BILL ANALYSIS �
SB 1003
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Date of Hearing: June 27, 2012
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
SB 1003 (Yee) - As Amended: June 19, 2012
SENATE VOTE : 23-12
SUBJECT : Local government: open meetings.
SUMMARY : Amends local government open meeting laws to authorize
legal action against a legislative body to determine if certain
ongoing or past actions of that body within the past nine months
have violated those open meeting laws. Specifically, this bill :
1)Authorizes a district attorney or any interested person to
file an action, as specified, to determine the applicability
of the Ralph M. Brown Act (Brown Act) to a past or ongoing
action of a legislative body.
2)Prohibits any action to be filed by a district attorney or
interested person to determine the applicability of the Brown
Act to past actions of a legislative body unless all of the
following requirements are met:
a) The plaintiff submits a cease and desist letter to the
legislative body, clearly describing the past action and
the nature of the alleged violation;
b) The plaintiff submits the cease and desist letter within
nine months of the alleged violation;
c) The legislative body fails to respond to the cease and
desist letter within the allotted time while also failing
to provide an unconditional commitment to cease the
violation; and,
d) The plaintiff commences the action within 60 days of
receipt of the legislative body's response, other than an
unconditional commitment, or within 60 days of the
expiration of the time during which the legislative body
may respond to the cease and desist letter, whichever is
earlier, or is thereafter barred from doing so.
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3)Permits the legislative body to respond to a cease and desist
letter within 30 days of receipt, after which time an
unconditional commitment may still be provided but the court
must award court costs and reasonable attorney's fees to the
plaintiff.
4)Provides the form of an unconditional commitment to cease and
desist, as specified.
5)Requires that an unconditional commitment be approved by the
legislative body in open session at a regular or special
meeting as a separate item of business, and not on its consent
agenda.
6)Prohibits the commencement of an action to determine the
applicability of the Brown Act to any past action of the
legislative body for which it has provided an unconditional
commitment.
7)Provides that if the court determines that the legislative
body has provided an unconditional commitment during any
action seeking judicial determination regarding the
applicability of the Brown Act to any past action of the
legislative body, the action shall be dismissed with
prejudice.
8)States that the protection afforded by an unconditional
commitment does not modify or limit the existing ability of
the district attorney or any interested person to commence an
action to determine the applicability of this chapter to
ongoing actions or threatened future actions of the
legislative body.
9)Clarifies that the provision of an unconditional commitment by
a legislative body shall not be construed or admissible as
evidence of a violation of the Brown Act.
10)Requires that, if the legislative body provides an
unconditional commitment, it shall not thereafter take or
engage in the challenged action described in the cease and
desist letter, except as otherwise provided.
11)Declares that a violation of that commitment shall constitute
an independent violation of this chapter, without regard to
whether the challenged action would otherwise violate this
chapter.
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12)Authorizes a legislative body to resolve to rescind an
unconditional commitment by a majority vote of its membership
taken in open session at a regular meeting as a separate item
of business not on its consent agenda and noticed on its
posted agenda as "Rescission of Brown Act Commitment,"
provided that not less than 30 days prior to such regular
meeting, the legislative body provides written notice of its
intent to consider the rescission as specified. Upon
rescission, the district attorney or any interested person may
commence an action.
13)Requires, when an action is dismissed with prejudice because
a legislative body has provided an unconditional commitment at
any time after the allotted 30-day period, the court to award
court costs and reasonable attorney's fees to the plaintiff if
the filing of that action caused the legislative body to issue
the unconditional commitment.
14)Provides that the provisions of this bill shall not apply to
past actions taken by a legislative body before January 1,
2013.
EXISTING LAW :
1)Requires, pursuant to the Brown Act, each legislative body of
a local agency to provide the time and place for holding
regular meetings and requires that all meetings of a
legislative body be open and public and all persons be
permitted to attend unless a closed session is authorized.
2)Prohibits private discussions or closed session meetings among
a majority of a legislative body unless expressly authorized
under the Brown Act.
