BILL NUMBER: SB 1803 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 26, 1996
PASSED THE ASSEMBLY AUGUST 22, 1996
AMENDED IN ASSEMBLY AUGUST 20, 1996
AMENDED IN ASSEMBLY AUGUST 5, 1996
AMENDED IN ASSEMBLY JULY 8, 1996
AMENDED IN ASSEMBLY JUNE 17, 1996
AMENDED IN SENATE APRIL 8, 1996
INTRODUCED BY Senators Ayala, Calderon, and Kopp
(Coauthor: Assembly Member Burton)
FEBRUARY 22, 1996
An act to amend Sections 11124.1, 11125, 11125.1, 11125.2,
11125.5, 11125.7, 11126, 11126.3, 11130, 11130.3, 11130.7, and 11131
of, and to add Sections 11121.95, 11122.5, and 11125.4 to, the
Government Code, relating to open meetings.
LEGISLATIVE COUNSEL'S DIGEST
SB 1803, Ayala. Open meetings.
The Bagley-Keene Open Meeting Act generally requires that the
meetings of state bodies, as defined, be conducted openly.
This bill would define meeting for the purposes of that act. This
bill would require any person appointed or elected to serve as a
member of a state body who has not yet assumed the duties of office
to conform his or her conduct to the act.
Under the act, any person attending an open and public meeting has
the right to record the proceedings with a tape recorder.
This bill would authorize any person to record those meetings with
an audio or videotape recorder, as specified, would provide that any
tape or film record of an open and public meeting by or at the
direction of a state body is a public record, as specified, and would
prohibit a state body from prohibiting or restricting the broadcast
of its open and public meetings, as specified.
Existing law requires the state body to provide specified notice
of its meetings, including an agenda.
This bill would require the agenda to include a description of the
items of business to be transacted or discussed, including those
items to be transacted or disclosed in closed sessions.
Existing law requires a state body to report publicly at a
subsequent public meeting any action taken to appoint, employ, or
dismiss a public employee in a closed session.
This bill would additionally require a state body to publicly
report on other specified types of actions taken in closed session.
Existing law requires the state body to provide an opportunity for
members of the public to directly address the state body on each
agenda item before or during the state body's discussion or
consideration of the item.
This bill would additionally provide that every notice for a
special meeting at which action is proposed to be taken on an item
shall provide an opportunity for members of the public to directly
address the state body on that item prior to action on the item. The
bill would also provide that the state body shall not prohibit
public criticism of the policies, programs, services, acts, or
omissions of the state body.
Existing law provides that in the case of an emergency situation,
as defined, a state body may hold an emergency meeting without
complying with the 10-day notice requirement.
This bill would revise the definition of emergency situation and
would provide for special meetings under certain circumstances if the
state body provides at least a 48-hour notice, as specified.
Existing law provides that no closed session may be held by any
state body except as expressly authorized by the Bagley-Keene Open
Meeting Act and existing law provides a number of express exceptions.
This bill would provide that the act shall not be construed to
require the Franchise Tax Board to disclose any confidential tax
information considered in closed sessions, as specified, nor to
require the State Board of Equalization to disclose any action taken
in closed session or documents executed in connection with that
action when public disclosure is prohibited by specified laws.
Existing law requires a state body, prior to holding any closed
session, to cite the authority for the closed session.
This bill would additionally require that after any closed session
the state body shall reconvene in open session prior to adjournment
to make specified disclosures of actions taken in closed session.
Existing law permits any interested person to commence an action
for the purpose of stopping or preventing violations or threatened
violations of the act or to determine the applicability of the act to
actions or threatened future actions by members of a state body.
This bill would also permit the Attorney General or the district
attorney to commence an action for these purposes and additionally
permit those actions to determine the validity of rules or actions by
a state body to penalize or otherwise discourage the expression of
its members or to compel the state body to tape record its closed
sessions.
Existing law permits any interested person to commence an action
to obtain a judicial determination that an action taken by a state
body relating to open meetings is null and void.
Existing law requires any action taken to obtain a judicial
determination pursuant to this provision to be commenced within 30
days from the date the action was taken. A state body may cure or
correct a challenged action.
This bill would also permit the Attorney General or the district
attorney to commence an action for this purpose and would require the
interested party to make a demand of the state body to cure or
correct the action pursuant to a specified procedure prior to
commencing an action. This bill would delete the 30-day time limit
under which an action must be taken to obtain a judicial
determination.
Existing law makes it a misdemeanor for a member of a state body
to attend a meeting of the body in violation of the act with
knowledge of the fact that the meeting is in violation of the act.
This bill would instead provide that it is a misdemeanor for a
member of a state body to attend a meeting of that body in violation
of the act where the member intends to deprive the public of
information to which the member knows or has reason to know the
public is entitled to under the act. By changing the definition of a
crime this bill would impose a state-mandated local program.
Existing law provides that no state agency, as defined, shall
conduct any meeting, conference, or other function in any facility
that prohibits the admittance of any person or persons on the basis
of race, religious creed, color, national origin, ancestry, or sex.
This bill would additionally prohibit the conduct of those
functions in any facility that is inaccessible to disabled persons or
where members of the public may not be present without making a
payment or purchase. This bill would further provide that no notice,
agenda, announcement, or report required under the act need identify
any victim or alleged victim of tortious sexual conduct or child
abuse unless the identity of the person has been publicly disclosed.
This bill would incorporate changes in Section 11126 of the
Government Code proposed by AB 3358, to be operative only if AB 3358
and this bill are both chaptered and this bill becomes effective on
or before January 1, 1997, and this bill is chaptered last.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11121.95 is added to the Government Code, to
read:
11121.95. Any person appointed or elected to serve as a member of
a state body who has not yet assumed the duties of office shall
conform his or her conduct to the requirements of this article and
shall be treated for purposes of this article as if he or she has
already assumed office.
SEC. 2. Section 11122.5 is added to the Government Code, to read:
11122.5. (a) As used in this article, "meeting" includes any
congregation of a majority of the members of a state body at the same
time and place to hear, discuss, or deliberate upon any item that is
within the subject matter jurisdiction of the state body.
(b) Except as authorized pursuant to Section 11123, any use of
direct communication, personal intermediaries, or technological
devices that is employed by a majority of the members of the state
body to develop a collective concurrence as to action to be taken on
an item by the members of the state body is prohibited.
(c) Nothing in this section shall impose the requirements of this
article upon any of the following:
(1) Individual contacts or conversations between a member of a
state body and any other person.
(2) The attendance of a majority of the members of a state body at
a conference or similar gathering open to the public that involves a
discussion of issues of general interest to the public or to public
agencies of the type represented by or appearing before the state
body, provided that a majority of the members do not discuss among
themselves, other than as part of the scheduled program, business of
a specified nature that is within the subject matter jurisdiction of
the state body. Nothing in this paragraph is intended to allow
members of the public free admission to a conference or similar
gathering at which the organizers have required other participants or
registrants to pay fees or charges as a condition of attendance.
(3) The attendance of a majority of the members of a state body at
an open and publicized meeting organized by a person or organization
other than the state body, provided that a majority of the members
do not discuss among themselves, other than as part of the scheduled
program, business of a specific nature that is within the subject
matter jurisdiction of the state body.
