HomeMy WebLinkAboutMINUTES - 04172012 - SD.9RECOMMENDATION(S):
CONSIDER a position of "Oppose" on SB 1003 (Yee): Local Government: Open Meetings,
as recommended by the Legislation Committee.
FISCAL IMPACT:
This bill could expose local agecies to an unknown amount of additional litigation costs
under the law, including potential attorneys' fees, even if any questionable past activities
have since ceased.
BACKGROUND:
At its April 5, 2012 meeting, the Legislation Committee considered SB 1003 (Yee): Local
Government: Open Meetings, a bill that would amend the Ralph M. Brown Act regarding
open meetings, 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, and state the
intent of the Legislature that this requirement is intended to supersede the decision of the
California Court of Appeal for the Fifth District in McKee v. Tulare County Board of
Supervisors in a nonpublished opinion.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 04/17/2012 APPROVED AS RECOMMENDED OTHER
Clerks Notes:See Addendum
VOTE OF SUPERVISORS
AYE:John Gioia, District I
Supervisor
Mary N. Piepho, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
ABSENT:Gayle B. Uilkema, District II
Supervisor
Contact: L. DeLaney,
925-335-1097
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the
Board of Supervisors on the date shown.
ATTESTED: April 17, 2012
David Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
SD. 9
To:Board of Supervisors
From:Legislation Committee
Date:April 17, 2012
Contra
Costa
County
Subject:Consider Position of "Oppose" on SB 1003 (Yee): Local Government: Open Meetings
While the Committee expressed support for the Brown's Act's goals of increasing
transparency and public accessibility and accountability, and expressed support for full
compliance with the Brown Act, this measure would create uncertainty as to the fiscal
impact to the County, potentially exposing the County to an unknown amount of additional
litigation under the law without substantively improving public accountability. For these
reasons, the Legislation Committee recommends that the Board of Supervisors consider a
position of "Oppose" on SB 1003.
The League of California Cities has sent in a letter to oppose the bill. (See attached.) CSAC
has not yet taken a position on the bill. The bill will be heard in Senate Governance and
Finance Committee on April 18. The bill analysis is presented below:
BACKGROUND: (CONT'D)
2011 CA S 1003: Bill Analysis - Senate Governance and Finance Committee -
03/21/2012
BILL ANALYSIS
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: SB 1003 HEARING: 3/21/12
AUTHOR: Yee FISCAL: No
VERSION: 2/6/12 TAX LEVY: No
CONSULTANT: Ewing
BROWN ACT ENFORCEMENT
Clarifies that a person can pursue legal action, under the Brown Act, for prior actions of
local agencies.
Background and Existing Law
The Ralph M. Brown Act requires the meetings of local governments' legislative bodies
to be "open and public," thereby ensuring people's access to information so that they may
retain control over the public agencies that serve them.
Private discussions among a majority of a legislative body are prohibited, unless
expressly authorized under the Brown Act. Legislative bodies can 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.
Conferences with the body's representative on labor negotiations.
A conference with real property negotiators.
Multi-jurisdictional drug cases.
District hospital peer reviews, quality assurance committees, or reports involving trade
secrets.
A license or permit determination for those with criminal records.
Local officials must place a closed meeting item on an agenda and cite their statutory
authority to meet behind closed doors. They must report on any action taken in closed
session and provide the vote of every elected member present.
The Act authorizes any person to seek court action to stop or prevent violations of the
Act.
In a 2011 unpublished ruling in McKee v. Tulare County Board of Supervisors, the Court
of Appeal, Fifth Appellate District, ruled that the Brown Act addresses current and
potential future violations, but does not provide for relief for past actions.
Under the case, plaintiffs alleged that the Tulare County Board of Supervisors had a
history of holding 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 prior to meetings.
The Court held that because the practice of 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 interpreted the Brown Act to apply only to present and future actions and thus
indicated that it did not authorize relief for past violations.
Proposed Law
Senate Bill 1003 amends the Brown Act to specify that a district attorney or any
interested person may commence an action by mandamus, injunction, or declaratory
relief to determine whether the Brown Act applies to a local legislative body's past
actions, as well as threatened future actions.
