BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1494|
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THIRD READING
Bill No: AB 1494
Author: Eng (D)
Amended: 06/04/09 in Senate
Vote: 21
SENATE GOVERNMENTAL ORG. COMMITTEE : 9-0, 6/9/09
AYES: Wright, Harman, Benoit, Calderon, Denham, Negrete
McLeod, Padilla, Wiggins, Yee
NO VOTE RECORDED: Florez, Oropeza, Wyland, Vacancy
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 73-0, 5/14/09 (Consent) - See last page
for vote
SUBJECT : Public meetings: definition
SOURCE : California Newspaper Publishers Association
DIGEST : This bill makes changes to the Bagley-Keen Open
Meeting Act, regarding communication between members of a
state entity.
ANALYSIS : 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
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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 will 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.
This bill:
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
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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
Act.
Comments
According to the author's office, this bill 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 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 bill, 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, Statutes 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
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intermediaries, to discuss, deliberate, or take action on
any item of business that is within the subject
jurisdiction of the legislative body. This bill
essentially amends 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:
1. 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 Bagley-Keene Open Meeting 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 Bagley-Keene Open Meeting Act defines
a state body to mean every state board, commission, or
similar multimember body of the state that is created by
statute or required by law to conduct official meetings
and every commission created by executive order. In
addition, the Bagley-Keene Open Meeting Act excludes
from that definition certain bodies of the Judiciary and
Legislature, among other things.
2. 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 Bagley-Keene Open Meeting Act and the Ralph M.
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Brown Act 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)
3. 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 California Public Records 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.
4. 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
preserved either in the appropriate committee office or
with the State Archives. The Legislative Open Records
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 Legislative Open Records 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.
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5. 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 Grunsky-Burton
Open Meeting 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 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
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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 bills extensively amended the Ralph M. Brown
Act.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 6/29/09)
California Newspaper Publishers Association (source)
American Federation of State, County and Municipal
Employees Association of California School Administrators
California Broadcasters Association
California School Boards Association
ASSEMBLY FLOOR :
AYES: Adams, Anderson, Arambula, Beall, Bill Berryhill,
Tom Berryhill, Blakeslee, Block, Blumenfield, Brownley,
Buchanan, Caballero, Charles Calderon, Carter, Chesbro,
Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore,
Duvall, Emmerson, Eng, Evans, Feuer, Fletcher, Fong,
Fuller, Furutani, Galgiani, Gilmore, Hagman, Hall,
Harkey, Hayashi, Hernandez, Hill, Huber, Huffman,
Jeffries, Jones, Knight, Krekorian, Lieu, Logue, Bonnie
Lowenthal, Ma, Mendoza, Miller, Monning, Nava, Nestande,
Niello, Nielsen, John A. Perez, V. Manuel Perez,
Portantino, Price, Ruskin, Salas, Silva, Skinner,
Solorio, Audra Strickland, Swanson, Torlakson, Torres,
Torrico, Tran, Villines, Yamada
NO VOTE RECORDED: Ammiano, Fuentes, Gaines, Garrick,
Saldana, Smyth, Bass
TSM:do 6/29/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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