BILL ANALYSIS �
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Lou Correa, Chair
BILL NO: SCA 7 HEARING DATE: 5/3/11
AUTHOR: YEE ANALYSIS BY: Frances Tibon
Estoista
AMENDED: 4/13/11
FISCAL: YES
SUBJECT
Public bodies: meetings
DESCRIPTION
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.
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.
Existing law requires local public bodies to post notices
and agendas of local public body meetings and also requires
local public bodies to publicly report any action taken in
closed sessions.
Existing law requires local public bodies to disclose in an
open meeting the items to be discussed in closed sessions.
Regarding state public bodies, existing law , the
Bagley-Keene Open Meeting Act, provides statutory
requirements of state public bodies to keep the public
informed.
Existing law requires state public bodies to post notices
and agendas of state public body meetings.
Existing law requires state public bodies to publicly
report any action taken in closed sessions.
As to legislative bodies, existing law , the Grunsky-Burton
Open Meeting Act, provides statutory requirements of
legislative bodies to keep the public informed. Existing
law requires legislative bodies to provide notice to the
public of open and closed meetings. Existing law requires
legislative bodies to publicly state the nature of a closed
meeting.
This bill would amend the California Constitution to
require that each public body provide public notice of its
meetings and publicly disclose any action taken by the
public agencies.
BACKGROUND
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.
In 1986, 1988, and 2001, the Commission on State Mandates
ruled that state and local agencies could be reimbursed by
the state for monies spent complying with the Open Meeting
and Brown Acts. 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, Statutes of 1991) was enacted whereby
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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 . . . ."
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. 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,
http://losangeles.cbslocal.com/2010/09/28/bell-residents-sus
pected-corruption-for-years/ .)
COMMENTS
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1. According to the author : 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.
SCA 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 Analyst's 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.
. . . �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.
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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. 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, existing law 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.
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 right of public access to notices of
public agency meetings and disclosure of actions taken.
Costs associated with constitutional requirements are
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not reimbursable by the state. 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. 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 proposes 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
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Open Meeting and Brown Acts supply concise definitions
of "action taken." 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.
PRIOR ACTION
Senate Judiciary Committee:5-0
POSITIONS
Sponsor: California Newspaper Publishers Association
Support: American Federation of State, County and
Municipal Employees,
AFL-CIO
California Association of Realtors
California Broadcasters Association
California Faculty Association
California Nurses Association
California State PTA
California Teachers Association
CalTAX
Howard Jarvis Taxpayers Association
Sierra Club California
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Oppose: None received
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