BILL ANALYSIS Ó
AB 246
Page 1
ASSEMBLY THIRD READING
AB 246 (Bradford)
As Introduced February 6, 2013
Majority vote
LOCAL GOVERNMENT 9-0
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|Ayes:|Achadjian, Levine, Alejo, | | |
| |Bradford, Gordon, | | |
| |Melendez, Mullin, | | |
| |Waldron, Bonta | | |
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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
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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
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 : 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.
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
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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 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.
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
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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
"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."
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.
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This bill is substantially similar to AB 1736 (Smyth) of 2012,
which the Assembly Local Government Committee approved on a 7-0
vote. AB 1736 subsequently failed passage on the Senate Floor.
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.
Analysis Prepared by : Angela Mapp / L. GOV. / (916) 319-3958
FN: 0000090