BILL ANALYSIS �
SCA 7
Page 1
Date of Hearing: July 6, 2011
ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
Isadore Hall, Chair
SCA 7 (Yee) - As Amended: April 13, 2011
SENATE VOTE : 40-0
SUBJECT : Public bodies: meetings.
SUMMARY : SCA 7 would require that each public body shall
provide public notice of its meetings and publicly disclose any
action taken. This constitutional amendment, if passed,
requires voter approval prior to enactment. Specifically, this
bill :
1) Includes in the California Constitution the requirement that
each public body provides public notice of its meetings and
disclose any action taken.
2) Provides the people have the right to instruct their
representatives, petition government for redress of grievances,
and assemble freely to consult for the common good.
3) Provides the people have the right to access information
concerning the conduct of the people's business, and, therefore,
the meetings of public bodies and the writings of public
officials and agencies shall be open to public scrutiny. Each
public body shall provide public notice of its meetings and
shall publicly disclose any action taken.
4) Specifies that a statute, court rule, or other authority,
including those in effect on November 3, 2004, shall be broadly
construed if it furthers the people's right of access, and
narrowly construed if it limits the right of access. A statute,
court rule, or other authority adopted after November 3, 2004,
that limits the right of access shall be adopted with findings
demonstrating the interest protected by the limitation and the
need for protecting that interest.
5) Specifies that these provisions do not supersede or modify
any other provision of the state Constitution.
6) Specifies that these provisions do not repeal, or nullify,
supersede, or modify:
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a) Any constitutional or statutory exception to the right
of access to public records or meetings of public bodies that
is in effect on November 3, 2004, including, but not limited to,
any statute protecting the confidentiality of law enforcement
and prosecution records.
b) Protections for the confidentiality of proceedings and
records of the Legislature, the Members of
the Legislature, and its employees, committees, and caucuses.
7) Specifies that these provisions; do not affect the scope of
permitted discovery in judicial or administrative proceedings
regarding deliberations of the Legislature, the Members of the
Legislature, and its employees, committees, and caucuses.
EXISTING LAW :
1) 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.
2) 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. Requires local public
bodies to post notices and agendas of local public body
meetings. Requires local public bodies to publicly report any
action taken in closed sessions. Requires local public bodies
to disclose in an open meeting the items to be discussed in
closed sessions.
3) Regarding state public bodies, existing law (Bagley-Keene
Open Meeting Act) provides statutory requirements of state
public bodies to keep the public informed. Requires state public
bodies to post notices and agendas of state public body
meetings. Requires state public bodies to publicly report
any action taken in closed sessions.
4) As to legislative bodies, existing law (Grunsky-Burton Open
Meeting Act) provides statutory requirements of legislative
bodies to keep the public informed. Requires legislative bodies
to provide notice to the public of open and closed meetings.
Requires legislative bodies to publicly state the nature of a
closed meeting.
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FISCAL EFFECT : Unknown.
COMMENTS :
Background : 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 Acts compliance. After
public uproar resulting from the inability to access public
agency information, AB 102 (Connelly, Ch. 238, Statutes of 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 ..."
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
and 2011 Budget Acts did not appropriate funding for compliance
with the Open Meeting and Brown Acts. Accordingly, pursuant to
Government Code Section 17581(b), the Department of Finance
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(DOF) 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 will be used to implement the
provisions of this measure. SCA 7 will require that public
agencies provide notices of meetings and disclosure to the
public of actions taken, but does not define how much notice or
what level of disclosure is required. Therefore, the Open
Meeting and Brown Act will provide guidance to public agencies
about specific notice and disclosure requirements
including procedures for emergency meetings.
Purpose of the bill : 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, "Even 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.
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The CNPA further states, "the 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."
Prior legislation : SCA 1 (Burton), Res. Chapter 1, Statutes of
2004. Confers to the people a right of access to information
concerning the conduct of the people's business. Specifically,
this constitutional amendment: provides that the people
have a right of access to information concerning the
conduct of the people's business, and requires meetings of
public bodies and the writings of public officials and agencies
to be open to public scrutiny.
Approval by voters : As a Constitutional Amendment, this measure
requires the approval of the voters to take effect. If approved
by the Legislature, this measure would appear on a statewide
primary election ballot.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
California Association of Relators
California Broadcasters Association
California Community Colleges Chancellor's Office
California Faculty Association
California Newspaper Publishers Association
California Nurses Association
California State PTA
California Taxpayers Association
California Teachers Association
Californians Aware
Howard Jarvis Taxpayers Association
Pacific Media Workers Guild
Sierra Club California
Opposition
California Association of Clerks and Election Officials
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Analysis Prepared by : Eric Johnson / G. O. / (916) 319-2531