BILL ANALYSIS �
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: AB 1736 HEARING: 6/13/12
AUTHOR: Smyth FISCAL: No
VERSION: 6/6/12 TAX LEVY: No
CONSULTANT: Ewing
BROWN ACT AND SECURITY THREATS
Expands authority of local legislative bodies to meet in
closed session on security matters.
Background and Existing Law
The Ralph M. Brown Act 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.
Private discussions among a majority of a legislative body
are prohibited, unless expressly authorized by the Brown
Act. Legislative bodies can meet in closed sessions only
for the following reasons:
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;
Multi-jurisdictional drug cases;
District hospital peer reviews, quality assurance
committees, or reports involving trade secrets; and
A license or permit determination for those with
criminal records.
Local officials must 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.
The Brown Act also provides a "safe harbor" provision that
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clarifies that if local agencies substantially comply with
notice requirements, as specified, they will not be found
in violation of those requirements.
With limited exceptions, the Brown Act only permits a
closed session to include members of the board, their
essential staff, and individuals specifically authorized by
the Act to participate under each of the closed meeting
exemptions listed above, such as the Attorney General for a
closed meeting on security issues, or the parties involved
in a personnel matter.
The Act authorizes any person to seek court action to stop
or prevent violations of the Act.
The California Emergency Services Act gives the Governor
broad authority to suspend states statutes, orders, rules
or regulations during a state of emergency, where the
Governor determines those provisions would hinder any
response to that emergency (SB 1x 23, Miller, 1956).
In September 2011, the Los Angeles County Board of
Supervisors met in closed session with the Governor to
discuss the implications of AB 109, commonly known as
public safety realignment legislation. The meetings were
intended to explore the public safety implications of
realignment for the County of Los Angeles. In response,
community organizations filed suit alleging that the
meetings violated the Brown Act.
A subsequent review by the Los Angeles County District
Attorney's Office found that the circumstances of the
meetings did not meet the limited criteria outlined in the
Brown Act for holding a closed meeting on threats to public
security. In response, the Board of Supervisors agreed to
restrict its use of closed sessions and to release a
transcript of the meetings in question.
The County of Los Angeles notes that the Brown Act includes
provisions for elected bodies of local agencies to meet in
closed session with the Attorney General, district
attorney, agency counsel, sheriff, chief of police, or
their respective deputies, a security consultant or
security operations managers on matters of public security.
But, those provisions do not include the Governor, despite
the public safety authority of that office.
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Proposed Law
Assembly Bill 1736 amends provisions of the Brown Act
governing closed sessions relating to public security
threats in two ways:
First, AB 1736 amends the language authorizing local boards
to meet in closed session. Current law authorizes local
boards to meet in closed session 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."
AB 1736 would authorize local boards to meet in closed
session on matters "posing a threat to the security of
public buildings, a threat to the security of essential
public services, including, but not limited to, 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".
Second, AB 1736 amends the language designating persons who
can participate in a closed session. Current law
authorizes a closed sessions with:
the Attorney General, or their respective deputies;
the district attorney, or their respective
deputies;
the agency counsel or their respective deputies;
the sheriff or chief of police, or their respective
deputies;
a security consultant, and
a security operations manager.
AB 1736 would authorize closed sessions with:
the Governor, and any necessary staff designated by
the Governor;
the Attorney General, or his or her deputies;
a district attorney, or his or her deputies;
an agency counsel, or his or her deputies;
a sheriff, or his or her deputies;
a chief of police, or his or her deputies;
a security consultant, and
a security operations manager.
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AB 1736 also makes technical conforming changes to notice
requirements.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . The Brown Act recognizes the need
for local boards to meet in closed session on matters
affecting public security. Local boards can meet in closed
session with the Attorney General, local law enforcement
leaders, and security consultants. But the Brown Act does
not permit a local board to meet in closed session with the
Governor, despite the Governor's authority over the
California National Guard, the California Emergency
Management Agency, state public health resources, and the
California Highway Patrol. AB 1736 will fortify the
ability of local agencies to recognize and respond to
public security threats by extending the authority of local
agencies to meet in closed session with the Governor on
issues of public security.
