HomeMy WebLinkAboutItem 7.2 Amendment to Brown Act (2) CITY OF DUBLIN
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: April 27, 1992
SUBJECT: Amendment to Brown Act - Senate Bill 1538 (Kopp)
(Prepared by Elizabeth H. Silver, City Attorney)
EXHIBITS ATTACHED: Memoranda to City Council from City Attorney dated
April 3, and April 21, 1992
RECOMMENDATION: 1) Receive Report
Consider taking position in support or in
opposition to bill.
FINANCIAL STATEMENT: If 5B 1538 were to pass in its present form,
it would impose very minimal costs on the
City.
DESCRIPTION: At the City Council meeting on March 23 , 1992 ,
Councilmember Howard inquired regarding the provisions of Senate Bill
1538, a bill introduced by Senator Kopp to amend the Brown Act (Open
Meeting Law) .
The attached memorandum from the City Attorney to the City Council
dated April 3 , 1992 , summarized the status of SB 1538 as of the date
of the memorandum, and the provisions of SB 1538, as of that date.
A second hearing occurred on April 8, 1992, before the Senate Local
Government Committee. Testimony was limited to only two witnesses on
each side of the issue. The bill was passed out of committee, to the
Senate Rules Committee.
Amendments have been made to the bill and printed in an April 6, 1992 ,
amended version of the bill. The amendments are described in the
attached memorandum from the City Attorney dated April 21, 1992 .
The City Attorney will provide the Council with an update of the
status of SB 1538 at the Council meeting.
If the Council wishes to take a position in favor of or in opposition
to SB 1538, it should direct Staff to prepare a letter to be sent to
Senator Kopp and members of the Legislature expressing the Council's
position.
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COPIES TO:
ITEM NO. CITY CLERK-7� 2
FILE 0
MEYERS, NAVE, RI-BACK & SILVER
MICHAEL R.NAVE A PROFESSIONAL LAW CORPORATION PENINSULA OFFICE
STEVEN R.MEYERS 1220
ELIZABETH H.SILVER GATEWAY PLAZA BUR HOWARD CA SUITE 250
MICHAEL S.RIBACK 777 DAVIS STREET,SUITE 300 TELEPHONE:CA 94010-130
TELEPHONE:(415)348-7130
MICHAEL F.RODRIQUEZ SAN LEANDRO,CALIFORNIA 94577 FACSIMILE:(415)342-0886
KATHLEEN FAUSION TELEPHONE:(510)351-4300
FREDERICK S.ETHERIDGE FACSIMILE:(510)351-4481
WENDY A.ROBERTS
DAVID W.SKINNER MEMORANDUM
STEVEN T.MATTAS
OF COUNSEL
ANDREA J.SALTZMAN REPLY TO:
San Leandro
TO: City Council DATE: April 3, 1992
FROM: Elizabeth H. Silver, City Attorney
Fred S. Etheridge, Associate Attorney
RE: SB 1538 - Senator Kopp's Brown Act Legislation
As you know, Senator Kopp has introduced legislation
amending the Brown Act. (California Government Code §§ 54950
et sea. ) If enacted in its current form, the bill will make
sweeping changes to the Brown Act. At Councilmember Howard's
request , this memorandum reviews the current status of SB 1538
and its provisions as currently drafted.
(1) Current Status of SB 1538
SB 1538 was introduced on February 18, 1992 by Senator Kopp.
It was amended once in the Senate on March 23, 1992 , and a
hearing was held before the Senate Local Government Committee on
Wednesday, March 25. There was extensive testimony taken at the
hearing, but no vote occurred. As a result of the testimony,
amendments are now being made to SB 1538 . The next hearing on SB
1538 is on April 8, 1992 , again before the Senate Local
Government Committee. A vote on the bill is scheduled to be
taken at that hearing. If approved, the bill would then proceed
to the Senate Appropriations Committee.
