BILL ANALYSIS �
AB 392
Page 1
Date of Hearing: April 27, 2011
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 392 (Alejo) - As Introduced: April 14, 2011
SUBJECT : Ralph M. Brown Act: posting agendas.
SUMMARY : Requires a local agency to post at least 72 hours
before a regular meeting of a legislative body the agenda and
applicable staff-generated reports on the local agency's
Internet Web site, if any, and, for a local agency without an
Internet Web site, requires a local agency to disclose on the
physically posted agenda the public location where the local
agency makes available any applicable staff-generated reports
for public inspection and copying at least
72 hours in advance of the regular meeting. Specifically, this
bill :
1)Requires a local agency to post at least 72 hours before a
regular meeting of a legislative body the agenda and
applicable staff-generated reports on the local agency's
Internet Web site, if any, and, for a local agency without an
Internet Web site, requires a local agency to disclose on the
physically posted agenda the public location where the local
agency makes available any applicable staff-generated reports
for public inspection and copying at least
72 hours in advance of the regular meeting.
2)Requires, when posting the staff-generated reports on the
local agency's Internet Web site, to do so in a manner that
makes it clear which agenda item the writings relate to.
3)Requires, if requested, the writings be made available in
appropriate alternative formats to persons with a disability,
as required under the Americans with Disabilities Act of 1990.
4)Prohibits any action or discussion to be undertaken on any
item for which a related staff-generated report was not
disclosed as provided for in these provisions unless the
legislative body is responding to public testimony or the
legislative body public identifies the item and meets the
following conditions:
a) There is an emergency situation as determined by a
AB 392
Page 2
majority vote of the legislative body;
b) There is a need to take immediate action and the need
for action came to the attention
of the local agency subsequent to the agenda being posted as
determined by a two-thirds vote of the members of the
legislative body present at the meeting, or, if less than
two-thirds of the members are present, a unanimous vote of
those members present; and
c) The item was properly posted for a prior meeting of the
legislative body occurring not more than five calendar days
prior to the date action is taken on the item and, at the
prior meeting, the item was continued to the meeting at
which action is being taken.
5)Excludes staff-generated reports from the definition of
writing for purposes of authorizing a local agency to take
action on an agenda item for which a related writing was not
made available to the public at least 72 hours in advance of
the regular meeting if prior to that meeting the writing was
made available for public inspection at the time the writing
was distributed to the members of the legislative body.
EXISTING LAW :
1)Requires, under the Ralph M. Brown Act (Brown Act), all
meetings of a legislative body of a local agency be open and
public and all persons be permitted to attend unless a closed
session is authorized.
2)Defines local agency to mean a county, city, whether general
law or chartered, city and county, town, school district,
municipal corporation, district, political subdivision, or any
board, commission or agency thereof, or other local public
agency.
3)Requires local agencies to post an agenda for a regular
meeting of a local legislative body at least 72 hours before
the meeting in a location that is freely accessible to members
of the public.
4)Requires all agendas of public meetings and any other
writings, when distributed to all, or a majority of all, of
the members of a legislative body of a local agency by any
person in connection with a matter subject to discussion or at
AB 392
Page 3
a public meeting of the body, be disclosable records and be
made available upon request without delay.
5)Requires writings that are public records and that relate to
an agenda item for an open session of a regular meeting of the
legislative body of a local agency is distributed less than 72
hours prior to that meeting to be made available for public
inspection at the time the writing is distributed to all, or a
majority of all, of the members of the body.
6)Authorizes a local agency to take action on an agenda item for
which a related writing was not made available to the public
at least 72 hours in advance of the regular meeting if prior
to that meeting the writing was made available for public
inspection at the time the writing was distributed to the
members of the legislative body.
7)Requires a local agency to make any writing that relates to an
agenda item available for public inspection at a public office
or location that the agency is required to designate for this
purpose.
8)Authorizes local agencies to post the writing on the agency's
Internet Web site in a position and manner that makes it clear
the writing relates to an agency item for an upcoming meeting.
FISCAL EFFECT : Unknown
COMMENTS :
1)The Brown Act requires the meetings of local governments'
legislative bodies to be "open and public," thereby ensuring
people's access to information so they may retain control over
the public agencies that serve them. The Brown Act requires a
local agency to post an agenda for a regular meeting of its
legislative body at least 72 hours before the meeting in a
location that is freely accessible to members of the public.
Any writing relating to an agenda item for an open session of
a regular meeting of a local legislative body that is
distributed within 72 hours of the meeting is required to be
made available for public inspection at the time it is
distributed to the members of the body.
