Amended in Senate June 25, 2013

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

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(Principal coauthor: Senator Hill)

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(Coauthor: Assembly Member Alejo)

February 21, 2013


An act tobegin delete amend Sections 54954.2 and 54956 of the Governmentend deletebegin insert add Section 7284.5 to the Revenue and Taxationend insert Code, relating tobegin delete local governmentend deletebegin insert taxationend insert.

LEGISLATIVE COUNSEL’S DIGEST

AB 792, as amended, Mullin. begin deleteLocal government: open meetings. end deletebegin insertUtility user tax: exemption: distributed generation systems.end insert

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Existing law generally provides that the legislative body of any city and any charter city may make and enforce all ordinances and regulations with respect to municipal affairs, as provided, including, but not limited to, a utility user tax on the consumption of gas and electricity. Existing law provides that the board of supervisors of any county may levy a utility user tax on the consumption of, among other things, gas and electricity in the unincorporated area of the county.

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This bill would exempt from any utility user tax imposed by a local jurisdiction, as defined, the consumption of electricity generated by a renewable distributed generation system that is installed for the exclusive use of a single customer.

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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.

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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, would specify that the local agency may conduct the meeting as long as the legislative body meets specified requirements, including, among other things, posting the agenda or notice immediately upon resolution of the technological problems, as specified. 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.

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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.

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This bill would make legislative findings to that effect.

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

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

P2    1begin insert

begin insertSECTION 1.end insert  

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begin insertSection 7284.5 is added to the end insertbegin insertRevenue and
2Taxation Code
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begin insert, to read:end insert

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3

begin insert7284.5.end insert  

(a) For the purposes of this section, “local
4jurisdiction” means any city, county, city and county, including
5any chartered city, county, or city and county, district, or public
6or municipal corporation.

P3    1(b) There is exempt from any utility user tax on the consumption
2of electricity, imposed by any local jurisdiction, a customer’s
3consumption of electricity generated by a renewable distributed
4generation system that is installed for the exclusive use of a single
5customer.

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begin insertSEC. 2.end insert  

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The Legislature finds and declares that exempting the
7consumption of electricity generated by a renewable distributed
8generation system that is installed for the exclusive use of a single
9customer from local utility user taxes will ensure statewide
10uniformity and fairness in the overall imposition of the utility user
11tax. Therefore, exempting from utility user taxes the consumption
12of electricity generated by a renewable distributed generation
13system that is installed for the exclusive use of a single customer
14is a matter of statewide concern, and not a municipal affair, as
15that term is used in Section 5 of Article XI of the California
16Constitution.

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17

SECTION 1.  

Section 54954.2 of the Government Code is
18amended to read:

19

54954.2.  

(a) (1) At least 72 hours before a regular meeting,
20the legislative body of the local agency, or its designee, shall post
21an agenda containing a brief general description of each item of
22business to be transacted or discussed at the meeting, including
23items to be discussed in closed session. A brief general description
24of an item generally need not exceed 20 words. The agenda shall
25specify the time and location of the regular meeting and shall be
26posted in a location that is freely accessible to members of the
27public and on the local agency’s Internet Web site, if the local
28agency has one. If requested, the agenda shall be made available
29in appropriate alternative formats to persons with a disability, as
30required by Section 202 of the Americans with Disabilities Act of
311990 (42 U.S.C. Sec. 12132), and the federal rules and regulations
32adopted in implementation thereof. The agenda shall include
33information regarding how, to whom, and when a request for
34disability-related modification or accommodation, including
35auxiliary aids or services, may be made by a person with a
36disability who requires a modification or accommodation in order
37to participate in the public meeting.

38(2) No action or discussion shall be undertaken on any item not
39appearing on the posted agenda, except that members of a
40legislative body or its staff may briefly respond to statements made
P4    1or questions posed by persons exercising their public testimony
2rights under Section 54954.3. In addition, on their own initiative
3or in response to questions posed by the public, a member of a
4legislative body or its staff may ask a question for clarification,
5make a brief announcement, or make a brief report on his or her
6own activities. Furthermore, a member of a legislative body, or
7the body itself, subject to rules or procedures of the legislative
8body, may provide a reference to staff or other resources for factual
9information, request staff to report back to the body at a subsequent
10meeting concerning any matter, or take action to direct staff to
11place a matter of business on a future agenda.

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

17(1) Upon a determination by a majority vote of the legislative
18body that an emergency situation exists, as defined in Section
1954956.5.

20(2) Upon a determination by a two-thirds vote of the members
21of the legislative body present at the meeting, or, if less than
22two-thirds of the members are present, a unanimous vote of those
23members present, that there is a need to take immediate action and
24that the need for action came to the attention of the local agency
25subsequent to the agenda being posted as specified in subdivision
26(a).

27(3) The item was posted pursuant to subdivision (a) for a prior
28meeting of the legislative body occurring not more than five
29calendar days prior to the date action is taken on the item, and at
30the prior meeting the item was continued to the meeting at which
31action is being taken.

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

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

39(1) A legislative body as that term is defined by subdivision (a)
40of Section 54952.

