BILL ANALYSIS �
AB 1590
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Date of Hearing: April 25, 2012
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 1590 (Campos) - As Amended: March 29, 2012
SUBJECT : Local government meetings: legislative body:
definition.
SUMMARY : Applies local agency open meeting laws to assessment
appeals boards. Specifically, this bill :
1)Applies the provisions of the Ralph M. Brown Act (the "Brown
Act") to assessment appeals boards, and to boards of
supervisors when sitting as an assessment appeals board.
2)Provides that an assessment appeals board may meet in closed
session pursuant to specified provisions of the Revenue and
Taxation Code.
3)Finds and declares that assessment appeals boards constitute
quasi-judicial boards, rather than legislative bodies, and
that specified Brown Act provisions related to rights of
public comment and public access to documents shall not apply.
EXISTING LAW :
1)Requires, pursuant to the Brown Act, each legislative body of
a local agency to provide the time and place for holding
regular meetings; and further requires that all meetings of a
legislative body be open and public and all persons be
permitted to attend unless a closed session is authorized.
2)Defines for these purposes the term "legislative body" and
includes within that definition a board of a local agency.
FISCAL EFFECT : Unknown. This bill is keyed fiscal and a
state-mandated local program.
COMMENTS :
1)The Brown Act generally requires the meetings of local
agencies' legislative bodies to be "open and public," thereby
ensuring that public decisions are not unduly made out of the
sight of the public. Created in 1953, the core purpose of the
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Brown Act was to ensure that the public bodies that made law
and policy (such as city councils, boards of supervisors,
school boards, and boards of trustees of special districts)
were open to scrutiny from the public. The Brown Act's
original intent language states that: "�i]n enacting this
chapter, the Legislature finds and declares that the public
commissions, boards, and councils and the other public
agencies in this State exist to aid in the conduct of the
people's business. It is the intent of the law that their
actions be taken openly and that their deliberations be
conducted openly."
The primary feature of the Brown Act is the requirement that
meetings of legislative bodies be open to the public. "All
meetings of the legislative body of a local agency shall be
open and public, and all persons shall be permitted to attend
any meeting of the legislative body
of a local agency, except as otherwise provided in this
chapter." (Government Code Section 54953(a)).
The Act also 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. The
Brown Act also contains provisions for public comment, public
broadcast, and public access of records, among others.
2)According to the California Board of Equalization, "�a]n
assessment appeal is the due process a taxpayer may initiate
if the assessed value of his or her property cannot be agreed
upon with the county assessor ?The assessment appeal process
provides for the 'equalization,' or the fairness of the
assessment, of a property's value." Section 16 of Article
XIII of the California Constitution provides that the county
board of supervisors, or one or more assessment appeals boards
created by the county board of supervisors, shall constitute
the county board of equalization for a county.
The local assessment appeals board, acting as the county board
of equalization, operates as a quasi-judicial body consisting
of impartial persons or a hearing officer, who hears evidence
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from both parties before deciding upon the value of the
property in question. Their primary function is to conduct
impartial hearings on property assessment disputes between
taxpayers and the county assessor. Based on the evidence
presented at these hearings, the appeals board determines the
fair market value for the disputed property. Among other
powers, they can lower or raise a property's assessed value,
remove a penalty assessment imposed by the county assessor,
and reverse a change in ownership or new construction
reassessment.
Individuals who disagree with the assessed value of their
property are often required to begin their appeal by
contacting the county assessor directly to make the case that
the property should have a lower assessed value. If the
county assessor still does not agree after a review of the
relevant information, the property owner may appeal the
assessed value to the county board of equalization, or the
county assessment appeals board.
3)Under current law, assessment appeals boards, as
quasi-judicial bodies created pursuant to the State
Constitution, are regulated very differently from legislative
bodies under the Brown Act.
To begin with, the work of assessment appeals boards is
controlled primarily by the board of supervisors, operating
under Section 16 of Article XIII of the California
Constitution: "?the county board of equalization, under such
rules of notice as the county board may prescribe, shall
equalize the values of all property on the local assessment
roll by adjusting individual assessments. County boards of
supervisors shall fix the compensation for members of
assessment appeals boards, furnish clerical and other
assistance for those boards, adopt rules of notice and
procedures for those boards as may be required to facilitate
their work and to insure uniformity in the processing and
decision of equalization petitions?"
