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HomeMy WebLinkAboutMemo 10 TRUCKEE DONNER PUBLIC UTILITY DISTRICT STATEMENT OF GENERAL FUND - March 30, 1983 Bank Balance - March 1 , 1983 $ 189,825.14 Electric Revenue 448,280.14 Water Revenue 41 ,037.01, Electric Connection Fees 450.00 Water Connection Fees 225.00 Facilities Fees 400.00 Miscellaneous Billings Revenue 1 ,56-.11 Miscellaneous Revenue 1 ,54-4.93 Standby Revenue 12,842.80 Transfer from LAIF 142,000.00 $ 838,171 .83 Approved Billings 477,896.04 Less: Overpayments and voided checks ( 710.56) 477,185.48 George Cattan - pension plan payment 258.75 AWWA - Water treatment forum, Waller, Rully, Tamietti 60.00 D & C Roadside Service 1 ,247.69 Directors - Board meeting attendance 800.00 Employment Development Dept. 3,081 .48 Employee Meals - 66.00 Employee Telephone 27.96 I.B.E.W. - union dues 460.30 Petty cash - replenish fund 186.58 155.44 342.02 Placer County Credit Union 1 ,068.42 Refunds: Credit balance on closed accounts 2,352.76 Refunds: Energy audit fees 30.00 Social Security Division 7,584.54 Department of Health. Services water certification fee - Rully 15.00 Truckee River Bank - fed tax deposit 7,467.73 - LAIF deposit 293,000.00 Computer Loan Payment 2,569.80 303,037.53 United Parcel Service deposit to open account 100.00 - Stamps 100.00 - Trust Fund 25.00 125.00 RMRS - Postage Meter 500.00 Craig, Susan - seminar expense 132.60 Ozalid - supplies for blue print machine 111 .00 Ward, Jim - seminar expense 95.93 (798.682.46) PAYROLL 2/28/83 OT Gross Net Permanent 2,761 .32 27,372.90 20,003.35 Temp. 70.49 65.20 3/15/83 Permanent 994.85 29,362.79 21 ,133.35 102.60 94.60 Total (41 ,296.50) Bank Balance - 3/31/83 (1 ,807.13) Bills for Board Approval - see attached (417,562.72) -Martis Valley Substation ( 50,770.50) Bank Balance after payment of above 470,l40.35 LAIF Transfer to cover above bills 420,000.00 LAIF Transfer from Martis Valley Substation account 50,770.50 Bank Balance after LAIF Transfer 54,662.99 630.15 BILLS FOR BOARD APPROVAL - April 4, 1983 Total Electric Water General Description g Aetna Life & Casualty 97.50 97.50 Life insurance for 3/83 Airsignal of California 16.00 16.00 Radio Service for 3/83 Andersen, Arthur & Co. 985.00 985.00 Services and consultation on accounts and budget Allied Automotive, Inc. 82.46 82.46 Misc. auto parts Allied Petroleum Co. 1 ,646.74 1 ,646.74 Gas and barrel pumps Alpha Supply 261.25 166.87 94.38 Door closer, rope, brooms and towels American Water Works Assc. 15.60 15.60 Improving well/pump efficiency Bi-State Petroleum 1 ,175.43 619.15 556.28 Oil for water dept. and heating oil Blue Cross 10,180.15 10,180.15 Insurance premium for 3/83 & 4/83 California Service Tool 153.27 153.27 Wood rules and long nose pliers Cal Western Life 9,376.06 9,376.06 Pension Plan 3/83 & 4/83 Cassano, Andrew R. 65.30 65.30 Consultant services 2/83 Cook Assoc. 1 ,951.10 1 ,951 .10 Consultant Services 3/83 Credit Bureau of Tah. Truckee 12.00 12.00 Services for 3/83 Davey, John 450.00 450.00 Misc. carpentry work Davis Auto Parts 166.62 166.62 Misc. auto parts Dearman Snow Removal 120.00 120.00 Removal Martis Sub. Digital Equipment Corporation 893.00 893.00 Maintenance coverage on computers Digital Systems 2,825.43 2,825.43 All license , fees 3/1/83 through 3/31/83, General ledger conversion costs Farmer Bros. Co. 138.78 138.78 Coffee, Cocoa, Tea Grainger, Inc. 4.24 4.24 ONE switch G.E. Supply 1 ,145.17 1 ,120.01 25.16 Misc. tools, light fixture, Fargo, auto dead Graybar Electric 339.20 339.20 Rolls of MMM tape Hansen, James and Assoc. 9,116.54 9,116.54 Consultant services 2/83 , travel expenses High Country Answering Service 80.55 80.55 Answering service House of Printing 1 ,187.73 1 ,187.73 Letterhead, envelopes, meter cards, mehu sheets meter installation record H & H Janitorial Supply 76.95 76.95 Seat covers and dispensers John's Sprinq Service 79.20 79.20 Spring repair unit J.S. Truckee Rents 53.00 53.00 Forklift rental Lanier Business Products 25.78 25.78 Typemaster ribbon Longs Drug Stores 33.22 33.22 Office supplies McDonough, Holland & Allen 132.23 132.23 Consultant services 2/83 Y BILLS FOR BOARD APPROVAL - April 4, 1983 page 2 Total Electric Water General Description Mid Sierra 562.00 562.00 Labor for vehicle repair Moore Computer Forms and supplies 228.43 228.43 Office Supplies Morlock 114.43 114.43 Meter rinqs and keyhole inserts Mountain Hardware 136.91 136.91 Misc. hardware Nevada Communications 118.00 118.00 Radio repair Northwest Public Power Assn. 135.00 135.00 Balance due for distribution system school design for James M. Ward OB's Board 76.50 76.50 Meal for Harker & Harker consultants Office HELPER 144.22 144.22 Office supplies Ozalid 550.00 550.00 Maintenance contract for blue print processor Pacific Telephone 867.16 867.16 Telephone for 3/83 Pacific Telephone 454.99 454.99 Telemetry for 3/83 Pioneer Equipment 40.55 40.55 Misc. hardware Pitney Bowes 68.37 68.37 RMRS meter rental Record supply 50.75 50.75 Galvanized pipe Red Star Services 136.20 136.20 Supplies for 3/83 Safety Live Line 190.57 190.57 Hot sticks Sierra Pacific Power Co. 394.93 394.93 Design and install underfrequency protection at Martis sub. Sierra Pacific Power Co. 361 ,514.36 361 ,514.36 Power bill through 3/83 Sierra Sun 34.75 34.75 Public notices and ads in newspaper Siri Office Supply 115.96 115.96 Office supplies Sun Printing 3.71 3.71 Office supplies Tahoe Heating 156.12 156.12 Service a/c for computer room Tahoe Office Systems 1 ,134.20 1 ,134.20 Office supplies Tahoe Truckee Disposal 129.00 129.00 Trash disposal for 2/83 Tahoe Truckee Med. Group 100.00 100.00 Physical exams for Mcgovern and Mcquary Tahoe-Truckee Sanitation Agency 200.00 200.00 Lab services for 1/83 Tahoe Truckee Supply 3.78 3.78 Copper adapter Taylor's Tires 18.85 18.85 Tire repair Terra Engineering 1 ,400.00 1 ,400.00 Blue print processor Truckee Auto 44 3.56 3.56 Misc. auto part Truckee Donner Glass 39.18 39.18 Window Truckee-Tahoe Lumber Co. 75.10 75.10 Misc. buildinq material Weaver Equipment 15.60 15.60 Misc. vehicle parts Vail , Raymond and Assoc. 447.00 447.00 Nevada county maps transferred to mylar Westinghouse Supply Co. 1 ,482.52 1 ,482.52 Compression sleeves, flashliqhts, clamp stick Pole clevis, spool , triplex "conch" BILLS FOR BOARD APPROVAL - April 4, 1983 page 3 Total Electric Water General Description Western Nevada Supply 146.68 146.68 Hose nozzel,s, rings, aqua pig, misc. nuts & bolls Winslow's 145.37 145.37 Map holders Withrow Oxygen service 65.46 65.46 Hobart, hardfacing alloys Wood, Porter, Simon & Graham 3,116.86 3,116.86 Legal services for 3/83 Zellerbach Paper Co. 60.15 60.15 Can liners and towels 417,562.72 375,209.25 3,574.28 38,779.19 c� 1 BILLS FOR BOARD APPROVAL - April 4, 1983 Martis Valley Substation Harker & Harker $50,770.50 10% retainer for substation work. One thousand dollars has been held from this amount for grading to be done in the spring. March 25, 1983 James . Simon Port er,S imon and Graham Truckee, California 95734 .^ Dear Jim, Yesterday, March 24, 1983s the Truckee Donner Public Utility District Board of Directors held a special meeting with Rick �lumfield of Authur Anderson, Inc. 1�hile I questioned tha proceedure for calling the meeting and do have concerns over its legality, I am none-the-less more concerned with what happened after the special meeting was adjourned at 5:20pm. When I adjourned the special meeting at 5:20 I left the board room to make a phone call. Directors Corbett, Kuttle and VanLandinghaa remained - to talk with the Manager, Jim Ward. A few minutes later I returned to the board room to give the manager a message. I observed two of the three directors (Kuttle and VanLandingham) discussing an issue relative to board policy (interest charges on late payments) with the manager. Director Corbett was sitting there listening. I turned and left the room believing that a violation of the secret meeting laws was taking place. Today, I called Manager Ward and asked him how long this meeting lasted. He told me that the discussion lasted thirty minutes or so. Please review the facts and in your capacity as Council to the District, provide each director and the manager -41th an opinion of this situation. Could you also amplify on the topic of what is a properly called public meeting vs. an i11e?al or improper meeting as outlined in tha Ralph M. Brown Act? 'thank you for your prompt attbotion to this matter. Sincerely., i 7's A. Haase iredtor Truckee Donner POD cc Jim Ward John Corbett Karl Kuttle Dick VanLandingham LEGAL OPINION DATE: MARCH 31 , 1983 TO: BOARD OF DIRECTORS, TRUCKEE DONNER PUBLIC UTILITY .— DISTRICT FROM: JAMES ERNEST SIMON, DISTRICT COUNSEL QUESTION PRESENTED By letter dated March 25 , 1983 , President Maass has requested an opinion as to whether a special meeting which occurred on March 24 , 1983 , was in violation of the California Secret Meeting Laws . CONCLUSION We have determined that, depending upon the subject matter f actually discussed at the meeting, the deliberations made, and the action taken, a technical violation of the Ralph M. Brown Act may have occurred. FACTUAL BACKGROUND We are advised that a special meeting was held on March 24, 1983 , pursuant to written or telephonic notice to all Directors. The subject matter of the meeting according to the agenda concerned discussions with the District' s accountants for purposes of discussing the annual audit. The meeting was convened in the late afternoon and adjourned by President Maass at 5: 20 . We are advised that thereafter Directors Corbett, Kuttel and VanLandingham remained engaged in a discussion with the General Manager James Ward. We understand that the subject matter of the -1- Board of Directors March 31 , 1982 Page 2 discussion related to implementation of the District' s policy concerning interest on late payments to the District. We have no information detailing the specifics of the discussion. �. President Maass is of the opinion that a violation of the secret meeting laws may have occurred inasmuch as the meeting apparently lasted approximately 30 minutes. DISCUSSION A brochure entitled "Secret Meeting Laws and Public Agencies" published by the Legal information Center of the California Department of Justice is reproduced and attached herewith. Please note that this brochure was published April 1 , 1981 , and is therefore somewhat dated. The Truckee Donner Public Utility District falls within the provisions of the Ralph M. Brown Act, the purpose of which is to A ensure that all deliberations and actions of local public agencies are performed in public. The Act was specifically. designed to discourage and prevent secret meetings . . The issue presented here concerns in part when the meeting ended; that is was it properly adjourned. Generally speaking, Robert' s Rules of Order under which the District _generally conducts its meetings, require that a Motion To Adjourn be made . Such a motion is undebateable, cannot be amended , and cannot be reconsidered. In the absence of a motion and subsequent vote, it is unlikely that an adjournment is technically proper. Under the facts presented, it is assumed that the motion was made, voted upon, and the meeting properly adjourned. -2- Board of Directors March 31 , 1982 Page 3 Once the meeting was adjourned, the inquiry now focuses upon whether another meeting took place. A meeting is generally defined as any gathering of a quorum of a legislative body, no .