P5    1(2) A legislative body as that term is defined by subdivision (b)
2of Section 54952, if the members of the legislative body are
3compensated for their appearance, and if one or more of the
4members of the legislative body are also members of a legislative
5body as that term is defined by subdivision (a) of Section 54952.

6(e) (1) For purposes of the Internet posting requirements in
7subdivision (a), if the local agency is unable to post the agenda on
8the local agency’s Internet Web site because of software or
9hardware impairment beyond the local agency’s reasonable control,
10these circumstances shall not preclude the legislative body of the
11local agency from conducting the meeting or taking action on items
12of business, provided that the local agency has complied with all
13of the following requirements:

14(A) The legislative body adheres to the requirements of
15subdivision (a).

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

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

20(D) The 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 agenda on the local agency’s Internet Web
23site.

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

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 agenda or agendas 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. 2.  

Section 54956 of the Government Code is amended
40to read:

P6    1

54956.  

(a) A special meeting may be called at any time by the
2presiding officer of the legislative body of a local agency, or by a
3majority of the members of the legislative body, by delivering
4written notice to each member of the legislative body and to each
5local newspaper of general circulation and radio or television
6station requesting notice in writing and posting a notice on the
7local agency’s Internet Web site, if the local agency has one. The
8notice shall be delivered personally or by any other means and
9shall be received at least 24 hours before the time of the meeting
10as specified in the notice. The call and notice shall specify the time
11and place of the special meeting and the business to be transacted
12or discussed. No other business shall be considered at these
13meetings by the legislative body. The written notice may be
14 dispensed with as to any member who at or prior to the time the
15meeting convenes files with the clerk or secretary of the legislative
16body a written waiver of notice. The waiver may be given by
17telegram. The written notice may also be dispensed with as to any
18member who is actually present at the meeting at the time it
19convenes.

20The call and notice shall be posted at least 24 hours prior to the
21special meeting in a location that is freely accessible to members
22of the public.

23(b) Notwithstanding any other law, a legislative body shall not
24call a special meeting regarding the salaries, salary schedules, or
25compensation paid in the form of fringe benefits, of a local agency
26executive, as defined in subdivision (d) of Section 3511.1.
27However, this subdivision does not apply to a local agency calling
28a special meeting to discuss the local agency’s budget.

29(c) For purposes of subdivision (a), the requirement that the
30 notice be posted on the local agency’s Internet Web site, if the
31local agency has one, shall only apply to a legislative body that
32meets either of the following standards:

33(1) A legislative body as that term is defined by subdivision (a)
34of Section 54952.

35(2) A legislative body as that term is defined by subdivision (b)
36of Section 54952, if the members of the legislative body are
37compensated for their appearance, and if one or more of the
38members of the legislative body are also members of a legislative
39body as that term is defined by subdivision (a) of Section 54952.

P7    1(d) (1) For purposes of the Internet posting requirements in
2subdivision (a), if the local agency is unable to post the notice on
3the local agency’s Internet Web site because of software or
4hardware impairment beyond the local agency’s reasonable control,
5these circumstances shall not preclude a legislative body of the
6local agency from conducting the meeting or taking action on items
7of business, provided that the local agency has complied with all
8of the following requirements:

9(A) The legislative body adheres to the requirements of
10subdivision (a).

11(B) The legislative body makes a reasonable effort to restore
12online posting capabilities.

13(C) The legislative body posts the notice on the Internet Web
14site immediately upon resolution of the technological problems.

15(D) The legislative body, or its designee, shall announce at the
16beginning of the meeting the reason for the failure to post, or the
17delay in posting, the notice on the local agency’s Internet Web
18site.

19(E) The legislative body, or its designee, attests to a written
20statement from the local agency describing the reason for the failure
21to post or the delay in posting the notice on the local agency’s
22Internet Web site, and the statement is posted on the local agency’s
23Internet Web site without delay.

24(2) For purposes of this subdivision, “software or hardware
25impairment beyond the local agency’s reasonable control” means
26that the local agency is unable to utilize the computer software,
27hardware, or network services to post the notice or notices to the
28local agency’s Internet Web site due to inoperability of the
29software, hardware, or network services caused by a malicious
30act, introduction of a malicious program, including, but not limited
31to, a computer virus, an electrical outage affecting the local
32agency’s computer network, or unanticipated system or equipment
33inoperability or failure.

34

SEC. 3.  

The Legislature finds and declares that Sections 1 and
352 of this act, which amend Sections 54954.2 and 54956 of the
36Government Code, impose a limitation on the public’s right of
37access to the meetings of public bodies or the writings of public
38officials and agencies within the meaning of Section 3 of Article
39I of the California Constitution. Pursuant to that constitutional
40provision, the Legislature makes the following findings to
P8    1demonstrate the interest protected by this limitation and the need
2for protecting that interest:

3If unavoidable technical malfunctions or malicious acts prevent
4local agencies from carrying out the people’s business, efficient
5governance is impeded. Therefore, the health and safety of the
6people of California are enhanced by giving governing bodies the
7authority to conduct meetings without complying with Internet
8posting requirements when that compliance is unavoidable due to
9circumstances beyond the local agency’s control.

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