLeod, Padilla, Pavley, Price, Rubio, Simitian, Steinberg, Vargas, Wolk, Wright, Yee NOES: Anderson, Blakeslee, Cannella, Dutton, Emmerson, Fuller, Gaines, Harman, Huff, La Malfa, Walters, Wyland NO VOTE RECORDED: Berryhill, Correa, Evans, Runner, Strickland ASSEMBLY FLOOR : 62-12, 8/20/12 - See last page for vote SUBJECT : Local government: open meetings SOURCE : Californians Aware California Newspaper Publishers Association DIGEST : This bill 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. CONTINUED SB 1003 Page 2 Assembly Amendments decrease the filing for past actions to nine months instead of one year; add a cease and desist letter provision and form, as specified; and make other clarifying changes. ANALYSIS : The Ralph M. Brown Act (Brown Act) requires the meetings of local governments' legislative bodies to 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 under the Brown Act. Legislative bodies can meet in closed sessions only for the specified reasons. 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 Brown Act authorizes any person to seek court action to stop or prevent violations of the Act. This bill: 1. Authorizes a district attorney or any interested person to file an action, as specified, to determine the applicability of the 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 CONTINUED SB 1003 Page 3 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 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. CONTINUED SB 1003 Page 4 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 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. 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 CONTINUED SB 1003 Page 5 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. Related Legislation This bill is similar to AB 1234 (Shelley), Chapter 393, Statutes of 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. 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. The bill clarified that Bagley-Keene applies to past actions. It is unclear, since the passage of the bill, 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 this bill. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 8/21/12) Californians Aware (co-source) California Newspaper Publishers Association (co-source) AFSCME, AFL-CIO California Teachers Association First Amendment Coalition OPPOSITION : (Verified 8/21/12) Association of California School Administrators California Association of Sanitation Agencies Cathedral City Community College League of California Madera County Board of Supervisors ARGUMENTS IN SUPPORT : Proponents state that this bill CONTINUED SB 1003 Page 6 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. This bill provides a procedure for an interested person to challenge the actions of a local agency and to seek relief before pursuing legal action. This bill clarifies the meaning of existing law, fortifying public accountability for local agencies. ARGUMENTS IN OPPOSITION : The Madera County Board of Supervisors state: We do not believe SB 1003 is in the best interest of the taxpayers. To allow individuals to sue for violations of the Brown Act after the alleged infraction has been remedied has the potential to cost counties millions of dollars, and would take funding away from other areas of service such as public safety. Current law allows individuals to pursue litigation over an allegation that a local agency failed to adhere to the Brown Act when there is a genuine, non-speculative threat that the agency will repeat the violation in the future. 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. ASSEMBLY FLOOR : 62-12, 8/20/12 AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall, Bill Berryhill, Block, Blumenfield, Bonilla, Bradford, Brownley, Buchanan, Butler, Charles Calderon, Campos, Carter, Cedillo, Chesbro, Davis, Dickinson, Eng, Feuer, Fong, Fuentes, Galgiani, Gatto, Gordon, Grove, Hagman, Hall, Hayashi, Hill, Huber, Hueso, Huffman, Jeffries, Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mendoza, Mitchell, Monning, Nestande, Nielsen, Olsen, Pan, Perea, CONTINUED SB 1003 Page 7 V. Manuel Pérez, Portantino, Skinner, Smyth, Solorio, Swanson, Torres, Valadao, Wieckowski, Williams, Yamada, John A. Pérez NOES: Conway, Donnelly, Beth Gaines, Garrick, Harkey, Jones, Mansoor, Miller, Morrell, Norby, Silva, Wagner NO VOTE RECORDED: Cook, Fletcher, Furutani, Gorell, Halderman, Roger Hernández AGB/RJG:k 8/21/12 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED