BILL NUMBER: SB 711 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 13, 2009
INTRODUCED BY Senator Leno
FEBRUARY 27, 2009
An act to amend Sections 54954.5, 54957.1, and 54957.6 of the
Government Code, relating to public meetings.
LEGISLATIVE COUNSEL'S DIGEST
SB 711, as amended, Leno. Public meetings: closed sessions: labor
negotiations.
(1) The Ralph M. Brown Act requires the meetings of the
legislative body of a local agency to be conducted openly and
publicly, with specified exceptions. Under the act, the legislative
body of a local agency may hold a closed session with the local
agencies' designated representatives regarding negotiations
concerning employee compensation but is required, in an open and
public session prior to those closed sessions, to disclose specified
information identifying the agency's designated representatives.
Existing law prohibits a closed session from including any final
action on the proposed compensation of unrepresented employees. The
act also requires the legislative body of a local agency to publicly
report any action taken in closed session, as prescribed, including
the approval of an agreement concluding labor negotiations with
represented employees after the agreement is final and has been
accepted or ratified by the other party. The act provides a
legislative body or elected official is not in violation of certain
provisions of the act if the agenda that describes a closed session
item is in substantial compliance by including specified information.
This bill would additionally require a local agency, before
holding a closed session regarding employee compensation, to identify
the employee or class of employees that are the subject of the
negotiations, the representatives of the employees, and all
known matters within the scope of the negotiations, and to also make
available to the public certain written proposals. The bill would
require the legislative body, before commencing negotiations for a
new collective bargaining agreement or initial proposal for an
unrepresented employee, to present, in an open and public session,
the new collective bargaining agreement or an initial proposal
to provide an oral report by its designated
representative on the current status of the negotiations . The
bill would additionally require any vote
action of the legislative body on the collective bargaining
agreement or initial proposal to be taken at an open and public
session.
The bill would revise the prohibition against a closed session
including a final action on the proposed compensation of
unrepresented employees to instead prohibit the closed session from
including any final vote. The bill would for these
purposes and require a any final
vote on any action taken pursuant to a closed
session to be conducted during an open and public regular meeting of
the legislative body, and but only
after disclosure of certain writings, cost projections, and
methodology specified public disclosures . The
bill would also make a conforming change to delete the requirement
that the legislative body publicly report the action taken in closed
session after the agreement is final. The bill would also make
conforming changes to the information required to be included in an
agenda describing a closed session, for purposes of compliance with
the act.
The bill would impose a state-mandated local program by imposing
new duties upon local agencies.
(2) 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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 54954.5 of the Government Code is amended to
read:
54954.5. For purposes of describing closed session items pursuant
to Section 54954.2, the agenda may describe closed sessions as
provided below. No legislative body or elected official shall be in
violation of Section 54954.2 or 54956 if the closed session items
were described in substantial compliance with this section.
Substantial compliance is satisfied by including the information
provided below, irrespective of its format.
(a) With respect to a closed session held pursuant to Section
54956.7:
LICENSE/PERMIT DETERMINATION
Applicant(s): (Specify number of applicants)
(b) With respect to every item of business to be discussed in
closed session pursuant to Section 54956.8:
CONFERENCE WITH REAL PROPERTY NEGOTIATORS
Property: (Specify street address, or if no street address, the
parcel number or other unique reference, of the real property under
negotiation)
Agency negotiator: (Specify names of negotiators attending the
closed session) (If circumstances necessitate the absence of a
specified negotiator, an agent or designee may participate in place
of the absent negotiator so long as the name of the agent or designee
is announced at an open session held prior to the closed session.)
Negotiating parties: (Specify name of party (not agent))
Under negotiation: (Specify whether instruction to negotiator will
concern price, terms of payment, or both)
(c) With respect to every item of business to be discussed in
closed session pursuant to Section 54956.9:
CONFERENCE WITH LEGAL COUNSEL--EXISTING LITIGATION
(Subdivision (a) of Section 54956.9)
Name of case: (Specify by reference to claimant's name, names of
parties, case or claim numbers)
or
Case name unspecified: (Specify whether disclosure would
jeopardize service of process or existing settlement negotiations)
CONFERENCE WITH LEGAL COUNSEL--ANTICIPATED LITIGATION
Significant exposure to litigation pursuant to subdivision (b) of
Section 54956.9: (Specify number of potential cases)
(In addition to the information noticed above, the agency may be
required to provide additional information on the agenda or in an
oral statement prior to the closed session pursuant to subparagraphs
(B) to (E), inclusive, of paragraph (3) of subdivision (b) of Section
54956.9.)