(4) The attendance of a majority of the members of a state body at
an open and noticed meeting of another state body, provided that a
majority of the members do not discuss among themselves, other than
as part of the scheduled meeting, business of a specific nature that
is within the subject matter jurisdiction of the state body.
(5) The attendance of a majority of the members of a state body at
a purely social or ceremonial occasion, provided that a majority of
the members do not discuss among themselves business of a specific
nature that is within the subject matter jurisdiction of the state
body.
SEC. 3. Section 11124.1 of the Government Code is amended to read:
11124.1. (a) Any person attending an open and public meeting of
the state body shall have the right to record the proceedings with an
audio or video tape recorder or a still or motion picture camera in
the absence of a reasonable finding by the state body that the
recording cannot continue without noise, illumination, or obstruction
of view that constitutes, or would constitute, a persistent
disruption of the proceedings.
(b) Any tape or film record of an open and public meeting made for
whatever purpose by or at the direction of the state body shall be
subject to inspection pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title
1), but may be erased or destroyed 30 days after the taping or
recording. Any inspection of a video or tape recording shall be
provided without charge on a video or tape player made available by
the state body.
(c) No state body shall prohibit or otherwise restrict the
broadcast of its open and public meetings in the absence of a
reasonable finding that the broadcast cannot be accomplished without
noise, illumination, or obstruction of view that would constitute a
persistent disruption of the proceedings.
SEC. 4. Section 11125 of the Government Code is amended to read:
11125. (a) The state body shall provide notice of its meeting to
any person who requests such notice in writing. Notice shall be
given at least 10 days in advance of the meeting, and shall include
the name, address, and telephone number of any person who can provide
further information prior to the meeting, but need not include a
list of witnesses expected to appear at the meeting.
(b) The notice of a meeting of a body that is a state body as
defined in Section 11121, 11121.2, 11121.5, or 11121.7, shall include
a specific agenda for the meeting, which shall include the items of
business to be transacted or discussed, including items to be
discussed in closed session. A brief general description of an item
generally need not exceed 20 words. A description of an item to be
transacted or discussed in closed session shall include a citation of
the specific statutory authority under which the closed session is
being held. No item shall be added to the agenda subsequent to the
provision of this notice.
(c) The notice of a meeting of an advisory body, that is a state
body as defined in Section 11121.8, shall include a brief, general
description of the business to be transacted or discussed, and no
item shall be added subsequent to the provision of the notice.
(d) Notice of a meeting of a state body that complies with this
section shall also constitute notice of a meeting of an advisory body
of that state body, provided that the business to be discussed by
the advisory body is covered by the notice of the meeting of the
state body, provided that the specific time and place of the advisory
body's meeting is announced during the open and public state body's
meeting, and provided that the advisory body's meeting is conducted
within a reasonable time of, and nearby, the meeting of the state
body.
(e) A person may request, and shall be provided, notice pursuant
to subdivision (a) for all meetings of a state body or for a specific
meeting or meetings. In addition, at the state body's discretion, a
person may request, and may be provided, notice of only those
meetings of a state body at which a particular subject or subjects
specified in the request will be discussed.
(f) A request for notice of more than one meeting of a state body
shall be subject to the provisions of Section 14911.
SEC. 5. Section 11125.1 of the Government Code is amended to read:
11125.1. (a) Notwithstanding Section 6255 or any other provisions
of law, agendas of public meetings and other writings, when
distributed to all, or a majority of all, of the members of a state
body by any person in connection with a matter subject to discussion
or consideration at a public meeting of the body, are disclosable
public records under the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1), and shall
be made available upon request without delay. However, this section
shall not include any writing exempt from public disclosure under
Section 6253.5, 6254, or 6254.7, or Section 489.1 or 583 of the
Public Utilities Code.
(b) Writings that are public records under subdivision (a) and
that are distributed during a public meeting shall be made available
for public inspection at the meeting if prepared by the state body or
a member of the state body, or after the meeting if prepared by some
other person.
(c) Nothing in this section shall be construed to prevent a state
body from charging a fee or deposit for a copy of a public record
pursuant to Section 6257. The writings described in subdivision (b)
are subject to the requirements of the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title
1), and shall not be construed to limit or delay the public's right
to inspect any record required to be disclosed by that act, or to
limit the public's right to inspect any record covered by that act.
This section shall not be construed to be applicable to any writings
solely because they are properly discussed in a closed session of a
state body. Nothing in this article shall be construed to require a
state body to place any paid advertisement or any other paid notice
in any publication.
(d) "Writing" for purposes of this section means "writing" as
defined under Section 6252.
SEC. 6. Section 11125.2 of the Government Code is amended to read:
11125.2. (a) The state body shall publicly report, orally or in
writing, any action taken in closed session and the vote or
abstention of every member present thereon, as follows:
(1) Approval of an agreement concluding real estate negotiations
pursuant to Section 11126 shall be reported after the agreement is
final, as specified below:
(A) If its own approval renders the agreement final, the state
body shall report that approval and the substance of the agreement in
open session at the public meeting during which the closed session
is held.
(B) If final approval rests with the other party to the
negotiations, the state body shall disclose the fact of that approval
and the substance of the agreement upon inquiry by any person, as
soon as the other party or its agent has informed the state body of
its approval.
(2) Approval given to its legal counsel to defend, or seek or
refrain from seeking appellate review or relief, or to enter as an
amicus curiae in any form of litigation as the result of a
consultation under Section 11126 shall be reported in open session at
the public meeting during which the closed session is held. The
report shall identify, if known, the adverse party or parties and the
substance of the litigation. In the case of approval given to
initiate or intervene in an action, if the state body makes a
reasonable finding in the closed session that an immediate report
would adversely affect the state body's position by (A) jeopardizing
the state body's ability to effectuate service of process on one or
more named, unserved, adverse parties, (B) allowing a named, adverse
party to move assets, or (C) prejudicing the position of the state
body in the litigation, the state body may delay the report until the
beginning of the first open and public session when the report would
no longer result in the adverse effects described in (A), (B), or
(C) of this paragraph, or until the beginning of the first open and
public session after service of process is made on all named, adverse
parties, whichever occurs first. In addition to the report required
during a meeting, if a point has been reached at which a report
during a meeting would be required by this paragraph, the state body
shall immediately provide the documentation as described in
subdivisions (b) and (c) of this section and, upon inquiry by any
person, shall disclose the approval given to initiate or intervene in
the action, the substance of the action, and the vote or abstention
of every member present thereon.
(3) Approval given to its legal counsel of a settlement of pending
litigation, as defined in Section 11126, at any stage prior to or
during a judicial or quasi-judicial proceeding shall be reported
after the settlement is final, as specified below:
(A) If the state body accepts a settlement offer signed by the
opposing party, the body shall report its acceptance and the
substance of the agreement in open session at the public meeting
during which the closed session is held.
(B) If final approval rests with some other party to the
litigation or with the court, then as soon as the settlement becomes
final, and upon inquiry by any person, the state body shall disclose
the fact of that approval and the substance of the agreement.
