BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2010-2011 Regular Session
SCA 7 (Yee)
As Introduced
Hearing Date: April 5, 2011
Fiscal: Yes
Urgency: No
TW
FOR VOTE ONLY
SUBJECT
Public Bodies: Meetings
DESCRIPTION
This bill would propose an amendment to the California
Constitution to require that each public body shall provide
public notice of its meetings and publicly disclose any action
taken. This bill, if passed, would require voter approval prior
to enactment.
BACKGROUND
Over the years, the Legislature has made clear that public
agency actions should be open to the scrutiny of the public.
In 1961, the Legislature enacted the Ralph M. Brown Act (Brown
Act), which provided public access to local public agency
information. In 1967, the Legislature enacted the Bagley-Keene
Open Meeting Act, which provided public access to state public
agency information, and in 1989, the Legislature enacted the
Grunsky-Burton Open Meeting Act, which provided public access to
legislative information (collectively, Open Meeting Act). In
1975, the Brown Act was amended to provide for disclosure of
public agency acts taken during closed meetings. In 1986, the
Brown Act, among other things, was amended to provide for the
posting of public agency agendas. In 2004, Proposition 59 added
to the California Constitution the people's right of access to
public body information. (Cal. Const., art. I, sec. 3(b)(1).)
In 1986, 1988, and 2001, the Commission on State Mandates ruled
that state and local agencies could be reimbursed by the state
(more)
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for monies spent complying with the Open Meeting and Brown Acts.
(CSM 4257, 4469, 4202, and 4485.) This ruling was upheld in
California School Boards Association v. State of California, et
al. (2009) 171 Cal.App.4th 1183.
In 1990, during a state financial crisis, the Budget Act did not
include funding for Open Meeting/Brown Act compliance. After
public uproar resulting from the inability to access public
agency information, AB 102 (Connelly, Ch. 238, Stats. 1991) was
enacted whereby the Legislature declared that "complete,
faithful, and uninterrupted compliance with the . . . . Brown
Act . . . is a matter of overriding public importance" and
"unless specifically stated, no future Budget Act shall . . . be
interpreted to suspend, eliminate, or otherwise modify the legal
obligation and duty of local agencies to fully comply with
Chapter 641 of the Statutes of 1986 . . . ." (Gov. Code Sec.
54954.4.)
Under the California Constitution, reimbursable mandates, such
as the notice and disclosure requirements contained in the Open
Meetings and Brown Acts, are subject to the Budget Act each
year. If the Budget Act does not appropriate funding to cover
the reimbursable mandate, the mandate is suspended. (Cal.
Const., art. XIIIB, sec. 6.) The 2010 Budget Act did not
appropriate any funding for compliance with the Open Meeting and
Brown Acts. Accordingly, pursuant to Government Code Section
17581(b), the Department of Finance has instructed public
agencies that the Open Meeting and Brown Acts are suspended.
Consequently, although state and local agencies may opt to
comply with the notice and reporting requirements of the Open
Meeting and Brown Acts, advocates for disclosure have argued
that the local agencies are not legally required to do so.
The Open Meeting and Brown Acts provide access to public agency
actions and are a way to combat potential corruption. The
necessity for access to public agency actions was demonstrated
by the City of Bell corruption scandal uncovered in July, 2010,
involving exorbitant city employee salaries awarded during
secret meetings. Several Los Angeles Times articles detailed
the events of the scandal. One article by CBS Los Angeles
showed the persistent need for public access to local agency
information, and quoted a City of Bell resident who claimed the
Bell City Council members did not "allow any information that
was required or it was either given wrong or you were told, 'You
can't receive it.' Or they didn't respond at all." (CBS Los
Angeles,
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http://losangeles.cbslocal.com/2010/09/28/bell-residents-suspecte
d-corruption-for-years/.)
This bill would propose to amend the California Constitution to
require that each public agency shall provide public notice of
its meetings and publicly disclose any action taken by the
public agencies. This bill would be subject to voter approval
before enactment. This bill also has been referred by the
Senate Rules Committee to the Senate Committee on Elections,
Reapportionment and Constitutional Amendments.
CHANGES TO EXISTING LAW
Existing law provides that the people have the right of access
to information concerning the people's business and requires
meetings of public bodies and the writings of public officials
and agencies to be open to public scrutiny. (Cal. Const., art.
I, sec. 3(b)(1).)
With respect to local public bodies, existing law , the Ralph M.
Brown Act, provides statutory requirements of local public
bodies to keep the public informed. (Gov. Code Sec. 54950 et
seq.) Existing law requires local public bodies to post notices
and agendas of local public body meetings. (Gov. Code Secs.