Initiation of litigation pursuant to subdivision (c) of Section
54956.9: (Specify number of potential cases)
(d) With respect to every item of business to be discussed in
closed session pursuant to Section 54956.95:
LIABILITY CLAIMS
Claimant: (Specify name unless unspecified pursuant to Section
54961)
Agency claimed against: (Specify name)
(e) With respect to every item of business to be discussed in
closed session pursuant to Section 54957:
THREAT TO PUBLIC SERVICES OR FACILITIES
Consultation with: (Specify name of law enforcement agency and
title of officer, or name of applicable agency representative and
title)
PUBLIC EMPLOYEE APPOINTMENT
Title: (Specify description of position to be filled)
PUBLIC EMPLOYMENT
Title: (Specify description of position to be filled)
PUBLIC EMPLOYEE PERFORMANCE EVALUATION
Title: (Specify position title of employee being reviewed)
PUBLIC EMPLOYEE DISCIPLINE/DISMISSAL/RELEASE
(No additional information is required in connection with a closed
session to consider discipline, dismissal, or release of a public
employee. Discipline includes potential reduction of compensation.)
(f) With respect to every item of business to be discussed in
closed session pursuant to Section 54957.6:
CONFERENCE WITH LABOR NEGOTIATORS
Agency designated representatives: (Specify names of designated
representatives attending the closed session) (If circumstances
necessitate the absence of a specified designated representative, an
agent or designee may participate in place of the absent
representative so long as the name of the agent or designee is
announced at an open session held prior to the closed session.)
The employee or class of employees that are the subject of the
negotiations
Representative of the employees
Employee organization: (Specify name of organization representing
employee or employees in question)
or
Unrepresented employee: (Specify position title of unrepresented
employee who is the subject of the negotiations)
All known matters within the scope of the negotiations
Any written proposals communicated by the local agency to
representatives of public employees and proposals received by the
local agency from representatives of the public employees
Oral reports by agency's designated representative on the current
status of the negotiations
(g) With respect to closed sessions called pursuant to Section
54957.8:
CASE REVIEW/PLANNING
(No additional information is required in connection with a closed
session to consider case review or planning.)
(h) With respect to every item of business to be discussed in
closed session pursuant to Sections 1461, 32106, and 32155 of the
Health and Safety Code or Sections 37606 and 37624.3 of the
Government Code:
REPORT INVOLVING TRADE SECRET
Discussion will concern: (Specify whether discussion will concern
proposed new service, program, or facility)
Estimated date of public disclosure: (Specify month and year)
HEARINGS
Subject matter: (Specify whether testimony/deliberation will
concern staff privileges, report of medical audit committee, or
report of quality assurance committee)
(i) With respect to every item of business to be discussed in
closed session pursuant to Section 54956.86:
CHARGE OR COMPLAINT INVOLVING INFORMATION PROTECTED BY FEDERAL LAW
(No additional information is required in connection with a closed
session to discuss a charge or complaint pursuant to Section
54956.86.)
(j) With respect to every item of business to be discussed in
closed session pursuant to Section 54956.96:
CONFERENCE INVOLVING A JOINT POWERS AGENCY (Specify by name)
Discussion will concern: (Specify closed session description used
by the joint powers agency)
Name of local agency representative on joint powers agency board:
(Specify name)
(Additional information listing the names of agencies or titles of
representatives attending the closed session as consultants or other
representatives.)
(k) With respect to every item of business to be discussed in
closed session pursuant to Section 54956.75:
AUDIT BY BUREAU OF STATE AUDITS
SEC. 2. Section 54957.1 of the Government Code is amended to read:
54957.1. (a) The legislative body of any local agency shall
publicly report any action taken in closed session and the vote or
abstention on that action of every member present, as follows:
(1) Approval of an agreement concluding real estate negotiations
pursuant to Section 54956.8 shall be reported after the agreement is
final, as follows:
(A) If its own approval renders the agreement final, the 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 local agency 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
local agency 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 54956.9 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, the announcement need not
identify the action, the defendants, or other particulars, but shall
specify that the direction to initiate or intervene in an action has
been given and that the action, the defendants, and the other
particulars shall, once formally commenced, be disclosed to any
person upon inquiry, unless to do so would jeopardize the agency's
ability to effectuate service of process on one or more unserved
parties, or that to do so would jeopardize its ability to conclude
existing settlement negotiations to its advantage.
