California Legislature—2013–14 Regular Session

Assembly Bill No. 792

Introduced by Assembly Member Mullin

February 21, 2013

An act to amend Sections 54954.2 and 54956 of the Government Code, relating to local government.

LEGISLATIVE COUNSEL’S DIGEST

AB 792, as introduced, Mullin. Local government: open meetings.

The Ralph M. Brown Act enables the legislative body of a local agency to call both regular and special meetings. The act requires the legislative body of a local agency to post, at least 72 hours before the meeting, an agenda containing a brief general description of each item of business to be transacted or discussed at a regular meeting, in a location that is freely accessible to members of the public, and to provide a notice containing similar information with respect to a special meeting at least 24 hours prior to the special meeting. The act requires that the agenda or notice be freely accessible to members of the public, and be posted on the local agency’s Internet Web site, if the local agency has one.

This bill, if the local agency is unable to post the agenda or notice on its Internet Web site because of software or hardware impairment beyond the local agency’s reasonable control, would require the local agency to post the agenda or notice immediately upon resolution of the technological problems. The bill would provide that the delay in posting, or the failure to post, the agenda or notice would not preclude a local agency from conducting the meeting or taking action on items of business, provided that the agency has complied with all other relevant requirements.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

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

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

SECTION 1.  

Section 54954.2 of the Government Code is
amended to read:

54954.2.  

(a) (1) At least 72 hours before a regular meeting,
the legislative body of the local agency, or its designee, shall 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. A brief general description
of an item generally need not exceed 20 words. The agenda shall
specify the time and location of the regular meeting and shall be
posted in a location that is freely accessible to members of the
public and on the local agency’s Internet Web site, if the local
agency has one. If requested, the agenda shall be made available
in appropriate alternative formats to persons with a disability, as
required by Section 202 of the Americans with Disabilities Act of
1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations
adopted in implementation thereof. The agenda shall include
information regarding how, to whom, and when a request for
disability-related modification or accommodation, including
auxiliary aids or services, may be made by a person with a
disability who requires a modification or accommodation in order
to participate in the public meeting.

(2) No action or discussion shall be undertaken on any item not
appearing on the posted agenda, except that members of a
legislative body or its staff may briefly respond to statements made
or questions posed by persons exercising their public testimony
rights under Section 54954.3. In addition, on their own initiative
or in response to questions posed by the public, a member of a
legislative body or its staff may ask a question for clarification,
make a brief announcement, or make a brief report on his or her
own activities. Furthermore, a member of a legislative body, or
the body itself, subject to rules or procedures of the legislative
body, may provide a reference to staff or other resources for factual
information, request staff to report back to the body at a subsequent
meeting concerning any matter, or take action to direct staff to
place a matter of business on a future agenda.

(b) Notwithstanding subdivision (a), the legislative body may
take action on items of business not appearing on the posted agenda
under any of the conditions stated below. Prior to discussing any
item pursuant to this subdivision, the legislative body shall publicly
identify the item.

(1) Upon a determination by a majority vote of the legislative
body that an emergency situation exists, as defined in Section
54956.5.

(2) Upon a determination by a two-thirds vote of the members
of the legislative body present at the meeting, or, if less than
two-thirds of the members are present, a unanimous vote of those
members present, that there is a need to take immediate action and
that the need for action came to the attention of the local agency
subsequent to the agenda being posted as specified in subdivision
(a).

(3) The item was posted pursuant to subdivision (a) for a prior
meeting of the legislative body occurring not more than five
calendar days prior to the date action is taken on the item, and at
the prior meeting the item was continued to the meeting at which
action is being taken.

(c) This section is necessary to implement and reasonably within
the scope of paragraph (1) of subdivision (b) of Section 3 of Article
I of the California Constitution.

(d) For purposes of subdivision (a), the requirement that the
agenda be posted on the local agency’s Internet Web site, if the
local agency has one, shall only apply to a legislative body that
meets either of the following standards:

(1) A legislative body as that term is defined by subdivision (a)
of Section 54952.