-� matter how informal, where business is transacted or discussed. The California Attorney General rendered an opinion in 1963 that an "informal, " "study, " "discussion, " "informational, " "fact finding, " or "precouncil" gatherings of the majority of the members of a board were probably "meetings" whether or not any action was taken. (See Secret Meeing Laws, page 6 . ) The legislative purpose of the Brown Act was reiterated in Carlson v. Paradise Unified School District (1971) 18 Cal.App. 3d 196 , 199. In the event that the special meeting held March 24, 1983 , was properly adjourned, and various Board members informally r remained at which time Board business was transacted or discussed, a technical violation of the open meeting law (Government Code §54943) may have occurred. In the event however that no "meeting" occurred, in that no group discussions were had nor business transacted, the spirit of the law may well have been complied with. For example, if the gathering did not involve the collective acquisition and exchange of facts which were preliminary to some future Board decision, it is conceivable that the gathering was not a "meeting" of the type which the Brown Act was designed to protect by ensuring that it be held in a public and open environment. For purposes of future activities , it is advised that all meetings of the District be formally adjourned upon motion and -3- Board of Directors March 31 , 1982 Page 4 that at all "informal" gatherings among three or more members of the Board any discussion whatsoever about Board business by avoided. JES:cjg Attachments : Secret Meeting Laws Letter dated March 25 , 1983 w -4- J Secret Meeting Laws - & Public _ - - Rgencies VON- t Prepored under the supervjsion of the George Deukmejian Civil Division Attorney General Willard A. Shank Michael franchetti Chief Assistant Attorney General Chief Deputy Attorney General Richard D. Martland George Nicholson Assistant Attorney General Senior Assistant Attorney General Director, Legal Information Center Clayton P. Roche M. Anthony Soares Deputy Attorneys General Editors PREFACE Secret Meeting Laws and Public Agencies was first published in January of 1972 and later revised in April of 1976. Since the 1976 revision, certain provi- sions of the Ralph M. Brown Act (hereinafter "Act") (Government Code Section 54950, et seq. ) have been amended and various appellate court decisions and Attorney General's opinions construing and applying the Act have been issued. ,�- Some of the more significant developments in the secret meeting laws involve: (1) distinctions between "local" and "state" agencies, infra, page 4; (2) definitions of the term "legislative body" and the application thereto of the "less than quorum exception," infra, page 7; (3) special meet- ings in "emergency situations," infra, page 19; (4) the availability to mem- bers of the public of documents distributed to members of a legislative body for consideration at a public meeting, infra, page 21; (5) the public state- ment by a legislative body of the general reason or reasons for holding a closed (executive) session, infra, page 22; (6) executive sessions authorized by the "personnel exception," infra, page 22; (7) executive sessions impliedly authorized by other confidentiality provisions in the law, infra,_ page 27; and (8) minutes of executive sessions and the confidentiality thereof, infra, page 30. Also worthy of mention, is a nonsubstantive change in terminology which took effect January 1, 1981. At that time, the term "closed session" replaced the term "executive session" in the Brown Act. For purposes of this handbook, however, the terms will be used interchangeably. of(AIJA ` w Mr liKr/./ To order additional copies of this publication, write to: Legal information Center Office of the Attorney General 555 Capitol Mall, Suite 290 Sacramento, California 95814 For further information, contact: Tony Cimarusti Press Secretary Office of the Attorney General 916/445-0926 April 1. 1981 i Cover illustration by Paul Duginski 3� TABLE OF CONTENTS / Page l 1 I. INTRODUCTION 2 II. THE RALPH M. BROWN ACT 2 A. Purpose and scope-of the act 2 B. To whom does the act apply? 2 1. Local agencies 3 2. Legislative bodies 4 3. The less than a quorum exception 6 C. What is a meeting? 7 D. Notice of meetings 7 1. Regular meetings 7 2. Special meetings 8 3. Emergency meetings 8 4. Special notice provisions - district landowners R 8 E. Public's rights while attending a meeting 9 F. Permissible executive sessions 9 1. Expressly authorized executive sessions 11 2. Impliedly authorized executive sessions 12 3. Time for executive sessions and required notice 13 4. Minute book 13 5. Miscellaneous considerations regarding executive sessions 14 G. Penalties for violation of the act 15 H. Enforcement provisions 15 I. Effect of failure to hold open meeting 16 III. SPECIAL CONSIDERATIONS RELATING TO SCHOOL DISTRICTS 17 IV. THE STATE AGENCY ACT \. 19 V. CONCLUSION 20 APPENDIX 20 THE RALPH M. BROWN ACT, Government Code Sections 54950-54961 27 THE STATE AGENCY ACT, Government Code Sections 11120-11131 34 EDUCATION CODE, Sections 35145, 35145.5, 35146 36 SPECIAL PROVISIONS, STATE LEGISLATURE, Government Code Sections 9027-9032 37 SPECIAL PROVISIONS, REGENTS, UNIVERSITY OF CALIFORNIA California Constitution, Article IX, Section 9, Subdivision (g) Education Code Section 92030 r 3$ I. INTRODUCTION i The Office of the Attorney General repeatedly receives requests from a variety of sources as to the meaning and application of the various secret meeting laws applicable to public agencies. Some of these requests ask for general information while others relate to a specific incident. Unfortunately our staff and resources do not permit an individual evalua- tion of each request to determine the facts, research the matter, and advise r- on specific questions raised. However, in order to be of some help and assis- tance, we have prepared this brochure containing general information about the Ralph M. Brown Act and other secret meeting laws. In addition to discussing a number of matters that commonly arise, we set forth examples of the manner in which the courts and this office have construed these laws. As to this office's construction of the acts, it must be borne in mind that, although we believe our opinions are well reasoned and we hope persua- sive, the opinions of the Attorney General are advisory only, are not binding upon other public offices or attorneys, and thus are not the law of the state as are decisions of our appellate courts. Of necessity, the discussion herein will consist of many generalizations. Therefore this brochure cannot be, nor is it to be considered, a definitive exposition of the law regarding secret meetings. It is informational in nature and, hopefully, will be of value to the reader in presenting a general outline of the law on the subject as it exists at the present time. As to any specific question or problem, the statutes and decisions them- selves should be consulted and the matter referred to the attorney for the particular agency involved, the district attorney of the jurisdiction if cri- minal action is suspected, or to a private attorney of the reader's choice who will be in a position to evaluate the actual facts and render advice thereon. The laws discussed herein will be the Ralph M. Brown Act, contained in Sections 54950 through 54961 of the California Government Code; several perti- nent provisions of the California Education Code relating to school board pro- ceedings; and the State Agency Open Meeting Act (hereinafter 'State Act') applicable to certain state agencies found in Sections 11120 through 11131 of r^ the California Government Code. For ease of reference, a copy of these sec- tions as they existed on the date of the most recent revision of this brochure is attached. These, of course, may be amended by the Legislature from time to time. A current code should be compared on any particular matter. Also included in the Appendix of this brochure, but without discussion, are the secret meeting laws specifically applicable to the State Legislature and to the Regents of the University of California. Though not of the same general interest as the Ralph M. Brown Act, these provisions may be of interest to certain individuals to whom this brochure is distributed. (See Government Code Sections 9027 through 9032 re the Legislature; and Education Code Section 92030 re the Regents of the University of California.) Section citations are to the Government Code unless otherwise noted. Cases are cited by name. Published opinions of this office are. cited by volume, page and year, e.g., 32 Ops.Cal.Atty.Gen. 240 (1958) [volume 32, page 240] and letter opinions are cited as indexed letters by year and number, e.g. , I.L. 67-147. Published opinions are available through law libraries and in many attorneys' offices. For the most part, indexed letter opinions of the Attorney General are only in the offices of the Attorney General. -1- II. THE RALPH M. BROWN ACT A. Purpose and scope of the act The purpose of the Act can be briefly stated. It is to insure that the deli- berations as well as the actions of local agencies are performed at meetings open to the public and as to which the public has been given adequate notice. It is to prevent government from being conducted in secret. (Section 54950.) In furtherance of this purpose, the Act requires, with certain exceptions, + that all meetings of legislative bodies of local agencies be open and public. (Section 54953.) Meetings must be conducted in such a manner as to permit full and complete disclosure of the actions taken and the participation of individual members in such action. Thus, secret ballot voting at meetings required to be open and public is prohibited. (59 Ops.Cal.Atty.Gen. 619 (1976) .) B. To whom does the act apply? The Act applies to the legislative bodies of all local agencies of the state. An understanding of the terms "local agency" and "legislative body," as well as the "less than quorum exception," is important to any determination as to the applicability of the Act. 1. Local agencies Local agencies include all cities, counties, school districts, municipal corporations, other special districts and all other local public bodies. (Section 54951.) For example, the Act applies to a housing authority (Torres v. Board of Commissioners (1979) 89 Cal.App.3d 545; I.L. 71-103) ; to an air pollution control district (I.L. 71-198 and I.L. 70-213) ; and to such other local bodies as voluntary area and local health planning agen- cies (I.L. 72-29) . We, however, have held that it is not applicable to county central committees (59 Ops.Cal.Atty.Gen. 162 (1976)) . Besides purely public agencies, the Act covers all nonprofit organiza- tions which receive public funds to be expended for purposes of the Economic Opportunity Act of 1964 so far as consistent with federal law. (Section 54951.1.) Likewise, also covered is a nonprofit corporation formed to acquire or operate any public works project if the board of directors is appointed by the forming public agency or agencies. (Section 54951.7.) Inasmuch as the terms and requirements of the Brown Act differ in cer- tain respects from those of the State Agency Open Meeting Act (Government Code Section 11120 et seq.) , a potentially significant question is whether an entity is a local or state agency. This question was addressed and resolved as to housing authorities created pursuant to Health and Safety Code Section 34208 in the case of Torres v. Board of Commissioners, supra, 89 Cal.App.3d 545. The court first concluded that "the Legislature intended that all agencies be included in some open meeting act unless expressly excluded." It then went on to hold that the housing authority was included within the definition of local agency under the Brown Act and, therefore, was not subject to the agenda requirements set forth in the State Agency Act Section 11125. The court reasoned: "While a housing authority may be a state agency for some pur- poses . . . if it is within the Brown Act's definition of a local agency, it is simply not included within the State Act. We hold that -2- a housing authority created by Health and Safety Code section 34200 et seq. is included within the statutory definition of a local agency under the Brown Act in that it is either an 'other local public agency' or a 'municipal corporation' or both, as those terms are used in Government Code section 54951. . . . The term 'municipal corpora- tion' is broader than the term 'city,' particularly when the term 'city' already appears in the applicable statute. . . . In order to give meaning to the term 'municipal corporation' in Government Code r- section 54951 we hold that such term is not restricted to its tech- nical sense of a 'city,' general law or charter, but rather includes such entities as housing authorities. . . . In addition, a housing authority is local in scope and character, restricted geographically in its area of operation, and does not have statewide power or juris- diction even though it is created by, and is an agent of, the state rather than of the city or county in which it functions. . . . "Furthermore, as perceptively noted by the trial court, the place- ment of Government Code section 11120 and its history is some per- suasive indication that the State Act was meant to cover executive departments of the state government and was not meant to cover local agencies merely because they were created by state law. A housing authority is no more a state agency under these acts than is a city or a county. The fact that such entities from time to time administer matters of state concern may make them state agents for such purposes but not state agencies under the open meeting acts." (Citations omitted.) (Torres v. Board of Commissioners, supra, 89 Cal.App.3d at pages 549, 550.) ( 2. Legislative bodies The term "legislative body" is not used in its technical sense in the Act. The Act's application is not limited to boards and commissions insofar as they perform "legislative" functions. Actions which are primarily execu- tive or quasi-judicial in nature are also covered. (61 Ops.Cal.Atty.Gen. 220 (1970) .) Besides the actual governing body of a local agency: a. The Act applies to boards, commissions, or committees of the governing board or on which members of the governing board serve in their official capacity and which are supported in whole