(3) Approval given to its legal counsel of a settlement of pending
litigation, as defined in Section 54956.9, at any stage prior to or
during a judicial or quasi-judicial proceeding shall be reported
after the settlement is final, as follows:
(A) If the legislative body accepts a settlement offer signed by
the opposing party, the body shall report its acceptance and identify
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 local agency shall
disclose the fact of that approval, and identify the substance of the
agreement.
(4) Disposition reached as to claims discussed in closed session
pursuant to Section 54956.95 shall be reported as soon as reached in
a manner that identifies the name of the claimant, the name of the
local agency claimed against, the substance of the claim, and any
monetary amount approved for payment and agreed upon by the claimant.
(5) 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 54957 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.
(6) Pension fund investment transaction decisions made pursuant to
Section 54956.81 shall be disclosed at the first open meeting of the
legislative body held after the earlier of the close of the
investment transaction or the transfer of pension fund assets for the
investment transaction.
(b) Reports that are required to be made pursuant to this section
may be made orally or in writing. The legislative body shall provide
to any person who has submitted a written request to the legislative
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 54954.1 or 54956,
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 legislative 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) 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
legislative body approve actions not otherwise subject to
legislative 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
legislative body in an effort to comply with this section.
(f) This section is necessary to implement, and reasonably within
the scope of, paragraph (1) of subdivision (b) of Section 3 of
Article I of the California Constitution.
SEC. 3. Section 54957.6 of the Government Code is amended to read:
54957.6. (a) (1) Notwithstanding any other law, a legislative
body of a local agency may hold a closed session pursuant to this
section with the local agency's designated representatives regarding
the salaries, salary schedules, or compensation paid in the form of
fringe benefits of its represented and unrepresented employees, and,
for represented employees, any other matter within the statutorily
provided scope of representation.
(2) Before holding a closed session pursuant to paragraph (1), the
legislative body of the local agency shall hold an open and public
session in which it does all of the following:
(A) Identifies the agency's designated representatives, the
employee or class of employees that are the subject of the
negotiations, and the representatives of the employees.
(B) Identifies all known matters within the scope of the
negotiations.
(C) Makes available to the public any written proposals
communicated by the local agency to representatives of public
employees and proposals received by the local agency from
representatives of the public employees.
(B) Provides an oral report by its designated representative on
the current status of the negotiations.
(3) The notice required by subparagraphs (A) and (B)
subparagraph (A) of paragraph (2) may be given
orally or as part of the meeting agenda.
(b) A legislative body of a local agency shall present a new
collective bargaining agreement or an initial proposal for an
unrepresented employee in an open and public session, before
commencing negotiations regarding that new collective bargaining
agreement or initial proposal. A vote of a legislative body on the
new collective bargaining agreement or initial proposal subject to
this subdivision shall be taken at an open and public session.
(c)
(b) A closed session of a legislative body of a local
agency authorized pursuant to this section is subject to all of the
following conditions:
(1) The closed session shall be only for the purpose of reviewing
the position of the local agency and instructing the local agency's
designated representatives.
(2) The closed session may only take place prior to and during
consultations and discussions with representatives of employee
organizations and unrepresented employees.
(3) The closed session with the local agency's designated
representative regarding the salaries, salary schedules, or
compensation paid in the form of fringe benefits may include
(3) The closed session may include
discussion of an agency's available funds and funding
priorities, but only insofar as these discussions relate to providing
instructions to the local agency's designated representative.
(4) The closed session held pursuant to this section
shall not include any final vote
action .
(d) A final vote on any action taken pursuant to this section
shall be conducted during an open and public regular meeting of the
legislative body, but only after disclosure, pursuant to subdivision
(a) of Section 54957.5 of all writings associated with the proposed
action, including any projections of the proposed action's costs and
any assumptions and methodology used to calculate those costs.
(c) Any final action on an agreement subject to this section shall
be conducted during an open and public regular meeting of the
legislative body. The proposed agreement and a summary of its major
provisions, including, but not limited to, the costs that would be
incurred by the local agency under the agreement for the current and
subsequent fiscal years, shall be disclosed at a public meeting.
Final action shall not take place on any proposal until a reasonable
time has elapsed after disclosure of the proposal to enable the
public to become informed and the public has the opportunity to
express itself regarding the proposal at a meeting of the legislative
body.
(e)
(d) For the purposes enumerated in this section, a
legislative body of a local agency may also meet with a state
conciliator who has intervened in the proceedings.
(f)
(e) For the purposes of this section, "employee"
includes an officer or an independent contractor who functions as an
officer or an employee, but shall not include an elected official,
member of a legislative body, or other independent contractor.
SEC. 4. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.