(2) Provisions of SB 1538
Outlined below is a section-by-section review of the bill ' s
current provisions. ,,
Section 1•
SB 1538 adds a definition of "public work project" in regard
to local agencies.
TO: City Council
FROM: Elizabeth H. Silver, City Attorney
Fred S. Etheridge, Associate Attorney
RE: SB 1538 - Senator Kopp's Brown Act Legislation
DATE: April 3, 1992
PAGE: 2
Section 2 •
SB 1538 provides that a member of a legislative body is
acting in his or her "official capacity" when serving on an
advisory committee or task force responsible for recommending
policy to be considered by the legislative body.
Section 3 •
SB 1538 would expand the term "legislative body" to include
a body, such as a board or commission, which exercises any
authority of a legislative body of a local agency, whether that
body is organized and operated by the local agency or by a
private corporation specifically created to exercise the
delegated authority. Thus, this provision expands the scope of
the Brown Act to include non profit agencies which are
financially supported by or created by local government.
Section 4 •
Existing law includes within the definition of "legislative
body" certain advisory bodies, such as commissions, of a local
agency. SB 1538 would require such an advisory body to post an
agenda for its meetings in the same place the body it advises
posts its agendas.
Existing law excepts committees composed solely of less than
a quorum of members of a governing body from the definition of a
"legislative body" . SB 1538 would include as a "legislative
body" any standing committee of a governing body irrespective of
its composition. Thus, standing committees, even if composed
solely of members of a governing body, would constitute
legislative bodies. SB 1538 excludes "limited duration ad hoc
committees" from this requirement. It is not clear where the
line is between a "limited duration ad hoc committee" and a
standing committee.
Section 5•
This amendment provides that the term "legislative body"
also includes planning commissions, library boards, recreation
commissions, and other permanent boards or commissions of a local
agency.
TO: City Council
FROM: Elizabeth H. Silver, City Attorney
Fred S. Etheridge, Associate Attorney
RE: SB 1538 - Senator Kopp's Brown Act Legislation
DATE: April 3 , 1992
PAGE: 3
Section 6•
SB 1538 adds a new requirement that the term "member of a
legislative body" includes any person elected to serve as a
member of the legislative body but who has not yet assumed the
duties of office. Thus, for example, councilmembers-elect would
be councilmembers for purposes of the Brown Act even before they
entered office.
Section 7 •
SB 1538 makes minor changes to the term "action taken" .
Section 8 •
SB 1538 redefines a "meeting" to include any congregation of
a majority of the members of a legislative body in the same time
and place, regardless of the location or purpose of the meeting.
Social .events are excluded from the definition of "meetings" if
the event is sponsored by a group other than the Council. Thus,
for example, the Councilmembers would have violated the Act by
attending the events held at the Civic Center to celebrate the
10-year anniversary of the City.
Attendance by a quorum at League of California Cities '
meetings and other meetings organized to address topics of local
community concern would be permitted.
The definition of meeting is also broadened to include
serial meetings, for example, where one person goes from
councilmember to councilmember communicating information. Serial
meetings are currently prohibited by case law.
Section 9 •
SB 1538 provides that a legislative body may require that a
copy of the Brown Act be given to each of its. members.
Section 10:�
SB 1538 provides that no legislative body may take action by
secret ballot, whether preliminary or final.
TO: City Council
FROM: Elizabeth H. Silver, City Attorney
Fred S. Etheridge, Associate Attorney
RE: SB 1538 - Senator Kopp's Brown Act Legislation
DATE: April 3 , 1992
PAGE: 4
Section 11•
SB 1538 requires that any recording made of a public
meeting, when that recording is made at the direction of the
local agency, shall be a public record pursuant to the California
Public Records Act. Such recording shall not be erased or
destroyed after a request for inspection or copying has been made
until that inspection or copying is done.