Furthermore, Section 16 also spells out the area of
responsibility for the Legislature: "The Legislature may
provide for: (a) the number and qualifications of members of
assessment appeals boards, the manner of selecting,
appointing, and removing them, and the terms for which they
serve, and (b) the procedure by which two or more county
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boards of supervisors may jointly create one or more
assessment appeals boards."
The Revenue and Taxation Code (Sections 1601-1645.5) contains
statutory requirements for the operation of these boards. That
Code provides the basic framework of the assessment appeals
process and is intended to promote fair and uniform
procedures.
Government Code Section 15606 directs the State Board of
Equalization to prescribe rules, regulations and instructions
governing local boards of equalization in the performance of
their duties. The State Board of Equalization has adopted
property tax rules to provide further guidance and
interpretation of the statutes. Title 18, Public Revenues,
Division 1, Chapter 1 of the California Code of Regulations,
in part, are the body of regulations that implement and
interpret the statutes governing the role and function of
assessment appeals boards and boards of equalization.
Additionally, many county boards of supervisors have adopted
local rules to further guide the appeals process.
4)In June 1996, the state Attorney General's Office issued a
written opinion (95-1207) confirming that the Brown Act did
not apply to the hearings of a county board of supervisors
sitting as a board of equalization or an assessment appeals
board. Reviewing the historical development of the assessment
appeals boards, the opinion found that the Legislature has
consistently treated assessment appeals boards as entirely
separate from the legislative bodies regulated by the Brown
Act.
The opinion also addresses why different procedures are
appropriate for legislative and quasi-judicial entities:
"County boards of equalization and assessment appeals boards
act in a quasi-judicial capacity, with their decisions and
factual determinations accorded similar deference and respect
as judicial decisions. �citations omitted] The procedures
provided �in the Revenue and Taxation Code] and the State
Board of Equalization's Rules are tailored to provide
quasi-judicial hearings, with administrative law judges often
presiding. Board decisions are based upon evidence taken and
submitted, and the hearings resemble those held under the
State Administrative Procedure Act? In contrast, the Brown Act
is tailored for the traditional type of meetings held by
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boards of supervisors, city councils and other legislative or
administrative bodies which normally conduct their business
sessions in public." As a result, the opinion declined to
construe the Brown Act as encompassing assessment appeals
boards.
5)This bill is intended to apply the bulk of the state's open
meeting laws for local legislative bodies (the Brown Act) to
the quasi-judicial assessment appeals boards of counties,
which are separately regulated by the Revenue and Taxation
Code. This bill is sponsored by the California Association of
Realtors.
6)According to the author's office, "?from a common sense
perspective the Brown Act should apply to local assessment
appeals boards. The public should be duly notified of
meetings of local boards..." As evidence of the need for this
bill, the sponsor points to a criminal inquiry by the Los
Angeles District Attorney into alleged "pay to play"
activities by the County Assessor, who is accused of seeking
campaign donations in exchange for lowered property tax
assessments of campaign contributors. However, it should be
noted that assessors do not sit on assessment appeals boards.
7)The Chair of Assessment Appeals Board I for County of Santa
Clara has expressed "grave concerns" about the bill. Aside
from concerns about the bill's potential impact on closed
board deliberations, he notes that the "requirements for
public notice of deliberations will burden the Clerk of the
Board and further delay the appeals procedure, infringing upon
due process for both the Applicant and the Assessor." He goes
on to state that "the entire assessment appeal and hearing
procedure works very well as currently configured, with both
Applicants and the Assessor getting a fair hearing, in public,
with safeguards to ensure due process, and sufficient
transparency throughout. I do not foresee that including the
Assessment Appeals Boards within the scope of the Brown Act
will in any way assure a better outcome to the process."
8)The Santa Clara County Assessor writes in opposition to the
bill on practical grounds, stating that "�t]he Brown Act, by
design, is functionally incompatible with a judicial process
of adjudicating assessment appeals?Fundamentally, the Brown
Act was not designed to manage a judicial case docket whereby
an appeal board may hear evidence on one day, and make a
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decision in closed deliberation on a subsequent day. By
mandating the provisions of the Brown Act on assessment
appeals board�s], each of those subsequent deliberations would
have to be publicly noticed 72 hours in advance. The Brown
Act's noticing requirement would eliminate an assessment
appeal board's ability to administer and process expeditiously
and efficiently an appeal case load agenda, that generally
consists of hundreds of cases."
