BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1077


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          Date of Hearing:  May 13, 2015


                       ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT


                              Brian Maienschein, Chair


          AB 1077  
          (Holden) - As Amended April 28, 2015


          SUBJECT:  Mutual water companies: open meetings.


          SUMMARY:  Makes a number of changes to the Mutual Water Company  
          Open Meeting Act.  Specifically, this bill:  


          1)Revises and recasts the Mutual Water Company Open Meeting Act  
            (Act) as follows:


             a)   Requires a Board of Directors (Board) of a mutual water  
               company to allow an eligible person to personally attend a  
               meeting of the Board, if the eligible person gave the Board  
               at least 24 hours advance written notice of his or her  
               intent to personally attend the meeting;



             b)   Allows the Board to use teleconferencing for the benefit  
               of any eligible person denied attendance at a meeting of  
               the Board for failure to provide the notice specified  
               above, or because the number of eligible persons having  
               already provided notice of attendance exceeds the room  
               capacity of the place of the meeting described in the  
               notice of the meeting; 








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             c)   Requires a teleconferenced meeting or proceeding to  
               comply with the Act and all other applicable provisions of  
               law relating to a specific type of meeting or proceeding  
               conducted by a mutual water company;  



             d)   Requires, if the Board uses teleconferencing, the Board  
               to provide to an eligible person attending a meeting by  
               teleconference, before the meeting begins, an electronic  
               copy or photocopy of all documents not related to an  
               executive session to be discussed at the meeting, or within  
               24 hours after the conclusion of the meeting if it is not  
               feasible for the Board to provide photocopied or  
               electronically scanned copies before the meeting begins; 



             e)   Prohibits a mutual water company Board from prohibiting  
               an eligible person from attending a meeting of the Board  
               either in person or by technology, as specified;



             f)   Requires any eligible person who attends a meeting by  
               teleconference as specified above to identify themselves  
               and any other persons present with them who are able to  
               hear the Board meeting as soon as practicable after they  
               have joined the meeting;  



             g)   Requires any eligible person attending a meeting by  
               teleconference to ensure that no one who is not an eligible  
               person is able to hear or participate in that meeting, and  
               to comply with any time limits for speaking established  








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               pursuant to the Act; 



             h)   Requires an eligible person to forfeit his or her right  
               to participate in future Board meetings by teleconference  
               if it is discovered that someone who is not an eligible  
               person listened to the Board meeting with the knowledge of  
               the eligible person, upon the Board finding a violation  
               following a disciplinary hearing;
             i)   Defines "teleconference" to mean, to the extent it is  
               technologically feasible, any electronic means, that  
               includes either audio or video or both, that allows an  
               eligible person to hear a meeting and verbally interact  
               with the Board, including, but not limited to, a telephone,  
               cellular telephone with speaker phone technology, or  
               computer, or a device using internet-based video or audio  
               conference technology;





             j)   Requires a Board to only meet in executive session  
               during a meeting, and makes conforming changes;



             aa)  Specifies that a Board may prohibit an eligible person  
               from attending an executive session to consider pending or  
               potential litigation, or matters relating to the potential  
               acquisition of real property or water rights;



             bb)  Specifies that an eligible person shall be allowed to  
               attend a teleconferenced meeting without fulfilling the  
               notice requirements specified in a), above;









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             cc)  Specifies that a Board shall not discuss or take action  
               on any item at a nonemergency meeting unless the item was  
               placed on the agenda included in the notice of the meeting  
               that was posted and distributed pursuant to the Act; and,



             dd)  Provides that nothing in the Act pertaining to a  
               teleconference of a majority of the Board requires the  
               notice of a meeting to disclose the use of teleconferencing  
               if the use of teleconferencing is approved by the Board  
               pursuant to a) through i), above.



          2)Makes additional clarifying and technical changes.


          3)Makes a number of findings and declarations regarding mutual  
            water companies.


          EXISTING LAW:  


          1)Specifies that any corporation organized for or engaged in the  
            business of selling, distributing, supplying, or delivering  
            water for irrigation purposes or for domestic use must be  
            known as a mutual water company.



          2)Defines a "public water system" to mean a system for the  
            provision of water for human consumption through pipes or  
            other constructed conveyances that has 15 or more service  
            connections or regularly serves at least 25 individuals daily  
            at least 60 days out of the year.  A public water system  








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            includes the following:



             a)   Any collection, treatment, storage, and distribution  
               facilities under control of the operator of the system that  
               are used primarily in connection with the system;



             b)   Any collection or pretreatment storage facilities not  
               under the control of the operator that are used primarily  
               in connection with the system; and,



             c)   Any water system that treats water on behalf of one or  
               more public water systems for the purpose of rendering it  
               safe for human consumption.



