BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      AB 85


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          GOVERNOR'S VETO


          AB  
          85 (Wilk)


          As Enrolled  September 2, 2015


          2/3 vote


           ------------------------------------------------------------------- 
          |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,      |                     |








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          |                |      |Bonta, Calderon,     |                     |
          |                |      |Chang, Daly, Eggman, |                     |
          |                |      |Gallagher,           |                     |
          |                |      |                     |                     |
          |                |      |                     |                     |
          |                |      |Eduardo Garcia,      |                     |
          |                |      |Gordon, Holden,      |                     |
          |                |      |Jones, Quirk,        |                     |
          |                |      |Rendon, Wagner,      |                     |
          |                |      |Weber, Wood          |                     |
          |                |      |                     |                     |
          |                |      |                     |                     |
           ------------------------------------------------------------------- 
           
           


           -------------------------------------------------------------------- 
          |ASSEMBLY:  |80-0  |(June 1, 2015) |SENATE: |40-0  |(August 31,      |
          |           |      |               |        |      |2015)            |
          |           |      |               |        |      |                 |
          |           |      |               |        |      |                 |
          |           |      |               |        |      |                 |
           -------------------------------------------------------------------- 
           


           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.









                                                                      AB 85


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          Analysis Prepared by:                                             
                          Eric Johnson / G.O. / (916) 319-2531  FN:  
          0002466