BILL ANALYSIS
Bill No: AB
1494
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Roderick D. Wright, Chair
2009-2010 Regular Session
Staff Analysis
AB 1494 Author: Eng
As Amended: June 4, 2009
Hearing Date: June 9, 2009
Consultant: Art Terzakis
SUBJECT
Bagley-Keene Open Meeting Act
DESCRIPTION
AB 1494 makes the following changes to the Bagley-Keene
Open Meeting Act:
1. Repeals an existing provision of law that prohibits 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 (serial meeting) and instead adds new
language that 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.
2. Excludes from the above prohibition (item #1) an
employee or official of a state agency engaging in a
separate conversation or communication with a member of a
legislative body for the purpose of answering questions
or providing information regarding an issue that is
within the subject matter jurisdiction of the state
agency, provided that person does not communicate to
members of the legislative body the comments or position
of any other member(s) of the legislative body.
3. Makes a related technical and conforming change to the
AB 1494 (Eng) continued
Page 2
Act
EXISTING LAW
The Bagley-Keene Open Meeting Act, set forth in Government
Code Sections 11120-11132, covers all state boards and
commissions and generally requires these bodies to publicly
notice their meetings, prepare agendas, accept public
testimony and conduct their meetings in public unless
specifically authorized by the Act to meet in closed
session. A meeting occurs when a quorum of a body
convenes, either serially or all together, in one place, to
address issues under the body's jurisdiction (Government
Code section 11122.5.).
The Act expressly prohibits the use of direct
communication, personal intermediaries, or technological
devices that are 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 outside of an open meeting. Typically, a serial
meeting is a series of communications, each of which
involves less than a quorum of the legislative body, but
which taken as a whole involves a majority of the body's
members. For example, a chain of communications involving
contact from member A to member B who then communicates
with member C would constitute a serial meeting in the case
of a five-person body.
Similarly, when a person acts as the hub of a wheel (member
A) and communicates individually with the various spokes
(members B and C), a serial meeting has occurred. In
addition, a serial meeting occurs when intermediaries for
board members have a meeting to discuss issues. For
example, when a representative of member A meets with
representatives of members B and C to discuss an agenda
item, the members have conducted a serial meeting through
their representatives acting as intermediaries.
BACKGROUND
Purpose of AB 1494: According to the author's office, this
measure is intended to close a loophole in the Bagley-Keene
Act that allows for serial meetings to legally take place.
The loophole stems from a 2006 California appellate court
AB 1494 (Eng) continued
Page 3
ruling in Wolfe v. City of Fremont (2006, 144 Cal. App. 4th
533) that declared 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 of 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.
The author's office notes that before Wolfe, violations of
the serial meeting prohibition were becoming problematic 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. The
author's office contends that without the solution provided
by this measure, journalists and members of the public will
have an impossible task of proving that the state board or
commission reached a decision.
It should be noted that last year, SB 1732 (Romero),
Chapter 63 of 2008, overturned Wolfe by prohibiting a
majority of the members of a "local" legislative body,
outside of a meeting authorized by the Ralph M. Brown Act
(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 jurisdiction of the legislative body.
This measure would essentially amend the Bagley-Keene Act's
serial meeting prohibition to make it consistent with the
Brown Act's serial meeting prohibition.
The following statutory provisions govern the public's
access to government records and meetings of government
bodies:
(a) The Bagley-Keene Open Meeting Act (Government Code
Section 11120 et seq.) requires all meetings of a state
body to be open and public and grants the right to
attend such meetings to all persons, with certain
exceptions. The Act requires these public meetings to
be noticed with an agenda that contains the items of
business that may be acted upon at the meeting. The Act
defines a state body to mean every state board,
commission, or similar multimember body of the state
AB 1494 (Eng) continued
Page 4
that is created by statute or required by law to conduct
official meetings and every commission created by
executive order. In addition, the Act excludes from
that definition certain bodies of the Judiciary and
Legislature, among other things.
(b) The Ralph M. Brown Act (Government Code Section 54950
et seq.) which governs meetings of legislative bodies of
local agencies (e.g. boards of supervisors, city
councils, school boards) is substantially similar to the
Bagley-Keene Act and requires local legislative bodies
to hold meetings in open forum after public notice of
agenda items. The Brown Act also recognizes the need,
under limited circumstances, for these bodies to meet in
private in order to carry out their responsibilities in
the best interests of the public and provides for
specified exceptions. Both acts (Brown Act &
Bagley-Keene Act) provide that the covered entities
"exist to aid in the conduct of the people's business"
and that their actions "be taken openly and that their
deliberations be conducted openly."
