BILL ANALYSIS �
AB 1228
Page 1
Date of Hearing: May 4, 2011
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 1228 (Halderman) - As Amended: April 25, 2011
SUBJECT : Public agencies: joint power authorities: meetings.
SUMMARY : Authorizes a joint powers authority (JPA) to adopt a
policy or bylaw or include a provision in its joint powers
agreement allowing a designated alternate member who is
attending in lieu of the appointed member to attend closed
sessions of the JPA and for that designated alternate member to
disclose to specified people information obtained in a closed
session of the JPA that has direct financial or liability
implications for that local agency. Specifically, this bill :
1)Allows a JPA to adopt a policy or bylaw or include a provision
in its joint powers agreement allowing any of the following:
a) An authorization for a designated alternate member who
is attending in lieu of the appointed member to attend
closed sessions of the JPA.
b) An authorization for a designated alternate member to
disclose information obtained in a closed session of the
JPA that has direct financial or liability implications for
that local agency to the following individuals:
i) Legal counsel of that member local agency for
purposes of obtaining advice on whether the matter has
direct financial or liability implications for that
member local agency; and
ii) Those persons present in a closed session of the
legislative body of that member local agency.
EXISTING LAW :
1)Authorizes, under the Ralph M. Brown Act (Brown Act), a JPA to
adopt a policy or bylaw or include in its joint powers
agreement provisions that authorize either or both of the
following:
a) A requirement all information received by the
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legislative body of the member local agency in a closed
session related to the information presents to the JPA in
closed session related to the information presented to the
JPA in closed session to be confidential, except that a
member of the legislative body of a member local agency may
disclose information obtained in a closed session that has
direct financial or liability implications for that member
local agency to the following individuals:
i) Legal counsel of that member local agency for
purposes of obtaining advice on whether the matter has
direct financial or liability implications for that
member local agency; and
ii) Other members of the legislative body of the local
agency.
b) An authorization for any designated alternate member of
the legislative body of the JPA who also is a member of the
legislative body of a member local agency and who is
attending a properly noticed meeting of the JPA in lieu of
a member local agency's regularly appointed member to
attend closed sessions of the JPA.
2)Authorizes, if the legislative body of a JPA adopts a policy
or a bylaw or includes provisions in its joint powers
agreement, the legislative body of the member local agency,
upon the advice of its legal counsel, to conduct a closed
session to receive, discuss, and take action concerning
information obtained in a closed session of the JPA.
FISCAL EFFECT : None
COMMENTS :
1)The Joint Exercise of Powers Act allows two or more public
agencies to use their powers in common if they sign joint
powers agreements. California's JPAs collaborate to address
public needs, such as financing public facilities, forming
insurance pools, and enhancing planning and regulation.
Sometimes an agreement creates a new, separate government
entity, called a JPA. When forming JPAs, local agencies
commonly provide for the JPA to be governed by a board
appointed by the member agencies. A JPA's member agencies are
not responsible for contractual liabilities of the JPA, but
case law has determined they are responsible for tort
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liability. JPAs are subject to all the provisions of the
Brown Act, including the closed meeting provisions.
Current law allows a member agency of a JPA to designate a
non-elected official of the member agency to serve as the
alternate so long as the joint powers agreement authorizes
that designation. For instance, the general manager of the
member agency can serve as the designated alternate member to
the JPA when the appointed member of the JPA is unable to
attend.
2)The Brown Act requires local governments' meetings to be open
and public to ensure citizens have access to their local
governing bodies. 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 specified reasons, including: 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; reports involving trade secrets; a
license determination for those with criminal records; a
confidential final draft audit report from the Bureau of State
Audits.
Local officials are required to 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.
They also are required to keep a minute book of what occurred
during a closed session, but these minutes are not disclosable
public records.
In a 1997 Attorney General's opinion, the office opined it is
improper for officials to publicly disclose information
received during a closed session regarding pending litigation.
The Attorney General also believes officials have a fiduciary
duty to protect the confidentiality of closed session
discussions. This duty, of course, must give way to the
obligation to disclose improper matters or discussions that
may come up in closed sessions. Subsequent Attorney General's
opinions have favored the confidentiality of closed session
information by saying board members of local agencies whose
boards are appointed by and consist of other local agency
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members, such as redevelopment agencies, are restricted from
sharing closed session information with the boards of the
underlying member agencies.
In 2002, the Legislature amended the Brown Act to explicitly say
a person is not authorized to disclose confidential
information obtained by attending a closed session unless the
legislative body authorizes the disclosure. It also clarified
disclosure violations were addressable by injunctive relief,
disciplinary action, and referral to the grand jury
(AB 1945, Simitian, 2002).
3)As far as who can attend a closed session of a local agency, a
1965 Attorney General's opinion said: "As a general rule,
closed sessions may involve only the membership of the body in
question plus any additional support staff which may be
required (e.g., attorney required to provide legal advice;
supervisor may be required in connection with disciplinary
proceedings; labor negotiator required for consultation).
Persons without an official role in the meeting should not be
present (46 Cal.Ops.Atty.Gen. 34)." A 1999 Attorney General's
opinion further clarified: "Unless sitting in place of an
absent or disqualified member, an alternate member may not
attend a closed session without converting the session into an
unauthorized 'semi-closed meeting' (82 Cal.Ops.Atty.Gen 29)."
Section 54956.96 was added to the Government Code in 2004. The
purpose was to allow JPAs, at their option, to adopt a policy
allowing members to disclose in a closed session of their host
legislative bodies the issues discussed in a closed session of
the JPA. The sponsor was particularly concerned that the
member agency should be able to hear information from a closed
session of the JPA if the member agency potentially would be
liable for costs associated with items discussed in the closed
session.
4)According to the author, Section 54956.96 is a safe harbor
that for at least one JPA, the Friant Water Authority, does
not work on a practical level. Friant Water Authority's joint
powers agreement allows general managers of its member
agencies to serve as alternate directors on a JPA board and,
thus, these member agency employees also attend closed
sessions of the JPA. Because Section 54656.96 limits the
disclosure of closed session discussions to members of the
legislative body of the member agency, the author says the
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Friant Water Authority and other similarly established JPAs
are unable to adopt these safe-harbor provisions.
5)Support arguments: Supporters, Association of California
Water Agencies, say giving an alternate member of a JPA all
the rights of the regular member would improve the flow of
information from a JPA to its member agencies while preserving
the confidential nature of the communications contained in the
JPA closed session.
Opposition arguments: Opposition might say the practice among
JPAs to allow an employee of the member agency to serve as an
alternate in place of the elected official is the problem,
and, rather than allowing them to attend closed session, the
Legislature should require another elected official of the
member agency serve as an alternate.
REGISTERED SUPPORT / OPPOSITION :
Support
Friant Water Authority �SPONSOR]
Association of CA Water Agencies
Kings River Conservation District
Kings River Water Association
Opposition
None on file
Analysis Prepared by : Jennifer Klein Baldwin / L. GOV. /
(916) 319-3958