9)In practice, this bill would add assessment appeals boards
directly to the definition of a legislative body within the
Brown Act itself, thereby applying the entirety of the Act's
provisions and attendant case law to assessment appeals boards
while leaving the corresponding and sometimes conflicting
provisions of the Revenue and Taxation Code in place (as well
as all other applicable statutes, regulations and state and
local rules).
The bill contains three exceptions to the application of the
Brown Act to assessment appeals boards: provisions related to
the public's right to comment on the proceedings, provisions
making agendas and other writings distributed to the board
public records, and authorization for assessment appeals
boards to continue meeting in closed session pursuant to
Revenue and Taxation Code Section 1605.4 (i.e. during
deliberations, and when trade secrets are being discussed at
the hearing).
The many provisions of the Brown Act that would apply to
assessment appeals boards include a requirement to post an
agenda of all regular meetings 72 hours in advance in a public
place and online, a requirement that only "special" meetings
be held with 24 hours' notice and "emergency" meetings with
two hours' notice, a requirement that the public be permitted
to record and broadcast the proceedings, and making an
intentional violation of the Brown Act a misdemeanor crime, to
name a few. Some other provisions, including the bulk of those
related to closed sessions, appear to be irrelevant to the
operation of the boards.
The Committee may wish to ask if all of the additional
requirements of the Brown Act would be beneficial for
assessment appeals boards, or if narrowing the scope of the
bill would make implementation easier.
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10)The Committee may wish to ask for other examples of disregard
for an open and transparent process by an assessment appeals
board since the example of the allegations against the Los
Angeles County assessor may not be relevant to the operation
of the assessment appeals boards themselves.
Opponents of the bill, including the California State
Association of Counties (CSAC), expressed confusion over the
impetus for the bill: "we respectfully contend that we are
not aware nor have we been made aware of any abuses or
ethically questionable practices by members of boards of
equalizations/assessment appeals boards that require an
application - in whole or in part - of the Brown Act. As
such, we strongly discourage the Legislature from applying the
same rules that govern local legislative bodies towards
quasi-judicial proceedings."
a) The Committee may wish to ask if this bill will align
with constitutional requirements .
As previously noted, assessment appeals boards take their
primary authority from Article XIII, Section 16 of the
California Constitution. It gives county boards of
supervisors authority to prescribe "rules of notice and
procedures" for assessment appeals boards to facilitate
their work and ensure uniformity. To the Legislature,
Section 16 reserves the authority over the number and
qualifications of board members, the manner of selecting,
appointing, and removing them, the terms for which they
serve, and the procedures for creating shared boards.
Because the Constitution explicitly reserves to the county
boards of supervisors the right to regulate the "rules of
notice and procedure" provisions of the assessment appeals
boards, any application of the Brown Act that would
interfere with the operation of the boards could arguably
be unconstitutional - and the Brown Act has statutory
precedence over any other code section, including Revenue
and Taxation (see Government Code Section 54958).
b) The Committee may wish to consider if quasi-judicial
bodies should be regulated the same as legislative bodies .
As mentioned above, this bill takes the curious step of
adding quasi-judicial assessment appeals boards to the
definition of a legislative body. The provisions of this
bill are placed in the Government Code, specifically within
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the Brown Act itself, while the code sections that have
historically controlled assessment appeals boards are
situated in the Revenue and Taxation Code. There is no
known precedent for such an action.
The California Association of Clerks and Election Officials
(CACEO) argues that quasi-judicial and legislative bodies
have been regulated differently for decades - and for good
reason: "Assembly Bill 1590 would inappropriately apply
the provisions and requirements of �the Brown Act] to
county boards of equalization and assessment appeals
boards. The Brown Act was intended to ensure that the
public has access to the meetings of various types of local
legislative bodies that legislate, develop public policy,
and oversee the operations of local government
agencies?Assessment appeals boards do none of these things.