or in part by the local agency whether such boards, commissions, or committees are organized and operated by the local agency or a private corporation. Thus, it would apply to a voluntary organization composed jointly of members of boards of supervisors and city councils of cities within the county. (I.L. 70-91.) It, however is not applicable to a county board of parole commissioners, since such serves as an adjunct of the courts. (I.L. 62-46.) b. The Act applies to permanent boards and commissions of a local body, such as planning commissions, library boards, and recreation commissions. (Section 54952.5.) The Act is not applicable to a meeting of all judges of a superior court of a county. (I.L. 60-16.) C. The Act applies to advisory boards, commissions, and committees of a local agency if they are formed by some formal action of the govern- ing body, or a member of the governing body of the local agency. The Act, however, specifically excepts from such coverage any such advi- sory bodies composed solely of less than a quorum of the legislative body. (Section 54952.3.) -3- A possible example of a covered advisory committee is described in a 1965 letter opinion of this office (rendered before the specific addition of Section 54942.3) wherein a hospital district formed a liaison committee composed of three members of the district board and three members of the medical staff. (See I.L. 65-57.) Another example is the San Francisco Public Schools Commission (the Riles Commission) which was formed to advise the local school board, the local superintendent of schools, and the State Superintendent of Public Instruction on how to improve San `., Francisco's schools. (I.L. 75-196.) In Henderson v. Board of Education (1978) 78 Cal.App.3d 875, it was held that an ad hoc committee composed solely of less than a quorum of the members of the Board of Education and created for the purpose of advising the full board as to the qualifications of candidates for appointment to a vacant position was excepted from the requirements of the Act by the terms of Section 54952.3. In 61 Ops.Cal.Atty.Gen. 1 (1978) , this office concluded that a bar- gaining committee created to "meet and confer" with employee organization representatives pursuant to Section 3505 was not an advisory committee since its function was to negotiate rather than study and recommend. Thus, the meetings of the bargaining committee were not required to be open and public by Section 54952.3. This office has also held that the Act is not applicable to a county juvenile justice commission since such is in effect a part of the court system. (I.L. 75-109.) Nor is it appli- cable to a local admissions committee of the county superintendent of schools, since such is an advisor or adjunct to a single county officer. (56 Ops.Cal.Atty.Gen. 14 (1973) .) d. A single individual acting on behalf of a local agency is not a "legislative body" within the meaning of .the Act, since all defini- tions of "legislative body" connote a group of persons. Thus, a w hearing officer functioning by himself in an employee disciplinary hearing is not a "legislative body." (Wilson v. San Francisco Mun. Ry. (1973) 29 Cal.App.3d 870.) Similarly, this office has concluded that an individual city council member having the responsibility to screen candidates for vacant city offices is not a "legislative body" and, therefore, not subject to the Act. 3. The less than a quorum exception Permeating the whole coverage or applicability of the Act is what may be termed "the less than a quorum exception" to the Act. As noted above on the general applicability of the Act, Section 54952.3, relating to advi- sory bodies of the local agency, now expressly codifies this exception as it relates to such advisory bodies. Section 54952.3 was added to the Act in 1968. However, since the opinion of this office rendered in 32 Ops. Cal.Atty.Gen. 240 (1958) , such an exception has been recognized in varying circumstances. In general terms, the concept is that the Act does not apply to meetings of committees of less than a quorum of the legislative body of the local agency. This is because the findings of such a commit- tee have not been deliberated upon by a quorum of the legislative body, and, consequently, the opportunity for a full public hearing and consider- ation of the committee's findings and recommendations by a quorum still remains. Hence the public's rights under the Act are still protected. In 1969, this office expressed the following view: "The resolution of the quorum problem with respect to other legislative bodies, that is, -4- bodies other than the advisory commissions referred to in section 54952.3, should continue to be governed by our prior interpretation of the law as set forth in . . ." our 1958 opinion, I.L. 69-131. Again in 1972, we reaffirmed our prior holdings, such as I.L. 69-131, supra, wherein we stated: "There have been no amendments to the Act nor case law since these letter opinions which would change the views of this office as expressed therein." (I.L. 72-49.) Capsulized, these views would appear to mean that at least ad hoc, nonpermanent committees or boards not formed by formal action, such as by charter, ordinance, resolution, or similar formal action, would additionally still fall within the "less than a quorum exception." The distinction between permanent and ad hoc commit- tees arises by virtue of the addition in 1961 of Section 54952.5, making the Act applicable to permanent boards or commissions of a local agency. (I.L. 65-57; I.L. 68-106.) Some examples from our pre-1968 opinions may be helpful. to illustrate this distinction. In 1963, we held that an ad hoc committee appointed by the mayor consisting of less than a quorum of the council to study the possible subsidy of a local bus company by the city would be exempt from the Act. (I.L. 63-97.) In the opinion discussed above, wherein we held that the hospital district liaison committee consisting of three board members and three medical staff members was subject to the Act, we stated that "inasmuch as the Joint Conference Committee is a 'permanent commit- tee'" the Act would be applicable "regardless of whether the governing body is represented by three or two [less than a quorum] members on the committee." (I.L. 65-57.) We also advised in that opinion that if inves- tigative committees were to be formed which included less than a quorum of C the board, the applicability of the Act would depend upon whether these committees were permanent, or were formed for a limited duration for a specific problem. The "less than quorum exception" to the Act was recently upheld in the case of Henderson v. Board of Education, supra, 78 Cal.App.3d 875, wherein the above text was quoted at length and its reasoning characterized as persuasive. For an application of Sections 54952, 54952.3, and 54952.5, defining the term "legislative body," as they interrelate with the "less than quorum exception," see I.L. 76-174, wherein we concluded that a meet- ing of two subcommittees consisting of less than a quorum of the members of their respective parent boards of supervisors to discuss mutual water problems was not covered by the Act because (1) each subcommittee, although literally within the Section 54952 definition, is excluded there- from by the traditionally recognized "less than quorum exception"; (2) each subcommittee is further excluded from the Section 54952.3 definition by the "less than quorum exception" explicitly set forth in that section; and (3) the subcommittees meet for the purpose of discussing a particular matter and, therefore, are nonpermanent and not covered by the definition of legislative body set forth in Section 54952.5. (See also 61 Ops.Cal. Atty.Gen. 1 (1978) wherein we concluded that a local agency bargaining committee designated to meet and confer with representatives of employee organizations pursuant to Government Code Section 3505 was not a legisla- tive body within the meaning of Sections 54952, 54952.3, and 54952.5.) The "less than quorum exception" does not exempt from the provisions of the Act seriatim meetings of various groups of members of a legislative body even though each group is composed of less than a quorum of the total membership. Thus, in Opinion No. 80-713 (63 Ops.Cal.Atty.Gen. 820 -5- (1980) ) , this office concluded that inasmuch as such seriatim meetings provide an opportunity for a quorum of the members of the legislative body to deliberate on a particular matter, the rationale underlying the "less than quorum exception" is inapposite and the meetings must be open and public. C. What is a meeting? The question as to what constitutes a meeting within the Act sometimes may present a difficult question. Basically, a meeting is any gathering of a quorum of a legislative body, no matter how informal, where business is trans- acted or discussed. (61 Ops.Cal.Atty.Gen. 220 (1978) .) Of course, no problem exists as to regularly scheduled, duly noticed, regular and special meetings of a legislative body. The problem arises as to informal meetings of a majority of the members of a board. Such a meeting may have varying purposes and characteristics. It is significant to note that the Act itself does not define the term "meeting." In a published opinion of this office written in 1963, we expressed the view that so-called "informal," "study," "discussion," "informational," "fact finding," or "pre-council" gatherings of a majority of the members of a board probably fell within the scope of the Act as "meetings," whether or not the individual members intended to take, or even took, any action at such gather- ings. (42 Ops.Cal.Atty.Gen. 61 (1963) .) In 1964 we held that regularly scheduled luncheon meetings by the members of one or more city councils with representatives of certain civic associa- tions for the purpose of discussing items, such as school and airport problems and other items of public importance, fell within the Act. We pointed out, however, that our opinion was not to be construed to prohibit legislative bodies from mere social attendance at luncheons and dinners, such as are often i given by fraternal groups such as the Rotary Club or Kiwanis. (43 Ops.Cal. Atty.Gen. 36 (1964) ; see also I.L. 71-122.) The courts have specifically held that the Act now applies to informal meetings. In Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, the court held that a luncheon gathering which included five county supervisors, the county counsel, county executive, county director of welfare, and certain union officers to discuss a strike which was underway against the county was a meeting within the Act and therefore news- paper reporters were improperly excluded. The court's language at pages 50-51 of the decision is an excellent summary of the reasoning behind its decision. The court stated: "In this area of regulation, as well as others, a statute may push beyond debatable limits in order to block evasive techniques. An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpublic pre meeting conference except to conduct some part of the decisional process behind closed doors. Only by embracing the collective inquiry and discussion stages, as well as the ultimate step of official action, can an open meeting regulation frustrate these evasive devices. As operative criteria, formality and informality are alien to the law's design, exposing it to the very evasions it was designed to prevent. Construed in the light of the Brown Act's objectives, the term 'meeting' extends to informal sessions or conferences of the board members designed for the discussion of public business. The Elks Club luncheon, .attended by the Sacramento County Board of Supervisors, was such a meeting." -6- 3V Thus, meetings include informal gatherings where the public's business is 7 discussed, as well as informal meetings. l A meeting, however, requires the presence of two or more persons. There- fore, a hearing conducted by a single hearing officer on an employee discipli- nary action was not a meeting within the meaning of the Act. (Wilson v. San Francisco Mun. Ry. , supra, 29 Cal.App.3d 870, 880.) D. Notice of meetings 1. Regular meetings The legislative body of a local agency must provide by ordinance, resolu- tion, bylaw, or rule, as appropriate to that body, for the time of holding regular meetings. (Section 54954.) It may adjourn or continue a meeting to a time and place specified in a notice of adjournment which is to be posted within 24 hours on or near the door of the meeting place. If no time is specified, the meeting is adjourned until the time of the next regular meeting. (Sections 54955, 54955.1.) The Act itself contains no agenda requirements for regular meetings. (Torres v. Board of Commissioners, supra, 89 Cal.App.3d 545.) Such requirements, however, may be found in the particular act which governs a particular legislative body, e.g. , Section 25151, relating to posting an agenda for meetings of boards of supervisors. (61 Ops.Cal.Atty.Gen. 323 (1978) .) Thus, it has been held ". . . That where the subject matter is sufficiently defined to apprise the public of the matter to be considered and notice has been given as required by law, the governing body is not required to give further special notice of what action it might take . . . ." (Phillips v. Seel (1974) 43 Cal.App.3d 104, 120; see also {! III, infra, re Education Code Section 35145, and agenda requirements for school districts.) 