3)Authorizes the district attorney or any interested person to
file an action by mandamus, injunction, or declaratory relief
to, among other things, determine the applicability of the
Brown Act to actions or threatened future action of the
legislative body.
4)Authorizes the district attorney or any interested person to
commence an action by mandamus or injunction to obtain a
judicial determination that an action taken by a legislative
body in violation of specified provisions is null and void,
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provided that a written demand is first made of the
legislative body to cure or correct the alleged violation
within 90 days from the date the action was taken, except in
cases where the violation relates to the posting of the agenda
in which case the demand must be made within 30 days of the
violation.
FISCAL EFFECT : None
COMMENTS :
1)This bill amends the Brown Act to specify that a district
attorney or any interested person may take legal action to
determine whether the Brown Act applies to the ongoing or past
actions (up to nine months) of a local legislative body and
permits plaintiffs to seek court costs and attorneys' fees.
According to the author, "�t]he language currently in the Brown
Act does not provide injunctive and declaratory relief for
past actions. SB 1003 adds language to extend the Brown Act
to cover past violations. The bill also establishes a
procedure for an interested party to notify the board accused
of violating the Brown Act before pursuing legal action."
The bill is co-sponsored by Californians Aware and the
California Newspaper Publishers Association.
2)This bill creates a process by which plaintiffs can secure an
enforceable commitment or a court declaration regarding past
violations of the Brown Act by a local legislative body.
It establishes procedures for filing an action to determine
whether the Brown Act applies to the past or ongoing actions
of a local legislative body, including a requirement that a
prospective plaintiff submit a cease and desist letter with
the legislative body within nine months of the alleged
violation prior to filing suit, while providing timelines for
responses and the submission of an 'unconditional commitment'
to cease and desist from the action in question.
The bill further provides that an unconditional commitment
acts as a absolute defense against legal action for
determination of past actions yet is inadmissible as evidence
of a violation, but carries with it requirements that it be
approved in open session by the legislative body, and that it
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be rescinded only with 30 days' public notice and a vote.
SB 1003 permits the plaintiff to seek court costs and
reasonable attorneys' fees for actions brought pursuant to
this bill. Furthermore, if an unconditional commitment is
submitted more than 30 days after the allotted time and leads
to the dismissal of a suit, a court must award costs and fees
if the filing of the action caused the legislative body to
issue the
unconditional commitment. These provisions would apply only
to actions of legislative bodies that take place after January
1, 2013.
3)The Brown Act requires the meetings of local governments'
legislative bodies be "open and public," thereby ensuring
public access to information and promoting transparency in
government.
Private discussions among a majority of a legislative body are
prohibited, unless expressly authorized by the Brown Act.
Legislative bodies may 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,
labor negotiation conferences, real property negotiation
conferences, multi-jurisdictional drug cases, specified
district hospital matters, and license/permit determinations
for individuals with criminal records.
Local officials are required to place a closed meeting item on
the agenda and cite their statutory authority to meet behind
closed doors. Local officials must report on any action taken
in closed session and provide the vote of every elected member
present.
The Brown Act authorizes any person to seek court action to
stop or prevent violations of the Act. Civil remedies for
violations include injunctive, mandatory or declaratory
relief, and the ability to void actions taken in violation of
the Brown Act. Attorneys' fees are available to prevailing
plaintiffs. Criminal sanctions are also available, including
misdemeanor penalties against a member of a body who attends a
meeting where action is taken in violation of the Brown Act
and where the member intended to deprive the public of
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information which the member knew or has reason to know the
public was entitled to receive.
Notably, the enforcement provisions of the Brown Act are
focused on "stopping or preventing violations or threatened
violations of this chapter ? �or determining] the
applicability of this chapter to actions or threatened future
action of the legislative body?" which the courts have
construed as applying only to current or prospective actions -
not past ones.
4)In a 2011 unpublished opinion in McKee v. Tulare County Board
of Supervisors, the California Court of Appeals, Fifth
Appellate District, held that the Brown Act addresses current
and potential future violations but does not provide for
relief for past actions.
