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:









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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