Both acts also provide that? "The people of this state
do not yield their sovereignty to the agencies which
serve them. The people, in delegating authority, do not
give their public servants the right to decide what is
good for the people to know and what is not good for
them to know. The people insist on remaining informed
so that they may retain control over the instruments
they have created." (Sections 11120, 54950 of the
Government Code)
(c) The California Public Records Act (Government Code
Section 6250 et seq.) establishes the right of every
person to inspect and obtain copies of all state and
local government documents and records not exempt from
disclosure. The Act requires specified state and local
agencies to establish written guidelines for
accessibility of records, to post these guidelines at
their offices, and to make them available free of charge
to any person requesting that agency's records.
(d) The Legislative Open Records Act (Government Code
Section 9070 et seq.) provides that the public may
inspect legislative records, as defined, and mandates
that committee and floor analyses records be permanently
AB 1494 (Eng) continued
Page 5
preserved either in the appropriate committee office or
with the State Archives. The Act declares that "access
to information concerning the conduct of the people's
business by the Legislature is a fundamental and
necessary right of every citizen in this state." The
Act provides for "nondisclosure" of certain records,
including, (1) records pertaining to pending litigation;
(2) preliminary drafts, notes, or legislative memoranda,
except as specified; (3) personnel, medical, or similar
files; (4) communications from private citizens; (5)
records in the custody of or maintained by the
Legislative Counsel; (6) correspondence of and to
individual Legislators and their staff; (7) records of
complaints to or investigations conducted by, or records
of security procedures of, the Legislature; and, (8)
records maintained by the majority and minority
caucuses.
(e) The Grunsky-Burton Open Meeting Act (Article 2.2 of
the Government Code, Sections 9027-9032) provides that
meetings of a house of the Legislature or a committee
shall be open and public and all persons shall be
permitted to attend the meetings. The Act permits the
Legislature or a committee thereof to hold closed
meetings solely for any of the following purposes: (1)
to consider certain personnel matters; (2) to consider
matters affecting safety and security; (3) to confer
with legal counsel regarding any litigation matter; and,
(4) a caucus of the Members of the Senate, the Members
of the Assembly, or the Members of both houses.
PRIOR/RELATED LEGISLATION
SB 1732 (Romero) Chapter 63, Statutes of 2008. Among other
things, prohibited a majority of members of a legislative
body of a local agency from using, outside a meeting
authorized by the Brown Act, 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 legislative body.
SB 964 (Romero) 2007-08 Session. Nearly identical to SB
1732 (Romero) of 2008. (Vetoed by Governor)
SB 519 (Committee on Governmental Organization) Chapter 92,
Statutes of 2007. Amended the Bagley-Keene Act to
authorize a state body to hold a special meeting for
AB 1494 (Eng) continued
Page 6
purposes of appointing an "interim executive officer."
AB 277 (Mountjoy) Chapter 288, Statutes of 2005. Made
permanent certain provisions authorizing closed sessions
for purposes of discussing security related issues
pertaining to a state body.
AB 192 (Canciamilla) Chapter 243, Statutes of 2001. Made
various changes to the Bagley-Keene Act to make it
consistent with provisions of the Ralph M. Brown Act.
SB 95 (Ayala) Chapter 949, Statutes of 1997. Made numerous
changes to the Bagley-Keene Act by expanding the notice,
disclosure and reporting requirements for open and closed
meetings of state bodies.
SB 752 (Kopp) Chapter 32 of 1994; SB 1140 (Calderon)
Chapter 1138 of 1993; and
SB 36 (Kopp) Chapter 1137 of 1993. These measures
extensively amended the Ralph M. Brown Act.
SUPPORT: As of June 5, 2009:
California Newspaper Publishers Association (sponsor)
American Federation of State, County and Municipal
Employees (AFSCME)
Association of California School Administrators
California Broadcasters Association
California School Boards Association
OPPOSE: None on file as of June 5, 2009.
FISCAL COMMITTEE: Senate Appropriations Committee