Amended in Assembly April 1, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 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 amended, 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 ofbegin delete software or hardwareend deletebegin insert software, hardware, or network servicesend insert 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:

P2    1

SECTION 1.  

Section 54954.2 of the Government Code is
2amended to read:

3

54954.2.  

(a) (1) At least 72 hours before a regular meeting,
4the legislative body of the local agency, or its designee, shall post
5an agenda containing a brief general description of each item of
6business to be transacted or discussed at the meeting, including
7items to be discussed in closed session. A brief general description
8of an item generally need not exceed 20 words. The agenda shall
9specify the time and location of the regular meeting and shall be
10posted in a location that is freely accessible to members of the
11public and on the local agency’s Internet Web site, if the local
12agency has one. If requested, the agenda shall be made available
13in appropriate alternative formats to persons with a disability, as
14required by Section 202 of the Americans with Disabilities Act of
151990 (42 U.S.C. Sec. 12132), and the federal rules and regulations
16adopted in implementation thereof. The agenda shall include
17information regarding how, to whom, and when a request for
18disability-related modification or accommodation, including
19auxiliary aids or services, may be made by a person with a
20disability who requires a modification or accommodation in order
21to participate in the public meeting.

22(2) No action or discussion shall be undertaken on any item not
23appearing on the posted agenda, except that members of a
24legislative body or its staff may briefly respond to statements made
25or questions posed by persons exercising their public testimony
26rights under Section 54954.3. In addition, on their own initiative
27or in response to questions posed by the public, a member of a
P3    1legislative body or its staff may ask a question for clarification,
2make a brief announcement, or make a brief report on his or her
3own activities. Furthermore, a member of a legislative body, or
4the body itself, subject to rules or procedures of the legislative
5body, may provide a reference to staff or other resources for factual
6information, request staff to report back to the body at a subsequent
7meeting concerning any matter, or take action to direct staff to
8place a matter of business on a future agenda.

9(b) Notwithstanding subdivision (a), the legislative body may
10take action on items of business not appearing on the posted agenda
11under any of the conditions stated below. Prior to discussing any
12item pursuant to this subdivision, the legislative body shall publicly
13identify the item.

14(1) Upon a determination by a majority vote of the legislative
15body that an emergency situation exists, as defined in Section
1654956.5.

17(2) Upon a determination by a two-thirds vote of the members
18of the legislative body present at the meeting, or, if less than
19two-thirds of the members are present, a unanimous vote of those
20members present, that there is a need to take immediate action and
21that the need for action came to the attention of the local agency
22subsequent to the agenda being posted as specified in subdivision
23(a).

24(3) The item was posted pursuant to subdivision (a) for a prior
25meeting of the legislative body occurring not more than five
26calendar days prior to the date action is taken on the item, and at
27the prior meeting the item was continued to the meeting at which
28action is being taken.

29(c) This section is necessary to implement and reasonably within
30the scope of paragraph (1) of subdivision (b) of Section 3 of Article
31I of the California Constitution.

32(d) For purposes of subdivision (a), the requirement that the
33agenda be posted on the local agency’s Internet Web site, if the
34local agency has one, shall only apply to a legislative body that
35meets either of the following standards:

36(1) A legislative body as that term is defined by subdivision (a)
37of Section 54952.

38(2) A legislative body as that term is defined by subdivision (b)
39of Section 54952, if the members of the legislative body are
40compensated for their appearance, and if one or more of the
P4    1members of the legislative body are also members of a legislative
2body as that term is defined by subdivision (a) of Section 54952.

3(e) (1) For purposes of the Internet posting requirements in
4subdivision (a), if the local agency is unable to post the agenda on
5the local agency’s Internet Web site because of software or
6hardware impairment beyond the local agency’s reasonable control,
7the local agency shall post the agenda immediately upon resolution
8of the technological problems. These circumstances shall not
9preclude the legislative body of the local agency from conducting
10the meeting or taking action on items of business, provided that
11the local agency has complied with all other requirements of
12subdivision (a). The legislative body, or its designee, shall
13announce at the beginning of the meeting the reason for the failure
14to post, or the delay in posting, the agendabegin insert on the local agency’s
15Internet Web siteend insert
.