          3)Establishes, pursuant to the Act, increased transparency  
            requirements for mutual water companies that operate a public  
            water system, including the following provisions:



             a)   Allows any eligible person, upon 24 hours advance  
               written notice, to attend meetings of the Board, except  
               when the Board adjourns to, or meets solely in, executive  
               session to consider litigation, matters relating to the  
               formation of contracts with third parties, member or  
               shareholder discipline, personnel matters, or to meet with  
               a member or shareholder, upon the member or shareholder's  
               request, regarding the member or shareholder's payment of  
               assessments, as specified;










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             b)   Requires an eligible person to be entitled to attend a  
               teleconference meeting or the portion of a teleconference  
               meeting that is open to eligible persons, and that meeting  
               or portion of the meeting shall be audible to the eligible  
               persons in a location specified in the notice of the  
               meeting;



             c)   Requires any matter discussed in executive session to be  
               generally noted in the minutes of the immediately following  
               meeting that is open to eligible persons;



             d)   Requires, unless the bylaws provide for a longer period  
               of notice, eligible persons to be given notice of the time  
               and place of a meeting, as specified, except for an  
               emergency meeting or a meeting that will be held solely in  
               executive session, at least four days prior to the meeting;



             e)   Requires, except for an emergency meeting, eligible  
               persons to be given notice of the time and place of a  
               meeting that will be held solely in executive session at  
               least two days prior to the meeting;



             f)   Requires the Board to permit any eligible person to  
               speak at any meeting of the mutual water company or the  
               Board, except for meetings of the Board held in executive  
               session.  A reasonable time limit for all eligible persons  
               to speak to the Board or before a meeting of the mutual  
               water company shall be established by the Board;










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             g)   Provides, with limited exceptions, that a mutual water  
               company Board may not discuss or take action on any item at  
               a nonemergency meeting unless the item was placed on the  
               agenda included in the meeting notice that was posted and  
               distributed pursuant to the Act;



             h)   Includes in the definition of "meeting" a teleconference  
               in which a majority of the members of the Board, in  
               different locations, are connected by electronic means,  
               through audio or video or both; 



             i)   Requires a teleconference meeting to be conducted in a  
               manner that protects the rights of members of the mutual  
               water company and otherwise complies with the requirements  
               of the Corporations Code; 



             j)   Requires, except for a meeting that will be held solely  
               in executive session, the notice of a teleconference  
               meeting to identify at least one physical location so that  
               members of the mutual water company may attend and at least  
               one member of the Board or a person designated by the Board  
               shall be present at that location;



             aa)  Provides that participation by Board members in a  
               teleconference meeting constitutes presence at that meeting  
               as long as all Board members participating in the meeting  
               are able to hear one another and members of the mutual  
               water company speaking on matters before the Board; and,










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             bb)  Defines "eligible person" to mean any of the following:



               i)     A shareholder or member of the mutual water company;



               ii)    A person who is an occupant, pursuant to a lease or  
                 a rental agreement, of commercial space or a dwelling  
                 unit to which the mutual water company sells,  
                 distributes, supplies, or delivers drinking water;



               iii)   An elected official of a city or county who  
                 represents people who receive drinking water directly  
                 from the mutual water company on a retail basis; or,



               iv)    Any other person eligible to participate in the  
                 mutual water company's meetings under provisions of the  
                 company's articles or bylaws.



          4)Requires, pursuant to the Ralph M. Brown Act (Brown Act), that  
            all meetings of a legislative body, as defined, of a local  
            agency be open and public and all persons permitted to attend,  
            unless a closed session is authorized.



          5)Defines, for purposes of the Brown Act, local agency to mean a  
            county, city, whether general law or chartered, city and  
            county, town, school district, municipal corporation,  
            district, political subdivision, or any board, commission or  








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            agency thereof, or other local public agency.



          FISCAL EFFECT:  None


          COMMENTS:  


          1)Bill Summary.  This bill makes numerous changes to the Act,  
            the major provisions of which are as follows:



             a)   Removes a requirement that eligible persons be entitled  
               to attend a teleconference meeting or portion of a  
               teleconference meeting open to eligible persons, and a  
               requirement that the teleconference meeting shall be  
               audible to eligible persons in a location specified in the  
               notice of the meeting.  Instead, this bill allows a mutual  
               water company Board to use teleconferencing for the benefit  
               of any eligible person who has been denied attendance at a  
               Board meeting because the person failed to provide 24 hours  
               advance written notice, or because the number of eligible  
               persons who provided notice of attendance exceeds the room  
               capacity of the meeting; 



             b)   Requires the Board to provide an eligible person  
               attending a meeting by teleconference an electronic copy or  
               photocopy of all documents to be discussed at the meeting  
               (excluding documents related to an executive session)  
               before the meeting begins, or within 24 hours after the  
               conclusion of the meeting if it is not feasible for the  
               Board to provide copies before the meeting begins; 
             c)   Requires any eligible person who attends a meeting by  
               teleconference to identify themselves and any other persons  








