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.