BILL ANALYSIS �
AB 1736
Page 1
Date of Hearing: April 11, 2012
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 1736 (Smyth) - As Amended: March 29, 2012
SUBJECT : Local government: open meetings.
SUMMARY : Includes the Governor in the list of individuals and
agencies with which a legislative body may meet in closed
session pursuant to the 'public security' exemption of the
state's open meetings law. Specifically, this bill :
1)Includes the Governor in the list of individuals and agencies
with which, under the Ralph M. Brown Act (Brown Act), the
legislative body may meet in closed session on matters posing
a threat to the security of public buildings, services and
facilities, and public access thereto.
2)Revises the "safe harbor" agenda description related to
meetings closed to the public because of a threat to public
services or facilities to include meetings with the Governor.
3)Makes legislative findings and declarations relative to the
public's right to have access to the meetings of public bodies
and the necessity of this bill to the health and safety of the
people of California.
4)Makes other clarifying and non-substantive amendments.
EXISTING LAW :
1)Requires, under the Brown Act, each legislative body of a
local agency to provide the time and place for holding regular
meetings and 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 purposes of the Brown Act, a meeting to mean any
congregation of a majority
of the members of a legislative body at the same time and
location, including teleconference, to hear, discuss,
deliberate, or take action on any item that is within the
subject matter jurisdiction of the legislative body.
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3)Requires, at least 72 hours before a regular meeting, the
legislative body of the local agency, or its designee, to post
an agenda containing a brief general description of each item
of business to be transacted or discussed at the meeting,
including items to be discussed in closed session.
4)Authorizes a legislative body of a local agency to meet in
closed session for specified matters related to litigation,
real estate negotiations, personnel issues, labor
negotiations, certain disciplinary matters related to schools,
grand jury testimony, license applicants with criminal
histories, multi-jurisdictional drug cases, hospital peer
reviews and related trade secrets, and threats to public
security.
5)Authorizes the legislative body to hold closed sessions with
the Attorney General, district attorney, agency counsel,
sheriff, or chief of police, or their respective deputies, or
a security consultant or a security operations manager, on
matters posing a threat to the security of public buildings, a
threat to the security of essential public services, including
water, drinking water, wastewater treatment, natural gas
service, and electric service, or a threat to the public's
right of access to public services or public facilities.
FISCAL EFFECT : None
COMMENTS :
1)This bill would expand the authority of legislative bodies to
conduct closed sessions under the 'public security' exception
to the Brown Act by adding the Governor to the list of
individuals and agencies with which the body may meet in
closed session to discuss matters posing a threat to public
buildings, services, utilities, or the public's right of
access thereto. This bill is sponsored by the Los Angeles
County Board of Supervisors.
2)The Brown Act generally 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.
The Brown Act applies to general law cities and counties as
well as to charter cities and counties.
AB 1736
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Pursuant to the Brown Act, private discussions among a
majority of a legislative body are prohibited, unless
expressly authorized under the Brown Act. Closed session
items must be briefly described on the posted agenda and the
description must state the specific statutory exemption. The
agenda must include reference to the authority for holding the
closed session, and the body must make a public announcement
prior to the closed session discussion. Following a closed
session, the legislative body must provide an oral or written
report on certain actions taken and the vote of every elected
member present.
Legislative bodies are authorized to meet in closed sessions
only for specified reasons related to: litigation, real estate
negotiations, personnel issues, labor negotiations, certain
disciplinary matters related to schools, grand jury testimony,
license applicants with criminal histories,
multi-jurisdictional drug cases, hospital peer reviews and
related trade secrets, and threats to public security.
The 'public security' exemption permits the legislative body
to hold closed sessions with "the Attorney General, district
attorney, agency counsel, sheriff, or chief of police, or
their respective deputies, or a security consultant or a
security operations manager, on matters posing a threat to the
security of public buildings, a threat to the security of
essential public services, including water, drinking water,
wastewater treatment, natural gas service, and electric
service, or a threat to the public's right of access to public
services or public facilities." This bill would simply add
the Governor to the list of individuals and agencies with
which the body may meet to discuss the specified matters.
3)The impetus for this bill arises out of a controversial
September 26, 2011 closed session meeting between the Governor
and the Los Angeles County Board of Supervisors. According to
the Los Angeles County District Attorney's Office, the Board
met with "a number of public officials from state and local
agencies, including the Governor of the State of California,
in closed session?.to conduct 'a conference regarding
potential threats to public services or facilities' arising
from the impact of AB 109, legislation that is commonly
referred to as 'realignment' of the criminal sentencing and
corrections system in California."
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Noting that the realignment matters were largely financial in
nature, the District Attorney's office found that the
circumstances of the meeting "lack the urgency and magnitude
of a threat to public access to services and facilities
contemplated" by the Act. Accordingly, the "implementation of
the realignment laws does not constitute a potential threat to
public
services or facilities as articulated by Government Code
Section 54957. Consequently, the closed session conducted was
simply not permissible by law."
4)While this bill does not address all of the issues raised by
the District Attorney's office (namely, whether or not
realignment was a topic appropriately covered by the Brown
Act's public security exemption), it does fix the somewhat
incongruous exclusion of the Governor from the terms of the
exemption. In point of fact, the Governor's office is deeply
involved in matters of public security.
According to Article V, Section 7 of the California
Constitution, the Governor is Commander in Chief of the state
militia. In practice, the Governor commands the California
Military Department, which includes the Office of the Adjutant
General (the commander of all California military forces and
direct subordinate of the Governor), the California National
Guard, the California State Military Reserve, the California
Cadet Corps, and the Naval Militia. The Governor may call the
California National Guard to active duty to execute the law,
defend the state, or respond to civil disturbance, emergency,
or natural disaster. The Governor is also the official
conduit of communication with the federal government, and
maintains relationships with the federal branches of the armed
services which have military bases in California.
Furthermore, the Governor's Office also directs the California
Emergency Management Agency (Cal EMA), which merged the
duties, powers, purposes, and responsibilities of the former
Governor's Office of Emergency Services with those of the
Governor's Office of Homeland Security. Cal EMA is
responsible for the coordination of overall state agency
response to major disasters in support of local government.
Cal EMA is responsible for assuring the state's readiness to
respond to and recover from all hazards - natural, manmade,
and war-caused emergencies and disasters - and for assisting
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local governments in their emergency preparedness, response,
recovery, and hazard mitigation efforts.
5)A related piece of legislation, SB 1003 (Yee), would amend the
Brown Act to specify that a district attorney or any
interested person may commence an action by mandamus,
injunction, or declaratory relief to determine whether the
Brown Act applies to a local legislative body's past actions,
as well as threatened future actions. SB 1003 is set to be
heard in the Senate Governance and Finance Committee on April
18, 2012.
6)Support arguments : This bill is necessary to fix a glaring
omission in current law that fails to include the State's
Commander in Chief in the conduct of closed meetings at the
local level related to matters of public security.
Opposition arguments : According to the American Federation of
State, County and Municipal Employees, "?the spirit of the
Ralph M. Brown Act should be followed to the fullest?Any
meetings between the Governor and a local legislative body
should be conducted freely and openly, without concealment
from the public."
REGISTERED SUPPORT / OPPOSITION :
Support
County of Los Angeles �SPONSOR]
Opposition
American Federation of State, County and Municipal Employees
(AFSCME)
Analysis Prepared by : Hank Dempsey / L. GOV. / (916) 319-3958