In that case, plaintiffs alleged that the Tulare County Board
of Supervisors had a history of holding closed 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 before
meetings.
The court drew upon the earlier Regents of University of
California v. Superior Court (1999) (20 Cal. 4th 509) as
authority for the proposition that the Brown Act's "right of
action extends only to present and future actions and
violations and not past ones" because the language in question
in McKee was, at the time, identical to the language found in
the Bagley-Keene Act.
(The Bagley-Keene Act was subsequently amended by AB 1234
(Shelley), Chapter 393, Statutes of 1999, to clarify that the
relief provisions would apply to past actions - see Comment #8
below.)
The McKee Court held that because the practice of privately
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 therefore
interpreted the Brown Act to apply only to present and future
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actions and did not authorize relief for past violations.
This bill would make explicit that the Brown Act applies to
past actions.
5)The California Newspaper Publishers Association (CNPA), a
co-sponsor of the bill, contends that "�i]n the wake of the
McKee case, when a member of the public files an action
alleging a meeting of a legislative body violated the Brown
Act, the agency can simply declare it will no longer meet in
the offending manner. Since there is no longer a threat, as a
matter of law, the court would be required to dismiss the
action. This anomalous result strikes at the very heart of
the Brown Act rendering it of little value. Local governments
have no incentive to adhere to the open meetings law knowing
they can extricate themselves from a lawsuit by simply
stopping the illegal behavior."
6)Opponents of the bill make the following arguments regarding
its provisions:
a) The City of Ventura argues that current law is
sufficient to deal with Brown Act violations: "�t]he
court's rationale in McKee applies to our opposition to
this bill: past activities of a local agency are a moot
point even if they may have been questionable under the
Brown Act when they occurred. Should a questionable
activity commence again, or be threatened as future action,
the Act's sanctions may clearly apply and provide the
District Attorney or any interested party with an adequate
remedy at that time. In addition, �current law] already
provides for judicial relief to invalidate actions that
took place in the preceding 90 days, although the provision
covers more narrow circumstances."
b) The City of Salinas expresses concerns that the measure
would increase litigation costs: "�g]iven the exposure to
litigation that SB 1003 would invite we believe your
measure would only add to local government costs. We
believe strongly in the principles of open, transparent and
accountable government. Unfortunately, your bill seems
more about retribution than achieving those goals..."
7)AB 1234 (Shelley), Chapter 393, Statutes of 1999, clarified
that the relief provisions of the Bagley-Keene Act apply to
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past actions. The bill was introduced in response to a legal
case similar to McKee v. Tulare County Board of Supervisors in
which the Court ruled the Legislature did not intend the
relief available under Bagley-Keene to apply to past actions.
8)Support arguments : According to CNPA, "�b]y conforming the
Brown Act to the Bagley-Keene Act with respect to relief for
past actions, SB 1003 would close this loophole in the law and
reinforce the bedrock principle that the people's business
should be conducted openly and publicly."
Opposition arguments : According to the Madera County Board of
Supervisors, "�c]urrent law allows individuals to pursue
litigation over an allegation that a local agency failed to
adhere to the Brown Act...Litigation also can be used to
nullify an action of a local agency if the decision was
reached in violation of the Brown Act. When a violation has
been corrected, and there is no genuine threat that the agency
will repeat the violation in the future, litigation is not
necessary. Allowing for expensive legal proceedings when the
matter is resolved does not further serve the people we
represent."
REGISTERED SUPPORT / OPPOSITION :
Support
Californians Aware (CalAware) �CO-SPONSOR]
California Newspaper Publishers Association �CO-SPONSOR]
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
California Teachers Association
First Amendment Coalition
Opposition
California Association of Sanitation Agencies (5/8)
City of Salinas (4/17)
City of Ventura (4/2)
Community College League of California (4/26)
County of Madera, Board of Supervisors (6/19)
Analysis Prepared by : Hank Dempsey / L. GOV. / (916) 319-3958
SB 1003
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