BILL ANALYSIS Ó
AB 85
Page 1
GOVERNOR'S VETO
AB
85 (Wilk)
As Enrolled September 2, 2015
2/3 vote
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|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
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| | |Bonta, Calderon, | |
| | |Chang, Daly, Eggman, | |
| | |Gallagher, | |
| | | | |
| | | | |
| | |Eduardo Garcia, | |
| | |Gordon, Holden, | |
| | |Jones, Quirk, | |
| | |Rendon, Wagner, | |
| | |Weber, Wood | |
| | | | |
| | | | |
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|ASSEMBLY: |80-0 |(June 1, 2015) |SENATE: |40-0 |(August 31, |
| | | | | |2015) |
| | | | | | |
| | | | | | |
| | | | | | |
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SUMMARY: 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. Specifically, 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.
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2)Contains an urgency clause to take effect immediately.
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 to
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.
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.
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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 Senate Appropriations
Committee, this bill imposes minor to moderate costs on affected
state entities. Some state entities may simply decide to
eliminate certain advisory bodies and specified standing
committees rather than spend limited resources for compliance
with open meeting requirements.
COMMENTS: The Bagley-Keene Open Meeting 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, 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, 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
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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 the bill: 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 this bill 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 1990s 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.
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Last year, the Governor vetoed a similar measure, AB 2058
(Wilk). In his 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 recommendations to a larger body
in a public setting for formal action," which he argued should
be sufficient for transparency purposes.
In support: Writing in support, the California Association of
Licensed Investigators states that this bill provides for
enhanced transparency in the proceedings of government.
In opposition: Certain state professional boards contend this
bill essentially prevents 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.
GOVERNOR'S VETO MESSAGE:
This bill expands the Bagley-Keene Open Meeting Act to include
state advisory bodies, regardless of their size.
My thinking on this matter has not changed from last year when I
vetoed a similar measure, AB 2058. I believe strongly in
transparency and openness but the more informal deliberation of
advisory bodies is best left to current law.
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Analysis Prepared by:
Eric Johnson / G.O. / (916) 319-2531 FN:
0002466