Section 11. 5•
SB 1538 adds a provision requiring that a legislative body
may not prohibit or restrict the broadcast of its proceedings
unless it makes a reasonable finding that the broadcast cannot be
accomplished without disrupting the proceedings.
Section 12 •
SB 1538 requires that all meetings of a local legislative
body be held within the boundaries of that body's territory.
Given the expanded definition of the term "meeting, " this would
prohibit gatherings of a quorum of a legislative body outside
city boundaries, except for the meeting exclusions listed in
Section 8 .
Section 13 •
Existing law requires that an agenda be posted before
regular meetings. SB 1538 requires that a detailed description
of items be included on agendas, and provides a vaguely-worded
standard to define what notice is .!'adequate" .
Section 14 •
SB 1538 prohibits a legislative body from restricting public
criticism of the policies of the agency. This is simply a
codification of the public' s First Amendment rights.
Section 15•
SB 1538 requires disclosures on the nature of closed
sessions. Such disclosures must follow a detailed format for
each type of closed session.
TO: City Council
FROM: Elizabeth H. Silver, City Attorney
Fred S. Etheridge, Associate Attorney
RE: SB 1538 - Senator Kopp's Brown Act Legislation
DATE: April 3 , 1992
PAGE: 5
Section 15. 5•
SB 1538 requires that when a meeting is adjourned or
continued, a Notice of Adjournment must be given to each local
radio or television station requesting such notice. The notice
must be given within one hour of the adjournment, and it must be
given by telephone or facsimile.
Section 16•
Existing law allows counsel for the legislative body to meet
in closed session to advise the body on pending litigation. SB
1538 would limit this provision, by providing that litigation
shall not be "deemed pending" if it is contingent upon some
future action of the legislative body. Furthermore, the bill
provides that legal advice as to potential litigation
consequences of actions not yet taken must be conveyed openly.
SB 1538 also deletes the current requirement that a
memorandum be prepared by agency counsel explaining the reasons
for the closed session.
Section 17 •
Existing law allows a closed session to be held for purposes
of discussing matters relating to employees. SB 1538 would limit
such closed sessions by deleting from the term "employee" any
elected official, member of a legislative body, independent
contractor or employees of independent contractors.
Section 18•
Existing law requires the legislative body to report the
outcome of a closed session only when action is taken regarding
certain employment matters. SB 1538 would require that the
legislative body, immediately after getting out of virtually
every closed session, report the action taken. and the vote or
abstention of every member present. The bill also requires such
reports to be supported by copies of any contracts, agreements or
other documents approved or adopted in closed session. Finally,
SB 1538 requires a written summary of such information to be
posted by the close of business on the next business date
following the closed session.
TO: City Council
FROM: Elizabeth H. Silver, City Attorney
Fred S. Etheridge, Associate Attorney
RE: SB 1538 - Senator Kopp's Brown Act Legislation
DATE: April 3 , 1992
PAGE: 6
Section 19•
SB 1538 requires the tape recording of all closed sessions.
The tapes are to be retained for one year and must be available
for inspection by the District Attorney, the Grand Jury or a
superior court.
Section 20•
SB 1538 declares all documents intended for distribution to
a majority of the members of a legislative body -- even if the
documents are not actually distributed -- to be public records.
As such, members of the public are entitled to such documents and
may request such documents prior to the meeting at which the
documents are intended to be distributed. Local bodies may
charge a copying fee no more than $. 05 per page for copies of
such records.
Section 21•
Existing law allows a legislative body to meet with its
labor negotiators in closed session. SB 1538 would restrict such
closed sessions so that they may take place only prior to and
during active labor negotiations. The bill would also exclude
from such sessions any employees directly or indirectly
interested in the outcome of the negotiation.
Section 22 :
Existing law requires a statement to be made just before and
after a closed session as to the reasons for that session. SB
1538 clarifies this to state that such statements must be made in
an open meeting.
