Amended in Assembly May 6, 2013

Amended in Assembly April 1, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 792


Introduced by Assembly Member Mullin

begin insert

(Coauthor: Assembly Member Alejo)

end insert

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 of software, hardware, or network services impairment beyond the local agency’s reasonable control, wouldbegin delete require the local agency to postend deletebegin insert specify that the local agency may conduct the meeting as long as the legislative body meets specified requirements, including, among other things, postingend insert the agenda or notice immediately upon resolution of the technological problemsbegin insert, as specifiedend insert. 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
P3    1legislative body or its staff may briefly respond to statements made
2or questions posed by persons exercising their public testimony
3rights under Section 54954.3. In addition, on their own initiative
4or in response to questions posed by the public, a member of a
5legislative body or its staff may ask a question for clarification,
6make a brief announcement, or make a brief report on his or her
7own activities. Furthermore, a member of a legislative body, or
8the body itself, subject to rules or procedures of the legislative
9body, may provide a reference to staff or other resources for factual
10information, request staff to report back to the body at a subsequent
11meeting concerning any matter, or take action to direct staff to
12place a matter of business on a future agenda.

13(b) Notwithstanding subdivision (a), the legislative body may
14take action on items of business not appearing on the posted agenda
15under any of the conditions stated below. Prior to discussing any
16item pursuant to this subdivision, the legislative body shall publicly
17identify the item.

18(1) Upon a determination by a majority vote of the legislative
19body that an emergency situation exists, as defined in Section
2054956.5.

21(2) Upon a determination by a two-thirds vote of the members
22of the legislative body present at the meeting, or, if less than
23two-thirds of the members are present, a unanimous vote of those
24members present, that there is a need to take immediate action and
25that the need for action came to the attention of the local agency
26subsequent to the agenda being posted as specified in subdivision
27(a).

28(3) The item was posted pursuant to subdivision (a) for a prior
29meeting of the legislative body occurring not more than five
30calendar days prior to the date action is taken on the item, and at
31the prior meeting the item was continued to the meeting at which
32action is being taken.

33(c) This section is necessary to implement and reasonably within
34the scope of paragraph (1) of subdivision (b) of Section 3 of Article
35I of the California Constitution.

36(d) For purposes of subdivision (a), the requirement that the
37agenda be posted on the local agency’s Internet Web site, if the
38local agency has one, shall only apply to a legislative body that
39meets either of the following standards:

P4    1(1) A legislative body as that term is defined by subdivision (a)
2of Section 54952.

3(2) A legislative body as that term is defined by subdivision (b)
4of Section 54952, if the members of the legislative body are
5compensated for their appearance, and if one or more of the
6members of the legislative body are also members of a legislative
7body as that term is defined by subdivision (a) of Section 54952.

8(e) (1) For purposes of the Internet posting requirements in
9subdivision (a), if the local agency is unable to post the agenda on
10the local agency’s Internet Web site because of software or
11hardware impairment beyond the local agency’s reasonable control,
12begin delete the local agency shall post the agenda immediately upon resolution
13of the technological problems. Theseend delete
begin insert theseend insert circumstances shall
14not preclude the legislative body of the local agency from
15conducting the meeting or taking action on items of business,
16provided that the local agency has complied with allbegin delete other
17requirementsend delete
ofbegin insert the following requirements:end insert

18begin insert(A)end insertbegin insertend insertbegin insertThe legislative body adheres to the requirements of end insert
19 subdivision (a).begin delete Theend delete

begin insert

20(B) The legislative body makes a reasonable effort to restore
21online posting capabilities.

end insert
begin insert

22(C) The legislative body posts the agenda on the Internet Web
23site immediately upon resolution of the technological problems.

end insert

24begin insert(D)end insertbegin insertend insertbegin insertTheend insert legislative body, or its designee, shall announce at the
25beginning of the meeting the reason for the failure to post, or the
26delay in posting, the agenda on the local agency’s Internet Web
27site.

begin insert

28(E) The legislative body, or its designee, attests to a written
29statement from the local agency describing the reason for the
30failure to post or the delay in posting the agenda on the local
31agency’s Internet Web site, and the statement is posted on the local
32agency’s Internet Web site without delay.

end insert

33(2) For purposes of this subdivision, “software or hardware
34impairment beyond the local agency’s reasonable control” means
35that the local agency is unable to utilize the computer software,
36hardware, or network services to post the agenda or agendas to the
37local agency’s Internet Web site due to inoperability of the
38software, hardware, or network services caused by a malicious
39act, introduction of a malicious program, including, but not limited
40to, a computer virus, an electrical outage affecting the local
P5    1agency’s computer network, or unanticipated system or equipment
2inoperability or failure.

3

SEC. 2.  

