BILL ANALYSIS �
AB 792
Page 1
Date of Hearing: April 3, 2013
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
AB 792 (Mullin) - As Amended: April 1, 2013
SUBJECT : Local government: open meetings.
SUMMARY : Clarifies that legislative bodies of local agencies
may conduct regular and special meetings and take official
actions even if technical barriers have prevented pre-meeting
posting of agendas and notices on their websites. Specifically,
this bill :
1)Provides that, for purposes of pre-meeting Internet posting
requirements in current law, if the local agency is unable to
post the agenda for a regular meeting or a notice of a special
meeting 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 or
notice immediately upon resolution of the technological
problems.
2)Specifies that the circumstances described above 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
pre-meeting posting requirements.
3)Requires the legislative body, or its designee, to announce at
the beginning of the meeting the reason for the failure to
post, or the delay in posting, the agenda or the notice on the
local agency's Internet Web site.
4)Defines "software or hardware impairment beyond the local
agency's reasonable control" to mean that the local agency is
unable to utilize the computer software, hardware, or network
services to post the agenda or agendas, or notice or notices,
to the local agency's Internet Web site due to inoperability
of the software, hardware, or network services 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.
AB 792
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EXISTING LAW :
1)Requires, under the Ralph M. Brown Act (Brown Act), that all
meetings of a legislative body of a local agency be open and
public and that all persons be permitted to attend unless a
closed session is authorized.
2)Requires, at least 72 hours before a regular meeting, the
legislative body of the local agency, or its designee, to 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. The agenda
must specify the time and location of the regular meeting and
must 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.
3)Prohibits action or discussion from being undertaken on any
item not appearing on the posted agenda, as specified.
4)Allows a special meeting of the legislative body of a local
agency to be called at any time by the presiding officer, 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, at least 24 hours in advance of the
special meeting.
5)Specifies that the call and notice for a special meeting must
specify the time and place of the special meeting and the
business to be transacted or discussed, and prohibits any
other business from being considered at the special meeting.
FISCAL EFFECT : None
COMMENTS :
1)This bill clarifies that local agency legislative bodies may
meet and take action in regular or special meetings even if
they are unable to comply, due to technical impairments beyond
their reasonable control, with current-law requirements to
post on their websites the agenda of a regular meeting or a
notice of a special meeting, provided that they comply with
all other pre-meeting posting requirements under the Brown
AB 792
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Act. According to the author, "Whether due to server failure,
Internet provider service issues, or malicious attack from
hackers, it is not clear if local agencies are still permitted
to hold their meetings when their websites are down?. Local
agencies need clarification and guidance so they can continue
to conduct business in an open and transparent manner." This
bill is sponsored by the California Special Districts
Association.
2)The Brown Act's online posting requirement was established
just last year, via AB 1344 (Feuer and Alejo), Chapter 692,
Statutes of 2011. The new statute requires the legislative
body of a local agency to post at least 72 hours in advance
the agenda for a regular meeting on the local agency's
Internet Web site, if the local agency has one, and to post at
least 24 hours in advance the notice for a special meeting and
the business to be transacted on the local agency's Internet
Web site, if the local agency has one.
3)According to the author and sponsor, several local government
bodies have already experienced situations in which they were
unable to post their agenda online. This presents local
agencies with a two-fold problem: first, they are concerned
with being out of compliance with the advance-posting
requirements under the Brown Act for these meetings; and,
second, they are concerned that any action taken during these
meetings could be declared null and void under existing
provisions of the Brown Act.
4)The sponsor notes that some agenda items can be postponed, but
that other agenda items - such as contracts, infrastructure
financing agreements, litigation, or hiring and dismissal of
management - are time sensitive. This is especially true for
local government bodies that do not meet on a weekly basis.
5)Support arguments : This bill offers a reasonable solution for
local agencies experiencing technical difficulties in posting
on-line meeting agendas and notices that still provides access
and transparency for the public.
Opposition arguments : Opponents state that "without
reasonable limits to AB 792, it will be possible for local
governments to legislate in secret. For example, if notice of
a hearing regarding an important ordinance is not posted due
to 'impairment' for the entire 72-hour period required under
AB 792
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current law, AB 792 would allow the public body to hold the
meeting despite the lack of web notice. Because large cross
sections of the public rely on web notice, holding the meeting
and casting votes under this scenario would be equivalent to
legislating in secret."
REGISTERED SUPPORT / OPPOSITION :
Support
California Special Districts Association [SPONSOR]
Association of California Cities - Orange County
Association of California Health Care Districts
Association of California Water Agencies
California Association of Clerks and Elections Officials
California Association of Joint Powers Authorities
California Association of Sanitation Agencies
California School Boards Association
California State Association of Counties
League of California Cities
Urban Counties Caucus
Opposition
The Apartment Association, California Southern Cities
East Bay Rental Housing Association
NORCAL Rental Property Association
Analysis Prepared by : Angela Mapp / L. GOV. / (916) 319-3958