BILL ANALYSIS �
AB 194
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Date of Hearing: January 15, 2014
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
AB 194 (Campos) - As Amended: January 6, 2014
SUBJECT : Open meetings: actions for violations.
SUMMARY : Allows a district attorney or interested party to
seek "null and void" judicial determinations for violations of
the Ralph M. Brown Act's provisions that require local
legislative bodies to allow public comment and public criticism
at regular and special meetings. Specifically, this bill:
1)Expands the authorization for a district attorney or
interested party to seek a judicial determination that an
action taken by a local legislative body is null and void if
the legislative body violates current law requiring that every
agenda for a regular meeting or notice for a special meeting
provide an opportunity for members of the public to address
the legislative body on items being considered, as specified.
2)Expands the authorization for a district attorney or
interested party to seek a judicial determination that an
action taken by a local legislative body is null and void if
the legislative body violates current law allowing a local
agency's legislative body to adopt reasonable regulations to
ensure that the intent of 1), above, is carried out,
including, but not limited to, regulations limiting the amount
of time allocated for public testimony on particular issues
and for each individual speaker.
3)Expands the authorization for a district attorney or
interested party to seek a judicial determination that an
action taken by a local legislative body is null and void if
the legislative body violates current law prohibiting a local
legislative body from prohibiting public criticism of the
policies, procedures, programs, or services of the agency, or
of the acts or omissions of the local legislative body, as
specified.
EXISTING LAW :
1)Allows a district attorney or any interested party to seek a
judicial determination that an action taken by a legislative
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body is null and void if the legislative body violates any of
the provisions of the Ralph M. Brown Act (Brown Act) outlined
in a) through f), below. Prior to commencing such action, a
district attorney or interested party must make a demand of
the local legislative body within certain time periods to cure
or correct the alleged violation. If the local legislative
body chooses not to cure or correct, the complaining party
must commence court action within certain time periods, as
specified. Null and void determinations are not allowed under
limited circumstances.
a) Requires that all meetings of a legislative body of a
local agency be open and public and that all persons be
permitted to attend, with specified exceptions, and
prohibits local legislative bodies from taking action by
secret ballot.
b) Requires local legislative bodies to publicly post an
agenda prior to all regular meetings, as specified, and
generally prohibits action or discussion on items not
appearing on the posted agenda, with limited exceptions.
c) Allows local legislative bodies to hold closed sessions
for limited purposes and provides standards for acceptable
descriptions of closed session agenda items.
d) Requires local legislative bodies, before they adopt any
new or increased general tax or assessment, to conduct a
public meeting at which they must allow public testimony
regarding the tax or assessment proposal prior to a public
hearing on such proposals, including public notice
requirements, as specified.
e) Allows local legislative bodies to convene special
meetings, subject to certain notice requirements, and
prohibits any business not duly noticed from being
considered in special meetings, as specified.
f) Allows local legislative bodies to convene emergency
meetings under limited circumstances and provides for
public notice and information regarding such meetings, as
specified.
2)Allows a district attorney or any interested person to
commence an action by mandamus, injunction, or declaratory
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relief for the purpose of stopping or preventing violations or
threatened violations of the Brown Act by members of the
legislative body of a local agency or to determine the
applicability of the Brown Act to ongoing actions or
threatened future actions of the legislative body, or to
determine the applicability of the Brown Act to past actions
of the legislative body, as specified.
3)Allows a district attorney or any interested person to file an
action to determine the applicability of the Brown Act to past
actions of the legislative body under certain conditions, as
specified.
4)Allows a court to award court costs and reasonable attorney
fees to the plaintiff in an action brought pursuant to 1), 2)
or 3), above, where it is found that a legislative body of the
local agency has violated the Brown Act.
5)Requires every agenda for regular meetings and every notice
for special meetings to provide an opportunity for members of
the public to directly address the legislative body on any
item of interest to the public, before or during the
legislative body's consideration of the item, that is within
the subject matter jurisdiction of the legislative body, as
specified.
6)Allows the legislative body of a local agency to adopt
reasonable regulations to ensure that the intent of 5), above,
is carried out, including, but not limited to, regulations
limiting the total amount of time allocated for public
testimony on particular issues and for each individual
speaker.
7)Prohibits the legislative body of a local agency from
prohibiting public criticism of the policies, procedures,
programs, or services of the agency, or of the acts or
omissions of the local legislative body, and provides that
nothing in this provision shall confer any privilege or
protection for expression beyond that otherwise provided by
law.
FISCAL EFFECT : None
COMMENTS :
1)This bill allows a district attorney or interested party to
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seek "null and void" judicial determinations for violations of
the Brown Act's provisions that require local legislative
bodies to allow public comment and public criticism at regular
and special meetings. This bill is sponsored by the author.
