BILL ANALYSIS �
AB 194
Page 1
ASSEMBLY THIRD READING
AB 194 (Campos)
As Amended January 27, 2014
Majority vote
LOCAL GOVERNMENT 6-0
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|Ayes:|Levine, Alejo, Bradford, | | |
| |Gordon, Mullin, Rendon | | |
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SUMMARY : Allows a district attorney or interested party to seek
"null and void" judicial determinations for violations of the
Ralph M. Brown Act's (Brown Act) 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.
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4)Specifies that this bill shall not apply to any agenda item
except the agenda item or items acted upon in violation of the
Brown Act's public comment and public criticism protections,
with regard to an action that is alleged to have been taken in
violation of those protections.
EXISTING LAW :
1)Allows a district attorney or any interested party to seek a
judicial determination that an action taken by a legislative
body is null and void if the legislative body violates any of
the provisions of the 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
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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
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,
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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 : This bill allows a district attorney or interested
party to 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 does not apply to
any agenda item except the agenda item or items acted upon in
violation of the Brown Act's public comment and public criticism
protections, with regard to an action that is alleged to have
been taken in violation of those protections. This bill is
sponsored by the author.
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:
1)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.
2)A requirement that local legislative bodies publicly post an
agenda prior to all regular meetings, and a provision that
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prohibits local legislative bodies from acting on or
discussing items that are not on the posted agenda, with
limited exceptions.
3)A provision allowing local legislative bodies to hold closed
sessions for limited purposes and providing standards for
acceptable descriptions of closed session agenda items.
4)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 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.
5)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.
6)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
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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:
1)Require 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.
2)Allow 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)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.
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
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about meetings and abusing the provisions that allow closed
hearings."
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 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."
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.
"'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
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collective action taken, either because the agenda item was
informational or the public comment addressed a matter not on
the agenda.
"'Null and void' applies to actions of the entire legislative
body. All of the current open meeting 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."
Recent amendments to this bill specify that the bill shall not
apply to any agenda item except the agenda item or items acted
upon in violation of the Brown Act's public comment and public
criticism protections, with regard to an action that is alleged
to have been taken in violation of those protections.
The Legislature may wish to consider the following:
1)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?
2)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?
3)Could the remedy proposed by this bill pose an undue burden
for local agencies?
Prior legislation:
1) SB 1003 (Yee), Chapter 732, Statutes of 2012, amended
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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.
2) 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.
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.
Analysis Prepared by : Angela Mapp / L. GOV. / (916) 319-3958
FN: 0003017