54953, 54954.2, 54954.6, and 54956.) Existing law requires local
public bodies to publicly report any action taken in closed
sessions. (Gov. Code Secs. 54957.1 and 54957.7.) Existing law
requires local public bodies to disclose in an open meeting the
items to be discussed in closed sessions. (Gov. Code Sec.
54957.7.)
Regarding state public bodies, existing law , the Bagley-Keene
Open Meeting Act, provides statutory requirements of state
public bodies to keep the public informed. (Gov. Code Sec.
11120 et seq.) Existing law requires state public bodies to
post notices and agendas of state public body meetings. (Gov.
Code Secs. 11123, 11125, 11125.4, 11125.5, 11125.9, and 11126.)
Existing law requires state public bodies to publicly report any
action taken in closed sessions. (Gov. Code Secs. 11125.2,
11126, and 11126.3.)
As to legislative bodies, existing law , the Grunsky-Burton Open
Meeting Act, provides statutory requirements of legislative
bodies to keep the public informed. (Gov. Code Sec. 9027 et
seq.) Existing law requires legislative bodies to provide
notice to the public of open and closed meetings. (Gov. Code
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Secs. 9028 and 9029.5.) Existing law requires legislative
bodies to publicly state the nature of a closed meeting. (Gov.
Code Sec. 9029.5.)
This bill would propose an amendment to the California
Constitution that would require each public body to provide
public notice of its meetings and public disclosure of any
action taken.
COMMENT
1. Stated need for the bill
The author writes:
The current state budget failed to appropriate money to pay
Brown Act claims. Even though the agenda posting and
reporting provisions remain on the books, as unfunded
mandates, the provision is optional and unenforceable. . . .
Senate Constitutional Amendment 7 would guarantee, once and
for all, the public's right under the Ralph M. Brown Act to
reasonable notice of the meetings of local public legislative
bodies and to public reports of action taken in closed
sessions of those bodies.
The California Newspaper Publishers Association (CNPA), the
sponsor of this bill, writes:
�E]ven though last minute amendments to the 2010/2011 State
Budget reinstated the Brown Act requirements, it did not
appropriate funds for these "state mandated local programs."
Because of this anomaly, the Legislative Analysts Office takes
the position that local government agencies are currently not
required to comply with the agenda posting and reporting out
requirements. Whether this is the legally correct
interpretation or not, the current status of the law has
created intolerable confusion.
CNPA has argued the duties to post a single copy of an agenda
in a public place and to orally report decisions made in
closed session create no meaningful costs that should be
reimbursed by the State. The Commission on State Mandates,
though, has found these statutes require state reimbursement
to local agencies at an annual cost of about $20 million.
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. . . �T]he fact is that unless the legislature approves an
SCA for the ballot, one of two outcomes appear certain: either
the legislature will agree to continue to pay the bogus local
agency claims putting continued stress on other funding
choices; or, more likely, it will continue to suspend the
Brown Act, making it optional to local agencies and
unenforceable by the public.
2. Existing law is insufficient to protect the public's right to
information
This bill would amend the California Constitution, subject to
voter approval, that the public has the right of access to
notices of public body meetings and disclosure of actions taken.
Currently, the public has a right to information of public
bodies through the California Constitution, but this right is
not sufficiently defined. (Cal. Const., art. I, sec. 3(b)(1).)
The Legislature intended that the Open Meeting and Brown Acts
would supplement this right by providing specific requirements
that would allow the public access to public body information.
(See Background.)
Further, Government Code Section 54954.4(c) declares the
Legislature's intent that, unless specifically stated, the Brown
Act should not be interpreted by any Budget Act to suspend,
eliminate, or otherwise modify the legal obligation and duties
of local agencies to comply with the Brown Act. However, the
provisions of the Open Meeting and Brown Acts have been declared
reimbursable mandates, which, according to the California
Constitution, are subject to suspension in the event a Budget
Act fails to provide funding for these mandates. (See Cal.
Const., art. XIIIB, sec. 6(b)(1).) The 2010 Budget Act did not
provide for funding for compliance with the Open Meeting and
Brown Acts, and public agencies have been advised by the
Department of Finance that these Acts have been suspended. The
Department of Finance, when issuing its November 8, 2010 letter
declaring the Open Meeting and Brown Acts as suspended, takes
the position that the reimbursable mandate provision in the
California Constitution is controlling over and above Government
Code Section 54954.4. Thus, public agencies may interpret the
suspension of state mandate reimbursement for compliance with
the Open Meeting and Brown Acts to mean that public agencies are
not required to comply with the Open Meeting and Brown Acts but
may do so on their own accord.
