BILL ANALYSIS Ó
AB 85
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Date of Hearing: April 8, 2015
ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
Adam Gray, Chair
AB 85
(Wilk) - As Introduced January 6, 2015
SUBJECT: Open meetings
SUMMARY: An urgency measure, is intended to clarify language
within the Bagley-Keene Open Meeting Act (Act) by stating that
when an advisory board, advisory commission, advisory committee,
advisory subcommittee, or similar multimember advisory body is
acting in an official capacity of a state body and is funded in
whole or part by the state body, the entity is subject to the
Act, regardless of committee size or membership. Specifically,
this bill:
1) States that the definition of "state body" includes an
advisory board, advisory commission, advisory committee,
advisory subcommittee, or similar multimember advisory body of a
state body that consists of 3 or more individuals, as described,
except a board, commission, committee, or similar multimember
body on which a member of a body serves in his or her official
capacity as a representative of that state body and that is
supported, in whole or in part, by funds provided by the state
body, whether the multimember body is organized and operated by
the state body or by a private corporation.
2) Makes legislative findings and declarations
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3) Contains an urgency clause.
EXISTING LAW:
1) The Bagley-Keene Open Meeting Act, set forth in Government
Code Sections 11120-11132, covers all state boards and
commissions and generally requires these bodies to publicly
notice their meetings, prepare agendas, accept public testimony
and conduct their meetings in public unless specifically
authorized by the Act to meet in closed session. The Ralph M.
Brown Act (Brown Act), set forth in Government Code Section
54950 et seq., governs meetings of legislative bodies of local
agencies. In general, both Acts are virtually identical. While
both acts contain specific exceptions from the open meeting
requirements where government has demonstrated a need for
confidentiality, such exceptions have been narrowly construed by
the courts.
2) The Act defines "state body" to mean each of the following:
(a) Every state board, or commission, or similar multimember
body of the state that is created by statute or required by
law to conduct official meetings and every commission created
by executive order.
(b) A board, commission, committee, or similar multimember body
that exercises any authority of a state body delegated to it
by that state body.
(c) An advisory board, advisory commission, advisory committee,
advisory subcommittee, or similar multimember advisory body of
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a state body, if created by formal action of the state body or
of any member of the state body. Advisory bodies created to
consist of fewer than three individuals are not a state body,
except that standing committees of a state body, irrespective
of their composition, which have a continuing subject matter
jurisdiction, or a meeting schedule fixed by resolution,
policies, bylaws, or formal action of a state body are state
bodies for the purposes of this chapter.
(d) A board, commission, committee, or similar multimember body
on which a member of a body that is a state body pursuant to
this section serves in his or her official capacity as a
representative of that state body and that is supported, in
whole or in part, by funds provided by the state body, whether
the multimember body is organized and operated by the state
body or by a private corporation.
FISCAL EFFECT: Unknown
COMMENTS:
Background : When the Legislature enacted the Bagley-Keene Act
of 1967, it essentially said that when a body sits down to
develop its consensus, there needs to be a seat at the table
reserved for the public. In doing so, the Legislature has
provided the public with the ability to monitor and be part of
the decision-making process. The Act explicitly mandates open
meetings for California State agencies, boards, and commissions.
It facilitates transparency of government activities and
protects the rights of citizens to participate in state
government deliberations. Therefore, absent a specific reason to
keep the public out of meetings, the public is allowed to
monitor and participate in the decision-making process.
Similarly, the Ralph M. Brown Act of 1953 protects citizen's
rights to open meetings at the local and county government
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levels.
Existing law defines an advisory board, commission, committee,
and subcommittee of a state body that is comprised of three or
more persons and created by a formal action of the body as a
"state body" for purposes of the Act. This generally requires
state agencies, boards, and commissions to publicly notice
meetings, prepare formal agendas, accept public testimony, and
conduct meetings in public, unless specifically authorized to
meet in closed session.
Purpose of the bill : According to the author's office, the
current definition of "state body" in the Bagley-Keene Act
contains an ambiguity with respect to whether a "standing
committee" composed of fewer than three members needs to comply
with the public notice and open meeting requirements of the Act.
