BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1003|
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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
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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
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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.
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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
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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)
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
clarifies that remedies available under the Brown Act
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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,
V. Manuel Pérez, Portantino, Skinner, Smyth, Solorio,
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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
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