2. Open government versus closed consultations . The Brown
Act defines a narrow set of circumstances under which local
boards can meet in closed session. The Act provides for a
narrow set of non-board members or staff who can
participate. The California Emergency Management Act
already permits the Governor to suspend state statutes in
response to a declared emergency, which would allow him to
meet with local boards when a public security threat
occurs. AB 1736 allows local agencies to move more
deliberations and decision-making from a public forum into
a closed session, which is not consistent with
constitutional requirements for open government in
California and inconsistent with the historical
significance of the Brown Act.
3. Functional expertise . Brown Act provisions on closed
door meetings are purposefully narrow. The public security
exception authorizes a local board to meet with the
Attorney General, or her deputies, in recognition of their
subject matter and functional expertise on public security.
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Unless the Governor is physically present, AB 1736 would
not permit a local board to meet with other state officials
who have expertise on security matters. The Committee may
wish to consider amendments to authorize local boards to
meet in closed session with the Commissioner of the
California Highway Patrol, the Secretary of the California
Emergency Management Agency, the Adjutant General of the
California National Guard, or the Director of the
California Department of Public Health, or their deputies,
because of their expertise and authority on public security
issues.
4. Narrow participation . The Brown Act provides a narrow
set of circumstances for boards of local agencies to meet
in closed session. Established practice recognizes that
closed sessions can only involve members of the legislative
body, their essential staff and relevant parties. The
courts have ruled that persons without an official role in
the meeting would make it "semi-closed" and thus not
permitted under the Act. AB 1736 would authorize local
boards to hold closed sessions with the Governor and any
member of the Governor's staff, regardless of whether those
staff had an official role in the meeting. The Committee
may wish to consider amendments to restrict the
participation of the Governor's staff to persons who have
an official role related in the meeting because of their
expertise or authority on the specific subject matter under
discussion.
5. Information as a counter-weight . The safe harbor
provisions of the Brown Act provide surety that if local
agencies follow a general template for their public notice,
they cannot be sued for failure to meet the notice
requirements. That standard does not require the posting
of the names or affiliations of persons involved in closed
session meetings. In part, postings of meeting
participants is not required because with narrow
exceptions, the Brown Act has long been recognized to only
permit participants to include board members and their
essential staff. Recognizing that AB 1736 broadens the
authority of local boards to meet in closed session with
persons who are not staff to the board, the Committee may
wish to consider amendments that would require local
agencies to include in their notice for closed meetings on
public security, the names and affiliations of persons
involved who are not members of the local board or their
staff.
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6. Broader discussion . The Brown Act identifies a narrow
set of topics that can be discussed by the boards of local
agencies during closed session. With the exception of
public security, closed session topics generally relate
only to the functions of a local agency, such as legal,
contracting and personnel issues. In contrast, the public
security exception recognizes the need for consultation
with persons not directly affiliated with the local agency,
for example, the Attorney General. The Brown Act, however,
does not permit local officials in closed session to
consult with others, including federal security officials,
officials from other states or other local agencies, on
public security issues that are regional in nature. The
Committee may wish to direct staff to explore strategies to
ensure that local officials are authorized to meet in
closed session on matters of public security, where and
with whom necessary, while preserving the very narrow
exception to open meeting requirements and explore ways to
enhance accountability for closed sessions when they are
warranted.
7. Similar legislation . SB 1003 (Yee) amends the Brown
Act to permit legal action to determine whether past
actions of legislative bodies of local agencies are in
violation of the Brown Act. SB 1003 passed out of Senate
Governance and Finance Committee (6-3) on March 9, 2012.
SB 2645 (Aanestad, 2002) amended the Brown Act authorizing
boards of local agencies to meet in closed session with a
security consultant or security operations manager on a
threat to the security and delivery of essential public
services, including water, drinking water, wastewater
treatment, natural gas service, and electric services.
Assembly Actions
Assembly Local Government Committee: 7-0
Assembly Floor: 64-3
Support and Opposition (6/7/12)
Support : County of Los Angeles.
Opposition : American Federation of State, County and
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Municipal Employees, AFL-CIO; Californians Aware.