2. Special meetings In order to hold a special meeting, a legislative body must provide advance notice of such meeting to each member of the legislative body and to each local newspaper of general circulation, and radio or television station which has requested notice in writing. The notice shall state the time and place of the special meeting. It shall also state the business to be transacted, and no other business shall be considered at the special meeting. (Section 54956.) Notice is required even if no action is taken by the legislative body at the special meeting. (Section 54956; 41 Ops.Cal.Atty.Gen. 61 (1963) .) It is also required if the special meeting is to be held in executive session. (43 Ops.Cal.Atty.Gen. 79 (1964) .) If a legislative body holds an informal meeting falling within the scope of the Act, such as a luncheon meeting, notice must be given. For example, if a city council attends a luncheon meeting to discuss area problems with a civic group, the public has a right to know of and attend such discussions. (43 Ops. Cal.Atty.Gen. 36 (1964) .) The notice required by Section 54956 shall be delivered personally or by mail and shall be received at least 24 hours before the time of the meeting. Thus, mailing the notice 24 hours in advance is not sufficient; notice must actually be received 24 hours prior to the special meeting. (Section 54956; 53 Ops.Cal.Atty.Gen. 246 (1970) .) -7- c A member of the legislative body may waive failure to receive notice of the meeting by filing a waiver prior to the time of the meeting or by being present at the meeting when it convenes. Moreover, absent a written request therefor, the legislative body is not required by the Act to pro- vide the media with notice of its special meetings. (62 Ops.Cal.Atty.Gen. 658 (1979) .) The detailed provisions of the Act as to time and notice of meetings do not apply to regular or special meetings of advisory commissions, com- mittees, or bodies of a local agency created by formal action of the leg- islative body or a member thereof. However, such a group may provide for regular meetings, and if it does so, it shall provide for the time and place for holding such regular meetings. (Section 54952.3.) 3. Emergency meetings In an "emergency situation," the legislative body is not required to deliver written notice to the news media 24 hours in advance of its spe- cial meeting. An emergency situation is defined to include a work stop- page or other activity and a crippling disaster, which severely impairs public health, safety, or both, as determined by a majority of the members of the legislative body. In such cases, telephonic notice shall be pro- vided to local newspapers of general circulation and radio or television stations one hour prior to the meeting unless telephonic services are not functioning. In the event that telephonic services are not functioning, notice must be given as soon after the meeting as possible. The minutes of the meeting, a list of the persons notified or attempted to be noti- fied, a copy of a roll call vote, and any actions taken shall be posted for a minimum of ten days in a public place as soon after the meeting as possible. The legislative body may not meet in executive session during an emergency meeting. Except for the 24-hour notice requirement, the spe- cial meeting requirements set forth in Section 54956 shall apply in emergency meetings. (Section 54956.5.) 4. Special notice provisions - district landowners ^ The legislative body of a district subject to the Act must mail notice of all regular and special meetings to any district landowner who has filed a written request for such notice. The request must be renewed annually. (Section 54954.1.) The legislative body may impose a reasonable charge for this service based on estimated costs of providing notice. (Section 54954.1.) Any estimate by the legislative body which has a reasonable cost accounting basis would appear acceptable. (62 Ops.Cal.Atty.Gen. 658 (1979) .) E. Public's rights while attending a meeting What are the public's rights with regard to attendance at meetings? A member of the public can attend a meeting without having to register or give other information as a condition of attendance. (Section 54953.3; see also 27 Ops.Cal.Atty.Gen. 123 (1956) .) A legislative body may not prohibit any person attending an open meeting from tape-recording the proceedings, absent a rea- sonable finding that such would constitute a disruption of the proceedings. (Section 51953.5; Nevens v. City of Chino (1965) 233 Cal.App.2d 775; I.L. 66- 121; cf. 62 Ops.Cal.Atty.Gen. 292 (1979) .) On the other side of the coin, a legislative body may, if necessary, exclude all persons from a meeting where a disturbance has been created and -8- the meeting cannot continue by merely excluding the disorderly persons. How- ever, in such situations, newspaper personnel not involved in the disturbance must be permitted to attend the session as continued. (Section 54957.9.) Although this office has held that the Act neither explicitly nor implicitly gives radio stations the right to broadcast meetings of legislative bodies (38 Ops.Cal.Atty.Gen. 52 (1961)) , Government Code Section 6091, enacted in 1965, conditionally authorizes the broadcasting by radio and television stations of meetings required by law to be open. Any agenda or other writing distributed to all or a majority of the mem- bers of the legislative body of a local agency for the discussion or consider- ation at a public meeting are public records and shall be made available to members of the public in accordance with the provisions of Section 54957.5 and the Public Records Act (Government Code Section 6250 et seq.) . (Section 54957.5; I.L. 77-67.) Pursuant to Government Code Section 6257, a fee or deposit may be charged to any person requesting a copy of a public record. (Section 54957.5.) Except as specifically authorized by the Act, the legislative body of a local agency may not impose fees to defray its costs in carrying out the pro- visions of the Act. (Section 54956.6.) A local agency may not conduct any meeting or function where racial or other discrimination is practiced. (Section 54961.) F. Permissible executive sessions Authority for executive sessions must be found in the explicit terms of the Act or inferred from some other confidentiality provision in the law. (61 Ops.Cal.Atty.Gen. 220 (1978) .) The Act itself contains several purposes for which a legislative body may meet in private or in executive session. Addi- tionally, the courts and this office have held several other situations to fall within the executive session exception to the open meeting requirements of the Act. Prior to or after holding any executive or closed session, the legislative body of the local agency shall state the general reason or reasons for the session. The legislative body may also cite the legal authority under which the closed session is held. The scope of the closed session shall be limited to matters covered by the legislative body's statement of reasons. The legis- lative body is neither authorized nor required to include in its statement of reasons information which could constitute an invasion of privacy or otherwise . unnecessarily divulge particular facts concerning the closed session. (Sec- tion 54957.7.) 1. Expressly authorized executive sessions a. Personnel exception The Act provides in Section 54957 for executive sessions to consider the appointment, employment, or dismissal of a "public employee" as defined by the Act or to hear complaints and charges against such "public employee." This exception is commonly known as the "personnel exception." An employee may request and require a public hearing where the purpose of the executive session is to discuss specific charges or complaints against him or her. A general discussion of an employee's job performance may, however, be held in executive session irrespective of the employee's desires. (61 Ops.Cal.Atty.Gen. 283 (1978) .) -9- �n We have held that "public employee" as del ed by the Act does not include anyone elected or appointed to an el.--ctive office; that the definition contemplates only "nonelective off,- ers" insofar as it may include officers. (59 Ops.Cal.Atty.Gen. 26f. (1976) .) Moreover, mayors, chairpersons of boards of supervisor::, and other presiding officers, although receiving separate appoints-iients to their presiding offices, are not employees within the meaning of Section 54957. ,.-. Therefore, complaints against such presiding officers may not be dis- cussed in an executive session. (61 Ops.Cal.Atty.Gen. 10 (1978) .) Presently the legislative body must report at its next subsequent public meeting any action taken during its closed session, and the roll call vote thereon, to appoint, employ, or dismiss an employee. Effective January 1, 1981, the legislative body must render its report at the public meeting during which the executive session is held or at the next subsequent public meeting. (Section 54957.1.) This report- ing requirement applies to all legislative bodies irrespective of whether they are otherwise required to act by roll call vote. (59 Ops.Cal.Atty.Gen. 619 (1976) .) However, the requirement has been con- strued to apply only to actions to "appoint," "employ," or "dismiss." Accordingly, an action to establish the compensation of a hospital administrator need not be reported at the next subsequent public meet- ing of the legislative body. (63 Ops.Cal.Atty.Gen. 215 (1980) .) The personnel exception is probably the most widely used permitted executive session device. This office has opined that the primary purpose of the exception is to avoid undue publicity and embarrassment to the affected employee and that an ancillary purpose of the excep- tion is to encourage the free discussion of personnel matters by the legislative body. (63 Ops.Cal.Atty.Gen. 215 (1980) ; 61 Ops.Cal.Atty. Gen. 283 (1978) ; 59 Ops.Cal.Atty.Gen. 532 (1976) .) Examples of its application may be helpful to demonstrate that in addition to actual hiring and firing, it has a legitimate intermediate scope. i. In Cozzolino v. City of Fontana (1955) 136 Cal.App.2d 608, the court upheld a closed hearing to consider the propriety of a past firing by the chief of police, and to ratify such action. ii. In Letsch v. Northern San Diego County Hosp. Dist. (1966) 246 Cal.App.2d 673, the court held that a decision to terminate the contract of the hospital radiologist, who was apparently an inde- pendent contractor, taken after an executive session was held discussing the radiologist's qualifications, was proper, and the discussions fell within the personnel exception. iii. In Lucas v. Board of Trustees (1970) 18 Cal.App.3d 990, s decision not to rehire the district superintendent of a high school district was held to be properly made in executive session. Also, in 59 Ops.Cal.Atty.Gen. 532 (1976) , this office upheld the use of an executive session by a school district governing board to discuss and evaluate the performance of its superintendent. iv. In 61 Ops.Cal.Atty.Gen. 283 (1978) and in several letter opinions of this office, it was held that the personnel exception could be used to discuss the salaries of individual employees as opposed to discussing salary scales in general. Thus, in I.L_ 66-184, we took the view that it was proper under the personnel exception to discuss in private the salary of the manager of a special district, and the discussions could include his work -10- 0) 0 '41 4) 1 w C 0 1rol •4 cwN IA1 >, • vN 'o1W >, Ot +JC >, rovwl • 10 4 3 +J '4-H > W 0 U +J N 0 0 0 0 to 0 0 0+ to 43 u > 41 0 0)H C: 0 0 � 4) 0 m 4) ro u H v 4) a) v > •.4 -H 'a •.+ p, A u p X C •4 C ••+ C•H ••+ N •ro •HyroCC0)0 41Ad04r-4a) 0 Nyaa N3a� 0 +1 0 � N C to (a rl > NUw03 r u w ro a a 3 C N w a ••+ N v ro 1 >1••+ ro N '-1 JJ > a N U a •+ v CO 4 N ,1 ro 0 C U w .I ro •.1 R1 u c 1J y.� .1 0+ N U +J•1 ro U v.,t roto N w .�1 p, .CI0�4 W e j °p % ° 'v1 r 0 ''I rci .,cj 3 b [ N p a •vl 0 . aCi•�H JJ C y AO 1 w w . ro u to NOVUAORI UE U A � NQ+WQ+ U •.� C Id vX ccc > U v ,4MV Arov N vN4) ro0vb wp A tOCv ror40 ' roc' 0 N to u b u v y 0) .,>j u U J: N •.I 0+.-1 y•ra .,a v 4J c 8u roQ, NNv v roAv c y0 ++ aw .� 0 N .> y r .� &+•4 .a >. acidv u••+ a.0 U3 � >, ^' a a UVUroUCCv ,� w . yam, „ `" w vvv ..