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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|Policy |Governmental Organization |Vote:|21-0 |
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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