2)The Brown Act allows a number of remedies for alleged
violations of its provisions. A district attorney or any
interested person may commence an action by mandamus,
injunction, or declaratory relief for the purpose of stopping
or preventing violations or threatened violations of any
provision of the Brown Act by members of the legislative body
of a local agency. This action may also be pursued to
determine the applicability of the Brown Act to ongoing
actions or threatened future actions of the legislative body,
or to determine the applicability of the Brown Act to past
actions of the legislative body under certain conditions.
The Brown Act also allows a more stringent avenue of redress
for violations of a limited number of Brown Act provisions.
It allows a district attorney or any individual to seek a
judicial ruling that actions taken by a local legislative body
are null and void if the legislative body violates any of the
following six sections of the Brown Act:
a) A requirement that that all meetings of local agency
legislative bodies be open and public and that the public
be permitted to attend, including a provision that
prohibits local legislative bodies from taking action by
secret ballot.
b) A requirement that local legislative bodies publicly
post an agenda prior to all regular meetings, and a
provision that prohibits local legislative bodies from
acting on or discussing items that are not on the posted
agenda, with limited exceptions.
c) A provision allowing local legislative bodies to hold
closed sessions for limited purposes and providing
standards for acceptable descriptions of closed session
agenda items.
d) A requirement that local legislative bodies hold at
least one public meeting before adopting at a public
hearing any new or increased general tax or assessment.
The public meeting is expressly for the purpose of allowing
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public testimony regarding such tax or assessment
proposals. This requirement includes detailed public
notice procedures that must be followed before the meeting
and the hearing.
e) A provision allowing local legislative bodies to convene
special meetings, subject to specified notice requirements,
and prohibiting any matter not duly noticed from being
considered in special meetings.
f) A provision allowing local legislative bodies to convene
emergency meetings under limited circumstances and
providing for public notice and information regarding such
meetings.
Before a district attorney or individual can begin the process
of seeking a null and void determination, they must make a
written demand of the local legislative body within certain
time periods to cure or correct the alleged violation. If the
local legislative body chooses to cure or correct the alleged
action, it must do so within 30 days. If the local
legislative body chooses not to cure or correct, the
complaining party must commence court action within certain
time periods, after which a null and void action cannot be
pursued.
A null and void determination by a judge effectively means
that the action of the local legislative body is not valid and
would require the local legislative body to take action in
compliance with all provisions of the Brown Act at a later
date to re-enact the voided decision. Null and void
determinations are not allowed for specified actions such as
those involving bonds or other debt incurrence, contractual
obligations, or tax collections.
A court may award court costs and reasonable attorney's fees
to prevailing plaintiffs in any of the court actions described
above.
This bill would allow a plaintiff to seek null and void
judicial determination to violations of the Brown Act
provisions that:
a) Require that every agenda for a regular meeting or
notice for a special meeting provide an opportunity for
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members of the public to address the legislative body on
items being considered.
b) Allow a local agency's legislative body to adopt
reasonable regulations to ensure that the intent of a),
above is carried out, including, but not limited to,
regulations limiting the amount of time allocated for
public testimony on particular issues and for each
individual speaker.
c) Prohibit a local legislative body from prohibiting
public criticism of the policies, procedures, programs, or
services of the agency, or of the acts or omissions of the
local legislative body.
3)According to the author, "For 60 years, the Brown Act has been
a cornerstone of California democracy by ensuring that people
can comment on matters affecting their community. However,
too often local agencies have inappropriately curtailed this
right and silenced individual's voices. Part of the reason
for these actions is that the penalties or remedies for
violating this critical right are insufficient. If an
individual files a complaint over being shut out, the local
agency can simply promise they won't do it again. The problem
is that the action of the agency had already been taken,
usually several months before. Meanwhile, nothing is done to
make sure that the people and their voice were actually heard
and considered prior to a decision being made.
"AB 194 uses an existing remedy for when the public's right to
comment has been violated. First, it gives an agency the
chance to cure and correct the violation. This usually
consists of having the particular issue brought before the
body again with appropriate time for public comment. Failing
to cure or correct the violation, an individual would be able
to take their complaint to a judge (to) potentially void the
action taken by the agency. This two-tiered process already
exists in the Brown Act for violations such as failure to
properly notify the public about meetings and abusing the
provisions that allow closed hearings."
4)The American Civil Liberties Union, in support, states, "AB
194 creates the opportunity for citizens denied the limited
speech rights granted by the Brown Act?to demand an
opportunity to be heard enforceable by court order, if
necessary. It also gives the body that had denied speech
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opportunities unintentionally the opportunity to 'cure and
correct' the oversight and avoid litigation. The current
statutory remedies for violations of the public comment are
insufficient to properly protect the public's right to be
heard at local government meetings."