Section 23 •
Existing law provides that any member of, a legislative body
who attends a meeting in violation of the Brown Act, with
knowledge that the meeting violates the Brown Act, is guilty of a
misdemeanor. SB 1538 deletes the knowledge requirement, making
the attendance at an unauthorized meeting a strict liability
violation of the Act, with the member subject to a civil penalty.
Following a third or subsequent violation, the member of the
legislative body is guilty of a misdemeanor.
TO: City Council
FROM: Elizabeth H. Silver, City Attorney
Fred S. Etheridge, Associate Attorney
RE: SB 1538 - Senator Kopp's Brown Act Legislation
DATE: April 3 , 1992
PAGE: 7
Section 24 •
SB 1538 makes minor changes to the statute of limitations
for actions brought by persons under the Brown Act.
section 25:
Existing law grants the discretion to, but does not require,
a court to award attorneys fees and costs to a successful
plaintiff in a Brown Act action. SB 1538 requires an award of
attorneys fees and costs to such plaintiffs.
Section 26•
SB 1538 requires that public meetings or functions must not
be held in facilities which are inaccessible to wheelchairs or
which require members of the public to make a payment.
Section 27•
SB 1538 would prohibit a legislative body from adopting or
enforcing any rule that penalized or discouraged free speech.
Section 28•
The California Constitution requires the State of California
to reimburse local agencies for certain costs mandated by the
State. SB 1538 declares that no reimbursement is required by SB
1538 . Given some of the impacts that SB 1538 imposes upon local
agencies, such as setting a $. 05 per page limit on copying and
imposing additional noticing requirements, it would appear that
the Act does impose additional costs on local agencies.
Elizabeth H. Silver
City Attorney '
By: Fre e edge
Associate Attorney
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MEYERS, NAVE, RIBACK & SILVER
MICHAEL R.NAVE A PROFESSIONAL LAW CORPORATION PENINSULA OFFICE
STEVEN R.MEYERS
ELIZABETH H.SILVER GATEWAY PLAZA 1220 HOWARD AVE.,SUITE 250
MICHAEL S.RIBACK 777 DAVIS STREET,SUITE 300 BURLINGAME,CA 94010-4211 T EPHONE:(415)348-7730
MICHAEL F RODRIQUEZ SAN LEANDRO,CALIFORNIA 94577 n �a SIMILE:(415)342-0886
KATHLEEN FAUBION TELEPHONE:(510)351-4300 IF 6r M
FREDERICK S.ETHERIDGE FACSIMILE:(510)351-4481
WENDY A.ROBERTS
DAVID W.SKINNER MEMORANDUM
STEVEN T.MATTAS
- CITY OF DUBLIN
OF COUNSEL
ANDREA J.SALTZMAN REPLY TO:
San Leandro
TO: City Council DATE: April 21, 1992
FROM: Elizabeth H. Silver, City Attorney
Fred S. Etheridge, Associate Attorney
RE: Update on SB 1538 - Senator Kopp's Brown Act
Legislation
we have just received the most recent printing of Senator
Kopp' s Brown Act legislation, SB 1538. The most recent version
of the bill was amended in the State Senate on April 6, 1992 .
Outlined below are significant changes to the legislation. For
your information, the bill is still in the Senate Rules
Committee.
Section 8 •
SB 1538 originally contained an extremely broad . definition
of the term "meeting" to include any congregation of a majority
of the members of the legislative body of the same time and
place, regardless of the purpose .of that meeting. The new draft
of the bill narrows the definition, to define a meeting to be a
congregation of .a majority of a legislative body in the same time
and place to discuss any item within the subject matter of the
legislative body.
The new draft of SB 1538 also expands activities which are
not within the Brown Act. First, individual contacts or
conversations between a member of a legislative body and a
constituent are excluded. This exception was. in the earlier
version of SB 1538 , however the new version clarifies the
definition.
