BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Patricia Wiggins, Chair
BILL NO: SB 711 HEARING: 1/6/10
AUTHOR: Leno FISCAL: Yes
VERSION: 12/17/09 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.
A local legislative body may approve an agreement
concluding labor negotiations with its represented
employees in a 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.
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The report must identify the item approved and the other
party or parties. The closed session may not include final
action on the proposed compensation of one or more
unrepresented employees.
Some newspaper publishers and advocates for open government
want local governments' collective bargaining agreements
with represented employees to be available to the public
before the legislative bodies vote on the agreements in
closed sessions.
Proposed Law
Senate Bill 711 requires that if a closed session is held
for the purpose of having designated representatives report
on a collectively bargained agreement with represented
employees, a local agency must make the agreement publicly
available at least 15 calendar days before the meeting at
which the agreement is to be reported. Additionally, the
bill makes numerous technical changes.
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. In San Francisco,
collective bargaining agreements must be publicly available
at least 15 days before any policy bodies vote on the
agreements. Some other local governments, as a matter of
policy, do not vote on collective bargaining agreements in
closed session. In these cases, rather than being simply
informed of a fait accompli, the public can scrutinize and
comment on labor agreements before local officials give any
agreement their final approval. By requiring disclosure of
collective bargaining agreements before closed-session
votes, SB 711 moves the Brown Act's labor negotiation
provisions towards the sensible, transparent standards that
already apply to public school districts and some other
SB 711 -- 12/17/09 -- Page 3
local governments.
2. Burdensome . 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.
SB 711 disrupts this balance by imposing a burdensome
15-day period waiting period on local officials before they
can approve collective bargaining agreements in closed
session. Labor advocates argue that requiring two weeks of
public scrutiny will add a new level of uncertainty to an
already difficult collective bargaining climate and will
shift the focus of negotiations towards public relations
concerns. Labor unions want to avoid more requirements
that will complicate their collective bargaining
negotiations.
3. Say what you mean . SB 711 could be read broadly to
require the public disclosure of collective bargaining
agreements 15 days before any closed session at which a
designated representative reports in closed session on a
collective bargaining agreement, regardless of whether a
vote is to be taken or whether the agreement is in its
final form. To more narrowly apply the bill only to closed
sessions in which local legislative bodies take action on
completed collective bargaining agreements, the committee
may wish to consider amending SB 711 to delete the language
on page 3, lines 16 to 20, and insert:
for the purpose of approving an agreement concluding
labor negotiations with represented employees, the
local agency shall make the agreement publicly
available at least 15 calendar days before the closed
session.
4. Take the direct approach . SB 711 seeks to increase the
transparency of proposed collective bargaining agreements
by making them available before local legislative bodies
vote on them in closed session. In practice, it may
increase the transparency of proposed collective bargaining
agreements by discouraging the practice of voting on the
agreements in closed session. Faced with the 15-day
waiting period required by SB 711 before a closed session
vote, local legislative bodies will likely opt to vote on
collective bargaining agreements in open and public
meetings called either 72 hours in advance, for regular
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meetings, or 24 hours in advance, for special meetings.
Rather than imposing a lengthy waiting period to indirectly
encourage the consideration of collective bargaining
agreements in open and public meetings, the Committee may
wish to consider amending SB 711 to take a more direct
approach and repeal the authority for local legislative
bodies to vote on collective bargaining agreements in
closed session.
5. How available ? SB 711 says that collective bargaining
agreements must be "publicly available" for 15 days, but
doesn't define what "publicly available" means. Could a
local government comply by posting a notice in a public
location announcing the agreement is available for review
in its clerk's office? Could citizens submit standing
requests for local governments to mail them copies of
proposed collective bargaining agreements? The Committee
may wish to consider amending SB 711 to more precisely
define what qualifies as publicly available.
6. 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
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 (12/22/09)
Support : California Newspaper Publishers Association,
California First Amendment Coalition, Californians Aware.
Opposition : American Federation of State, County, and
Municipal Employees, AFL-CIO, California Association of
Clerks and Elections Officials, California Association of
Psychiatric Technicians, California Association of
Sanitation Agencies, California Federation of Teachers,
California Labor Federation, California Nurses
Association/National Nurses Organizing Committee,
California Professional Firefighters, California School
Employees Association, California State Employees
Association, California Teamsters Public Affairs Council,
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Cities of Palm Desert and Selma, County of San Bernardino,
El Dorado Irrigation District, Glendale City Employees
Association, Los Angeles County Probation Officers Union,
Los Rios Community College District, Orange County
Employees Association, Orange County Professional
Firefighters Association, Organization of SMUD Employees,
Peace Officers Research Association of California,
Riverside Sheriff's Association, San Bernardino Public
Employees Association, San Luis Obispo County Employees
Association, Santa Rosa City Employees Association, Service
Employees International Union.