BILL ANALYSIS
AB 1494
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Date of Hearing: April 22, 2009
ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
Curren D. Price, Chairman
AB 1494 (Eng) - As Amended: April 13, 2009
SUBJECT : Public meetings: definition
SUMMARY : This bill would amend the Bagley-Keene Open Meeting
Act's (Bagley-Keene Act) definition of "meeting" to address a
recent court order decision affecting serial meetings of public
bodies, which are prohibited under existing law. Specifically,
this bill :
1) Clarifies that an employee or official of a state agency
can engage in a separate conversation or communication with
a member of a legislative body of a state agency for the
purpose of answering questions or providing information
regarding a matter that is business pertaining to the
subject matter jurisdiction of the state agency.
[Government Code Section 11122.5 (b) (2)].
2) Repeals the prohibition regarding the use of direct
communication, personal intermediaries, or technological
devices employed by a majority of the members of a state
body to develop a collective concurrence [Government Code
Section 11122.5 (c)].
EXISTING LAW
1) Establishes the Bagley-Keene Act and requires that all
meetings of a state body, with specified exceptions, be
open and public and all persons be permitted to attend any
meeting of a state body [Government Code Section 11120, et.
seq].
2) Covers all state boards and commissions. Requires these
bodies to publicly notice their meetings, prepare agendas,
accept public testimony and conduct their meetings in
public unless specifically authorized by law to meet in
closed session.
3) Defines "meeting" to include 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
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that is within the subject matter jurisdiction of the state
body to which it pertains.
4) Prohibits a majority of the members of a state body from
using a series of communications of any kind, directly or
through intermediaries, to discuss, deliberate, or take
action on any item of business that is within the subject
matter of the state body.
5) Specifies the contacts, conferences, and other types of
gatherings that are excluded from the prohibition, as
noted, in point 4.
FISCAL EFFECT : Unknown
COMMENTS :
1) Wolfe v. City of Fremont . In 2006, the California
Appellate court ruling in Wolfe v. Fremont (2006, 144 Cal.
App. 4th 533) (Wolfe) declared that a member who went to a
majority of members in individual meetings to discuss a
public issue did not violate that serial meetings
provision, unless the communication actually resulted in a
decision by the board. Attorneys for the newspapers and
the public agencies agreed the decision effectively
sanctioned unlimited serial meetings involving a majority
so long as it could not be proven the body agreed to a
specific action as a result of the communications.
According to the author, this bill would close the loophole
in the Bagley-Keene Act by prohibiting a majority of
members of a state body from using a series of
communications of any kind through group or individual
contact, directly or through intermediaries, to discuss,
deliberate, or take action on any item of business that is
within the subject matter of a state agency, board, or
commission.
2) Transparency and civic participation . Before Wolfe,
violations of the serial meeting prohibition were becoming
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difficult to pursue because it was difficult to prove that
secret communications were being carried out by a majority
to develop a collective concurrence on a public issue.
Without the solution provided by this bill, journalists and
members of the public will have an impossible task of
proving that the state board or commission reached a
decision.
According to the sponsor, not addressing this matter could,
potentially, cause harm to the public's right to
participate in the information acquisition process and
would be very hard to prove, since the body would be able
to "simply refer to accusers to the next meeting agenda
where the "formal" vote will be taken."
This bill would make the Bagley-Keene Act's serial meeting
prohibition identical to the Ralph M. Brown Open Meeting
Law (Brown Act)-the counterpart to the Bagley-Keene Act
that is applicable to local government bodies-which was
changed last year (see below).
Related legislation . SB 1732 (Romero), Chapter 63, 2008
Statutes. Overturns Wolfe by prohibiting a majority of the
members of a local legislative body, outside of a meeting
authorized by the Brown Act, from using a series of
communications of any kind, directly or through intermediaries,
to discuss, deliberate, or take action on any item of business
that is within the subject matter jurisdiction of the
legislative body.
SB 964 (Romero) of the 2007 Legislative Session was nearly
identical to SB 1732. However, SB 964 was vetoed by the
Governor.
REGISTERED SUPPORT / OPPOSITION :
Support
California Newspaper Publishers Association (sponsor)
Opposition
None on file
AB 1494
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Analysis Prepared by : Rod Brewer / G. O. / (916) 319-2531