(C) For settlements authorized pursuant to Section 19442 of the
Revenue and Taxation Code, the filing of the public record described
in subdivision (c) of Section 19442 shall satisfy the public report
requirement provided by this subdivision.
(4) Action taken to appoint, employ, dismiss, accept the
resignation of, or otherwise affect the employment status of a public
employee in closed session pursuant to Section 11126 shall be
reported at the public meeting during which the closed session is
held. Any report required by this paragraph shall identify the title
of the position. The general requirement of this paragraph
notwithstanding, the report of a dismissal or of the nonrenewal of an
employment contract shall be deferred until the first public meeting
following the exhaustion of administrative remedies, if any.
(5) Approval of an agreement concluding labor negotiations with
represented employees pursuant to Section 11126 shall be reported
after the agreement is final and has been accepted or ratified by the
other party. The report shall identify the item approved and the
other party or parties to the negotiation.
(6) In the case of action in a disciplinary case by a state body
that regulates a business or profession, the state body may delay
reporting of the action until the beginning of the next regular
meeting of the state body after the subject of the disciplinary case
is notified of the action.
(b) The state body shall provide to any person who has submitted a
written request to the state body within 24 hours of the posting of
the agenda, or to any person who has made a standing request for all
documentation as part of a request for notice of meetings pursuant to
Section 11123, if the requester is present at the time the closed
session ends, copies of any contracts, settlement agreements, or
other documents that were finally approved or adopted in the closed
session. If the action taken results in one or more substantive
amendments to the related documents requiring retyping, the documents
need not be released until the retyping is completed during normal
business hours, provided that the presiding officer of the state body
or his or her designee orally summarizes the substance of the
amendments for the benefit of the document requester or any other
person present and requesting the information.
(c) Except as provided in paragraphs (2) and (6) of subdivision
(a), the documentation referred to in subdivision (b) shall be
available to any person on the next business day following the
meeting in which the action referred to is taken or, in the case of
substantial amendments, when any necessary retyping is complete.
(d) Nothing in this section shall be construed to require that the
state body approve actions not otherwise subject to state body
approval.
(e) No action for injury to a reputational, liberty, or other
personal interest may be commenced by or on behalf of any employee or
former employee with respect to whom a disclosure is made by a state
body in an effort to comply with this section.
SEC. 7. Section 11125.4 is added to the Government Code, to read:
11125.4. (a) A special meeting may be called at any time by the
presiding officer of the state body or by a majority of the members
of the state body. A special meeting may only be called for one of
the following purposes where compliance with the 10-day notice
provisions of Section 11125 would impose a substantial hardship on
the state body or where immediate action is required to protect the
public interest:
(1) To consider "pending litigation" as that term is defined in
subdivision (q) of Section 11126.
(2) To consider proposed legislation.
(3) To consider issuance of a legal opinion.
(4) To consider disciplinary action involving a state officer or
employee.
(5) To consider the purchase, sale, exchange, or lease of real
property.
(6) To consider license examinations and applications.
(7) To consider an action on a loan or grant provided pursuant to
Division 31 (commencing with Section 50000) of the Health and Safety
Code.
(b) When a special meeting is called pursuant to one of the
purposes specified in subdivision (a) , the state body shall provide
notice of the special meeting to each member of the state body and to
all parties that have requested notice of its meetings as soon as is
practicable after the decision to call a special meeting has been
made, but shall be delivered in a manner that allows it to be
received by the members and by newspapers of general circulation and
radio or television stations at least 48 hours before the time of the
special meeting specified in the notice. Notice shall be made
available to newspapers of general circulation and radio or
television stations by providing that notice to all national press
wire services. Notice shall be provided to the general public by
placing it on appropriate electronic bulletin boards or other
appropriate mechanisms, whenever the state body has the electronic
capability necessary to do so. The notice shall specify the time and
place of the special meeting and the business to be transacted. No
other business shall be considered at a special meeting by the state
body. The written notice may be dispensed with as to any member who
at or prior to the time the meeting convenes files with the clerk or
secretary of the state body a written waiver of notice. The waiver
may be given by telegram, facsimile transmission, or similar means.
The written notice may also be dispensed with as to any member who is
actually present at the meeting at the time it convenes. Notice
shall be required pursuant to this section regardless of whether any
action is taken at the special meeting.
(c) At the commencement of any special meeting, the state body
must make a finding in open session that the delay necessitated by
providing notice 10 days prior to a meeting as required by Section
11125 would cause a substantial hardship on the body or that
immediate action is required to protect the public interest. The
finding shall set forth the specific facts that constitute the
hardship to the body or the impending harm to the public interest.
The finding shall be adopted by a two-thirds vote of the body, or, if
less than two-thirds of the members are present, a unanimous vote of
those members present. Failure to adopt the finding terminates the
meeting.
SEC. 8. Section 11125.5 of the Government Code is amended to read:
11125.5. (a) In the case of an emergency situation involving
matters upon which prompt action is necessary due to the disruption
or threatened disruption of public facilities, a state body may hold
an emergency meeting without complying with the 10-day notice
requirement of Section 11125 or the 48-hour notice requirement of
Section 11125.4.
(b) For purposes of this section, "emergency situation" means any
of the following, as determined by a majority of the members of the
state body during a meeting prior to the emergency meeting, or at the
beginning of the emergency meeting:
(1) Work stoppage or other activity that severely impairs public
health or safety, or both.
(2) Crippling disaster that severely impairs public health or
safety, or both.
(c) However, newspapers of general circulation and radio or
television stations that have requested notice of meetings pursuant
to Section 11125 shall be notified by the presiding officer of the
state body, or a designee thereof, one hour prior to the emergency
meeting by telephone. If telephone services are not functioning, the
notice requirements of this section shall be deemed waived, and the
presiding officer of the state body, or a designee thereof, shall
notify those newspapers, radio stations, or television stations of
the fact of the holding of the emergency meeting, the purpose of the
meeting, and any action taken at the meeting as soon after the
meeting as possible.
(d) The minutes of a meeting called pursuant to this section, a
list of persons who the presiding officer of the state body, or a
designee thereof, notified or attempted to notify, a copy of the
rollcall vote, and any action taken at the meeting shall be posted
for a minimum of 10 days in a public place as soon after the meeting
as possible.
SEC. 9. Section 11125.7 of the Government Code is amended to read:
11125.7. (a) Except as otherwise provided in this section, the
state body shall provide an opportunity for members of the public to
directly address the state body on each agenda item before or during
the state body's discussion or consideration of the item. This
section is not applicable if the agenda item has already been
considered by a committee composed exclusively of members of the
state body at a public meeting where interested members of the public
were afforded the opportunity to address the committee on the item,
before or during the committee's consideration of the item, unless
the item has been substantially changed since the committee heard the
item, as determined by the state body. Every notice for a special
meeting at which action is proposed to be taken on an item shall
provide an opportunity for members of the public to directly address
the state body concerning that item prior to action on the item. In
addition, the notice requirement of Section 11125 shall not preclude
the acceptance of testimony at meetings, other than emergency
meetings, from members of the public, provided, however, that no
action is taken by the state body at the same meeting on matters
brought before the body by members of the public.
