BILL ANALYSIS AB 1426 Date of Hearing: April 21, 1993 ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT Sam Farr, Chair AB 1426 (Burton) - As Introduced: March 3, 1993 ASSEMBLY ACTIONS: COMMITTEE L. GOV. VOTE> COMMITTEE W. & M. VOTE> Ayes: > Ayes: > Nays: > Nays: > SUBJECT: Revises the Ralph M. Brown Act. DIGEST Existing law under the Ralph M. Brown Act: 1) Defines "local agency" to include any nonprofit corporation, created by one or more local agencies, if one or more directors is appointed by the local agencies and the corporation is formed to acquire, construct, reconstruct, maintain, or operate any public work project 54951.7!.š 2) Defines "legislative body" to include a body on which local agency officers serve in their official capacity or a body exercising authority delegated by a legislative body or serving as an advisory body 54952.2, 54952.3!.š 3) Requires all meetings of the legislative body to be open and public 54953!, and allows public meeting attendees to record proceedings on a š tape recorder 54953.5!.š 4) Provides that legislative body meetings need not be held within the boundaries of the agency's territory unless otherwise provided for in the Act under which the local agency was formed, and in emergencies, meetings may be located in a place designated by the presiding officer of the body 54954!. š 5) Requires a local agency to post an agenda at least 72 hours before a regular meeting containing a description of each item of business to be transacted or discussed at the meeting. No action can be taken on any item not appearing on the posted agenda 54954.2!.š 6) Allows closed sessions under certain circumstances 54956.9!, allows š closed sessions on matters relating to an employee unless the employee requests a public hearing 54957!, requires local agencies to publicly š - continued - AB 1426 Page 1 AB 1426 report actions involving employees following a closed session 54957.1!, and allows a legislative body to designate a clerk, officer, š or employee to enter certain closed session matters in a minute book 54957.2!. Prior to holding a closed session, the legislative body š must state the general reason for holding the closed session which must be made part of the notice for special, adjourned, and continued meetings 54957.7!.š 7) Provides that writings distributed to all or a majority of the members of a legislative body by a member, officer, or employee for discussion or consideration at a public meeting are public records under the California Public Records Act, unless exempt from public disclosure. Items which are distributed must be made available for public inspection 54957.5!.š 8) Allows any interested person to commence an action for a judicial determination that an action is in violation of the Act (there must be "knowledge of the fact that the meeting is in violation" of the Act), and a written demand to cure or correct an action alleged to be in violation of the Act must be made within 30 days of the action 54959, š 54960.1!. 9) Prohibits a local agency from conducting any meeting, conference, or function in any facility that prohibits the admittance of any person on the basis of race, religion, color, national origin, ancestry, or sex 54961!.š This bill: 1) Clarifies that "public work project" is associated with services and activities intended for public use rather than private residential use 54951.7!.š 2) Provides that the delegated authority applies whether the body is organized and operated by the local agency or by a private corporation created to exercise the delegated authority, with certain exceptions, and adds "standing committees" to the Act's requirements 54952.2, š 54952.3!. A definition is provided for "meeting" 54952.6!, and any š person elected to serve as a legislative body member, but has not yet assumed office, must also conform to the Act's requirements 54952.5!.š 3) Specifically prohibits actions by secret ballot 54953!, and allows š recording by video, still, or a motion picture camera (Any tape or film record must be a public record and cannot be erased for 30 days after the taping. Any inspection must be provided without charge on a tape recorder made available by the local agency.) 54953.5!.š 4) Requires meetings to be held within the agency's boundaries with certain exceptions (e.g., inspecting real or personal property, in agency's principal office, visiting legal counsel), and in an emergency the local media requesting notice shall be notified "by the most rapid means of communication available at the time" 54954!.š - continued - AB 1426 Page 2 AB 1426 5) Specifies how agenda items must be described (i.e., sufficient to inform an interested member of the public), revises conditions for discussing items not appearing on a posted agenda, and specifically prohibits a legislative body from abridging or prohibiting constitutionally protected speech 54954.2!.š 6) Revises certain closed session procedures 54956.9!, describes closed š session notice requirements for certain closed session issues 54954.5!, requires employee notice as a condition to holding a closed š session to consider disciplinary action or dismissal 54957!, and š requires (rather than allows) designation of a clerk, officer, or employee to enter closed session matters in a minute book 54957.2!. š Provisions relating to pending litigation and legal advice allowed in closed session are revised (specifies that this provision does not affect the privilege of written communications between legal counsel and the legislative body) 54956.9!. Provisions relating to the š reporting of closed session activities are revised and expanded to include notice following the session regarding real estate negotiations, legal counsel actions, settlements, claims against the agency, employee bargaining information, as well as matters relating to actions to appoint, employ, dismiss, transfer, or accept the resignation of an employee 54957.1!. Procedures for notice prior to, š and following, a closed session are revised (e.g., legislative body must reconvene into open session, closed session matters must be disclosed at reconvened session) 54957.7!.