BILL ANALYSIS Ó
AB 246
Page 1
Date of Hearing: April 3, 2013
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
AB 246 (Bradford) - As Introduced: February 6, 2013
SUBJECT : Local government: open meetings.
SUMMARY : Includes the Governor in the list of individuals and
agencies with which a local agency's legislative body may meet
in closed session pursuant to the 'public security' exemption of
the state's open meetings law. Specifically, this bill :
1)Includes the Governor in the list of individuals and agencies
with which, under the Ralph M. Brown Act (Brown Act), the
legislative body may meet in closed session on matters posing
a threat to the security of public buildings, services and
facilities, and public access to public services or
facilities.
2)Makes legislative findings and declarations relative to the
public's right of access to the meetings of public bodies and
the necessity of this bill to the health and safety of the
people of California.
3)Makes clarifying and non-substantive amendments.
EXISTING LAW :
1)Requires, under 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)Defines, for purposes of the Brown Act, a meeting to mean any
congregation of a majority
of the members of a legislative body at the same time and
location, including teleconference, to hear, discuss,
deliberate, or take action on any item that is within the
subject matter jurisdiction of the legislative body.
3)Requires, at least 72 hours before a regular meeting, the
legislative body of the local agency, or its designee, to post
an agenda containing a brief general description of each item
AB 246
Page 2
of business to be transacted or discussed at the meeting,
including items to be discussed in closed session.
4)Authorizes a legislative body of a local agency to meet in
closed session for specified matters related to litigation,
real estate negotiations, personnel issues, labor
negotiations, certain disciplinary matters related to schools,
grand jury testimony, license applicants with criminal
histories, multi-jurisdictional drug cases, hospital peer
reviews and related trade secrets, and threats to public
security.
5)Authorizes the legislative body to hold closed sessions with
the Attorney General, district attorney, agency counsel,
sheriff, or chief of police, or their respective deputies, or
a security consultant or a security operations manager, on
matters posing a threat to the security of public buildings, a
threat to the security of essential public services, including
water, drinking water, wastewater treatment, natural gas
service, and electric service, or a threat to the public's
right of access to public services or public facilities.
FISCAL EFFECT : None
COMMENTS :
1)This bill expands the authority of legislative bodies to
conduct closed sessions under the 'public security' exception
to the Brown Act by adding the Governor to the list of
individuals and agencies with which the body may meet in
closed session to discuss matters posing a threat to public
buildings, services, utilities, or the public's right of
access to public services or facilities. This bill is
sponsored by the Los Angeles County Board of Supervisors.
2)The Brown Act generally requires the meetings of local
governments' legislative bodies to be "open and public." This
ensures public access to information so that the people of
this state can retain control over the public agencies that
serve them. The Brown Act applies to general law cities and
counties, and charter cities and counties.
Pursuant to the Brown Act, private discussions among a
majority of a legislative body are prohibited, unless
expressly authorized. Closed session items must be briefly
AB 246
Page 3
described on the posted agenda and the description must
identify the specific statutory exemption. The agenda must
reference the authority for holding the closed session, and
the body must make a public announcement before the closed
session begins. After a closed session, the legislative body
must provide an oral or written report on certain actions
taken and the vote of every elected member present.
Legislative bodies are authorized to meet in closed sessions
only for reasons related to litigation, real estate
negotiations, personnel issues, labor negotiations, certain
disciplinary matters related to schools, grand jury testimony,
license applicants with criminal histories,
multi-jurisdictional drug cases, hospital peer reviews and
related trade secrets, and threats to public security.
The 'public security' exemption permits the legislative body
to hold closed sessions with "the Attorney General, district
attorney, agency counsel, sheriff, or chief of police, or
their respective deputies, or a security consultant or a
security operations manager, on matters posing a threat to the
security of public buildings, a threat to the security of
essential public services, including water, drinking water,
wastewater treatment, natural gas service, and electric
service, or a threat to the public's right of access to public
services or public facilities." This bill adds the Governor
to the list of individuals and agencies with which the body
may meet to discuss the specified matters.
3)This bill arose out of a controversial September 26, 2011,
closed session meeting between the Governor and the Los
Angeles County Board of Supervisors. According to the Los
Angeles County District Attorney's Office, the Board met with
"a number of public officials from state and local agencies,
including the Governor of the State of California, in closed
session?.to conduct 'a conference regarding potential threats
to public services or facilities' arising from the impact of
AB 109, legislation that is commonly referred to as
'realignment' of the criminal sentencing and corrections
system in California."
Noting that the realignment matters were largely financial in
nature, the District Attorney's office found that the
circumstances of the meeting "lack the urgency and magnitude
of a threat to public access to services and facilities
contemplated" by the Brown Act. Accordingly, the
AB 246
Page 4
"implementation of the realignment laws does not constitute a
potential threat to public services or facilities as
articulated by Government Code Section 54957. Consequently,
the closed session conducted was simply not permissible by
law."
4)While this bill does not address all of the issues raised by
the District Attorney's office (namely, whether or not
realignment was a topic appropriately covered by the Brown
Act's public security exemption), it does address the
exclusion of the Governor from the terms of the exemption.
As Commander in Chief of the state militia, the Governor is
heavily involved in public security matters. The Governor
commands the California Military Department, which includes
the Office of the Adjutant General (the commander of all
California military forces and direct subordinate of the
Governor), the California National Guard, the California State
Military Reserve, the California Cadet Corps, and the Naval
Militia. The Governor may call the California National Guard
to active duty to execute the law, defend the state, or
respond to civil disturbance, emergency, or natural disaster.
The Governor is also the official conduit of communication
with the federal government, and maintains relationships with
the federal branches of the armed services, which have
military bases in California.
Furthermore, the Governor's Office also directs the California
Emergency Management Agency (Cal EMA), which merged the
duties, powers, purposes, and responsibilities of the former
Governor's Office of Emergency Services with those of the
Governor's Office of Homeland Security. Cal EMA is
responsible for the coordination of overall state agency
response to major disasters in support of local government.
Cal EMA is responsible for assuring the state's readiness to
respond to and recover from all hazards - natural, manmade,
and war-caused emergencies and disasters - and for assisting
local governments in their emergency preparedness, response,
recovery, and hazard mitigation efforts.
5)This bill is substantially similar to AB 1736 (Smyth) of 2012,
which this Committee approved on a 7-0 vote. AB 1736
subsequently failed passage on the Senate Floor.
AB 246
Page 5
6)Support arguments : This bill is necessary to fix an omission
in current law to include the State's Commander in Chief in
closed meetings of local governing bodies related to matters
of public security.
Opposition arguments : Opponents argue that this bill is
contrary to the intent of the Brown Act and that meetings
between the Governor and a local legislative body should be
conducted with free and open access for the public.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County Board of Supervisors [SPONSOR]
Opposition
American Federation of State, County and Municipal Employees,
AFL-CIO
Analysis Prepared by : Angela Mapp / L. GOV. / (916) 319-3958