Section 54956 of the Government Code is amended
4to read:

5

54956.  

(a) A special meeting may be called at any time by the
6presiding officer of the legislative body of a local agency, or by a
7majority of the members of the legislative body, by delivering
8written notice to each member of the legislative body and to each
9local newspaper of general circulation and radio or television
10station requesting notice in writing and posting a notice on the
11local agency’s Internet Web site, if the local agency has one. The
12notice shall be delivered personally or by any other means and
13shall be received at least 24 hours before the time of the meeting
14as specified in the notice. The call and notice shall specify the time
15and place of the special meeting and the business to be transacted
16or discussed. No other business shall be considered at these
17meetings by the legislative body. The written notice may be
18 dispensed with as to any member who at or prior to the time the
19meeting convenes files with the clerk or secretary of the legislative
20body a written waiver of notice. The waiver may be given by
21telegram. The written notice may also be dispensed with as to any
22member who is actually present at the meeting at the time it
23convenes.

24The call and notice shall be posted at least 24 hours prior to the
25special meeting in a location that is freely accessible to members
26of the public.

27(b) Notwithstanding any other law, a legislative body shall not
28call a special meeting regarding the salaries, salary schedules, or
29compensation paid in the form of fringe benefits, of a local agency
30executive, as defined in subdivision (d) of Section 3511.1.
31However, this subdivision does not apply to a local agency calling
32a special meeting to discuss the local agency’s budget.

33(c) For purposes of subdivision (a), the requirement that the
34 notice be posted on the local agency’s Internet Web site, if the
35local agency has one, shall only apply to a legislative body that
36meets either of the following standards:

37(1) A legislative body as that term is defined by subdivision (a)
38of Section 54952.

39(2) A legislative body as that term is defined by subdivision (b)
40of Section 54952, if the members of the legislative body are
P6    1compensated for their appearance, and if one or more of the
2members of the legislative body are also members of a legislative
3body as that term is defined by subdivision (a) of Section 54952.

4(d) (1) For purposes of the Internet posting requirements in
5subdivision (a), if the local agency is unable to post the notice on
6the local agency’s Internet Web site because of software or
7hardware impairment beyond the local agency’s reasonable control,
8begin delete the local agency shall post the notice immediately upon resolution
9of the technological problems. Theseend delete
begin insert theseend insert circumstances shall
10not preclude a legislative body of the local agency from conducting
11the meeting or taking action on items of business, provided that
12the local agency has complied with allbegin delete other requirementsend delete ofbegin insert the
13following requirements:end insert

14begin insert(A)end insertbegin insertend insertbegin insertThe legislative body adheres to the requirements of end insert
15 subdivision (a).begin delete Theend delete

begin insert

16(B) The legislative body makes a reasonable effort to restore
17online posting capabilities.

end insert
begin insert

18(C) The legislative body posts the notice on the Internet Web
19site immediately upon resolution of the technological problems.

end insert

20begin insert(D)end insertbegin insertend insertbegin insertTheend insert legislative body, or its designee, shall announce at the
21beginning of the meeting the reason for the failure to post, or the
22delay in posting, the notice on the local agency’s Internet Web
23site.

begin insert

24(E) The legislative body, or its designee, attests to a written
25statement from the local agency describing the reason for the
26failure to post or the delay in posting the notice on the local
27agency’s Internet Web site, and the statement is posted on the local
28agency’s Internet Web site without delay.

end insert

29(2) For purposes of this subdivision, “software or hardware
30impairment beyond the local agency’s reasonable control” means
31that the local agency is unable to utilize the computer software,
32hardware, or network services to post the notice or notices to the
33local agency’s Internet Web site due to inoperability of the
34software, hardware, or network services caused by a malicious
35act, introduction of a malicious program, including, but not limited
36to, a computer virus, an electrical outage affecting the local
37agency’s computer network, or unanticipated system or equipment
38inoperability or failure.

39

SEC. 3.  

The Legislature finds and declares that Sections 1 and
402 of this act, which amend Sections 54954.2 and 54956 of the
P7    1Government Code, impose a limitation on the public’s right of
2access to the meetings of public bodies or the writings of public
3officials and agencies within the meaning of Section 3 of Article
4I of the California Constitution. Pursuant to that constitutional
5provision, the Legislature makes the following findings to
6demonstrate the interest protected by this limitation and the need
7for protecting that interest:

8If unavoidable technical malfunctions or malicious acts prevent
9local agencies from carrying out the people’s business, efficient
10governance is impeded. Therefore, the health and safety of the
11people of California are enhanced by giving governing bodies the
12authority to conduct meetings without complying with Internet
13posting requirements when that compliance is unavoidable due to
14circumstances beyond the local agency’s control.



O

    97