In 2007, Brown Act provisions governing the release of writings
within less than 72 hours before a meeting were negotiated by
a number of interested parties. Initially, that bill
AB 392
Page 4
�SB 343 (Negrete McLeod, 2007)] prohibited local agencies from
discussing or acting upon any agenda item in an open and
public regular meeting unless the writings related to that
item in the agenda packet were made available to the public no
later than the date the agency posted the agenda that included
that item. However, a compromise was reached for what
eventually became law to allow local agencies to act on agenda
items where writings were distributed to the legislative body
less than 72 hours before the regular meeting so long as those
writings were made available to the public at the same time.
2)According to the author, that, while legislative bodies
complying with current law post their agendas in a publicly
accessible place, this does not include access to
staff-generated reports. The public can view materials
associated with a particular agenda item, but are bound by the
business hours of the local agency. The author says
oftentimes a request to review materials is satisfied right
before the meeting begins, not allowing sufficient time for an
individual to review, read, and comprehend the information
prior to the meeting.
The author says, in a survey of all 58 counties, all of them
already post their agendas online and 47 also post
staff-generated reports. Of 58 randomly selected cities, 56
cities post their agendas online and 47 post staff-generated
reports.
3)Larger local government agencies, such as counties and cities,
tend to have sophisticated Internet Web sites and dedicated
information technology staff. Many smaller special districts
and cities, however, either do not have an Internet Web site
or have a very simple site that contains only their name,
mailing address, phone number, and basic information. Those
local government agencies that have minimal sites might not be
able to comply with the provisions of AB 392 because they
simply do not have the staff or money to post their agendas
and staff-generated reports. Instead of applying for
reimbursement from the Commission on State Mandates, whose
backlog can be as long as several years, those smaller local
government agencies might instead choose to pull their
Internet Web sites completely. The Committee may wish to
consider whether the risk of eliminating public access to
small cities and special districts outweighs the benefit of
placing staff-generated reports that are public records and
AB 392
Page 5
already are required to be made available to the public.
Furthermore, AB 392 does not provide any safe harbor provision
for when a local government's Internet Web site is not
functioning. It is not unusual for server problems to arise
with increased Internet traffic and usage, especially if a
larger report, such as a California Environmental Quality Act
environmental impact report, has to be posted in its entirety.
There also are situations when the local government might not
be aware its Internet Web site is not working. Under current
law, physically posting an agenda and providing a copy of
related writings is foolproof unlike with online postings.
The Committee may wish to consider whether it would be prudent
to enact a stringent mandate involving technology that is
frequently fallible.
Currently, if a local agency receives public comments on an
agenda item less than 72 hours before the regular meeting,
staff reports are updated to respond to these comments. To
prevent an urgent agenda item from being pulled, one
unintended result of AB 392 could be local agency staff
provides their comments orally at the meeting rather than
placing them in a public record document that is more easily
accessible than the minutes of the meeting. The Committee may
wish to consider whether allowing local agency staff to update
their staff-generated reports before a regular meeting better
meets the needs of the public.
Lastly, AB 392 changes the 2007 agreement reached between the
California Association of Realtors, local governments, and
citizens' rights groups. The Committee may wish to consider
whether it is too soon to be substantially changing a statute
that has been law for less than five years.
4)AB 1344 (Feuer, 2011), a similar measure, requires the
legislative body of a local agency to post at least 72 hours
in advance the agenda for a regular meeting on the local
agency's Internet Web site if the local agency has one.
5)Support arguments: Supporters say requiring a local agency's
agenda and related staff-generated reports be placed on the
agency's Internet Web site fosters public participation by
allowing anyone to read a staff-generated report online on
their own schedule and with sufficient time before the regular
meeting.
AB 392
Page 6
Opposition arguments: Opposition argues not being able to act
on an agenda item because the staff-generated report was not
provided at least 72 hours in advance will frustrate public
participation as agenda items are pulled the day of the
meeting to accommodate the 72-hour requirement for
staff-generated reports.
REGISTERED SUPPORT / OPPOSITION :
Support
CA Association of Realtors �SPONSOR]
American Federation of State, County and Municipal Employees,
AFL-CIO
CA Association of Nonprofits
CA Grocers Association
Californians Aware
AB 392
Page 7
Sierra Club CA
Western Manufactured Housing Communities Association
Concern
League of CA Cities
Opposition
Association of CA Healthcare Districts
Association of CA School Administrators
Association of CA Water Agencies
CA Association of Clerks and Election Officials
CA Association of Joint Powers Authorities
CA Association of Sanitation Agencies
CA Special Districts Association
CA State Association of Counties
Counties of San Bernardino, Stanislaus
Desert Water Agency
East Valley Water District
El Dorado Irrigation District
Los Angeles Unified School District (unless amended)
Regional Council of Rural Counties
Urban Counties Caucus
Analysis Prepared by : Jennifer Klein Baldwin / L. GOV. /
(916) 319-3958