BILL ANALYSIS �
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: SB 1003 HEARING: 3/21/12
AUTHOR: Yee FISCAL: No
VERSION: 2/6/12 TAX LEVY: No
CONSULTANT: Ewing
BROWN ACT ENFORCEMENT
Clarifies that a person can pursue legal action, under the
Brown Act, for prior actions of local agencies.
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 under 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.
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.
SB 1003 -- 2/6/12 -- Page 2
The Act authorizes any person to seek court action to stop
or prevent violations of the Act.
In a 2011 unpublished ruling in McKee v. Tulare County
Board of Supervisors, the Court of Appeal, Fifth Appellate
District, ruled that the Brown Act addresses current and
potential future violations, but does not provide for
relief for past actions.
Under the case, plaintiffs alleged that the Tulare County
Board of Supervisors had a history of holding lunch
meetings, without public notice, which were attended by a
majority of board members and where official business was
discussed. Prior to the court's review, the Board of
Supervisors passed a resolution ending the practice of
eating lunch together prior to meetings.
The Court held that because the practice of lunching
together had been suspended, there was no "present"
violation of the Brown Act and that "speculative
allegations of past violations?cannot reasonably be read to
allege any 'threatened future' violations." The Court
interpreted the Brown Act to apply only to present and
future actions and thus indicated that it did not authorize
relief for past violations.
Proposed Law
Senate Bill 1003 amends the Brown 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 declares the Legislature's intent to supersede the
decision of the court in McKee v. Tulare County Board of
Supervisors, and declares the bill to be declaratory of
existing law.
State Revenue Impact
No estimate.
SB 1003 -- 2/6/12 -- Page 3
Comments
1. Purpose of the bill . SB 1003 clarifies that the relief
available under the Brown Act extends to past actions, as
well as future actions of legislative bodies of local
agencies. The bill clarifies the meaning of existing law
and will fortify public accountability for local agencies.
2. Muddied waters . SB 1003 makes changes to the Brown Act
that will open a floodgate of litigation for past actions,
potentially for actions in the distant past, which may not
be able to be remedied under the cure provisions of the
Act. The bill could subject local agencies to significant
legal costs without substantively improving public
accountability.
3. Similar legislation . SB 1003 is similar to AB 1234
(Shelley, 1999), which clarified that the relief provisions
of the Bagley-Keene Open Meeting Act apply to past actions.
Bagley-Keene applies to state agencies. AB 1234 was
introduced in response to a legal case similar to McKee v.
Tulare County Board of Supervisors in which the Court ruled
that prior to AB 1234, the Legislature did not intend the
relief available under Bagley-Keene to apply to past
actions. It is unclear, since the passage of AB 1234, if
state agencies have faced additional legal challenges under
Bagley-Keene or if that history is a sufficient guide on
whether local agencies will face additional unwarranted
scrutiny under SB 1003.
Support and Opposition (3/14/12)
Support : American Federation of State, County and
Municipal Employees, AFL-CIO; Californians Aware,
California Newspaper's and Publisher's Association, First
Amendment Coalition
Opposition : Association of California School
Administrators