+ auy HUw 00, w01to 4 0r-I wcC U 0W7 H � vOv NOduUi � � ° w ••N+ c � � M �kro v ..aua w pip, W % wa AroAAA uU > yC vv Cp u H '° vccxa0ua ° rod v ro vuw crnvrow ^frosv �, u, cc' $' °; u � uc A .14 yJ J: v A y w •,4 C v 0 ^ v C C+ c p y a 0 U U u41vro OtN ro � ONUU .ac ^4cW .,� ^ vmx0 � to 0 A ,� a v c Q �+ N >,r 0 C •ri 0 00 0 v +J u U) ro w u JJ 0 0 0 >+ C b 41 C a j w w � V to y u u ro � �J � U ro U v u � � 3 y N 3 M w o y � yAw c 43 0 v 1, v U ` uv N cw ��>p40ON etc G ''' vUj � vrn v Uro y U C1 C y ,4 U p 'p w v • y�J G 3 v G>') a to C C ro O v R c y ^ v > C C Z a z a 0 0 N 0 w ° 0 o ro x a C c C 0 O c A > F uri b d . ° " p .0 p, ro 0 0 u U y N C N 0 ..1 N co v Ww to ° u N 0 U) U b H u >01 1 ^W N M b 'W ' 1J ro 41 in w �AwtA,>ayb>�J� a3Gba04$gcii cv°•W.0�1 yN,Co1J U �� d r M,vCC WuO cro N c � �Ail��rvcl vroroCC aa y �+ >•��Abb s>r ° utU AC4 % >a croy A"�c4a•,4 'i 4) A 0 c CN r4 cv m -4 .0•ro� �roaC aC• uU ro•Ja.rC��J♦ •roA.b 0 a v „ r 4J > -A 0 U N > 41 •,4 J J •-I w 4J 4) u �4 " a!'I Wpo a) jA 1J „ 4j 4) O to to C [ � � °- � � � c 4) U � a . rn J m ro .14 41C N + �0 �� V) N yu 4) y b yO to Q . U Q) A ,4 % pt u 3 aW >4 w I N W4) C (0 ° N uuA ° -N ° ro 0 N C W u U yJ N 4J N•A 0• v U � G W J u U) 4)rgro u -I w i -A •,♦ 0 X y °� u Q ► w ° � � � � A a ew •i uJro -i 0) N 'o u U Ny 41 U 4) 4) a V 4J (0 ro c 1J •av • 1 � ro o > u"q o 3U v0 R.4 > C � ca 0a yu (a • cN0 CA UVA � ^ uv0 rO yJyro0uv arow H > 0w °° � UOvauUH uw VE >1 0H va • ° A . p 04J C w '14 ' ao X ro y N N al•r♦ p ,, . yJ O In U•a y p y N ro W uI U C1 N W M X 4J a r4 r-1 ro > j 1JW - ) > rn J 1J W 'w4) •'4Ja J 1 ^� c v•-H U) +W u . • 1 U roN [ � >yCO . � � > NN '� y v u0 >r - ro C c N yJ W X 0 fal ro to° N > 0 OO 0 V : U �G1 u a N N N A c a N 0a � W 0 J 4) aJ O 0 0 N 0 p' >r 4) 41 u N V H w 0) N C N C O u u wUoU ra 0 0 y c 0aN pH 1,4 v >' 0 N A b 0 c Ui 0 .14 . p u -r4 . N N +j ko V 0) (a 0O ° 'o u •0 ' N N d b � 0CN 41 3c > w U0 vjro j ° UyC p �0 •i >r O0M '0 + +Ju0 4r, -H0, 414 wu2Wro 0 (0 WN N py ' 41 1 %croA U - 5 u >, 0 4J >+ rq 3 N }J UvJ 0 0 W u W r4 41 41 iJA a 0 G) 4J C U N kro u rov0curo .4 HM U a 0 toro vo � A Ci •a JJ u a �o Ca 0 � C riOCON00CN 4) rq > M J v JO U.aO + C! • p C > 0 Q) 10 ro 1j O Ur •4 N H 2 C to > 4 y 1J •,� JJ +J GJ c tl C fo uw � a y A ,44jA (aH " AvxC ' auCai Hv u > miirooro u 04 0oo 41 Hc4j • aO, 0 Cri t �I Z a C r-I•d Q) rl C yJ U >1•,4 ro N 10 4 -H a) 1J (0r-1 -4 4) C Ai . 1J (aU GUl ,4 0 C ,vC H 0 0) m 0 4) a) rto - 0 0 X a a) • ro %"4 A v 4 c� A N A N 304 u H +J v +J � �-Aro N •'i 3 C a v E u H rota v 3 +J � � +J v N �Q This office has r4led that the attdfney-client privilege is broad enough to permit a legislative body to meet in executive session with / its legal advisor to discuss "potential" litigation so long as it relates to an existent set of concrete facts and circumstances, and thus, litigation need not be pending not imminent to give rise to the privilege. (I.L. 75-282.) In such letter opinion it was also held that the Act does not require the legislative body to state who may be �-- involved in such potential litigation before it may meet in executive session. However, an executive session is justified on the basis of the attorney-client privilege only if the statutory prerequisites to the establishing of such a privilege are satisfied. Thus, this office has concluded that discussions between adversary public agencies and their attorneys concerning the settlement of potential litigation are not confidential communications protected by the attorney-client priv- ilege and, therefore, are not properly conducted during executive sessions. (62 Ops.Cal.Atty.Gen. 150 (1979) .) b. Other privilege and confidentiality provisions Other privilege and confidentiality provisions which may, depending upon the facts of the particular case, justify the holding of an exe- cutive session include (1) the "official information privilege" (Evidence Code Section 1040) which protects certain confidential information acquired by public employees and (2) the exceptions to the California Public Records Act found in Sections 6254 and 6255. It would appear appropriate to discuss matters protected by these stat- utes during executive session. (62 Ops.Cal.Atty.Gen. 150 (1979) ; 61 Ops.Cal.Atty.Gen. 220 (1978) .) Absent express authority or an independent confidentiality provi- sion from which authority for an executive session may be inferred, meetings of legislative bodies must be open and public. Thus, in 61 Ops.Cal.Atty.Gen. 220 (1978) , we concluded that meetings of the Board of Police Commissioners could not, as a general proposition, be held in executive session, even though the matters to be discussed were deemed sensitive by the commission and their disclosure considered contrary to the public interest. This office has also concluded that Evidence Code Section 1152, which renders inadmissible for the purpose of proving liability evidence of the conduct or statements of a liti- gant during settlement negotiations, does not authorize the holding of an executive session for the purpose of conducting settlement negotia- tions. Section 1152 has as its purpose the fostering of settlements of disputes rather than the protecting of confidential communications. (62 Ops.Cal.Atty.Gen. 150 (1979) .) This office also has refused to imply an exception to the open meeting requirements of the Act for "quasi-judicial" matters_ Thus, we held that county boards of education could not meet in executive session to deliberate when deciding appeals from decisions of local school district boards refusing to enter into interdistrict attendance agreements_ (See 57 Ops.Cal.Atty.Gen. 189 (1974) ; see also I.L. 71- 198 and Z.L. 70-213, deliberations of county air pollution control district board after public hearing on appeals must also be held in public.) 3. Time for executive sessions and required notice The Act provides that executive sessions for personnel matters are to be held only during a regular or special meeting. (Section 54957.) Thus, in -12- 43 Ops.Cal.Atty.Gen. 79 (1964) , this office held that the requisite spe- cial meeting notice was required to hold an executive session as to whether to retain an incumbent school principal. Interesting, however, is the decision in Lucas v. Board of Trustees, supra, 18 Cal.App.3d 990, in which the court held that the school board need not publish a detailed agenda of matters to be considered at executive sessions which were to be held as part of, but apart from, a regular meeting. The rationale was that such would negate the purpose of the executive session in personnel matters; that is, to avoid undue publicity and embarrassment to the officer or employee. The court relied for such rationale on a prior opin- ion of this office, 33 Ops.Cal.Atty.Gen. 32 (1959) . We note, however, that the employee himself was notified beforehand that his contract would be considered at such sessions. 4. Minute book The legislative body may designate, by ordinance or resolution, an officer or employee of the local agency who shall attend each executive session and maintain a minute book, which may consist of a recording of the execu- tive session. The minute book is confidential and shall only be available to members of the legislative body and, in litigation involving an alleged violation of the Act during an executive session, to a local court of general jurisdiction. (Section 54957.2.) Neither the executive session minutes nor the information which they memorialize may be released by the legislative body or any of its members. (I.L. 76-201.) The recording of executive sessions is authorized by Section 54957.2 only to the extent that such recording is done in a manner which does not violate the provisions of Penal Code Section 632. Thus, Section 54957.2 does not constitute a defense to criminal liability for recording confi- dential communications without the consent, or at least knowledge, of the parties. (62 Ops.Cal.Atty.Gen. 292 (1979) .) 5. Miscellaneous considerations regarding executive sessions Though the Act speaks in terms of "considering" personnel matters, there is no doubt that absent a provision in another code (such as the Education Code to be discussed later) , to "consider" in executive session also includes the ability to act in executive session. The legislative body need not return to the open meeting before voting or taking action. (Krausen v. Solano County Junior College Dist. (1974) 42 Cal.App.3d 394, 404; Lucas v. Board of Trustees, supra, 18 Cal.App.3d 990.) Thus, in .I.L. 61-85, we held that "consider" included the right to dismiss an officer or employee in executive session, reserving to the officer or employee, how- ever, his statutory right to request a public hearing. The executive session is precisely what the term indicates and does not include a semi-executive session. Neither members of the press nor any other members of the public may be admitted as spectators to executive sessions held pursuant to the Act. (46 Ops.Cal.Atty.Gen. 34 (1965) .) Nor would it be proper for an investigative committee of a grand jury perform- ing its duties of investigating the county's business to be admitted to an executive session. (I.L. 70-184.) In both the foregoing examples, the proceedings of the executive session would in due course be disclosed by such third parties, thus negating the whole purpose of the executive ses- sions; that is, required secrecy in limited circumstances. This office, however, has held that a county board of supervisors may attend a closed -13- b� session of a county grand jury which is held in the exercise of the grand jury's own investigative powers without violating the Act. (58 Ops.Cal. Atty.Gen. 829 (1975).) In 1979 the Act was amended to explicitly authorize members of a legislative body of a local agency to testify in private before a grand jury, either as individuals or as a body. (Section 54353.1.) Finally, and of importance to an individual who may be the object of disciplinary action at an executive session, failure of the officer or employee to request a public hearing, as permitted by the Act, does not amount to a failure to exhaust his administrative remedies as a condition to attacking such disciplinary action in court. Thus, in Ball v. City Council (1967) 252 Cal.App.2d 136, the court held that a police chief who was fired for engaging in union activities was not foreclosed from appealing such firing in court merely because he failed to request that the matter of his firing be considered publicly rather than in private. The Act itself does not grant a quasi-judicial-type hearing. The police chief was an at-pleasure appointee, and no special administrative hearing was prescribed for such personnel action. G. Penalties for violation of the act The Act, in Section 54959, provides that a member of a legislative body who attends a meeting where action is taken in violation of the Act, and with knowledge that the meeting violates the Act, is guilty of a misdemeanor. . The term "action taken" includes a collective decision, commitment, or promise by a majority of the members of a legislative body. (Section 54952.6.) It is the participation of a majority of the members of the legis- lative body, rather than the outcome of any vote taken or the manner in which members of the majority vote, that gives rise to criminal liability. (I.L. 78-84.) That the collective decision is tentative rather than final does not shield knowing participants from criminal liability. (61 Ops.Cal.Atty.Gen. 283 (1978) .) However, if there is deliberation without action, the criminal penalty is not applicable and only civil proceedings are available. (Sacra- mento Newspaper Guild v. Sacramento County Bd. of Suprs., supra, 263 Cal.App. 2d 41.) There must be not only a volitional act constituting a violation, but also an act which is done with knowledge that it is illegal. Good faith reliance on the opinion of counsel that a nonpublic meeting is proper would normally preclude the finding of a "knowing" violation of the Act. (I.L. 76-173.) The determination as to whether there is sufficient evidence that members of a legislative body who have taken action at an illegal meeting in violation of the Act have done so knowingly must be made, in the first instance, by the district attorney or other local appropriate prosecuting attorney in light of all the facts. (I.L. 67-147.) In this regard, it is of interest that effec- tive January 1, 1981, a legislative body of a local agency may require that a copy of the Ralph M. Brown Act be given to each of its members. (Section 54952.7.) Although the Act itself only provides that a known violation is a misde- meanor if action is taken, under some circumstances a violation may also be a felony. If a conspiracy to commit a misdemeanor occurs, it can be a felony. (Penal Code Section 182.) There are no court decisions or prior opinions on this matter, but because meetings usually require the concurrence of more than one member, it would appear that the possibility that a conspiracy will have occurred will be present in many instances. -14- O.9 H. Enforcement provisions / Even if