Second, the attendance of a majority of the members of a
legislative body at general conferences open to the public do not
fall within the Brown Act: This appears designed to include
League of California Cities and similar conferences. Third, the
TO: City Council
FROM: Elizabeth H. Silver, City Attorney
Fred S. Etheridge, Associate Attorney
RE: Update on SB 1538 - Senator Kopp' s Brown Act
Legislation
DATE: April 21, 1992
PAGE: 2
attendance of a majority of the members of a legislative body at
an open and publicized meeting organized to address a local
topic, when that meeting is not organized by the local agency, is
not subject to the Brown Act. Fourth, the attendance of a
majority of the members of a legislative body at a purely social
or ceremonial occasion is excluded. These exceptions are all on
the condition that no business is discussed that is within the
subject matter jurisdiction of the legislative body.
Section 11•
This section concerns tape or film records of public
meetings. The earlier draft of SB 1538 defined such recordings
as public records. The new draft of SB 1538 requires that such
records be held by the local agency for two years from the date
of the recording, and deletes the earlier requirement that such
tapes could not be destroyed after a request for inspection had
been made.
Section 12 •
The earlier version of SB 1538 required that all meetings of
the local legislative body be held within the boundaries of that
body's territory. The new draft of the bill would list several
exceptions to this requirement. First, local officials could
participate in meetings to discuss issues of regional
significance, even if those meetings were located outside the
agency' s jurisdiction. Second, local officials may meet in the
same county as their agency' s jurisdiction if their own agency
has no suitable meeting facilities. within their jurisdiction.
Third, local officials may meet in a remote location outside
their jurisdiction if the meeting takes place or nearby a
facility owned by that agency, and provided that the topic of
that meeting is limited to items directly related to that
facility.
Section 13 •
Existing law requires that an agenda be posted before
regular meetings. The earlier draft of SB 1538 required a vague
standard to define what notice was "adequate" . The new draft of
SB 1538 expands the definition in an attempt to clarify it.
TO: City Council
FROM: Elizabeth H. Silver, City Attorney
Fred S. Etheridge, Associate Attorney
RE: Update on SB 1538 - Senator Kopp's Brown Act
Legislation
DATE: April 21, 1992
PAGE: 3
Section 19•
The earlier draft of SB 1538 required the tape recording of
all closed sessions. The new draft of the bill provides that if
there is "reasonable cause" to believe the violation of the Brown
Act has occurred, the tape of any public meeting shall then be
subject to subpena by the District Attorney or the Grand Jury,
and also shall be subject to discovery by a plaintiff in Brown
Act civil litigation. The current draft of SB 1538 retains the
provision that such a recording may be subject to examination by
a superior court judge in any Brown Act action.
Section 20•
The earlier draft of SB 1538 allowed a local agency to
charge a copying fee of up to . 05G per page for copies of public
records. The current draft of the bill would allow the agency to
charge a copying fee in the same manner it sets fees under
Section 6257 of the Public Records Act (ie. , the fee could be an
amount to cover direct costs of duplication) .
Section 23 •
The earlier draft of SB 1538 provided that any member of a
legislative body attending a meeting in violation of the Brown
Act was strictly liable for violation of the Act, and upon the
third violation was guilty of a misdemeanor. The new draft of
the bill retains the strict liability standard, however it
deletes the misdemeanor provision and makes violations an
infraction. Note also that no public funds may be expended in
the defense of such Brown Act actions.
Section 24 •
The new draft of SB 1538 adds a provision that the District
Attorney, as well as any interested person, may commence an
action for judicial determination that an action taken by a local
TO: City Council
FROM: Elizabeth H. Silver, City Attorney
Fred S. Etheridge, Associate Attorney
RE: Update on SB 1538 - Senator Kopp's Brown Act
Legislation
DATE: April 21, 1992
PAGE: 4
legislative body is null and void under the Brown Act.
Very truly yours,
MEYERS, NAVE, RIBACK & SILVER
Elizabeth H. Silver
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