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               present with them who are able to hear the Board meeting as  
               soon as practicable after they have joined the meeting;  





             d)   Requires any eligible person attending a meeting by  
               teleconference to ensure that no one who is not an eligible  
               person is able to hear or participate in that meeting, and  
               to comply with any time limits for speaking established  
               pursuant to the Act; 



             e)   Requires an eligible person to forfeit his or her right  
               to participate in future Board meetings by teleconference  
               if it is discovered that someone who is not an eligible  
               person listened to the Board meeting with the knowledge of  
               the eligible person and the Board finds a violation  
               following a disciplinary hearing;



             f)   Requires a Board to meet in executive session only  
               during a meeting (removes the ability of a Board to meet in  
               executive session only, separate from of a meeting that  
               eligible persons may attend);



             g)   Specifies that a Board may prohibit an eligible person  
               from attending an executive session where matters relating  
               to the potential acquisition of real property or water  
               rights will be discussed;



             h)   Specifies that an eligible person shall be allowed to  








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               attend a teleconference meeting without fulfilling the  
               24-hour notice requirements of the Act; and,



             i)   Provides that nothing in the Act pertaining to a  
               teleconference of a Board majority requires the notice of a  
               meeting to disclose the use of teleconferencing, if the use  
               of teleconferencing is approved by the Board pursuant to  
               the Act.



            This bill is sponsored by the author.





          2)Author's Statement.  According to the author, "The existing  
            Mutual Water Company Open Meetings Act permits water company  
            shareholders and their tenants to attend meetings after  
            providing notice.  However, in the two years since the passage  
            of AB 240 some water companies have struggled to comply with  
            the Act.  Greater interest in attending these public meetings  
            has burdened mutual water companies small staffs, exceeded the  
            capacity of some meeting facilities, and, in some cases, the  
            water company's service territory is too large and remote for  
            all shareholders to conveniently attend meetings.



            "Assembly Bill 1077 will provide mutual water companies the  
            ability to use teleconferencing tools, currently provided to  
            local agencies, to provide better access to meetings.  Whether  
            a meeting is inaccessible to a shareholder because of distance  
            or capacity of the mutual water companies facilities,  
            teleconferencing will enable all shareholders to have their  
            voice heard and provide enhanced opportunities for consumer  








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            participation in these companies operations."





          3)Background.  Public water systems that deliver domestic water  
            generally fall into three categories:



             a)   Local agencies (cities and special districts).  Local  
               Agency Formation Commissions (LAFCOs) control the cities  
               and special districts' boundaries and local officials are  
               responsible to their voters for their water rates;



             b)   Investor-owned public utilities.  The California Public  
               Utilities Commission (PUC) controls the companies' service  
               areas and their water rates; or,



             c)   Mutual water companies.  These private entities, formed  
               under statutes governing corporations, respond to their  
               shareholders, usually the landowners who receive water  
               service.  Neither LAFCOs nor the PUC regulate mutual water  
               companies.



            The State Department of Public Health and some county health  
            departments monitor the quality of drinking water delivered to  
            most households, regardless of the type of public water system  
            that delivers the water.











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            Most mutual water companies are organized pursuant to the  
            General Corporation Law or the Nonprofit Mutual Benefit  
            Corporation Law.  Shareholders in a mutual water company hold  
            a right to purchase water from the company.  Stock in a  
            company is usually linked to the ownership of a parcel served  
            by the company and transfers with the land when the parcel is  
            sold to successive owners.  This type of corporate structure  
            allows landowners to establish, essentially, a customer-owned  
            water provider to serve their properties.





            Governance of a mutual water company is generally limited to  
            shareholders, or members, 


            of the company.  While the details of any particular company's  
            governing structure are determined by its articles and bylaws,  
            most mutual water companies allow only shareholders and  
            members to vote on organizational matters and serve on the  
            company's governing board.



          4)Recent Legislative History.  In response to concerns that some  
            mutual water companies lacked capital to pay for needed water  
            quality improvements and the managerial capacity to operate  
            successful public water systems, the Legislature passed AB 54  
            (Solorio), Chapter 512, Statutes 2011.  AB 54 established  
            training requirements for mutual water company's board members  
            regarding the duties of board members, made mutual water  
            companies liable for specified fines and penalties for  
            violating the California Safe Drinking Water Act, and expanded  
            LAFCOs' authority to review matters related to mutual water  
            companies.