a criminal penalty is not applicable because action has not been taken, the Act, nevertheless, may be enforced to prevent further or future violations, as the Act can be enforced by civil action for activities beyond those covered by the penal provisions. (Sacramento Newspaper Guild .v_ Sacra- mento County Bd. of Suprs., supra, 263 Cal.App.2d 41, 48.) If a member of the public or news media believes that the Act has been, is being, or will be violated, that person's recourse is both informal and formal. Informally the individual may advise the legislative body or the attorney for the legislative body of his or her belief or, if appropriate, a superior governing body of the agency. If such informal action is unavailing, the individual's recourse is in the courts. The Act provides for court pro- ceedings by any interested person to prevent violation of the Act or for determinations as to the applicability of the Act to both past and future con- duct of the legislative body. (Section 54960.) "Interested. persons" may include a county or its officers on whose behalf an action may be filed by the county counsel or, in counties not having a county counsel, the district attorney. It was not intended, however, that the county counsel or the district attorney be invested with powers as a civil prosecutor in matters relating to the Act. (62 Ops.Cal.Atty.Gen. 150 (1979) .) The court may award attorney fees and court costs to whichever party pre- vails. (Section 54960.5.) I. Effect of failure to hold open meeting Though one might believe that the taking of action by a legislative body in. secret, when the law requires such action to be taken in an open meeting, should and would void the action, such is not the case. The courts have con- sistently stated that the action is still valid. In Stribling v. Mailliard (1970) 6 Cal.App.3d 470, the court was considering an attack on the San Fran- cisco police regulation concerning the carrying of guns by off-duty policemen. As to the plaintiff's contention that the regulation was invalid because adopted in secret, the court stated, at pages 474-475: "Appellants allege that the disputed regulation was passed by the Police Commission secretly. Interested members of the public, it is alleged were not permitted to express their views. The Ralph M. Brown Act (Gov. Code 0 54950) is cited as stating the public policy of the state. But even if we assume that section 54950 applies to the challenged regula- tion, the regulation would not be invalidated. (Old Town Dev. Corp. v. Urban Renewal Agency, 249 Cal.App.2d 313 [57 Cal.Rptr. 426]; Claremont Taxpayers Assn. v. City of Claremont, 223 Cal.App.2d 589, 593-594 [35 Cal.Rptr. 907] ; Adler v. City Council, 184 Cal.App.2d 763, 774-775 [7 Cal. Rptr. 8051.) (Some of the effects of the Adler case were removed by leg- islation, but the proposal to make void any action taken at nonpublic meetings was objected to by the Governor and was eliminated from the pro- posed amendment to the statute. See 42 Ops.Cal.Atty.Gen. 61, 66.) " (See also: Morris v. County of Marin (1977) 18 Cal.3d 901, 908-909, note 4; Griswold v. Mt. Diablo Unified Sch. Dist. (1976) 63 Cal.App.3d 648; Greer v. Board of Education (1975) 47 Cal.App.3d 98.) For a similar con- clusion regarding the validity of an action taken in violation of the State Agency Act, see American Petroleum Institute v. Knecht. (C.D.Cal. 1978) 456 F.Supp. 889, 913-914, affirmed (9th Cir. 1979) 609 F.2d 889.. -15- III. SPECIAL CONSIDERATIONS RELATING TO SCHOOL DI4TRICTS One local agency of great public interest is the governing body of a school `. district. There are a few special rules which should be pointed out are applicable to school districts as opposed to local agencies generally. These are additional to the Ralph M. Brown Act. .- 1. Under the circumstances delineated by statute, school districts may hold executive sessions to consider the suspension of or other disciplinary action as to any pupil, with the right of the pupil or his parent or guardian to request a public hearing. (Education Code Sections 35146 and 48914 (c) .) 2. As to such disciplinary action, the board may not take final action in executive sessions, but must do so in a public meeting. (Education Code Sec- tions 35146 and 48914 (g) ; see also: 44 Ops.Cal.Atty.Gen. 147 (1964) ; I.L. 61-93.) 3. A list of all agenda items for all regular meetings must be posted where parents and teachers may see them at least 48 hours in advance of regular meetings and 24 hours in advance of special meetings. (Education Code Section 35145.) Failure to post an agenda item will apparently void the action on such item. In Carlson v. Pasadena Unified Sch. Dist. (1971) 18 Cal.App.3d 196, the court held that an injunction was proper to prevent the closure of a school where the agenda item as to such school said nothing concerning closing it, but merely stated that a proposed school site change would be considered. It should be noted, however, that Government Code Section 54957, which author- izes executive sessions on personnel matters, provides an exception to the open meeting and posted agenda requirements of Education Code Section 35145.5. i Thus, a governing board may consider personnel matters in executive session_ without posting a detailed agenda specifying the matters to be discussed. (Campbell Elementary Teachers Assn., Inc. v. Abbott (1978) 76 Cal.App.3d 796; Lucas v. Board of Trustees, supra, 18 Cal.App.3d 990.) 4. The school district governing board shall adopt reasonable regulations to insure that members of the public are able to (1) place matters directly related to school district business on the agenda of the governing board meetings and (2) address the board regarding items on the agenda. (Education Code Section 35145.5.) -16- / IV. THE STATE AGENCY ACT The Ralph M. Brown Act is by its terms not applicable to state agencies, but only local agencies. However, in the past the Attorney General has on occa- sion advised agencies which held regular meetings to follow the outline of the Act as a matter of policy. (See: I.L. 66-21; I.L. 64-167; I.L. 64-69.) Since 1967 the state has had an act of general applicability to state boards and commissions which are required by law to conduct official meetings. Effective January 1, 1981, the State Agency Open Meeting Act also applies to (1) commis- sions created by executive order, (2) multimember bodies on which a member of a state agency sits in his or her official capacity and which are supported in whole or in part by funds of the state agency or any of its members, and (3) advisory bodies of three or more persons which are created by formal action of a state agency. (Sections 11121, 11121.7.) The State Act does not apply to agencies whose meetings are required to be open and public by the Brown- Act. (Torres v. Board of Commissioners, supra, 89 Cal.App.3d 545.) Agencies which are adjuncts of the court system, such as the Commission on Judicial Qualifications or the Judicial Council, and also agencies specifically exempted by law are excepted. As already noted, there are special provisions applicable to the Legislature, and the Regents of the University of California, which are set forth in the Appendix herein. The state agency law is similar in many respects to the Ralph M. Brown Act; but in other respects is different, necessarily recognizing the differ- ence in functions performed by the state as opposed to local agencies. Some of the significant differences are: 1. The state law provides approximately a dozen additional statutory pro- visions for the holding of executive sessions tailored to the orderly functions of such agencies. For example, it provides: a) Executive sessions for quasi-judicial determinations made by admin- istrative agencies after an evidentiary hearing, b) Executive sessions for the Franchise Tax Board to discuss confiden- tial tax returns, as well as matters pertaining to the appointment or r removal of the executive officer of the Franchise Tax Board, c) Executive sessions for the selection of sites for state colleges, and d) Executive sessions for the California Postsecondary Education Com- mission to consider matters pertaining to the appointment or termina- tion of its director. For these and other situations, Section 11126 of the Government Code should be consulted. 2. The state law contains specific agenda requirements. (Sections 11125 and 11125.1; see also: American Petroleum Institute v. Knecht, supra, 456 F.Supp. 889, 912-914, affirmed (9th Cir. 1979) 609 F.2d 889.) 3. The state law provides that a state agency shall designate an employee who shall attend its closed sessions and keep in a minute book a record of the topics discussed and decisions made at the meeting. (Section 11126.1.) 4. The state law provides that a state agency shall provide a copy of the State Agency Open Meeting Act to each member of the state agency upon his or her appointment to membership or on assumption of office. (Section 11121.9.) -17- 5. The state law provides that prior to holding a closed session, a state agency shall state the general reason or reasons for the session, as well as the statutory or other legal authority under which such is being held. (Section 11126.3.) 6. The state law provides that attendance by a member of a state agency at a meeting of such agency with knowledge of the fact that the meeting is in violation of the State Agency Open Meeting Act is a misdemeanor. (Section 11130.7.) -18- V. CONCLUSION The Office of the Attorney General has attempted herein to outline the provi- sions of the secret meeting laws applicable to public agencies, primarily the Ralph M. Brown Act and, to a lesser degree, the act applicable to state agencies. It is to be again emphasized that this brochure is not to be con- sidered a definitive statement of the law, but is prepared and furnished for informational purposes for members of the public or lay board members who wish to gain a general overview of these laws. Specific situations must be deter- mined on their own facts and circumstances. The officers or attorneys of the local agency or the district attorney or county counsel of a county are the appropriate persons to address inquiries regarding the Ralph M. Brown Act, or a private attorney should be consulted for advice. l -19- APPENDIX THE RALPH M. BROWN ACT Government Code Sections 54950 - 54961 s 54950. In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their delibera- tions be conducted openly. The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. $ 54950.5. This chapter shall be known as the Ralph M. Brown Act. b 54951. As used in this chapter, "local agency" means a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, com- mission or agency thereof, or other local public agency. 9 54951.1. For the purposes of this chapter, and to the extent not inconsis- tent with federal law, the term "local agency" shall include all private non- profit organizations that receive public money to be expended for public purposes pursuant to the "Economic Opportunity Act of 1964" (P.L. 88-452; 78 Stat. 508) . $ 54951.7. "Local agency" includes any nonprofit corporation, created by one or more public agencies, whose board of directors is appointed by such public agencies and which is formed to acquire, construct, reconstruct, maintain or operate any public work project. 9 54952. As used in this chapter, "legislative body" means the governing board, commission, directors or body of a local agency, or any board or com- mission thereof, and shall include any board, commission, committee, or other body on which officers of a local agency serve in their official capacity as members and which is supported in whole or in part by funds provided by such agency, whether such board, commission, committee or other body is organized and operated by such local agency or by a private corporation. 