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
                                                                  Page  2

           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
                                                                  Page  3

            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
                                                                  Page  4

            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