Californians Aware, also in support, write, "We closely
monitor press and individual reports of suspected violations
of the Ralph M. Brown Act, and have noticed that too often the
complaint deals with a denial of a citizen's statutory and
constitutional right to address the legislative bodies of
local agencies in their open and public meetings. AB 194 is a
welcome opportunity to protect the public's right to address
its representatives in meaningful ways in the public forum."
5)The Association of California School Administrators (ACSA), in
opposition, notes, "The 'null and void' provisions of the
Brown Act exist to address decisions made in a secret and
undisclosed manner when no other remedy exists. AB 194
expands the use of the 'null and void' decision to challenge
any controversial public decision or limitation on comment?
AB 194 might be necessary if the Brown Act did not already
expressly require public comment and criticism on any issue
before the board or within its jurisdiction. But ACSA
believes AB 194 will result in the disruption of many
decisions decided by governing boards because of the threat of
litigation."
The California Special Districts Association, also in
opposition, argues that "(the Brown Act's) 'null and void' is
incompatible with public comment violations for the following
reasons and could further confuse this area of law.
a) 'Null and void' applies to real action. Public comments
during an open meeting can address a laundry list of
issues, both on and off the agenda. Members of the public
can also address agenda items that are listed as
informational/discussion only or action items that require
a vote. It is not clear how the court could 'null and
void' an action when there was simply no collective action
taken, either because the agenda item was informational or
the public comment addressed a matter not on the agenda.
b) 'Null and void' applies to actions of the entire
legislative body. All of the current open meeting
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requirements?subject to 'null and void' penalties reflect
collective actions taken by a board?However, AB 194 would
add a violation that results from a single board member's
action, specifically when the presiding chair or president
limits criticism during the public comment period. This
addition would create inconsistency within the current
section.
"Finally, AB 194 unintentionally offers a new means to stall
the decision-making process of a local legislative body. A
speaker could claim that their negative comments were blocked
and as a result hold a key decision in suspense. This could
cause immeasurable harm to contracting agreements,
appointments, license applications or any other time-sensitive
issue that is required to be acted on during an open session
of a public meeting."
6)The Committee may wish to consider the following:
a) Is there sufficient evidence that Brown Act provisions
regarding public comment and public criticism are being
violated by local governing bodies throughout the state to
justify a change in current law?
b) Is the remedy proposed by this bill consistent with
current law? Do violations of Brown Act provisions
regarding public comment and public criticism merit a null
and void action?
c) How might the bill's provisions be interpreted by the
courts? If a court finds that the public comment and
public criticism provisions of the Brown Act have been
violated by a local agency governing body, what action
would then be declared null and void? Would a null and
void determination apply to the agenda item under
discussion at the time of the violation, or would it apply
to all actions taken during a meeting in which a violation
occurred?
d) Could the remedy proposed by this bill pose an undue
burden for local agencies?
7)Prior legislation :
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a) SB 1003 (Yee), Chapter 732, Statutes of 2012, amended
the Brown Act to authorize a district attorney or any
interested person to take legal action to determine whether
or not an ongoing or past action (up to nine months) of a
local legislative body has violated the Brown Act. It also
created a process by which plaintiffs can secure an
enforceable commitment against future violations and seek
an award of court costs and attorneys' fees in certain
cases.
b) AB 194 (Dymally) of 2005 would have placed the burden of
proof on the legislative body of a local agency that its
actions were not in violation of the Brown Act and would
have permitted actions taken in substantial compliance with
the Brown Act to be declared null and void if they were
alleged to have been taken in violation of the Brown Act.
This bill died in the Assembly Local Government Committee.
8)Support arguments : Supporters believe this bill protects the
public's right to be heard by their local governing bodies
through public comment and public criticism.
Opposition arguments : Opponents contend this bill is
detrimental to the ability of local governing bodies to make
decisions and will invite unnecessary litigation.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
Californians Aware
Opposition
Association of California School Administrators
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Association of California Water Agencies
California Association of Clerks and Elections Officials
California Special Districts Association
California State Association of Counties
City of Camarillo (prior version of the bill)
City of Thousand Oaks (prior version of the bill)
County of Tulare (prior version of the bill)
El Dorado Irrigation District (prior version of the bill)
League of California Cities
Los Angeles County Board of Supervisors (prior version of the
bill)
Rural County Representatives of California
Sacramento County Board of Supervisors (prior version of the
bill)
Solano County Board of Supervisors (prior version of the bill)
Urban Counties Caucus
Analysis Prepared by : Angela Mapp / L. GOV. / (916) 319-3958