(b) The state body may adopt reasonable regulations to ensure that
the intent of subdivision (a) is carried out, including, but not
limited to, regulations limiting the total amount of time allocated
for public comment on particular issues and for each individual
speaker.
(c) The state body shall not prohibit public criticism of the
policies, programs, or services of the state body, or of the acts or
omissions of the state body. Nothing in this subdivision shall
confer any privilege or protection for expression beyond that
otherwise provided by law.
(d) This section is not applicable to closed sessions held
pursuant to Section 11126.
(e) This section is not applicable to decisions regarding
proceedings held pursuant to Chapter 5 (commencing with Section
11500), relating to administrative adjudication, or to the conduct of
those proceedings.
(f) This section is not applicable to hearings conducted by the
State Board of Control pursuant to Sections 13963 and 13963.1.
(g) This section is not applicable to agenda items which involve
decisions of the Public Utilities Commission regarding adjudicatory
hearings held pursuant to Chapter 9 (commencing with Section 1701) of
Part 1 of Division 1 of the Public Utilities Code. For all other
agenda items, the commission shall provide members of the public,
other than those who have already participated in the proceedings
underlying the agenda item, an opportunity to directly address the
commission before or during the commission's consideration of the
item.
SEC. 10. Section 11126 of the Government Code is amended to read:
11126. (a) Nothing in this article shall be construed to prevent
a state body from holding closed sessions during a regular or special
meeting to consider the appointment, employment, or dismissal of a
public employee or to hear complaints or charges brought against that
employee by another person or employee unless the employee requests
a public hearing. As a condition to holding a closed session on the
complaints or charges to consider disciplinary action or to consider
dismissal, the employee shall be given written notice of his or her
right to have a public hearing, rather than a closed session, which
notice shall be delivered to the employee personally or by mail at
least 24 hours before the time for holding a regular or special
meeting. If notice is not given, any disciplinary or other action
taken against any employee at the closed session shall be null and
void. The state body also may exclude from any public or closed
session, during the examination of a witness, any or all other
witnesses in the matter being investigated by the state body.
Following the public hearing or closed session, the body may
deliberate on the decision to be reached in a closed session.
For the purposes of this section, "employee" shall not include any
person who is elected to, or appointed to a public office by, any
state body. However, officers of the California State University who
receive compensation for their services, other than per diem and
ordinary and necessary expenses, shall, when engaged in that
capacity, be considered employees. Furthermore, for purposes of this
section, the term employee shall include a person exempt from civil
service pursuant to subdivision (e) of Section 4 of Article VII of
the California Constitution.
(b) Nothing in this article shall be construed to prevent state
bodies which administer the licensing of persons engaging in
businesses or professions from holding closed sessions to prepare,
approve, grade, or administer examinations.
(c) Nothing in this article shall be construed to prevent an
advisory body of a state body which administers the licensing of
persons engaged in businesses or professions from conducting a closed
session to discuss matters which the advisory body has found would
constitute an unwarranted invasion of the privacy of an individual
licensee or applicant if discussed in an open meeting, provided the
advisory body does not include a quorum of the members of the state
body it advises. Those matters may include review of an applicant's
qualifications for licensure and an inquiry specifically related to
the state body's enforcement program concerning an individual
licensee or applicant where the inquiry occurs prior to the filing of
a civil, criminal, or administrative disciplinary action against the
licensee or applicant by the state body.
(d) Nothing in this article shall be construed to prohibit a state
body from holding a closed session to deliberate on a decision to be
reached in a proceeding required to be conducted pursuant to Chapter
5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2
or similar provisions of law.
(e) Nothing in this article shall be construed to prevent any
state body from holding a closed session to consider matters
affecting the national security.
(f) Nothing in this article shall be construed to grant a right to
enter any correctional institution or the grounds of a correctional
institution where that right is not otherwise granted by law, nor
shall anything in this article be construed to prevent a state body
from holding a closed
session when considering and acting upon the determination of a
term, parole, or release of any individual or other disposition of an
individual case, or if public disclosure of the subjects under
discussion or consideration is expressly prohibited by statute.
(g) Nothing in this article shall be construed to prevent any
closed session to consider the conferring of honorary degrees, or
gifts, donations, and bequests which the donor or proposed donor has
requested in writing to be kept confidential.
(h) Nothing in this article shall be construed to prevent the
Alcoholic Beverage Control Appeals Board from holding a closed
session for the purpose of holding a deliberative conference as
provided in Section 11125.
(i) Nothing in this article shall be construed to prevent a state
body from holding closed sessions with its negotiator prior to the
purchase, sale, exchange, or lease of real property by or for the
state body to give instructions to its negotiator regarding the price
and terms of payment for the purchase, sale, exchange, or lease.
However, prior to the closed session, the state body shall hold an
open and public session in which it identifies the real property or
real properties which the negotiations may concern and the person or
persons with whom its negotiator may negotiate.
For purposes of this subdivision, the negotiator may be a member
of the state body.
For purposes of this subdivision, "lease" includes renewal or
renegotiation of a lease.
Nothing in this subdivision shall preclude a state body from
holding a closed session for discussions regarding eminent domain
proceedings pursuant to subdivision (q).
(j) (1) Nothing in this article shall be construed to prevent the
California Postsecondary Education Commission from holding closed
sessions to consider matters pertaining to the appointment or
termination of the Director of the California Postsecondary Education
Commission.
(2) Nothing in this article shall be construed to prevent the
Council for Private Postsecondary and Vocational Education from
holding closed sessions to consider matters pertaining to the
appointment or termination of the Executive Director of the Council
for Private Postsecondary and Vocational Education.
(k) Nothing in this article shall be construed to prevent the
Franchise Tax Board from holding closed sessions for the purpose of
discussion of confidential tax returns or information the public
disclosure of which is prohibited by law, or from considering matters
pertaining to the appointment or removal of the Executive Officer of
the Franchise Tax Board. Nothing in this article shall be construed
to require the Franchise Tax Board to disclose any confidential tax
information considered in closed sessions, the public disclosure of
which is prohibited pursuant to Article 2 (commencing with Section
19542) of Chapter 7 of Part 10.2 of the Revenue and Taxation Code.
(l) Nothing in this article shall be construed to prevent the
Board of Corrections from holding closed sessions when considering
reports of crime conditions under Section 6027 of the Penal Code.
(m) Nothing in this article shall be construed to prevent the
State Air Resources Board from holding closed sessions when
considering the proprietary specifications and performance data of
manufacturers.
(n) Nothing in this article shall be construed to prevent a state
body that invests retirement, pension, or endowment funds from
holding closed sessions when considering investment decisions. For
purposes of consideration of shareholder voting on corporate stocks
held by the state body, closed sessions for the purposes of voting
may be held only with respect to election of corporate directors,
election of independent auditors, and other financial issues that
could have a material effect on the net income of the corporation.
For the purpose of real property investment decisions that may be
considered in a closed session pursuant to this subdivision, a state
body shall also be exempt from the provision of subdivision (i)
relating to the identification of real properties prior to the closed
session.
