BILL ANALYSIS Ó
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: AB 246 HEARING: 5/15/13
AUTHOR: Bradford FISCAL: No
VERSION: 2/6/13 TAX LEVY: No
CONSULTANT: Ewing
Brown Act and Security Threats
Authorizes local legislative bodies to meet in closed
session with the Governor and his deputies on security
matters.
Background and Existing Law
The Ralph M. 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 by the Brown
Act. Legislative bodies can meet in closed sessions only
for the following reasons:
Discussions with legal counsel on pending
litigation or liability claims;
Threats to public buildings or access to public
services;
Public employee personnel issues;
Conferences with the body's representative on labor
negotiations;
A conference with real property negotiators;
Discussions of multi-jurisdictional drug cases;
District hospital peer reviews, quality assurance
committees, or reports involving trade secrets; and
License or permit determinations for those with
criminal records.
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
AB 246 -- 2/6/13 -- Page 2
present.
The Brown Act also provides a "safe harbor" provision that
clarifies that if local agencies substantially comply with
notice requirements, as specified, they will not be found
in violation of those requirements.
With limited exceptions, the Brown Act only permits a
closed session to include members of the board, their
essential staff, and individuals specifically authorized by
the Act to participate under each of the closed meeting
exemptions listed above, such as the Attorney General for a
closed meeting on security issues, or the parties involved
in a personnel matter.
The Brown Act authorizes any person to seek court action to
stop or prevent violations.
The California Emergency Services Act gives the Governor
broad authority to suspend statutes, orders, rules, or
regulations during a state of emergency where the Governor
determines that those provisions would hinder any response
to that emergency (SB 1x 23, Miller, 1956).
In September 2011, the Los Angeles County Board of
Supervisors met in closed session with the Governor to
discuss the implications of AB 109 (Committee on Budget,
2011), also known as public safety realignment legislation.
The meetings were intended to explore the public safety
implications of realignment for the County of Los Angeles.
In response, community organizations filed suit alleging
that the meetings violated the Brown Act.
A subsequent review by the Los Angeles County District
Attorney's Office found that the circumstances of the
meetings did not meet the limited criteria outlined in the
Brown Act for holding a closed meeting on threats to public
security. In response, the Board of Supervisors agreed to
restrict its use of closed sessions and to release a
transcript of the meetings in question.
The County of Los Angeles notes that the Brown Act includes
provisions for elected bodies of local agencies to meet in
closed session with the Attorney General, district
attorney, agency counsel, sheriff, chief of police, or
their respective deputies, a security consultant or
security operations managers on matters of public security.
AB 246 -- 2/6/13 -- Page 3
But, those provisions do not include the Governor, despite
the public safety authority of that office.
Proposed Law
Assembly Bill 246 authorizes legislative bodies of local
agencies to hold closed sessions on public security matters
with the Governor and his deputies.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . The Brown Act recognizes the need
for local boards to meet in closed session on matters
affecting public security. Local boards can meet in closed
session with the Attorney General, local law enforcement
leaders, and security consultants. But the Brown Act does
not permit a local board to meet in closed session with the
Governor, despite the Governor's authority over the
California National Guard, the California Emergency
Management Agency, state public health resources, and the
California Highway Patrol. AB 246 will fortify the ability
of local agencies to recognize and respond to public
security threats by extending the authority of local
agencies to meet in closed session with the Governor and
his deputies.
2. Open government versus closed consultations . The Brown
Act defines a narrow set of circumstances under which local
boards can meet in closed session, including meeting on
public security. The public security exception authorizes
a defined list of persons with subject matter expertise to
participate in those meetings. It is unclear what direct,
functional expertise on public security the Governor would
contribute to a closed session. Further, the California
Emergency Management Act already permits the Governor to
suspend state statutes in response to a declared emergency,
which would allow him to meet with local boards when a
public security threat occurs. AB 246 would allow local
agencies to move more deliberations and decisions from a
AB 246 -- 2/6/13 -- Page 4
public forum into a closed session, which is neither
consistent with constitutional requirements for open
government in California, nor the historical significance
of the Brown Act.
3. Define deputy . The Brown Act provides a narrow set of
circumstances for closed sessions. Established practice
recognizes that closed sessions can only involve board
members, their essential staff and relevant parties. The
courts have ruled that persons without an official role in
the meeting would make it "semi-closed" and thus not
permitted under the Act. AB 246 would authorize local
boards to hold closed sessions with the Governor and his
deputies. Given the broad array of persons who may be
designated as a "deputy" to the Governor, it is unclear who
would be authorized under AB 246 to participate in a closed
meeting and whether their participation would be limited to
accompanying the Governor. The Committee may wish to
consider amendments to restrict the participation of the
Governor's staff to persons who have an official role
related in the meeting because of their expertise or
authority on the specific subject matter under discussion.
4. Who is in, who is out ? With the exception of public
security matters, closed session topics authorized by the
Brown Act generally only relate to the functions of a local
agency, such as legal, contracting and personnel issues.
In contrast, the public security exception recognizes the
need for consultation with persons not directly affiliated
with the local agency, for example, the Attorney General.
However, neither the current statute, nor AB 246,
recognizes the potential need for consultation between
local agencies and public officials from neighboring
agencies, the federal government, other states or the
private sector. For instance, the City of San Diego may
need to consult with county officials, the U.S. Navy, or
local utilities, on public security issues. Officials in
border communities may need to consult with officials from
neighboring states. The Committee may wish to consider
amendments that would broaden the authority of local
legislative bodies to meet with officials from other public
agencies, private agencies and subject matter experts, on
matters of public security, when and where necessary, with
commensurate strengthening of safeguards to preserve the
public disclosure and accountability requirements in the
Brown Act.
AB 246 -- 2/6/13 -- Page 5
5. Information as a counter-weight . The safe harbor
provisions of the Brown Act provide surety that if local
agencies follow a general template for their public notice,
they cannot be sued for failure to meet the notice
requirements. That standard does not require the posting
of the names or affiliations of all persons in closed
sessions. Recognizing that AB 246 broadens the authority
of local boards to meet in closed session with persons who
are not staff to the board, the Committee may wish to
consider amendments requiring local agencies to include
names and affiliations of all participants in their notice
for closed meetings.
6. Similar legislation . AB 1736 (Smyth, 2012) amended
the Brown Act to authorize legislative bodies of local
agencies to meet in closed session on public security
matters with the Governor, and his staff who have subject
matter expertise, and other state public security
officials. AB 1736 passed out of Senate Governance and
Finance (6-0), but failed on the Senate Floor (16-20).
Assembly Actions
Assembly Local Government Committee9-0
Assembly Floor 69-5
Support and Opposition (5/9/13)
Support : County of Los Angeles.
Opposition : American Federation of State, County and
Municipal Employees, AFL-CIO; Californians Aware.