š 7) Provides that the writings are a public record if distributed by any person in connection with a matter subject to discussion, and items "intended" for distribution must be made available for public inspection and copying. Procedures relating to the distribution and inspection of materials and the affect on the California Public Records Act are also revised 54957.5!.š 8) Allows the district attorney to also commence an action, revises the violation provisions so that there must be an "intent to deprive the public of information" rather than with "knowledge of the fact that the meeting is in violation" of the Act, and sets a 90-day period for making a written demand regarding alleged closed session violations 54959, 54960.1!.š 9) Prohibits an agency from also conducting any meeting in a facility that is inaccessible to disabled persons, or where the public cannot be present without making a payment or purchase 54961!.š 10) Makes numerous technical and corresponding amendments. 11) Includes an urgency clause. FISCAL EFFECT State mandated local program; contains crimes and infraction disclaimer. - continued - AB 1426 Page 3 AB 1426 Department of Finance estimated that the reimbursable costs relating to AB 3476 (Burton) of 1992 would be at least $1 million annually for school districts and $3.7 million annually for other local entities. COMMENTS 1) Background. The Ralph M. Brown Act requires meetings of a local agency "legislative body" to be open and public, with certain exceptions. "Legislative body" includes officers of a local agency serving in their official capacity as members of a board, commission, committee or other body supported with agency funds. Although the Act provides definitions for these terms, there are questions over what constitutes a "local agency", "legislative body", and a "meeting". Concerns also exist over meeting locations, recording meetings, adequacy of notices, closed session activities, distribution of materials, and violations. Last year, the author introduced AB 3476 in response to these concerns, as described in #1 to #10 above. Because of alleged abuses, the California First Amendment Coalition, the California Newspaper Publishers Association, and other groups, supported AB 3476 and SB 1538 (Kopp). These bills followed numerous meetings involving various interests, including two long conference committee hearings chaired by Assembly Member Farr. Governor Wilson vetoed both bills, stating in each veto message: "This bill would make a number of changes in the Ralph M. Brown Act relating to open meetings. It would expand the number of local agencies subject to the law, and expand notice, recordation, and recordkeeping requirements. While I strongly support the provisions of the Brown Act, and have signed legislation strengthening its application, I am concerned that this bill would add substantial new state-mandated and reimbursable costs to local governments. Current law requires that all local agencies give notice of their meetings, the subject matter of the meetings, and the fact that they are open to the public. This mandate was determined to be reimbursable, but was not funded in the 1992 Budget Act, and therefore was made optional for local government for 1992-93. It would be an anomaly if this bill of lesser significance was chaptered and deemed reimbursable, while core provisions of the Brown Act were suspended pending a year with a better fiscal outlook. I would consider this bill another year, when there is money available to provide the state-mandated reimbursement. However, I cannot approve mandating expensive new requirements while we are - continued - AB 1426 Page 4 AB 1426 unable to afford the ones on the books today." The Legislature's suspension of AB 102 (Connelly) Chapter 641, Statutes of 1986, a critical element of the Ralph M. Brown Act, in the Budget Act of 1992, provided a basis for the Governor to veto AB 3476 and SB 1538 (That suspended mandate was subsequently stricken by SB 593 (Kopp) Chapter 1365, Statutes of 1992.). 2) Reaching Consensus. According to the author, amendments to the Act that are included in this bill may be further refined based on continuing input from various interests. Because the Act includes various definitions sections, there is also interest in consolidating and simplifying some sections so that the Act can be more easily understood by the public, press, and legislative bodies. 3) Related Legislation. SB 36 (Kopp) is similar to AB 1426 but deletes provisions relating to the privilege of written communications between legal counsel and the legislative body (#6 above), revises the time periods for commencing an action (#8 above), and allows courts to order the taping of closed sessions. SB 1140 (Calderon) covers some of the matters contained in AB 1426 (e.g., secret ballots, closed session disclosure requirements, affect on newly elected members). SUPPORT OPPOSITION California Professional Firefighters None on file. - continued - AB 1426 Page 5