BILL ANALYSIS Ó
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Isadore Hall, III
Chair
2015 - 2016 Regular
Bill No: AB 85 Hearing Date: 7/14/2015
-----------------------------------------------------------------
|Author: |Wilk |
|-----------+-----------------------------------------------------|
|Version: |4/15/2015 Amended |
-----------------------------------------------------------------
------------------------------------------------------------------
|Urgency: |Yes |Fiscal: |Yes |
------------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|Arthur Terzakis |
| | |
-----------------------------------------------------------------
SUBJECT: Open meetings
DIGEST: This bill modifies the Bagley-Keene Open Meeting Act
to require two-member advisory committees of a "state body" (as
defined in the Act) to hold open, public meetings if at least
one member of the advisory committee is a member of the larger
state body and the advisory committee is supported, in whole or
in part, by state funds.
ANALYSIS:
Existing law:
1)Requires that all meetings of a state body, as defined, be
open and public and that all persons be permitted to attend
and participate in a meeting of a state body, subject to
certain conditions and exceptions. (The Bagley-Keene Open
Meeting Act, set forth in Government Code Sections
11120-11132)
2)Defines a state body, for purposes of the Bagley-Keene Open
Meeting Act, 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.
AB 85 (Wilk) Page 2 of ?
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, and
if the advisory body so created consists of three or more
persons.
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.
This bill:
1)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.
2)Contains an urgency clause to take effect immediately.
Background
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, 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.
When the Legislature enacted the Bagley-Keene Act it essentially
said that when a state body sits down to develop its consensus,
AB 85 (Wilk) Page 3 of ?
there needs to be a seat at the table reserved for the public.
By reserving this place for the public, the Legislature has
provided the public with the ability to monitor and participate
in the decision-making process. If the body were permitted to
meet in secret, the public's role in the decision-making process
would be negated. Therefore, absent a specific reason to keep
the public out of the meeting, the public should be allowed to
monitor and participate in the decision-making process.
Purpose of AB 85. According to the author's office, 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's
office 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. The author's office
states that AB 85 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.
The author's office notes 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
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 through enactment of 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 believes that the ambiguity left in the
Bagley-Keene 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
Bagley-Keene Act in a manner that is contrary to the intent of
the Legislature and the public.
Staff comments. Last year, the Governor vetoed a similar
measure, AB 2058 (Wilk). In this veto message of AB 2058, the
Governor wrote, "an advisory committee does not have authority
to act on its own and must present any findings and
AB 85 (Wilk) Page 4 of ?
recommendations to a larger body in a public setting for formal
action," which he argued should be sufficient for transparency
purposes.
Prior/Related Legislation
AB 2058 (Wilk, 2014) would have modified the definition of state
body, under the Bagley-Keene Open Meeting Act, to exclude an
advisory body with less than 3 individuals, except for certain
standing committees. (Vetoed)
AB 2720 (Ting, Chapter 510, Statutes of 2014) required a state
body to publicly report any action taken and the vote or
abstention on that action of each member present for the action.
AB 245 (Grove, 2013) would have repealed the exemption from the
Bagley-Keene Open Meeting Act enacted in 2012 for the Western
Climate Initiative (WCI) and instead would have subjected the
WCI and its appointees to the Bagley-Keene Open Meeting Act when
performing their duties. (Held in Assembly Governmental
Organization Committee)
AB 527 (Gaines, 2013) would have repealed the exemption from the
Bagley-Keene Open Meeting Act enacted in 2012 for the Western
Climate Initiative (WCI) and provided that a contract between
the state and WCI shall be subject to audit by the State
Auditor. (Vetoed)
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) would have made substantive changes to
provisions of the Bagley-Keene Open Meeting Act relating to
teleconference meetings. (Died on Assembly Appropriations
Suspense File)
SB 962 (Liu, Chapter 482, Statutes of 2010) allowed the use of
videoconferencing and teleconferencing at the court's discretion
and subject to availability for prisoners to participate in
court proceedings for the termination of their parental rights
or the court-ordered dependency petition of their child.
SB 519 (Committee on Governmental Organization, Chapter 92,
Statutes of 2007) amended the Bagley-Keene Act to authorize the
AB 85 (Wilk) Page 5 of ?
calling of a special meeting to provide for an interim executive
officer of a state body upon the death, incapacity, or vacancy
in the office of the executive officer.
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 Bagley-Keene Open Meeting Act, which governs
meetings held by state bodies, to make it consistent with
provisions of the Ralph M. Brown Act, which governs meetings of
legislative bodies of local agencies.
SB 95 (Ayala, Chapter 949, Statutes of 1997) made numerous
changes to the Bagley-Keene 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
bills extensively amended the Ralph M. Brown Act.
FISCAL EFFECT: Appropriation: No Fiscal
Com.: Yes Local: No
SUPPORT:
California Association of Licensed Investigators, Inc.
OPPOSITION:
Board of Behavioral Sciences
Board of Professional Engineers, Land Surveyors, and Geologists
California Board of Accountancy
California Acupuncture Board
California Board of Psychology
California Board of Vocational Nursing and Psychiatric
Technicians
California State Board of Pharmacy
Dental Board of California
Dental Hygiene Committee of California
Physician Assistant Board of the Medical Board of California
AB 85 (Wilk) Page 6 of ?
ARGUMENTS IN SUPPORT: Writing in support, the California
Association of Licensed Investigators states that AB 85 would
provide for enhanced transparency in the proceedings of
government.
ARGUMENTS IN OPPOSITION: Certain state professional boards
contend this bill would essentially prevent them and their
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. 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 already vetted and
voted upon in publically noticed meetings of the whole committee
or board.