California Legislature—2013–14 Regular Session

Assembly Bill No. 194

Introduced by Assembly Member Campos

January 28, 2013

An act to amend Section 54960.1 of, and to add Section 54959.5, to, the Government Code, relating to local government.

LEGISLATIVE COUNSEL’S DIGEST

AB 194, as introduced, Campos. Open meetings: protections for public criticism: penalties for violations.

(1) The Ralph M. Brown Act requires, with specified exceptions, that all meetings of a legislative body of a local agency, as those terms are defined, be open and public and that all persons be permitted to attend and participate. The act prohibits a legislative body of a local agency from preventing public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body, as specified.

This bill would make it a misdemeanor for a member of a legislative body, while acting as the chairperson of a legislative body of a local agency, to prohibit public criticism protected under the act. This bill would authorize a district attorney or any interested person to commence an action for the purpose of obtaining a judicial determination that an action taken by a legislative body of a local agency in violation of the protection for public criticism is null and void, as specified.

Because this bill would establish a new misdemeanor crime, the bill would impose a state-mandated local program.

(2) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 54959.5 is added to the Government
Code, to read:

54959.5.  

A member of a legislative body who, while acting as
the chairperson of that legislative body, prohibits public criticism
of the policies, procedures, programs, or services of the agency,
or of the acts or omissions of the legislative body, as protected
under subdivision (c) of Section 54954.3, shall be guilty of a
misdemeanor.

SEC. 2.  

Section 54960.1 of the Government Code is amended
to read:

54960.1.  

(a) The district attorney or any interested person may
commence an action by mandamus or injunction for the purpose
of obtaining a judicial determination that an action taken by a
legislative body of a local agency in violation of Section 54953,
54954.2, begin insert 54954.3, end insert 54954.5, 54954.6, 54956, or 54956.5 is null
and void under this section. Nothing in this chapter shall be
construed to prevent a legislative body from curing or correcting
an action challenged pursuant to this section.

(b) Prior to any action being commenced pursuant to subdivision
(a), the district attorney or interested person shall make a demand
of the legislative body to cure or correct the action alleged to have
been taken in violation of Section 54953, 54954.2, begin insert 54954.3, end insert
54954.5, 54954.6, 54956, or 54956.5. The demand shall be in
writing and clearly describe the challenged action of the legislative
body and nature of the alleged violation.

(c) (1) The written demand shall be made within 90 days from
the date the action was taken unless the action was taken in an
open session but in violation of Section 54954.2, in which case
the written demand shall be made within 30 days from the date
the action was taken.

(2) Within 30 days of receipt of the demand, the legislative body
shall cure or correct the challenged action and inform the
demanding party in writing of its actions to cure or correct or
inform the demanding party in writing of its decision not to cure
or correct the challenged action.

(3) If the legislative body takes no action within the 30-day
period, the inaction shall be deemed a decision not to cure or
correct the challenged action, and the 15-day period to commence
the action described in subdivision (a) shall commence to run the
day after the 30-day period to cure or correct expires.

(4) Within 15 days of receipt of the written notice of the
legislative body’s decision to cure or correct, or not to cure or
correct, or within 15 days of the expiration of the 30-day period
to cure or correct, whichever is earlier, the demanding party shall
be required to commence the action pursuant to subdivision (a) or
thereafter be barred from commencing the action.

(d) An action taken that is alleged to have been taken in violation
of Section 54953, 54954.2, begin insert 54954.3, end insert 54954.5, 54954.6, 54956, or
54956.5 shall not be determined to be null and void if any of the
following conditions exist:

(1) The action taken was in substantial compliance with Sections
54953, 54954.2, begin insert 54954.3, end insert 54954.5, 54954.6, 54956, and 54956.5.

(2) The action taken was in connection with the sale or issuance
of notes, bonds, or other evidences of indebtedness or any contract,
instrument, or agreement thereto.

(3) The action taken gave rise to a contractual obligation,
including a contract let by competitive bid other than compensation
for services in the form of salary or fees for professional services,
upon which a party has, in good faith and without notice of a
challenge to the validity of the action, detrimentally relied.

(4) The action taken was in connection with the collection of
any tax.

(5) Any person, city, city and county, county, district, or any
agency or subdivision of the state alleging noncompliance with
subdivision (a) of Section 54954.2, Section 54956, or Section
54956.5, because of any defect, error, irregularity, or omission in
the notice given pursuant to those provisions, had actual notice of
the item of business at least 72 hours prior to the meeting at which
the action was taken, if the meeting was noticed pursuant to Section
54954.2, or 24 hours prior to the meeting at which the action was
taken if the meeting was noticed pursuant to Section 54956, or
prior to the meeting at which the action was taken if the meeting
is held pursuant to Section 54956.5.

(e) During any action seeking a judicial determination pursuant
to subdivision (a) if the court determines, pursuant to a showing
by the legislative body that an action alleged to have been taken
in violation of Section 54953, 54954.2, begin insert 54954.3, end insert 54954.5, 54954.6,
54956, or 54956.5 has been cured or corrected by a subsequent
action of the legislative body, the action filed pursuant to
subdivision (a) shall be dismissed with prejudice.

(f) The fact that a legislative body takes a subsequent action to
cure or correct an action taken pursuant to this section shall not
be construed or admissible as evidence of a violation of this
chapter.

SEC. 3.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.