(o) Nothing in this article shall be construed to prevent a state
body, or boards, commissions, administrative officers, or other
representatives that may properly be designated by law or by a state
body, from holding closed sessions with its representatives in
discharging its responsibilities under Chapter 10 (commencing with
Section 3500) of Division 4 of Title 1 as the sessions relate to
salaries, salary schedules, or compensation paid in the form of
fringe benefits. For the purposes enumerated in the preceding
sentence, a state body may also meet with a state conciliator who has
intervened in the proceedings.
(p) Notwithstanding any other provision of law, any meeting of the
Public Utilities Commission at which the rates of entities under the
commission's jurisdiction are changed shall be open and public.
Nothing in this article shall be construed to prevent the Public
Utilities Commission from holding closed sessions to deliberate on
the institution of proceedings, or disciplinary actions against
regulated utilities.
(q) Nothing in this article shall be construed to prevent a state
body, based on the advice of its legal counsel, from holding a closed
session to confer with, or receive advice from, its legal counsel
regarding pending litigation when discussion in open session
concerning those matters would prejudice the position of the state
body in the litigation.
For purposes of this article, all expressions of the lawyer-client
privilege other than those provided in this subdivision are hereby
abrogated. This subdivision is the exclusive expression of the
lawyer-client privilege for purposes of conducting closed-session
meetings pursuant to this article. For purposes of this subdivision,
litigation shall be considered pending when any of the following
circumstances exist:
(1) An adjudicatory proceeding before a court, an administrative
body exercising its adjudicatory authority, a hearing officer, or an
arbitrator, to which the state body is a party, has been initiated
formally.
(2) (A) A point has been reached where, in the opinion of the
state body on the advice of its legal counsel, based on existing
facts and circumstances, there is a significant exposure to
litigation against the state body; or
(B) Based on existing facts and circumstances, the state body is
meeting only to decide whether a closed session is authorized
pursuant to subparagraph (A).
(3) Based on existing facts and circumstances, the state body has
decided to initiate or is deciding whether to initiate litigation.
The legal counsel of the state body shall prepare and submit to it
a memorandum stating the specific reasons and legal authority for
the closed session. If the closed session is pursuant to paragraph
(1), the memorandum shall include the title of the litigation. If
the closed session is pursuant to paragraph (2) or (3), the
memorandum shall include the existing facts and circumstances on
which it is based. The legal counsel shall submit the memorandum to
the state body prior to the closed session, if feasible, and in any
case no later than one week after the closed session. The memorandum
shall be exempt from disclosure pursuant to Section 6254.25.
For purposes of this subdivision, "litigation" includes any
adjudicatory proceeding, including eminent domain, before a court,
administrative body exercising its adjudicatory authority, hearing
officer, or arbitrator.
Disclosure of a memorandum required under this subdivision shall
not be deemed as a waiver of the lawyer-client privilege, as provided
for under Article 3 (commencing with Section 950) of Chapter 4 of
Division 8 of the Evidence Code.
(r) Nothing in this article shall be construed to prevent a state
body operating under a joint powers agreement for insurance pooling
from holding a closed session to discuss a claim for the payment of
tort liability or public liability losses incurred by the state body
or any member agency under the joint powers agreement.
(s) Nothing in this article shall be construed to prevent the
examining committee established by the State Board of Forestry,
pursuant to Section 763 of the Public Resources Code, from conducting
a closed session to consider disciplinary action against an
individual professional forester prior to the filing of an accusation
against the forester pursuant to Section 11503.
(t) Nothing in this article shall be construed to prevent an
administrative committee established by the State Board of
Accountancy pursuant to Section 5020 or 5020.3 of the Business and
Professions Code from conducting a closed session to consider
disciplinary action against an individual accountant prior to the
filing of an accusation against the accountant pursuant to Section
11503. Nothing in this article shall be construed to prevent an
examining committee established by the Board of Accountancy pursuant
to Section 5023 of the Business and Professions Code from conducting
a closed hearing to interview an individual applicant or accountant
regarding the applicant's qualifications.
(u) Nothing in this article shall be construed to prevent a state
body, as defined in Section 11121.2, from conducting a closed session
to consider any matter that properly could be considered in closed
session by the state body whose authority it exercises.
(v) Nothing in this article shall be construed to prevent a state
body, as defined in Section 11121.7, from conducting a closed session
to consider any matter that properly could be considered in a closed
session by the body defined as a state body pursuant to Section
11121, 11121.2, or 11121.5.
(w) Nothing in this article shall be construed to prevent a state
body, as defined in Section 11121.8, from conducting a closed session
to consider any matter that properly could be considered in a closed
session by the state body it advises.
(x) Nothing in this article shall be construed to prevent the
State Board of Equalization from holding closed sessions for either
of the following:
(1) When considering matters pertaining to the appointment or
removal of the executive secretary of the State Board of
Equalization.
(2) For the purpose of hearing confidential taxpayer appeals or
data, the public disclosure of which is prohibited by law.
Nothing in this article shall be construed to require the State
Board of Equalization to disclose any action taken in closed session
or documents executed in connection with that action, the public
disclosure of which is prohibited by law pursuant to Sections 15619
and 15641 of this code and Sections 833, 7056, 8255, 9255, 11655,
30455, 32455, 38705, 38706, 43651, 45982, 46751, 50159, 55381, and
60609 of the Revenue and Taxation Code.
(y) Nothing in this article shall be construed to prevent the
California Earthquake Prediction Evaluation Council, or other body
appointed to advise the Director of the Office of Emergency Services
or the Governor pursuant to Section 8590 concerning matters relating
to volcanic or earthquake predictions, from holding closed sessions
when considering the evaluation of possible predictions.
(z) This article shall not prevent the Teachers' Retirement Board
or the Board of Administration of the Public Employees' Retirement
System from holding closed sessions when considering matters
pertaining to the recruitment, appointment, employment, or removal of
the chief executive officer or when considering matters pertaining
to the recruitment or removal of the Chief Investment Officer of the
State Teachers' Retirement System or the Public Employees' Retirement
System.
(aa) This article shall not prevent the Commission on Teacher
Credentialing from holding closed sessions when considering matters
relating to the recruitment, appointment, or removal of its executive
director.
(bb) Nothing in the article shall be construed to prevent the
State Board of Education, or any committee advising the State Board
of Education, from holding closed sessions on those portions of its
review of assessment instruments pursuant to Chapter 5 (commencing
with Section 60600) of Part 33 of the Education Code during which
actual test content is reviewed and discussed. The purpose of this
provision is to maintain the confidentiality of the assessments under
review.
SEC. 10.5. Section 11126 of the Government Code is amended to
read:
11126. (a) Nothing in this article shall be construed to prevent
a state body from holding closed sessions during a regular or special
meeting to consider the appointment, employment, or dismissal of a
public employee or to hear complaints or charges brought against that
employee by another person or employee unless the employee requests
a public hearing. As a condition to holding a closed session on the
complaints or charges to consider disciplinary action or to consider
dismissal, the employee shall be given written notice of his or her
right to have a public hearing, rather than a closed session, which
notice shall be delivered to the employee personally or by mail at
least 24 hours before the time for holding a regular or special
meeting. If notice is not given, any disciplinary or other action
taken against any employee at the closed session shall be null and
void. The state body also may exclude from any public or closed
session, during the examination of a witness, any or all other
witnesses in the matter being investigated by the state body.
