BILL ANALYSIS Ó AB 85 Page 1 Date of Hearing: April 22, 2015 ASSEMBLY COMMITTEE ON APPROPRIATIONS Jimmy Gomez, Chair AB 85 (Wilk) - As Amended April 15, 2015 ----------------------------------------------------------------- |Policy |Governmental Organization |Vote:|21-0 | |Committee: | | | | | | | | | | | | | | ----------------------------------------------------------------- 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 AB 85 Page 2 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 AB 85 Page 3 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 AB 85 Page 4 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