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HomeMy WebLinkAboutMINUTES - 03241992 - 1.35 /�, /, TO: BOARD OF SUPERVISORS Contra FROM: Phil Batchelor, County Administrator Costa n. js x• County DATE: March 19, 1992 c°spa 66U `4~` SUBJECT: LEGISLATION: SB 1538 (Kopp, et al) SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATION: Adopt a position of SUPPORT AND SEEK AMENDMENTS in regard to SB 1538 by Senators Kopp, Ayala, Marks & Rosenthal and Assemblymen Conroy, Filante & Nolan which substantially broadens the Ralph M. Brown "Open Meeting" law. BACKGROUND: Current law (The Ralph M. Brown Act, Chapter ,9, Part 1, Division 2, Title 5 of the Government Code, commencing with Section 54950) requires that the meetings of the legislative bodies of local agencies be conducted openly, provides certain notice requirements concerning public meetings and makes it a misdemeanor for a member of a legislative body to attend a meeting where a violation occurs, if the member had knowledge of the fact that the meeting violates the act. SB 1538 has been introduced by Senator Kopp and others. As introduced, SB 1538 does the following: 1. Applies the Brown Act to all private nonprofit organizations with regard to their boards of directors concerning programs or activities supported by grants, contracts, or other funding from federal, state or local public agencies . 2 . Defines the term "public works project" for purposes of current law which already applies the Brown Act to all nonprofit corporations which are created by a local agency formed to acquire, construct, maintain or operate any public works project as long as the local agency appoints any of the members of the board of directors of the corpora on. �AA CONTINUED ON ATTACHMENT: YES SIGNATURE: /f/�7 de`� IL RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE e APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON Marcn Z4 , APPROVED AS RECOMMENDED X OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE X UNANIMOUS(ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. CC: County Administrator ATTESTED MAR 2 4 1992 County Counsel PHIL BATCHELOR,CLERK OF THE BOARD OF District Attorney UPERVISORS AND COUNTY ADMINISTRATOR Steve Swendiman, ' 'Executive Director, CSAd Les Spahnn, SRJ. Jackson, Barish & Associa es BY DEPUTY M382 (10/88) -2- 3 . Deletes the distinction between serving in their official capacity and any other capacity in which an officer of a local agency may serve for purposes of current law which already applies the Brown Act to any board, commission, committee or other body on which officers of a local agency serve which is supported in whole or in part by funds from the agency. 4 . Eliminates the distinction between whether a board, commission, committee or similar body is organized and operated by a local agency or by a private corporation for purposes of current law which includes in the definition of "legislative body" any board, commission or committee or similar body which exercises any authority of a legislative body of a local agency which is delegated to it by that legislative body. 5 . Requires an advisory body to post an agenda for its meetings in the manner required of the body it advises . 6 . Includes within the definition of a "legislative body" any standing committee of a governing body regardless of its composition. 7 . Includes within the definition of a "meeting" for purposes of the Brown Act any congregation of a majority of the members of a legislative body in the same time and place, except a purely social or ceremonial occasion other than one organized by and for the legislative body itself, provided that a majority of the members .refrains from using the occasion to collectively discuss any business within the subject matter jurisdiction of the agency. 8 . Includes within the definition of a "meeting" for purposes of the Brown Act, any series of gatherings of less than a majority of the legislative body to hear, discuss or deliberate upon any item that is within the subject jurisdiction of . the agency, if the cumulative result is that a majority of members has become involved in the gatherings. 9 . Includes within the definition of a "meeting" for purposes of the Brown Act, any other use of personal intermediaries or technological devises that permits a majority of the members of a legislative body to become aware of an item of business and of the views or positions of other members with respect thereto, and to negotiate consensus thereupon. 10 . Makes a public record under the California Public Records Act any recording of an open and public meeting made under the direction of a local agency. 11 . Requires meetings to be held within the boundaries of the territory over which the agency exercises jurisdiction, with limited exceptions . 12 . Requires that the agenda for the meeting contain a meaningful description of each item of business, as defined. 13 . Provides additional restrictions on the type of discussion which may take place on an item not on the agenda by providing that no action or discussion shall take place on an item not on the agenda except that members of the legislative body may respond to statements made or questions posed by members of the public speaking during the public comment period to the extent of asking a question for clarification, providing a reference to staff or other resources or requesting a report back from staff at a subsequent time. 14 . Provides additional restrictions on those items which may be brought up -and acted on which were not listed on the agenda by providing that the determination by the legislative body of the need for action must be a good faith, reasonable determination and that the need to act on the item is so -3- imperative as to threaten serious injury to the public interest if action were deferred to a subsequent special or regular meeting and that the need for action came to the attention of the local agency subsequent to the posting of the agenda. 15 . Provides that an opportunity must be provided for members of the public to address the legislative body before action is taken on an item at special as well as regular meetings of the legislative body. 16 . Prohibits the legislative body from abridging or prohibiting public criticism of the agency or its programs or services on any basis other than reasonable time constraints, except as defined for cases of personal attack on a named or clearly identifiable public employee. 17 . Provides standardized formats and information which must be provided on any item to be discussed in closed session. 18 . Limits the circumstances under which "pending litigation" can be discussed in closed session by indicating that litigation shall not be considered "pending" if it is contingent. on some future action of the legislative body and specifies that legal advice as to the potential litigation consequences of an action before the action has been taken, must be provided openly as a matter of public record. The current requirement for a memorandum from legal counsel setting forth the specific legal authority for the closed session is repealed. . 19 . Limits the persons defined as "employees" for purposes of holding a closed session for various purposes relating to employees by excluding from the definition of "employee" any elected official, members of a legislative body, or persons providing services to the local agency as an independent contractor or the employee of an independent contractor. 20 . Increases the reporting requirements following a closed session by requiring the legislative body to publicly report any action taken in closed session and the vote of every member present on real estate negotiations, litigation and pending litigation issues, claims for various liability losses, various personnel actions and certain collective bargaining matters . The bill also prescribes how the reports are to be made and would require a written summary of the information to be posted. 21 . Requires that an audio tape be kept of every closed session and requires that the tape be kept for one year. The tapes would not be public records but would be available for inspection by the district attorney, grand jury or superior court in camera regarding potential violations of the Brown Act. 22 . Restricts the periods of time within which a closed session can be held ,regarding the salary and benefits of employees to periods of active consultation and discussion and would exclude from closed sessions employees directly or indirectly interested in the outcome of negotiations . 23 . SB 1538 makes other changes in provisions of the Brown Act dealing with penalties for violating its provisions . . What SB 1538 does not do is to apply its provisions to the State Legislature, state agencies or other. boards, commission or committees established by the Legislature. On March 17, 1992, at the request of Supervisor Schroder, the Board of Supervisors asked that SB 1538 be listed on the agenda for March 24, 1992 so the Board could consider taking a position on the bill . From the discussion among the Board members, it is staff ' s understanding that the Board wishes to support SB 1538 as introduced, but also ask the author to apply the Brown Act to the Legislature and its -4- committees, state agencies and state boards, commissions and committees . If the concept of "open meetings" is appropriate for local government it is not clear why it is not also appropriate for state government. It is, therefore recommended that the Board adopt a position of SUPPORT AND SEEK AMENDMENTS in regard to SB 1538 and include in --its support of SB 1538 provisions which would made all provisions of the Brown Act also applicable to the Legislature, state agencies and boards, commissions and committees in the same way these provisions are applicable to local government.