On the other hand, this bill would provide a constitutional
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right of public access to notices of public agency meetings and
disclosure of actions taken. Costs associated with
constitutional requirements are not reimbursable by the state.
(Gov. Code Sec. 17514.) Accordingly, public agency costs
associated with meeting notices and disclosure would not be
reimbursable and subject to suspension by a Budget Act. As
discussed further in Comment 3, the Open Meeting and Brown Acts
would then be necessary to implement the provisions of this
bill. Statutes that are necessary to implement constitutional
provisions are not reimbursable. (Gov. Code Sec. 17556(f).)
Thus, public agency requirements listed under the Open Meeting
and Brown Acts in order to comply with this constitutional
requirement would not be reimbursable and consequently not be
suspended.
Proponents of this bill argue that, as demonstrated by the
recent public agency corruption in the City of Bell, it is
imperative that the public remain informed. Without providing a
constitutional right to meeting notices and disclosure of acts
as provided by this bill, the public may not have access to
meeting notices and disclosure of public agency acts.
3. The Open Meeting and Brown Acts would implement the
provisions of this bill
This bill would propose to amend the California Constitution to
require that public agencies provide notices of meetings and
disclosure to the public of actions taken. Yet, this bill does
not define readily how much notice and disclosure is necessary
to effectively implement it. However, the Open Meeting and
Brown Acts provide such guidance to public agencies on notice
and disclosure requirements necessary to keep the public
informed.
a. Notice of meetings . This bill would require public
bodies to provide public notice of their meetings. Public
bodies meet during regularly scheduled meetings but also
during emergency situations. Some meetings are held
publicly, some meetings are held as closed sessions. Given
the variety of meetings that a public body may hold, the
provisions of the Open Meeting and Brown Acts would be
necessary to determine which type of notice is necessary
for each given circumstance.
b. Action taken . This bill would require public disclosure
of any action taken by a public agency. The Open Meeting
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and Brown Acts supply concise definitions of "action
taken." (See Gov. Code Secs. 11122 and 54952.6.) Of
particular note, these statutes do not require disclosure
of discussions during closed sessions but rather disclosure
of the final decisions and actions taken by the public
agency. Due to the potential for an overbroad definition
of "action taken," the Open Meeting and Brown Acts, as
applicable, would be necessary to implement the
requirements of this bill.
Accordingly, the notice and disclosure provisions contained in
the Open Meeting and Brown Acts would be necessary to implement
the provisions of this bill. Incidentally, some of the statutes
under the Brown Act specifically state that they are necessary
to implement paragraph (1) of subdivision (b) of Section 3 of
Article I of the California Constitution. (See Gov. Code Secs.
54954.2 and 54957.1.) Regardless of any reference to the
California Constitution, each notice or disclosure statute
contained in the Open Meeting and Brown Acts would be necessary
to implement this bill because each such statute provides the
necessary provisions for different meeting and action
circumstances.
4. 2011 Budget Act provisions
This bill would propose to amend the California Constitution to
require public agencies to provide public notice of their
meetings and publicly disclose any action taken. Under existing
law, the Brown Act is a state mandated program which requires
state reimbursement to public agencies incurring costs of
compliance with the Brown Act. (Gov. Code Sec. 17514.) If
funding for Open Meeting and Brown Acts reimbursement has not
been appropriated in a Budget Act, the Open Meeting and Brown
Acts are suspended. (See Cal. Const., art. XIIIB, sec.
6(b)(1).)
Proponents of this bill argue that it is necessary because the
Brown Act has been suspended and local agencies now are not
required to comply with the notice and disclosure requirements
of the Brown Act. The proponents do not specify any problem
with notice and disclosure compliance with the Open Meeting
Acts, which apply to state agencies and the Legislature. Given
the current fiscal crisis and the lack of funding for the Open
Meeting and Brown Act, the 2011 Budget Act contains trailer bill
language in SCAX 1-1 that would add an additional constitutional
provision whereby the Brown Act no longer would be a state
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mandate but a constitutional requirement. As such, the Brown
Act no longer would be subject to suspension. For consistency,
the author may wish to consider whether to conform this bill to
the proposed trailer bill language.
5. Suggested Amendment
The bill contains a technical error that should be corrected as
follows:
On page 1, line 2 change "20011" to "2011".
Support : American Federation of State, County and Municipal
Employees, AFL-CIO; California Association of Realtors;
California Nurses Association; Californians Aware; California
Taxpayers Association; Sierra Club California; an individual
Opposition : California Association of Clerks and Election
Officials
HISTORY
Source : California Newspaper Publishers Association
Related Pending Legislation : None Known
Prior Legislation : See Background.
Prior Vote : None
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