BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      AB 85


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          Date of Hearing:   April 22, 2015


                        ASSEMBLY COMMITTEE ON APPROPRIATIONS


                                 Jimmy Gomez, Chair


          AB  
          85 (Wilk) - As Amended April 15, 2015


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          Urgency:  Yes State Mandated Local Program:  NoReimbursable:  No


          SUMMARY:


          This bill clarifies that, under the Bagley-Keene Act, a  
          two-member advisory committee of a state body is a "state body"  
          if a member of that state body sits on the advisory committee  
          and the committee receives funds from the state body.


          FISCAL EFFECT:


          Potentially significant GF costs, in excess of $750,000, to  
          state agencies for complying with notice and open meeting  
          requirements in instances currently not subject to those  








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          requirements.


          COMMENTS:


          1)Purpose.  According to the author, the current definition of  
            "state body" in the Bagley-Keene Act contains an ambiguity  
            with respect to whether standing committees composed of fewer  
            than three members need to comply with the public notice and  
            open meeting requirements of the Act.  The author contends  
            this ambiguity has been interpreted by certain state agencies  
            to allow standing committees to hold closed-door meetings so  
            long as those committees contain fewer than three members and  
            do not vote on action items.  AB 85 would clarify that all  
            standing committees, including two-member advisory committees,  
            are subject to the transparency of open meeting regulations.



          2)Open Meeting Acts.  The Government Code contains two parallel  
            open meeting statutes, the Bagley-Keene Act for state  
            government, and the Ralph M. Brown Act (the Brown Act) for  
            local governments.  The philosophy underpinning the two acts  
            is that transparency and consensus should be favored over  
            administrative efficiency in most cases.  The acts explicitly  
            mandate open meetings for state and local agencies, boards,  
            and commissions, providing the public with the ability to  
            monitor and participate in the decision-making process.



          3)Legislative History and the Brown Act.  Prior to 1993, the  
            Bagley-Keene Act and the Brown Act contained very similar  
            definitions for "state body."  Following an interpretation of  
            that definition by a particular local government to exempt  
            two-member standing committees from the open meeting  
            requirements of the Brown Act, the Legislature amended the  
            definition of "state body" to clarify that advisory bodies  








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            with continuing subject matter jurisdiction or a regular  
            meeting schedule fixed by formal action are legislative bodies  
            (akin to state bodies).

            Last year, AB 2058 (Wilk) would have aligned the definitions  
            and requirements for open meetings among standing committees  
            between the Bagley-Keene Act and the Brown Act as amended in  
            1993.  AB 2058 was vetoed by the Governor, who explained "[a]n  
            advisory committee?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," which he argued  
            should be sufficient for transparency purposes.

          4)Opposition.  Certain state agencies, in particular certain  
            state professional boards including the California Board of  
            Accountancy (CBA), contend this bill would prevent them and  
            their various committees from asking two members to review a  
            document, draft a letter, provide expert analysis, or work on  
            legal language without giving public notice.  Opening such  
            advisory activities to the public could greatly increase costs  
            for staff to attend meetings and record minutes as well as  
            contract for public meeting space.  Under current law, the  
            advisory activities of two-member bodies are reviewed and  
            voted upon in publically-noticed meetings of the whole  
            committee or board.



          5)What is the Current Law?  The legislative findings in the  
            original version of AB 85 cited an unpublished decision of the  
            Third District Court of Appeals as an accurate reflection of  
            the legislative intent behind the Bagley-Keene Act.  In  
            general, unpublished court decisions may be used as persuasive  
            precedent, but do not bind future courts, and decisions of  
            district courts of appeals do not necessarily have statewide  
            application.  Furthermore, this bill was amended to delete  
            those findings, further clouding the issue of legislative  
            intent behind the Act.  As a result, current law is unsettled.  
             Should this bill fail to pass or attract another veto from  








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            the Governor, the result could be used to argue the  
            legislature's intent is that the Bagley-Keene Act be  
            interpreted in the opposite manner as the author proposed  
            here.



          Analysis Prepared by:Joel Tashjian / APPR. / (916)  
          319-2081