16(2) For purposes of this subdivision, “software or hardware
17impairment beyond the local agency’s reasonable control” means
18that the local agency is unable to utilize the computer software,
19hardware, or network services to post the agenda or agendas to the
20local agency’s Internet Web site due to inoperability of thebegin delete software
21or hardwareend delete
begin insert software, hardware, or network servicesend insert caused by a
22malicious act, introduction of a malicious program, including, but
23not limited to, a computer virus, an electrical outage affecting the
24local agency’s computer network, or unanticipated system or
25equipment inoperability or failure.

26

SEC. 2.  

Section 54956 of the Government Code is amended
27to read:

28

54956.  

(a) A special meeting may be called at any time by the
29presiding officer of the legislative body of a local agency, or by a
30majority of the members of the legislative body, by delivering
31written notice to each member of the legislative body and to each
32local newspaper of general circulation and radio or television
33station requesting notice in writing and posting a notice on the
34local agency’s Internet Web site, if the local agency has one. The
35notice shall be delivered personally or by any other means and
36shall be received at least 24 hours before the time of the meeting
37as specified in the notice. The call and notice shall specify the time
38and place of the special meeting and the business to be transacted
39or discussed. No other business shall be considered at these
40meetings by the legislative body. The written notice may be
P5    1 dispensed with as to any member who at or prior to the time the
2meeting convenes files with the clerk or secretary of the legislative
3body a written waiver of notice. The waiver may be given by
4telegram. The written notice may also be dispensed with as to any
5member who is actually present at the meeting at the time it
6convenes.

7The call and notice shall be posted at least 24 hours prior to the
8special meeting in a location that is freely accessible to members
9of the public.

10(b) Notwithstanding any other law, a legislative body shall not
11call a special meeting regarding the salaries, salary schedules, or
12compensation paid in the form of fringe benefits, of a local agency
13executive, as defined in subdivision (d) of Section 3511.1.
14However, this subdivision does not apply to a local agency calling
15a special meeting to discuss the local agency’s budget.

16(c) For purposes of subdivision (a), the requirement that the
17 notice be posted on the local agency’s Internet Web site, if the
18local agency has one, shall only apply to a legislative body that
19meets either of the following standards:

20(1) A legislative body as that term is defined by subdivision (a)
21of Section 54952.

22(2) A legislative body as that term is defined by subdivision (b)
23of Section 54952, if the members of the legislative body are
24compensated for their appearance, and if one or more of the
25members of the legislative body are also members of a legislative
26body as that term is defined by subdivision (a) of Section 54952.

27(d) (1) For purposes of the Internet posting requirements in
28subdivision (a), if the local agency is unable to post the notice on
29the local agency’s Internet Web site because of software or
30hardware impairment beyond the local agency’s reasonable control,
31the local agency shall post the notice immediately upon resolution
32of the technological problems. These circumstances shall not
33preclude a legislative body of the local agency from conducting
34the meeting or taking action on items of business, provided that
35the local agency has complied with all other requirements of
36subdivision (a). The legislative body, or its designee, shall
37announce at the beginning of the meeting the reason for the failure
38to post, or the delay in posting, the noticebegin insert on the local agency’s
39Internet Web siteend insert
.

P6    1(2) For purposes of this subdivision, “software or hardware
2impairment beyond the local agency’s reasonable control” means
3that the local agency is unable to utilize the computer software,
4hardware, or network services to post the notice or notices to the
5local agency’s Internet Web site due to inoperability of thebegin delete software
6or hardwareend delete
begin insert software, hardware, or network servicesend insert caused by a
7malicious act, introduction of a malicious program, including, but
8not limited to, a computer virus, an electrical outage affecting the
9local agency’s computer network, or unanticipated system or
10equipment inoperability or failure.

11

SEC. 3.  

The Legislature finds and declares that Sections 1 and
122 of this act, which amend Sections 54954.2 and 54956 of the
13Government Code, impose a limitation on the public’s right of
14access to the meetings of public bodies or the writings of public
15officials and agencies within the meaning of Section 3 of Article
16I of the California Constitution. Pursuant to that constitutional
17provision, the Legislature makes the following findings to
18demonstrate the interest protected by this limitation and the need
19for protecting that interest:

20If unavoidable technical malfunctions or malicious acts prevent
21local agencies from carrying out the people’s business, efficient
22governance is impeded. Therefore, the health and safety of the
23people of California are enhanced by giving governing bodies the
24authority to conduct meetings without complying with Internet
25posting requirements when that compliance is unavoidable due to
26circumstances beyond the local agency’s control.



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