BILL NUMBER: SB 1003	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Yee

                        FEBRUARY 6, 2012

   An act to amend Section 54960 of the Government Code, relating to
local government.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1003, as introduced, Yee. Local government: open meetings.
   Existing law, the Ralph M. Brown Act, requires 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. Existing law 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 act to actions or threatened future action
of the legislative body.
   This bill would additionally authorize the district attorney or
any interested person to file an action to determine the
applicability of the act to past actions of the legislative body.
   This bill would state that it is intended to supersede the
decision of the California Court of Appeal for the Fifth District in
McKee v Tulare County Bd. of Sup'rs (Nov. 2, 2011, F061146) in a
nonpublished opinion.
   This bill would state that its provisions are declaratory of
existing law.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 54960 of the Government Code is amended to
read:
   54960.  (a) The 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 this chapter by members of the legislative body of a
local agency or to determine the applicability of this chapter to
 past  actions or threatened future action of the
legislative body, or to determine whether any rule or action by the
legislative body to penalize or otherwise discourage the expression
of one or more of its members is valid or invalid under the laws of
this state or of the United States, or to compel the legislative body
to audio record its closed sessions as hereinafter provided.
   (b) The court in its discretion may, upon a judgment of a
violation of Section 54956.7, 54956.8, 54956.9, 54956.95, 54957, or
54957.6, order the legislative body to audio record its closed
sessions and preserve the audio recordings for the period and under
the terms of security and confidentiality the court deems
appropriate.
   (c) (1) Each recording so kept shall be immediately labeled with
the date of the closed session recorded and the title of the clerk or
other officer who shall be custodian of the recording.
   (2) The audio recordings shall be subject to the following
discovery procedures:
   (A) In any case in which discovery or disclosure of the audio
recording is sought by either the district attorney or the plaintiff
in a civil action pursuant to Section 54959, 54960, or 54960.1
alleging that a violation of this chapter has occurred in a closed
session that has been recorded pursuant to this section, the party
seeking discovery or disclosure shall file a written notice of motion
with the appropriate court with notice to the governmental agency
that has custody and control of the audio recording. The notice shall
be given pursuant to subdivision (b) of Section 1005 of the Code of
Civil Procedure.
   (B) The notice shall include, in addition to the items required by
Section 1010 of the Code of Civil Procedure, all of the following:
   (i) Identification of the proceeding in which discovery or
disclosure is sought, the party seeking discovery or disclosure, the
date and time of the meeting recorded, and the governmental agency
that has custody and control of the recording.
   (ii) An affidavit that contains specific facts indicating that a
violation of the act occurred in the closed session.
   (3) If the court, following a review of the motion, finds that
there is good cause to believe that a violation has occurred, the
court may review, in camera, the recording of that portion of the
closed session alleged to have violated the act.
   (4) If, following the in camera review, the court concludes that
disclosure of a portion of the recording would be likely to
materially assist in the resolution of the litigation alleging
violation of this chapter, the court shall, in its discretion, make a
certified transcript of the portion of the recording a public
exhibit in the proceeding.
   (5) Nothing in this section shall permit discovery of
communications that are protected by the attorney-client privilege.
  SEC. 2.  It is the intent of the Legislature, in amending Section
54960 of the Government Code, to supersede the decision of the
California Court of Appeal for the Fifth District in McKee v. Tulare
County Bd. of Sup'rs (Nov. 2, 2011, F061146) in a nonpublished
opinion, in which the Court held that injunctive and declaratory
relief were not available to determine the applicability of this
chapter to a past action or practice of a legislative body of a local
agency that the body, while resolving not to repeat it, nevertheless
continued to maintain was lawful.
   The Legislature finds and declares that the amendments made to
Section 54960 of the Government Code by this act are declaratory of
existing law.