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            More recently, AB 240 (Rendon), Chapter 633, Statutes of 2013,  
            increased transparency requirements for mutual water companies  
            by establishing the Act.  The bill also allowed mutual water  
            companies to impose liens to collect unpaid charges.  While  
            the requirements of AB 240 opened the meetings of mutual water  
            companies to "eligible persons," these requirements are far  
            more limited than the requirements of the Brown Act.


          5)Policy Considerations.  The Committee may wish to consider the  
            following:



             a)   This bill removes a requirement that eligible persons be  
               entitled to attend a teleconference meeting or portion of a  
               teleconference meeting open to eligible persons.  This bill  
               also contains a provision stating that nothing in the Act  
               pertaining to a teleconference of a Board majority requires  
               the notice of a meeting to disclose the use of  
               teleconferencing, if the use of teleconferencing is  
               approved by the Board pursuant to the Act.  There is no  
               requirement in the Act for the Board to formally "approve"  
               the use of teleconferencing.  Furthermore, allowing a Board  
               to use teleconferencing without including that information  
               in the notice of the meeting and without a duty to allow  
               eligible persons to participate seems counter to the Act's  
               goals of increasing transparency 
             in the meetings of mutual water companies.  The Committee may  
               wish to consider restoring language that gives eligible  
               persons the right to attend teleconference meetings  
               (whether or not they provide proper notice) and striking  
               language that allows a Board to teleconference without  
               notice.










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             b)   This bill requires a mutual water company Board to  
               provide an eligible person who attends a meeting by  
               teleconference a copy of all documents to be discussed at  
               the meeting before the meeting begins, or within 24 hours  
               after the conclusion of the meeting if it is not feasible  
               for the Board to provide copies before the meeting begins.   
               Providing copies of documents that will be discussed at a  
               meeting a day later defeats the purpose of open, informed  
               participation.  Leaving this decision up to the discretion  
               of the Board because it determined it wasn't "feasible" is  
               questionable.  The Committee may wish to consider striking  
               this language from the bill.



             c)   This bill imposes a number of new requirements on  
               eligible persons who attend meetings via teleconference.   
               It requires eligible persons to identify themselves and any  
               other persons present with them who are able to hear the  
               Board meeting as soon as practicable after they have joined  
               the meeting; and, it requires any eligible person to ensure  
               that no one who is not an eligible person is able to hear  
               or participate in that meeting.  If it is discovered that  
               someone who is not an eligible person listened to the Board  
                                                       meeting with the knowledge of the eligible person and the  
               Board finds a violation following a disciplinary hearing,  
               the eligible person must forfeit his or her right to  
               participate in future Board meetings by teleconference.   
               Mutual water companies are private corporations, not  
               judicial bodies.  These requirements for eligible persons  
               and the authority granted to mutual water companies to  
               conduct "disciplinary hearings" raise due process issues.   
               The Committee may wish to consider striking this language  
               from the bill.



          6)Related Legislation.  AB 656 (Cristina Garcia) allows a mutual  








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            water company and a public agency to form a joint powers  
            authority (JPA) to provide insurance, to be co-insured, and to  
            provide risk-pooling and technical support, continuing  
            education, safety engineering, and operational and managerial  
            advisory assistance to members of the JPA for the purpose of  
            reducing potential risk liabilities.  AB 656 passed this  
            Committee on a 9-0 vote on April 29 and is pending in the  
            Assembly Appropriations Committee.



            AB 617 (Perea) modifies portions of last year's Sustainable  
            Groundwater Management Act (SGMA), including, among other  
            things, provisions that allow mutual water companies to join  
            Groundwater Sustainability Agencies (GSA) formed by one or  
            more public agencies pursuant to a JPA, and to exercise all of  
            the GSA powers provided by SGMA.  AB 617 is pending in the  
            Assembly Appropriations Committee.





          7)Arguments in Support.  Sierra Club California, in support,  
            states, "Despite the Open Meeting Act, mutual water companies  
            are continuing to find ways to prevent citizens from attending  
            meetings.  To counter this, AB 1077 expands the open meeting  
            requirements for mutual water companies in simple ways, like  
            webcasts.  This is a non-burdensome way to ensure that people  
            can see the discussions surrounding items such as the rates  
            they pay for water."
          8)Arguments in Opposition.  None on file.





          REGISTERED SUPPORT / OPPOSITION:









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          Support


          Sierra Club California




          Opposition


          None on file




          Analysis Prepared by:Angela Mapp / L. GOV. / (916) 319-3958