SB 1003 declares the Legislature's intent to supersede the decision of the court in McKee
v. Tulare County Board of Supervisors, and declares the bill to be declaratory of existing
law.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill. SB 1003 clarifies that the relief available under the Brown Act
extends to past actions, as well as future actions of legislative bodies of local agencies.
The bill clarifies the meaning of existing law and will fortify public accountability for
local agencies.
2. Muddied waters. SB 1003 makes changes to the Brown Act that will open a floodgate
of litigation for past actions, potentially for actions in the distant past, which may not be
able to be remedied under the cure provisions of the Act. The bill could subject local
agencies to significant legal costs without substantively improving public accountability.
3. Similar legislation. SB 1003 is similar to AB 1234 (Shelley, 1999), which clarified that
the relief provisions of the Bagley-Keene Open Meeting Act apply to past actions.
Bagley-Keene applies to state agencies. AB 1234 was introduced in response to a legal
case similar to McKee v. Tulare County Board of Supervisors in which the Court ruled
that prior to AB 1234, the Legislature did not intend the relief available under
Bagley-Keene to apply to past actions. It is unclear, since the passage of AB 1234, if state
agencies have faced additional legal challenges under Bagley-Keene or if that history is a
sufficient guide on whether local agencies will face additional unwarranted scrutiny
under SB 1003.
Support and Opposition (3/14/12)
Support: American Federation of State, County and Municipal Employees, AFL-CIO;
Californians Aware, California Newspaper's and Publisher's Association, First
Amendment Coalition
Opposition: Association of California School Administrators
CONSEQUENCE OF NEGATIVE ACTION:
If the Board of Supervisors does not take a position on the bill, the County will be unable
to advocate its position.
CLERK'S ADDENDUM
ADOPTED position of "Watch" (i.e. monitor) SB 1003 (Yee): Local Government:
Open Meetings.
ATTACHMENTS
SB 1003 (Yee) Bill Text
League of CA Cities Oppose Letter for SB 1003
March 16, 2012
The Honorable Leland Yee
State Capitol, Room 4074
Sacramento, CA 95814
RE: SB 1003 (Yee): Open Meetings: Past Actions
Notice of Opposition
Dear Senator Yee,
We regret to inform you that the League of California Cities (League) opposes SB 1003,
which would amend the Ralph M. Brown Act to add “past” actions to Government Code
section 54960 (a). This change would apply the law’s sanctions to all past violations of
the Brown Act -- even if those activities have since ceased. For all of the reasons stated
below, we must regrettably oppose SB 1003.
Under existing law, a District Attorney or any interested person may bring an action to
determine the applicability of the Brown Act to present actions or threatened future
actions of local agencies. By adding “past” actions, the bill seeks to supersede the
unpublished decision of McKee v. Tulare County, 2011 WL 5184469 (Cal.App. 5 Dist.),
which held that injunctive or declaratory relief was inapplicable to the alleged past
violations of the Brown Act by the Tulare County Board of Supervisors, since their past
practice of holding regular lunches that were not noticed as meetings was no longer
taking place, nor would it in the future. As a result, the issue was moot and no relief
could be granted. If past actions have ceased and will not occur again, a court’s sole role
is to provide an advisory opinion -- which is unlikely since it is a well-settled legal
principle that courts are precluded from providing an opinion when there is no current
case or controversy. The 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, Government Code section 54960.1 (also under the Brown Act) already
provides for judicial relief to invalidate actions that took place in the preceding 90 days,
although the provision covers more narrow circumstances. Further, this bill would only
invite and increase the instances of costly litigation against local agencies even if they are
no longer engaged in a questionable activity that may or may not have violated the
1400 K Street, Suite 400 Sacramento, California 95814
Phone: 916.658.8200 Fax: 916.658.8240
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SENATE BILL No. 1003
1 Introduced by Senator Yee
February 6, 2012
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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.
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The people of the State of California do enact as follows:
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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:
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(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.
O
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SB 1003— 3 —