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
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          |Author:    |Wilk                                                 |
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          |Version:   |4/15/2015    Amended                                 |
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          |Urgency:   |Yes                    |Fiscal:      |Yes             |
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          |Consultant:|Arthur Terzakis                                      |
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          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.








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             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,  








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          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  








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          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  








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          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









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          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.