The author's office maintains that certain state bodies have
allowed standing committees to hold closed-door meetings as long
as they contain two rather than three members and do not vote to
take action on items. The author's office believes such
entities are intentionally limiting membership on standing
committees to no more than two members for the explicit purpose
of avoiding open meeting requirements.
The author's office states that prior to 1993, the Brown Act
contained language very similar to the current language in the
Bagley-Keene Act relative to standing committees. However, in
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the 90's when a local government entity attempted to claim a
loophole existed for two-member standing committees, the
Legislature promptly removed any ambiguity on the matter from
the Brown Act (SB 1140 {Calderon}, Chapter 1138, Statutes of
1993). A conforming change was not made, however, to the
Bagley-Keene Act, as no change was thought necessary.
The author's office emphasizes that the ambiguity left in the
Act is allowing state bodies to deliberate and direct staff
behind closed doors. These state agencies are allowing standing
committees to interpret the language of the Act in a manner that
is contrary to the intent of the Legislature and the public.
The author's office states this bill is simply intended to
clarify that all standing committees, including advisory
committees, are subject to the transparency of open meeting
regulations regardless of committee size or membership. AB 85
corrects the ability of state agencies to deny the public full
transparency by clarifying current statute language, rather than
expanding current law.
Arguments in support : The California Association of Licensed
Investigators (CALI) writes that the bill would provide for
enhanced transparency in the proceedings of government. AB 85
will help to ensure that the public is provided with the
critical opportunity to become aware of proposals, and to
provide meaningful comment.
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Argument in opposition : California Board of Accountancy (CBA)
states that this bill would prevent the CBA, and all of its
various committees, from asking fewer than three members to
review a document, draft a letter, provide expert analysis, or
work on legal language without giving public notice. Under
current law, the advisory activities of these two-member bodies
are already vetted and voted upon in a publically noticed
meeting of the whole committee or board.
In addition, making advisory activities of two members open to
the public will greatly increase costs, as a staff member would
need to travel to attend the meeting for the purpose of
recording minutes. Agencies would also need to contract for
meeting space that would be able to accommodate the public, thus
incurring further costs.
Prior legislation : AB 2058 (Wilk), 2013-2014 Legislative
Session. An urgency measure, would have required all standing
committees of a state body, irrespective of composition, that
has a continuing subject matter jurisdiction or fixed meeting
schedule to comply with the provisions of the Act. (Vetoed by
Governor Brown)
The Governor's veto message stated, "This bill expands the
definition of a state body, under the Bagley-Keene Open Meeting
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Act, to standing advisory committees with one or two members.
"Any meeting involving formal action by a state body should be
open to the public. An advisory committee, however, does not
have authority to act on its own and must present any findings
and recommendations to a larger body in a public setting for
formal action. That should be sufficient."
AB 2720 (Ting), Chapter 510, Statutes of 2014. Requires a state
body to publicly report any action taken at an open meeting, and
the vote or abstention on that action, of each member present
for the action.
SB 751 (Yee), Chapter 257, Statutes of 2013. Required local
agencies to publicly report any action taken and the vote or
abstention of each member of a legislative body.
SB 103 (Liu), 2011-12 Session. Would have made substantive
changes to provisions of the Act relating to teleconference
meetings. (Died Assembly Appropriations Suspense File)
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AB 277 (Mountjoy), Chapter 288, Statutes of 2005. Made
permanent certain provisions authorizing closed sessions for
purposes of discussing security related issues pertaining to a
state body.
AB 192 (Canciamilla), Chapter 243, Statutes of 2001. Made
various changes to the Act, which governs meetings held by state
bodies, to make it consistent with provisions of the Brown Act,
which governs meetings of legislative bodies of local agencies.
SB 95 (Ayala), Chapter 949, Statutes of 1997. Made numerous
changes to the Act by expanding the notice, disclosure and
reporting requirements for open and closed meetings of state
bodies.
SB 752 (Kopp) Chapter 32 of 1994; SB 1140 (Calderon) Chapter
1138 of 1993; and SB 36 (Kopp) Chapter 1137 of 1993. These
measures extensively amended the Brown Act.
REGISTERED SUPPORT / OPPOSITION:
AB 85
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Support
California Association of Licensed Investigators
Opposition
California Board of Accountancy
Analysis Prepared by:Eric Johnson / G.O. / (916) 319-2531