BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Patricia Wiggins, Chair
BILL NO: SB 711 HEARING: 4/15/09
AUTHOR: Leno FISCAL: Yes
VERSION: 4/13/09 CONSULTANT:
Weinberger
BROWN ACT AND EMPLOYEE NEGOTIATIONS
Background
The Ralph M. Brown Act requires the meetings of local
governments' legislative bodies to be "open and public,"
thereby ensuring people's access to information so that
they may retain control over the public agencies that serve
them.
Private discussions among a majority of a legislative body
are prohibited, unless expressly authorized under the Brown
Act. Legislative bodies can meet in closed sessions only
for the following reasons:
Discussions with legal counsel on pending
litigation or liability claims.
Threats to public buildings or access to public
services.
Public employee personnel issues.
Conferences with the body's representative on labor
negotiations.
A conference with real property negotiators.
Multi-jurisdictional drug cases.
District hospital peer reviews, quality assurance
committees, or reports involving trade secrets.
A license or permit determination for those with
criminal records.
Local officials must place a closed meeting item on an
agenda and cite their statutory authority to meet behind
closed doors. They must report on any action taken in
closed session and provide the vote of every elected member
present.
Some newspaper publishers and advocates for open government
want local agencies' closed session discussions of labor
negotiations to be more transparent.
SB 711 -- 4/13/09 -- Page 2
Proposed Law
I. Closed sessions regarding labor negotiations . Existing
law allows a local legislative body to hold closed sessions
with 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.
Before the closed session, the body must meet in open
session and identify its designated representatives.
Senate Bill 711 requires a local legislative body, in an
open session before the closed session, to:
Identify, orally or as part of the meeting agenda,
the agency's designated representatives, the employee
or class of employees that are the subject of the
negotiations, and the representatives of the
employees.
Provide an oral report by the agency's designated
representative on the current status of the
negotiations.
Existing law allows a local legislative body to approve an
agreement concluding labor negotiations with its
represented employees in closed session. The legislative
body must report the approval of the agreement after the
agreement is final and has been accepted or ratified by the
other party. The report must identify the item approved
and the other party or parties. Closed session may not
include final action on the proposed compensation of one or
more unrepresented employees. Senate Bill 711 deletes the
reporting requirement and prohibits a closed session from
including any final action, regardless of whether it
relates to represented or unrepresented employees.
Senate Bill 711 requires that a final action on any
agreement must be conducted during an open and public
regular meeting of the legislative body. The proposed
agreement and a summary of its major provisions, including
the costs that would be incurred by the local agency under
the agreement for the current and subsequent fiscal years,
must be disclosed at a public meeting. Final action cannot
take place on any proposal until a reasonable time has
elapsed after disclosure of the proposal to enable the
SB 711 -- 4/13/09 -- Page 3
public to become informed and until the public has the
opportunity to express itself regarding the proposal at a
meeting of the legislative body.
II. Agenda requirement . To assist legislative bodies in
preparing agendas for closed-session meetings, the
Legislature established a model format for closed session
agenda item descriptions. Use of the model format is
strictly voluntary. However, substantial compliance with
the model format assures the legislative body that it will
not be found in violation of the Brown Act's closed session
agenda requirements. The model format for describing a
closed session agenda item relating to labor negotiations
identifies:
Designated representatives of the local agency
attending the closed session.
The name of the organization representing the
employee or employees in question.
The position title of an unrepresented employee who
is the subject of the negotiations.
Senate Bill 711 amends the model agenda format to include:
The employee or class of employees that are the
subject of the negotiations.
The representative of the employees.
The oral report by the agency's designated
representative on the current status of the
negotiations.
Comments
1. Enhancing public accountability . The Brown Act allows
local agencies, other than school districts, to conceive,
negotiate, and finalize labor deals entirely behind closed
doors. By contrast, the Rodda Act, which governs school
districts' labor negotiations, provides substantial
opportunities for public scrutiny during, and at the
conclusion of, those negotiations. Rather than being
simply informed of a fait accompli, the public can
scrutinize and comment on labor agreements before school
officials give any agreement their final approval. By
closing the loophole that allows local governments to take
final action on labor collective bargaining agreements in
SB 711 -- 4/13/09 -- Page 4
closed session, SB 711 moves the Brown Act's labor
negotiation provisions towards the sensible, transparent
standards that already apply to public school districts.
2. Disrupting the balance . All delicate negotiations
benefit from some degree of secrecy. SB 711's requirement
that local agencies' representatives provide public reports
on the status of active labor negotiations could limit the
strategies and bargaining positions that can be adopted by
local officials who are negotiating labor agreements on the
public's behalf. Negotiators might be reluctant to make
proposals or counter-offers that make strategic sense, but
would invite public controversy, if those temporary
bargaining positions must be disclosed as part of a public
update on the negotiations. The Brown Act balances the
public's interest in giving local officials enough
independence to negotiate effectively with the public's
interest in being fully informed about the outcomes of
those negotiations. By increasing the transparency of the
labor negotiation process, and not just the proposals that
the negotiations produce, SB 711 threatens to disrupt that
balance.
3. Let's be reasonable . SB 711 prohibits final action on
a proposal that results from labor negotiations that are
discussed in closed session until a "reasonable" time has
elapsed after proposal's public disclosure. SB 711's use
of the term "reasonable" is similar to statutory language
that governs public notice of schools districts' labor
negotiations. However, some local officials worry that
this vague standard may invite controversy over precisely
how long they must wait before taking final action on a
proposal. The Committee may wish to consider amending SB
711 to clarify that final action on a proposal must occur
at a public meeting that is subsequent to the one at which
the proposal is disclosed. This change would ensure that a
minimum of 24 hours would elapse between the disclosure of
a proposal and final action on it.
4. State mandate . The California Constitution requires
the state to reimburse local governments for the costs of
new or expanded state mandated local programs. Because SB
711 imposes new duties on local agencies, Legislative
Counsel says that the bill imposes a new state mandate. SB
SB 711 -- 4/13/09 -- Page 5
711 requires the state to reimburse local agencies if the
Commission on State Mandates determines that the bill
imposes a reimbursable mandate.
Support and Opposition (4/9/09)
Support : California Newspaper Publishers Association,
Californians Aware.
Opposition : County of San Bernardino, California
Association of Clerks and Elections Officials, American
Federation of State, County, and Municipal Employees.