BILL ANALYSIS Ó
AB 85
Page 1
ASSEMBLY THIRD READING
AB
85 (Wilk)
As Amended April 15, 2015
2/3 vote Urgency
-------------------------------------------------------------------
|Committee |Votes |Ayes |Noes |
| | | | |
| | | | |
|----------------+------+---------------------+---------------------|
|Governmental |21-0 |Gray, Linder, | |
|Organization | |Achadjian, Alejo, | |
| | |Bigelow, Campos, | |
| | |Cooley, Cooper, | |
| | |Daly, Cristina | |
| | |Garcia, | |
| | | | |
| | | | |
| | |Eduardo Garcia, | |
| | |Gipson, Roger | |
| | |Hernández, | |
| | | | |
| | | | |
| | |Jones-Sawyer, | |
| | |Levine, Mayes, | |
| | |Perea, Salas, | |
| | |Steinorth, Waldron, | |
| | |Wilk | |
| | | | |
|----------------+------+---------------------+---------------------|
|Appropriations |17-0 |Gomez, Bigelow, | |
AB 85
Page 2
| | |Bonta, Calderon, | |
| | |Chang, Daly, Eggman, | |
| | |Gallagher, | |
| | | | |
| | | | |
| | |Eduardo Garcia, | |
| | |Gordon, Holden, | |
| | |Jones, Quirk, | |
| | |Rendon, Wagner, | |
| | |Weber, Wood | |
| | | | |
| | | | |
-------------------------------------------------------------------
SUMMARY: This urgency measure, is intended to clarify that, under
the Bagley-Keene Open Meeting Act (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. 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 three 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
3)Contains an urgency clause.
AB 85
Page 3
EXISTING LAW:
1)The Act, set forth in Government Code Sections 11120 to 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 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.
AB 85
Page 4
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: According to the Assembly Appropriations
Committee, potentially significant General Fund costs, in excess
of $750,000, to state agencies for complying with notice and open
meeting requirements in instances currently not subject to those
requirements.
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 Brown Act protects
citizen's rights to open meetings at the local and county
government 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
AB 85
Page 5
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 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 Act
relative to standing committees. However, in 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 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
AB 85
Page 6
that all standing committees, including advisory committees, are
subject to the transparency of open meeting regulations regardless
of committee size or membership. This bill 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 writes that this bill would provide for enhanced
transparency in the proceedings of government. This bill will
help to ensure that the public is provided with the critical
opportunity to become aware of proposals, and to provide
meaningful comment.
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) of 2014. 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
AB 85
Page 7
definition of a state body, under the Bagley-Keene Open Meeting
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) of the 2011-12 Regular Session. Would have made
substantive changes to provisions of the Act relating to
teleconference meetings. (Held in the Assembly Appropriations
Committee)
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.
AB 85
Page 8
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, Statutes of 1994; SB 1140 (Calderon),
Chapter 1138, Statutes of 1993; and SB 36 (Kopp), Chapter 1137,
Statutes of 1993. These measures extensively amended the Brown
Act.
Analysis Prepared by:
Eric Johnson / G.O. / (916) 319-2531 FN: 0000650