Following the public hearing or closed session, the body may
deliberate on the decision to be reached in a closed session.
For the purposes of this section, "employee" shall not include any
person who is elected to, or appointed to a public office by, any
state body. However, officers of the California State University who
receive compensation for their services, other than per diem and
ordinary and necessary expenses, shall, when engaged in that
capacity, be considered employees. Furthermore, for purposes of this
section, the term employee shall include a person exempt from civil
service pursuant to subdivision (e) of Section 4 of Article VII of
the California Constitution.
(b) Nothing in this article shall be construed to prevent state
bodies which administer the licensing of persons engaging in
businesses or professions from holding closed sessions to prepare,
approve, grade, or administer examinations.
(c) Nothing in this article shall be construed to prevent an
advisory body of a state body which administers the licensing of
persons engaged in businesses or professions from conducting a closed
session to discuss matters which the advisory body has found would
constitute an unwarranted invasion of the privacy of an individual
licensee or applicant if discussed in an open meeting, provided the
advisory body does not include a quorum of the members of the state
body it advises. Those matters may include review of an applicant's
qualifications for licensure and an inquiry specifically related to
the state body's enforcement program concerning an individual
licensee or applicant where the inquiry occurs prior to the filing of
a civil, criminal, or administrative disciplinary action against the
licensee or applicant by the state body.
(d) Nothing in this article shall be construed to prohibit a state
body from holding a closed session to deliberate on a decision to be
reached in a proceeding required to be conducted pursuant to Chapter
5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2
or similar provisions of law.
(e) Nothing in this article shall be construed to prevent any
state body from holding a closed session to consider matters
affecting the national security.
(f) Nothing in this article shall be construed to grant a right to
enter any correctional institution or the grounds of a correctional
institution where that right is not otherwise granted by law, nor
shall anything in this article be construed to prevent a state body
from holding a closed session when considering and acting upon the
determination of a term, parole, or release of any individual or
other disposition of an individual case, or if public disclosure of
the subjects under discussion or consideration is expressly
prohibited by statute.
(g) Nothing in this article shall be construed to prevent any
closed session to consider the conferring of honorary degrees, or
gifts, donations, and bequests which the donor or proposed donor has
requested in writing to be kept confidential.
(h) Nothing in this article shall be construed to prevent the
Alcoholic Beverage Control Appeals Board from holding a closed
session for the purpose of holding a deliberative conference as
provided in Section 11125.
(i) Nothing in this article shall be construed to prevent a state
body from holding closed sessions with its negotiator prior to the
purchase, sale, exchange, or lease of real property by or for the
state body to give instructions to its negotiator regarding the price
and terms of payment for the purchase, sale, exchange, or lease.
However, prior to the closed session, the state body shall hold an
open and public session in which it identifies the real property or
real properties which the negotiations may concern and the person or
persons with whom its negotiator may negotiate.
For purposes of this subdivision, the negotiator may be a member
of the state body.
For purposes of this subdivision, "lease" includes renewal or
renegotiation of a lease.
Nothing in this subdivision shall preclude a state body from
holding a closed session for discussions regarding eminent domain
proceedings pursuant to subdivision (q).
(j) (1) Nothing in this article shall be construed to prevent the
California Postsecondary Education Commission from holding closed
sessions to consider matters pertaining to the appointment or
termination of the Director of the California Postsecondary Education
Commission.
(2) Nothing in this article shall be construed to prevent the
Council for Private Postsecondary and Vocational Education from
holding closed sessions to consider matters pertaining to the
appointment or termination of the Executive Director of the Council
for Private Postsecondary and Vocational Education.
(k) Nothing in this article shall be construed to prevent the
Franchise Tax Board from holding closed sessions for the purpose of
discussion of confidential tax returns or information the public
disclosure of which is prohibited by law, or from considering matters
pertaining to the appointment or removal of the Executive Officer of
the Franchise Tax Board. Nothing in this article shall be construed
to require the Franchise Tax Board to disclose any confidential tax
information considered in closed sessions, the public disclosure of
which is prohibited pursuant to Article 2 (commencing with Section
19542) of Chapter 7 of Part 10.2 of the Revenue and Taxation Code.
(l) Nothing in this article shall be construed to prevent the
Board of Corrections from holding closed sessions when considering
reports of crime conditions under Section 6027 of the Penal Code.
(m) Nothing in this article shall be construed to prevent the
State Air Resources Board from holding closed sessions when
considering the proprietary specifications and performance data of
manufacturers.
(n) Nothing in this article shall be construed to prevent a state
body that invests retirement, pension, or endowment funds from
holding closed sessions when considering investment decisions. For
purposes of consideration of shareholder voting on corporate stocks
held by the state body, closed sessions for the purposes of voting
may be held only with respect to election of corporate directors,
election of independent auditors, and other financial issues that
could have a material effect on the net income of the corporation.
For the purpose of real property investment decisions that may be
considered in a closed session pursuant to this subdivision, a state
body shall also be exempt from the provision of subdivision (i)
relating to the identification of real properties prior to the closed
session.
(o) Nothing in this article shall be construed to prevent a state
body, or boards, commissions, administrative officers, or other
representatives that may properly be designated by law or by a state
body, from holding closed sessions with its representatives in
discharging its responsibilities under Chapter 10 (commencing with
Section 3500) of Division 4 of Title 1 as the sessions relate to
salaries, salary schedules, or compensation paid in the form of
fringe benefits. For the purposes enumerated in the preceding
sentence, a state body may also meet with a state conciliator who has
intervened in the proceedings.
(p) Notwithstanding any other provision of law, any meeting of the
Public Utilities Commission at which the rates of entities under the
commission's jurisdiction are changed shall be open and public.
Nothing in this article shall be construed to prevent the Public
Utilities Commission from holding closed sessions to deliberate on
the institution of proceedings, or disciplinary actions against
regulated utilities.
(q) Nothing in this article shall be construed to prevent a state
body, based on the advice of its legal counsel, from holding a closed
session to confer with, or receive advice from, its legal counsel
regarding pending litigation when discussion in open session
concerning those matters would prejudice the position of the state
body in the litigation.
For purposes of this article, all expressions of the lawyer-client
privilege other than those provided in this subdivision are hereby
abrogated. This subdivision is the exclusive expression of the
lawyer-client privilege for purposes of conducting closed-session
meetings pursuant to this article. For purposes of this subdivision,
litigation shall be considered pending when any of the following
circumstances exist:
(1) An adjudicatory proceeding before a court, an administrative
body exercising its adjudicatory authority, a hearing officer, or an
arbitrator, to which the state body is a party, has been initiated
formally.
(2) (A) A point has been reached where, in the opinion of the
state body on the advice of its legal counsel, based on existing
facts and circumstances, there is a significant exposure to
litigation against the state body; or
(B) Based on existing facts and circumstances, the state body is
meeting only to decide whether a closed session is authorized
pursuant to subparagraph (A).