(2) A legislative body as that term is defined by subdivision (b)
of Section 54952, if the members of the legislative body are
compensated for their appearance, and if one or more of the
members of the legislative body are also members of a legislative
body as that term is defined by subdivision (a) of Section 54952.

begin insert

(e) (1) For purposes of the Internet posting requirements in
subdivision (a), if the local agency is unable to post the agenda
on the local agency’s Internet Web site because of software or
hardware impairment beyond the local agency’s reasonable
control, the local agency shall post the agenda immediately upon
resolution of the technological problems. These circumstances
shall not preclude the legislative body of the local agency from
conducting the meeting or taking action on items of business,
provided that the local agency has complied with all other
requirements of subdivision (a). The legislative body, or its
designee, shall announce at the beginning of the meeting the reason
for the failure to post, or the delay in posting, the agenda.

end insert begin insert

(2) For purposes of this subdivision, “software or hardware
impairment beyond the local agency’s reasonable control” means
that the local agency is unable to utilize the computer software,
hardware, or network services to post the agenda or agendas to
the local agency’s Internet Web site due to inoperability of the
software or hardware caused by a malicious act, introduction of
a malicious program, including, but not limited to, a computer
virus, an electrical outage affecting the local agency’s computer
network, or unanticipated system or equipment inoperability or
failure.

end insert

SEC. 2.  

Section 54956 of the Government Code is amended
to read:

54956.  

(a) A special meeting may be called at any time by the
presiding officer of the legislative body of a local agency, or by a
majority of the members of the legislative body, by delivering
written notice to each member of the legislative body and to each
local newspaper of general circulation and radio or television
station requesting notice in writing and posting a notice on the
local agency’s Internet Web site, if the local agency has one. The
notice shall be delivered personally or by any other means and
shall be received at least 24 hours before the time of the meeting
as specified in the notice. The call and notice shall specify the time
and place of the special meeting and the business to be transacted
or discussed. No other business shall be considered at these
meetings by the legislative body. The written notice may be
dispensed with as to any member who at or prior to the time the
meeting convenes files with the clerk or secretary of the legislative
body a written waiver of notice. The waiver may be given by
telegram. The written notice may also be dispensed with as to any
member who is actually present at the meeting at the time it
convenes.

The call and notice shall be posted at least 24 hours prior to the
special meeting in a location that is freely accessible to members
of the public.

(b) Notwithstanding any other law, a legislative body shall not
call a special meeting regarding the salaries, salary schedules, or
compensation paid in the form of fringe benefits, of a local agency
executive, as defined in subdivision (d) of Section 3511.1.
However, this subdivision does not apply to a local agency calling
a special meeting to discuss the local agency’s budget.

(c) For purposes of subdivision (a), the requirement that the
begin delete agenda end delete begin insert notice end insert be posted on the local agency’s Internet Web site,
if the local agency has one, shall only apply to a legislative body
that meets either of the following standards:

(1) A legislative body as that term is defined by subdivision (a)
of Section 54952.

(2) A legislative body as that term is defined by subdivision (b)
of Section 54952, if the members of the legislative body are
compensated for their appearance, and if one or more of the
members of the legislative body are also members of a legislative
body as that term is defined by subdivision (a) of Section 54952.

begin insert

(d) (1) For purposes of the Internet posting requirements in
subdivision (a), if the local agency is unable to post the notice on
the local agency’s Internet Web site because of software or
hardware impairment beyond the local agency’s reasonable
control, the local agency shall post the notice immediately upon
resolution of the technological problems. These circumstances
shall not preclude a legislative body of the local agency from
conducting the meeting or taking action on items of business,
provided that the local agency has complied with all other
requirements of subdivision (a). The legislative body, or its
designee, shall announce at the beginning of the meeting the reason
for the failure to post, or the delay in posting, the notice.

end insert begin insert

(2) For purposes of this subdivision, “software or hardware
impairment beyond the local agency’s reasonable control” means
that the local agency is unable to utilize the computer software,
hardware, or network services to post the notice or notices to the
local agency’s Internet Web site due to inoperability of the software
or hardware caused by a malicious act, introduction of a malicious
program, including, but not limited to, a computer virus, an
electrical outage affecting the local agency’s computer network,
or unanticipated system or equipment inoperability or failure.

end insert

SEC. 3.  

The Legislature finds and declares that Sections 1 and
2 of this act, which amend Sections 54954.2 and 54956 of the
Government Code, impose a limitation on the public’s right of
access to the meetings of public bodies or the writings of public
officials and agencies within the meaning of Section 3 of Article
I of the California Constitution. Pursuant to that constitutional
provision, the Legislature makes the following findings to
demonstrate the interest protected by this limitation and the need
for protecting that interest:

If unavoidable technical malfunctions or malicious acts prevent
local agencies from carrying out the people’s business, efficient
governance is impeded. Therefore, the health and safety of the
people of California are enhanced by giving governing bodies the
authority to conduct meetings without complying with Internet
posting requirements when that compliance is unavoidable due to
circumstances beyond the local agency’s control.