Assessment appeals boards have no legislative or executive
functions, duties or powers; and they have no influence on
public policy. The Brown Act was not intended to govern
the actions of the courts or of bodies whose function is
purely adjudicatory, such as county boards of equalization,
including assessment appeals boards?These bodies do not
legislate, they adjudicate. Assessment appeals boards have
no authority to establish policies, procedures or rules
affecting any form of governance."
The Santa Clara County Assessor's Office states that "it is
important to keep in mind that unlike legislative bodies,
which ascribe to the idea that the best ideas for generally
applicable rules will emerge through debate, discussion,
and public comment, the assessment appeals boards are
quasi-judicial boards. Like a court of law, they sit in
judgment and render a decision based upon relevant and
admissible evidence, in order to equalize values."
The construction of AB 1590 may cause confusion by
splitting the controlling statutes between separate codes,
setting up numerous conflicts between the codes, and
imposing 'legislative body' case law onto the future
interpretation of what is demonstrably not a 'legislative
body'. The better legal structure would be to select the
necessary provisions of the Brown Act and add them directly
to the relevant sections of the Revenue and Taxation Code
(1601-1645). The Committee may wish to ask the author to
reframe the bill in this manner.
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1)Another potential concern is the impact on the productivity
and output of the boards. The imposition of a 72-hour notice
and agenda requirement likely would substantially disrupt
operations and delay appeals hearings.
According to CACEO, "�a]ssessment appeals boards operate very
much like courts. By law, assessment appeals boards provide
the parties with notice of the hearing 45 days in advance.
However, the parties often request to come off calendar right
up until the day of the hearing. In order for the board to
�e]nsure that it continues to have a full day's calendar, the
clerk will back-fill the vacated portions of the calendar with
the appeals of other parties who are willing to go forward on
short-notice with appeals that are subject to stipulations
between the assessor and the taxpayer, and other types of
cases where the parties largely have resolved their
disagreement and are willing to go forward in order to close
out the case. This flexibility is vital to �the] county's
ability to timely resolve assessment appeals within the
statutorily required two-year deadline. This is especially
important now, when the assessment appeal rate has increased
four-fold due to the decline in the real estate market."
CSAC agrees, stating that posting requirements are "likely to
have an adverse effect. One such result is a delay in
taxpayers obtaining relief through expeditious hearings -
something valued in quasi-judicial proceedings. Another
likely result of applying the Brown Act, particularly noticing
requirements, is the potential for disgruntled parties to use
allegations of Brown Act violations to, in effect, gain
standing in a process whereby these outside parties could not
otherwise obtain access."
According to the Santa Clara County Assessor's office,
"�r]equiring 72 hour public notification prior to each and
every communication or deliberation would bring the assessment
appeals boards to a standstill, and jeopardize the timely and
fair review of assessment disputes."
The Committee may wish to inquire of the counties how the
application of a 72-hour notice and agenda posting requirement
would affect the efficiency of its hearing operations or delay
assessment decisions for appellants.
2)This bill is keyed a state mandate which means that if the
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Commission on State Mandates deems this a reimbursable
mandate, then the state could be responsible for all of the
notice and other costs associated with this bill.
3)Support arguments : The sponsor contends that the application
of the Brown Act to the operation of assessment appeals boards
would "protect the right of the public to participate in local
board meetings?�T]here is no compelling reason assessment
appeals boards should not also be required to comply �with the
Brown Act]."
Opposition arguments : Opponents argue that this bill
inappropriately applies Brown Act provisions for legislative
bodies to quasi-judicial assessment appeals boards that are
alternately duplicative, irrelevant, unconstitutional or
disruptive to the operation of the boards themselves to the
detriment of the appellants and the counties alike - without
even an adequate explanation of the problem to be solved.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Realtors �SPONSOR]
Concerns
Stan Tish, Chair of Assessment Appeals Board I, County of Santa
Clara
Opposition
California Association of Clerks and Election Officials
California State Association of Counties (unless amended)
County of Kern
County of San Bernardino (unless amended)
County of Yuba
Office of the Assessor, Santa Clara County (unless amended)
Regional Council of Rural Counties (unless amended)
Urban Counties Caucus (unless amended)
Analysis Prepared by : Hank Dempsey / L. GOV. / (916) 319-3958
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