(3) Based on existing facts and circumstances, the state body has
decided to initiate or is deciding whether to initiate litigation.
The legal counsel of the state body shall prepare and submit to it
a memorandum stating the specific reasons and legal authority for
the closed session. If the closed session is pursuant to paragraph
(1), the memorandum shall include the title of the litigation. If
the closed session is pursuant to paragraph (2) or (3), the
memorandum shall include the existing facts and circumstances on
which it is based. The legal counsel shall submit the memorandum to
the state body prior to the closed session, if feasible, and in any
case no later than one week after the closed session. The memorandum
shall be exempt from disclosure pursuant to Section 6254.25.
For purposes of this subdivision, "litigation" includes any
adjudicatory proceeding, including eminent domain, before a court,
administrative body exercising its adjudicatory authority, hearing
officer, or arbitrator.
Disclosure of a memorandum required under this subdivision shall
not be deemed as a waiver of the lawyer-client privilege, as provided
for under Article 3 (commencing with Section 950) of Chapter 4 of
Division 8 of the Evidence Code.
(r) Nothing in this article shall be construed to prevent a state
body operating under a joint powers agreement for insurance pooling
from holding a closed session to discuss a claim for the payment of
tort liability or public liability losses incurred by the state body
or any member agency under the joint powers agreement.
(s) Nothing in this article shall be construed to prevent the
examining committee established by the State Board of Forestry,
pursuant to Section 763 of the Public Resources Code, from conducting
a closed session to consider disciplinary action against an
individual professional forester prior to the filing of an accusation
against the forester pursuant to Section 11503.
(t) Nothing in this article shall be construed to prevent an
administrative committee established by the State Board of
Accountancy pursuant to Section 5020 or 5020.3 of the Business and
Professions Code from conducting a closed session to consider
disciplinary action against an individual accountant prior to the
filing of an accusation against the accountant pursuant to Section
11503. Nothing in this article shall be construed to prevent an
examining committee established by the Board of Accountancy pursuant
to Section 5023 of the Business and Professions Code from conducting
a closed hearing to interview an individual applicant or accountant
regarding the applicant's qualifications.
(u) Nothing in this article shall be construed to prevent a state
body, as defined in Section 11121.2, from conducting a closed session
to consider any matter that properly could be considered in closed
session by the state body whose authority it exercises.
(v) Nothing in this article shall be construed to prevent a state
body, as defined in Section 11121.7, from conducting a closed session
to consider any matter that properly could be considered in a closed
session by the body defined as a state body pursuant to Section
11121, 11121.2, or 11121.5.
(w) Nothing in this article shall be construed to prevent a state
body, as defined in Section 11121.8, from conducting a closed session
to consider any matter that properly could be considered in a closed
session by the state body it advises.
(x) Nothing in this article shall be construed to prevent the
State Board of Equalization from holding closed sessions for either
of the following:
(1) When considering matters pertaining to the appointment or
removal of the executive secretary of the State Board of
Equalization.
(2) For the purpose of hearing confidential taxpayer appeals or
data, the public disclosure of which is prohibited by law.
Nothing in this article shall be construed to require the State
Board of Equalization to disclose any action taken in closed session
or documents executed in connection with that action, the public
disclosure of which is
prohibited by law pursuant to Sections 15619 and 15641 of this code
and Sections 833, 7056, 8255, 9255, 11655, 30455, 32455, 38705,
38706, 43651, 45982, 46751, 50159, 55381, and 60609 of the Revenue
and Taxation Code.
(y) Nothing in this article shall be construed to prevent the
California Earthquake Prediction Evaluation Council, or other body
appointed to advise the Director of the Office of Emergency Services
or the Governor pursuant to Section 8590 concerning matters relating
to volcanic or earthquake predictions, from holding closed sessions
when considering the evaluation of possible predictions.
(z) This article shall not prevent the Teachers' Retirement Board
or the Board of Administration of the Public Employees' Retirement
System from holding closed sessions when considering matters
pertaining to the recruitment, appointment, employment, or removal of
the chief executive officer or when considering matters pertaining
to the recruitment or removal of the Chief Investment Officer of the
State Teachers' Retirement System or the Public Employees' Retirement
System.
(aa) This article shall not prevent the Commission on Teacher
Credentialing from holding closed sessions when considering matters
relating to the recruitment, appointment, or removal of its executive
director.
(bb) Nothing in this article shall be construed to prevent the
State Board of Education, or any committee advising the State Board
of Education, from holding closed sessions on those portions of its
review of assessment instruments pursuant to Chapter 5 (commencing
with Section 60600) of Part 33 of the Education Code during which
actual test content is reviewed and discussed. The purpose of this
provision is to maintain the confidentiality of the assessments under
review.
(cc) This article shall not prevent the California Integrated
Waste Management Board or its auxiliary committees from holding
closed sessions for the purpose of discussing confidential tax
returns, discussing trade secrets or confidential or proprietary
information in its possession, or discussing other data, the public
disclosure of which is prohibited by law.
SEC. 11. Section 11126.3 of the Government Code is amended to
read:
11126.3. (a) Prior to holding any closed session, the state body
shall disclose, in an open meeting, the general nature of the item or
items to be discussed in the closed session. The disclosure may
take the form of a reference to the item or items as they are listed
by number or letter on the agenda. If the session is closed pursuant
to paragraph (1) of subdivision (q) of Section 11126, the state body
shall state the title of, or otherwise specifically identify, the
litigation to be discussed unless the body states that to do so would
jeopardize the body's ability to effectuate service of process upon
one or more unserved parties, or that to do so would jeopardize its
ability to conclude existing settlement negotiations to its
advantage.
(b) In the closed session, the state body may consider only those
matters covered in its disclosure.
(c) The disclosure shall be made as part of the notice provided
for the meeting pursuant to Section 11125 or pursuant to subdivision
(a) of Section 92032 of the Education Code and of any order or notice
required by Section 11129.
(d) If, after the agenda has been published in compliance with
this article, any additional pending litigation (under subdivision
(q) of Section 11126) matters arise, the postponement of which will
prevent the state body from complying with any statutory,
court-ordered, or other legally imposed deadline, the state body may
proceed to discuss those matters in closed session and shall publicly
announce in the meeting the title of, or otherwise specifically
identify, the litigation to be discussed, unless the body states to
do so would jeopardize the body's ability to effectuate service of
process upon one or more unserved parties, or that to do so would
jeopardize its ability to conclude existing settlement negotiations
to its advantage. Such an announcement shall be deemed to comply
fully with the requirements of this section.
(e) Nothing in this section shall require or authorize a
disclosure of names or other information that would constitute an
invasion of privacy or otherwise unnecessarily divulge the particular
facts concerning the closed session, or the disclosure of which is
prohibited by state or federal law.
(f) After any closed session, the state body shall reconvene into
open session prior to adjournment and shall make any reports, provide
any documentation, and make any other disclosures required by
Section 11125.2 of action taken in the closed session.
