BILL ANALYSIS �
AB 1736
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ASSEMBLY THIRD READING
AB 1736 (Smyth)
As Amended March 29, 2012
Majority vote
LOCAL GOVERNMENT 7-0
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|Ayes:|Smyth, Alejo, Bradford, | | |
| |Davis, Gordon, Knight, | | |
| |Norby | | |
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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
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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.
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 : 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.
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
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general law cities and counties as well as to charter cities and
counties.
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 add the
Governor to the list of individuals and agencies with which the body
may meet.
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 Brown 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."
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 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 local governments in their emergency preparedness,
response, recovery, and hazard mitigation efforts.
A related piece of legislation, SB 1003 (Yee), would amend the Brown
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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.
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."
Analysis Prepared by : Hank Dempsey / L. GOV. / (916) 319-3958
FN: 0003261