(g) The announcements required to be made in open session pursuant
to this section may be made at the location announced in the agenda
for the closed session, as long as the public is allowed to be
present at that location for the purpose of hearing the announcement.
SEC. 12. Section 11130 of the Government Code is amended to read:
11130. (a) The Attorney General, the district attorney, or any
interested person may commence an action by mandamus, injunction, or
declaratory relief for the purpose of stopping or preventing
violations or threatened violations of this article or to determine
the applicability of this article to actions or threatened future
action by members of the state body or to determine whether any rule
or action by the state body to penalize or otherwise discourage the
expression of one or more of its members is valid or invalid under
the laws of this state or of the United States, or to compel the
state body to tape record its closed sessions as hereinafter
provided.
(b) The court in its discretion may, upon a judgment of a
violation of Section 11126, order the state body to tape record its
closed sessions and preserve the tape recordings for the period and
under the terms of security and confidentiality the court deems
appropriate.
(c) (1) Each recording so kept shall be immediately labeled with
the date of the closed session recorded and the title of the clerk or
other officer who shall be custodian of the recording.
(2) The tapes shall be subject to the following discovery
procedures:
(A) In any case in which discovery or disclosure of the tape is
sought by the Attorney General, the district attorney, or the
plaintiff in a civil action pursuant to Section 11130 or 11130.3
alleging that a violation of this article has occurred in a closed
session that has been recorded pursuant to this section, the party
seeking discovery or disclosure shall file a written notice of motion
with the appropriate court with notice to the governmental agency
that has custody and control of the tape recording. The notice shall
be given pursuant to subdivision (b) of Section 1005 of the Code of
Civil Procedure.
(B) The notice shall include, in addition to the items required by
Section 1010 of the Code of Civil Procedure, all of the following:
(i) Identification of the proceeding in which discovery or
disclosure is sought, the party seeking discovery or disclosure, the
date and time of the meeting recorded, and the governmental agency
that has custody and control of the recording.
(ii) An affidavit which contains specific facts indicating that a
violation of the act occurred in the closed session.
(3) If the court, following a review of the motion, finds that
there is good cause to believe that a violation has occurred, the
court may review, in camera, the recording of that portion of the
closed session alleged to have violated the act.
(4) If, following the in camera review, the court concludes that
disclosure of a portion of the recording would be likely to
materially assist in the resolution of the litigation alleging
violation of this article, the court shall, in its discretion, make a
certified transcript of the portion of the recording a public
exhibit in the proceeding.
(5) Nothing in this section shall permit discovery of
communications that are protected by the attorney-client privilege.
SEC. 13. Section 11130.3 of the Government Code is amended to
read:
11130.3. (a) The Attorney General, the district attorney, or any
interested person may commence an action by mandamus, injunction, or
declaratory relief for the purpose of obtaining a judicial
determination that an action taken by a state body in violation of
Section 11123 or 11125 is null and void under this section. Nothing
in this section shall be construed to prevent a state body from
curing or correcting an action challenged pursuant to this section.
(b) Prior to any action being commenced pursuant to subdivision
(a), the Attorney General, the district attorney, or the interested
person shall make a demand of the state body to cure or correct the
action alleged to have been taken in violation of Section 11123. The
demand shall be in writing and clearly describe the challenged
action of the state body and nature of the alleged violation.
(c) (1) The written demand shall be made within 90 days from the
date the action was taken unless the action was taken in an open
session but in violation of Section 11125, in which case the written
demand shall be made within 30 days from the date the action was
taken.
(2) Within 30 days of receipt of the demand, the state body shall
cure or correct the challenged action and inform the demanding party
in writing of its actions to cure or correct or inform the demanding
party in writing of its decision not to cure or correct the
challenged action.
(3) If the state body takes no action within the 30-day period,
the inaction shall be deemed a decision not to cure or correct the
challenged action, and the 15-day period to commence the action
described in subdivision (a) shall commence to run the day after the
30-day period to cure or correct expires.
(4) Within 15 days of receipt of the written notice of the state
body's decision to cure or correct, or not to cure or correct, or
within 15 days of the expiration of the 30-day period to cure or
correct, whichever is earlier, the demanding party shall be required
to commence the action pursuant to subdivision (a) or thereafter be
barred from commencing the action.
(d) An action that is alleged to have been taken in violation of
Section 11123, 11125, 11125.3, or 11125.5 shall not be determined to
be null and void if any of the following conditions exist:
(1) The action taken was in connection with the sale or issuance
of notes, bonds, or other evidences of indebtedness or any contract,
instrument, or agreement related thereto.
(2) The action taken gave rise to a contractual obligation,
including a contract let by competitive bid other than compensation
for services in the form of salary or fees for professional services,
upon which a party has, in good faith and without notice of a
challenge to the validity of the action, detrimentally relied.
(3) The action taken was in substantial compliance with Sections
11123 and 11125.
(4) The action taken was in connection with the collection of any
tax.
(5) Any person, city, city and county, county, district, or any
agency or subdivision of the state alleging noncompliance with
Section 11125, 11125.3, or 11125.5, because of any defect, error,
irregularity, or omission in the notice given pursuant to those
provisions, had actual notice of the item of business at least 10
days prior to the meeting at which the action was taken, if the
meeting was noticed pursuant to Section 11125, or prior to the
meeting at which the action was taken if the meeting was noticed
pursuant to Section 11125.3 or 11125.5.
(e) During any action seeking a judicial determination pursuant to
subdivision (a) if the court determines, pursuant to a showing by
the state body that an action alleged to have been taken in violation
of Section 11123, 11125, 11125.3, or 11125.5 has been cured or
corrected by a subsequent action of the state body, the action filed
pursuant to subdivision (a) shall be dismissed with prejudice.
(f) The fact that a state body takes a subsequent action to cure
or correct an action taken pursuant to this section shall not be
construed or admissible as evidence of a violation of this article.
SEC. 14. Section 11130.7 of the Government Code is amended to
read:
11130.7. Each member of a state body who attends a meeting of
that body in violation of any provision of this article, and where
the member intends to deprive the public of information to which the
member knows or has reason to know the public is entitled under this
article, is guilty of a misdemeanor.
SEC. 15. Section 11131 of the Government Code is amended to read:
11131. (a) No state agency shall conduct any meeting, conference,
or other function in any facility that prohibits the admittance of
any person, or persons, on the basis of race, religious creed, color,
national origin, ancestry, or sex, or that is inaccessible to
disabled persons, or where members of the public may not be present
without making a payment or purchase. As used in this section,
"state agency" means and includes every state body, office, officer,
department, division, bureau, board, council, commission, or other
state agency.
(b) No notice, agenda, announcement, or report required under this
article need identify any victim or alleged victim of tortious
sexual conduct or child abuse unless the identity of the person has
been publicly disclosed.
SEC. 15.5. Section 10.5 of this bill incorporates amendments to
Section 11126 of the Government Code proposed by both this bill and
AB 3358. It shall only become operative if (1) both bills are
enacted and become effective on or before January 1, 1997, (2) each
bill amends Section 11126 of the Government Code, and (3) this bill
is enacted after AB 3358, in which case Section 10 of this bill shall
not become operative.
SEC. 16. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.