9 54952.3. As used in this chapter "legislative body" also includes any advi- sory commission, advisory committee or advisory body of a local agency, created by charter, ordinance, resolution, or by any similar formal action of a governing body or member of such governing body of a local agency. Meetings of such advisory commissions, committees or bodies concerning subjects which do not require an examination of facts and data outside the territory of the local agency shall be held within the territory of the local agency and shall be open and public, and notice thereof must be delivered per- sonally or by mail at least 24 hours before the time of such meeting to each person who has requested, in writing, notice of such meeting. -20- If the advisory commission, committee or body elects to provide for the holding of regular meetings, it shall provide by bylaws, or by whatever other l rule is utilized by that advisory body for the conduct of its business, for the time and place for holding such regular meetings. No other notice of regular meetings is required. "Legislative body" as defined in this section does not include a committee composed solely of members of the governing body of a local agency which are less than a quorum of such governing body. The provisions of Sections 54954, 54955, 54955.1, and 54956 shall not apply to meetings under this section. §S 54952.5. As used in this chapter "legislative body" also includes, but is not limited to, planning commissions, library boards, recreation commissions, and other permanent boards or commissions of a local agency. §S 54952.6. As used in this chapter, "action taken" means a collective deci- sion made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance. S 54952.7. A legislative body of a local agency may require that a copy of this chapter be given to each member of the legislative body. An elected legislative body of a local agency may require that a copy of this chapter be given to each member of each legislative body whose members are appointed by or under the authority of the elected legislative body. §S 54953. All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter. 9 54953.1. The provisions of this chapter shall not be construed- to prohibit the members of the legislative body of a local agency from giving testimony in private before a grand jury, either as individuals or as a body. s� 54953.3. A member of the public shall not be required, as a condition to attendance at a meeting of a legislative body of a local agency, to register his name and other information, to complete a questionnaire, or otherwise to fulfill any condition precedent to his attendance. S 54953.5. Any person attending an open and public meeting of a legislative body of a local agency shall have the right to record the proceedings on a tape recorder in the absence of a reasonable finding of the legislative body of the local agency that such recording constitutes, or would constitute, a disruption of the proceedings. §S 54954. The legislative body of a local agency shall provide, by ordinance, resolution, by-laws, or by whatever other rule is required for the conduct of business by that body, the time for holding regular meetings. Unless other- wise provided for in the act under which the local agency was formed, meetings i i -21- b� of the legislative body need not be held within the boundaries of the terri- tory over which the local agency exercises jurisdiction. If at any time any regular meeting falls on a holiday, such regular meeting shall be held on the next business day. If, by reason of fire, flood, earthquake or other emer- gency, it shall be unsafe to meet in the place designated, the meetings may be held for the duration of the emergency at such place as is designated by the presiding officer of the legislative body_ 54954.1. The legislative body of any district which is subject to the provi- sions of this chapter shall give mailed notice of every regular meeting, and any special meeting which is called at least one week prior to the date set for the meeting, to any owner of property located within the district who has filed a written request for such notice with the legislative body. Any mailed notice required pursuant to this section shall be mailed at least one week prior to the date set for the meeting to which it applies except that the legislative body may give such notice as it deems practical of special meet- ings called less than seven days prior to the date set for the meeting. Any request for notice filed pursuant to this section shall be valid for one year from the date on which it is filed unless a renewal request .is filed. Renewal requests for notice shall be filed within 90 days after January 1 of each year. Any request for notice, or renewal request, filed pursuant to this section shall contain a description of the property owned by the person filing the request. Such description may be in general terms but shall be sufficient enough to readily identify such property. The legislative body may establish a reasonable annual charge for sending such notice based on the estimated cost of providing such a service. 9 54955. The legislative body of a local agency may adjourn any regular, adjourned regular, special or adjourned special meeting to a time and place C w specified in the order of adjournment. Less than a quorum may so adjourn from time to time. If all members are absent from any regular or adjourned regular meeting the clerk or secretary of the legislative body may declare the meeting adjourned to a stated time and place and he shall cause a written notice of the adjournment to be given in the same manner as provided in .Section 54956 for special meetings, unless such notice is waived as provided for special meetings. A copy of the order or notice of adjournment shall be conspicuously posted on or near the door of the place where the regular, adjourned regular, special or adjourned special meeting was held within 24 hours after the time of the adjournment. When a regular or adjourned regular meeting is adjourned as provided in this section, the resulting adjourned regular meeting is a regular meeting for all purposes. When an order of adjournment of any meeting fails to state the hour at which the adjourned meeting is to be held, it shall be held at the hour specified for regular meetings by ordinance, resolution, by law, or other rule. § 54955.1. Any hearing being held, or noticed or ordered to be held, by a legislative body of a local agency at any meeting may by order or notice of continuance be continued or recontinued to any subsequent meeting of the legislative body in the same manner and to the same extent set forth in Section 54955 for the adjournment of meetings; provided, that if the hearing is continued to a time less than 24 hours after the time specified in the order or notice of hearing, a copy of the order or notice of continuance of hearing shall be posted immediately following the meeting at which the order or declaration of continuance was adopted or made. -22- $ 54956. A special meeting may be called at any time by the presiding officer of the legislative body of a local agency, or by a majority of the members of the legislative body, by delivering personally or by mail written notice to each member of the legislative body and to each local newspaper of general circulation, radio or television station requesting notice in writing. Such notice shall be delivered personally or by mail and shall be received at least 24 hours before the time of such meeting as specified in the notice. The call and notice shall specify the time and place of the special meeting and the business to be transacted. No other business shall be considered at such meetings by the legislative body. Such written notice may be dispensed with as to any member who at or prior to the time the meeting convenes files with the clerk or secretary >f the legislative body a written waiver of notice. Such waiver may be given by telegram. Such written notice may also be dis- pensed with as to any member who is actually present at the meeting at the time it convenes. Notice shall be required pursuant to this section regard- less of whether any action is taken at the special meeting. $ 54956.5. In the case of an emergency situation involving matters upon which prompt action is necessary due to the disruption or threatened disruption of public facilities, a legislative body may hold a special meeting without com- plying with the 24-hour notice requirement of Section 54956. For purposes of this section, "emergency situation" means any of the followings (a) Work stoppage or other activity which severely impairs public health, safety, or both, as determined by a majority of the members of the legislative body. (b) Crippling disaster which severely impairs public health, safety, or \ both, as determined by a majority of the members of the legislative body. However, each local newspaper of general circulation and radio or televi- sion station which has requested notice of special meetings pursuant to Sec- tion 54956 shall be notified by the presiding officer of the legislative body, or designee thereof, one hour prior to the special meeting by telephone and shall exhaust all telephone numbers provided- in the most recent request of such newspaper or station for notification of special meetings. In the event that telephone services are not functioning the notice requirements of this section shall be deemed waived, and the legislative body, or designee thereof, shall notify such newspapers, radio stations, or television stations of the fact of the holding of the special meeting, the purpose of the meeting, and any action taken at the meeting as soon after the meeting as possible. Notwithstanding the provisions of Section 54957, the legislative body shall not meet in executive session during a meeting called pursuant to this section. All special meeting requirements, as prescribed in Section 54956 shall be applicable to a meeting called pursuant to this section, with the exception of the 24-hour notice requirement. The minutes of a meeting called pursuant to this section, a list of per- sons who the presiding officer of the legislative body, or designee thereof, notified or attempted to notify, a copy of the roll call vote, and any actions taken at such meeting shall be posted for a minimum of 10 days in a public place as soon after the meeting as possible. -23- 54956.6. No fees may be charged by the legislative body of a local agency for carrying out any provision of this chapter, except as specifically author- ized by this chapter. SS 54957. Nothing contained in this chapter shall be construed to prevent the legislative body of a local agency from holding closed sessions with the Attorney General, district attorney, sheriff, or chief of police, or their respective deputies, on matters posing a threat to the security of public buildings or a threat to the public's right of access to public services- or public facilities, or from holding closed sessions during a regular or special meeting to consider the appointment, employment or dismissal of a public employee or to hear complaints or charges brought against such employee by another person or employee unless such employee requests a public hearing. The legislative body also may exclude from any such public or closed meeting, during the examination of a witness, any or all other witnesses in the matter being investigated by the legislative body. For the purposes of this section, the term "employee" shall not include any person elected to office, or appointed to an office by the legislative body of a local agency; provided, however, that nonelective positions of city manager, county administrator, city attorney, county counsel, or a department head or other similar administrative officer of a local agency shall be con- sidered employee positions; and provided, further that nonelective positions of general manager, chief engineer, legal counsel, district secretary, audi- tor, assessor, treasurer or tax collector of any governmental district supply- ing services within limited boundaries shall be deemed employee positions. Nothing in this chapter shall be construed to prevent any board, commis- sion, committee, or other body organized and operated by any private organiza- tion as defined in Section 54952 from holding closed sessions to consider (a) matters affecting the national security, or (b) the appointment, employment or dismissal of an employee or to hear complaints or charges brought against such E employee by another person or employee unless such employee requests a public hearing. Such body also may exclude from any such public or closed meeting, during the examination of a witness, any or all other witnesses in the matter being investigated by the legislative body. -9 54957.1. The legislative body of any local agency shall publicly report at the public meeting during which the closed session is held or at its next public meeting any action taken, and any roll call vote thereon, to appoint, employ, or dismiss a public employee arising out of any closed session of the legislative body. 5 54957.2. (a) The legislative body of a local agency may, by ordinance or resolution, designate a clerk or other officer or employee of the local agency who shall then attend each closed session of the legislative body and keep and enter in a minute book a record of topics discussed and decisions made at the meeting. The minute book made pursuant to this section is not a public record subject to inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) , and shall be kept confidential. The minute book shall be available only to members of the legislative body or, if a violation of this chapter is alleged to have occurred at a closed session, to a court of general jurisdiction wherein the local agency lies. Such minute book may, but need not, consist_ of a recording of the closed session. -24- (b) An elected legislative body of a local agency may require that each ( legislative body all of whose members are appointed by or under the authority of the elected legislative body keep a minute book as prescribed under sub- division (a) . SS 54957.5. (a) Notwithstanding Section 6255 or any other provisions of law, agendas of public meetings and other writings, when distributed to all, or a majority of all, of the members of a legislative body of a local agency by a member, officer, employee, or agent of such body for discussion or considera- tion at a public meeting of such body, are public records under the Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) as soon as distributed, and shall be made available pursuant to Sections 6253 and 6256. However, this section shall not include any writing exempt . from public disclosure under Section 6253.5, 6254, or 6254.7. (b) Writings which are public records under subdivision (a) and which are distributed prior to commencement of a public meeting shall be made available for public inspection upon request prior to commencement of such meeting. (c) Writings which are public records under subdivision (a) and which are distributed during a public meeting and prior to commencement of their discus- sion at such meeting shall be made available for public inspection prior to commencement of, and during, their discussion at such meeting. (d) Writings which are public records under subdivision (a) and which are distributed during their discussion at a public meeting shall be made available for public inspection immediately or as soon thereafter as is practicable. (e) Nothing in this section shall be construed to prevent the legislative C- body of a local agency from charging a fee or deposit for a copy of a public record pursuant to Section 6257. The writings described in subdivisions (b) , (c) , and (d) are subject to the requirements of the California Public Records Act (Chapter 3.5 (commencing with Section 6250) , Division 7, Title 1) , and subdivisions (b) , (c) , and (d) shall not be construed to exempt from public inspection any record covered by that act, or to limit the public's right to .� inspect any record required to be disclosed by that act. This section shall not apply to any writings properly discussed in a closed session of. the .legis-- lative body of-the local agency. (f) "Writing" for purposes of this section means "writing" as defined under Section 6252. 9 54957.6. Notwithstanding any other provision of law, a legislative body of a local agency may hold closed sessions with its designated representatives prior to and during consultations and discussions with representatives of. employee organizations regarding the salaries, salary schedules, or compensa- tion paid in the form of fringe benefits of employees in order to review its position and instruct its designated representatives. For the purposes enu-. merated in the preceding sentence, a legislative body of a local agency may also meet with a state conciliator who has intervened in the proceedings. § 54957.7. Prior to or after holding any closed session, the legislative body of the local agency shall state the general reason or reasons for the closed session, and may cite the statutory or other legal authority under which the session is being held. In the closed session, the legislative body may con- sider only those matters covered in its statement. In the case of special, adjourned, and continued meetings, the statement shall be made as part of the -25- notice provided for the special, adjourned, or continued meeting. Nothing in this section shall require or authorize the giving of names or other informa- tion which would constitute an invasion of privacy or otherwise unnecessarily divulge the particular facts concerning the closed session. ss 54957.9. In the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue in session. Only matters appearing on the agenda may be considered in such a session. Duly accredited representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section. Nothing in this section shall prohibit the legislative body from establishing a procedure for readmitting an indivi- dual or individuals not responsible for willfully disturbing the orderly con- duct of the meeting. $ 54958. The provisions of this chapter shall apply to the legislative body of every local agency notwithstanding the conflicting provisions of any other state law. 5 54959. Each member of a legislative body who attends a meeting of such legislative body where action is taken in violation of any provision of this chapter, with knowledge of the fact that the meeting is in violation thereof, is guilty of a misdemeanor. Ss 54960. Any interested person may commence an action by mandamus injunction k 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 actions or threatened future action of the legislative body. S 54960.5. A court may award court costs and reasonable attorney fees to the plaintiff in an action brought pursuant to Section 54960 where it is found that the local agency has violated the provisions of this article. Such costs and fees shall be paid by the local agency and shall not become a personal liability of any public officer or employee thereof. A court may award court costs and reasonable attorney fees to a defendant in any action brought pursuant to Section 54960 where the defendant has pre- vailed in a final determination of such action and the court finds that the action was clearly frivolous and totally lacking in merit. R 54961. No local agency shall conduct any meeting, conference, or other function in any facility that prohibits the admittance of any person, or per- sons, on the basis of race, religious creed, color, national origin, ancestry, or sex. This section shall apply to every local agency as defined in Section 54951. -26- qv THE STATE AGENCY ACT ( Government Code Sections 11120-11131 $ 11120. It is the public policy of this state that public agencies exist to aid in the conduct of the people's business and the proceedings of public agencies be conducted openly so that the public may remain informed. In enacting this article the Legislature finds and declares that it is the intent of the law that actions of state agencies be taken openly and that their deliberation be conducted openly. This article shall be known and may be cited as the State Agency Open Meeting Act. § 11121. As used in this article "state agency" means every state board, or commission, or similar multimember body of the state which is required by law to conduct official meetings and every commission created by executive order, but does not include state _agencies provided for in Article VI of the California Constitution nor districts or other local agencies whose meetings are required to be open to the public pursuant to the provisions of Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of this code. § 11121.5. Under the provisions of this article, the official student body organization at any campus of the California State University and Colleges, or of the California Community Colleges, shall be treated in the same manner as a state agency. § 11121.7. (a) As used in this article, "state agency" also means any board, commission, committee, or similar multimember body on which a member of a body which is a state agency pursuant to Section 11121 or 11121.5 serves in his or her official capacity as a representative of such state agency and which is supported, in whole or in part, by funds provided by the state agency, whether such body is organized and operated by the state agency or by a private cor- poration. (b) As used in this article, "state agency" also means any advisory board, advisory commission, advisory committee, advisory subcommittee, or similar multimember advisory body of a body which is a state agency pursuant to Sec- tion 11121 or 11121.5 or subdivision (a) of this section, if created by formal action of the state agency or of any member of the state agency, and if the advisory body so created consists of three or more members. (c) Notice of a meeting of a state agency which complies with subdivision (a) of Section 11125, shall also constitute notice of an advisory body of that state agency, provided that the business to be discussed by the advisory body is covered by the agenda of the meeting of the agency, provided the specific time and place of the advisory body's meeting is announced during the open and public state agency's meeting, and provided that the advisory body's meeting is conducted within a reasonable time of, and nearby, the meeting of the state agency. (d) The provisions of subdivision (a) of Section 11125 which require a specific agenda, and the provisions of subdivision (c) of such section shall not apply to a meeting of a body which is a state agency pursuant to this sec- tion. However, except as provided with respect to advisory bodies under sub- division (c) of this section, notice of a meeting of a state agency as defined by this section shall be required pursuant to subdivision (a) of Section -27- 11125, and the notice shall include a brief, general description of the busi- ness to be discussed, and the name, address, and telephone number of a person who can provide further information prior to the meeting. (e) A state agency, as defined by subdivision (a) or (b) , may conduct closed sessions upon the same grounds as a state agency as defined by Section 11121 or Section 11121.5. $ 11121.9. A copy of this article shall be provided to each member of any state agency upon his or her appointment to membership or assumption of office. § 11122. As used in this article "action taken" means a collective decision made by the members of a state agency, a collective commitment or promise by the members of the state agency to make a positive or negative decision or an actual vote by the members of a state agency when sitting as a body or entity upon a motion, proposal, resolution, order or similar action. �S 11123. All meetings of a state agency shall be open and public and all per- sons shall be permitted to attend any meeting of a state agency except as otherwise provided in this article. ss 11124. A member of the public shall not be required, as a condition to attendance at a meeting of a state agency, to register his name and other information, to complete a questionnaire, or otherwise to fulfill any . con- dition precedent to his attendance. 9 11124.1. Any person attending an open and public meeting of the state agency shall have the right to record the proceedings on a tape recorder in / the absence of a reasonable finding of the state agency that such recording constitutes, or would constitute, a disruption of the proceedings. 9 11125. (a) The state agency shall prepare an agenda for, and provide notice of, its meeting to any person who requests such notice in writing. Notice shall be given at least one week in advance of and shall include the agenda for the meeting, provided that emergency meetings may be held with less than one week's notice when such meetings are necessary to discuss unforeseen emergency conditions. The agenda need not include a list of any witnesses expected to appear at the meeting. (b) Emergency meetings held for the purpose of adopting emergency regula- tions pursuant to Section 11421 require no prior notice or agenda, except that the agency shall make a reasonable effort to contact any persons requesting notice pursuant to this section or Section 11423, or both. (c) Notice shall include the items of business to be transacted, and no item shall be added to the agenda subsequent to the provisions of such notice, absent unforeseen emergency conditions, as provided in subdivision (a) . (d) A person may request, and shall be provided, notice pursuant to sub- division (a) for all meetings of the agency or only for a specific meeting or meetings. In addition, at the agency's discretion, a person may request, and may be provided, notice of only those agency meetings at which a particular subject or subjects specified in the request will be discussed. A request for notice of more than one meeting of an agency shall be subject to the provi- sions of Section 14911. -28- a � $ 11125.1. (a) Notwithstanding Section 6255 or any other provisions of law, agendas of public meetings and other writings, when distributed to all, or a majority of all, of the members of a state agency by a member, officer, employee, or agent of such agency for discussion or consideration at a public meeting of such agency, are public records under the Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) as soon as distributed, and shall be made available pursuant to Sections 6253 and 6256. However, this section shall not include any writing exempt from public �^ disclosure under Section 6253.5, 6254, or 6254.7. (b) Writings which are public records under subdivision (a) and which are distributed prior to commencement of a public meeting shall be made available for public inspection upon request prior to commencement of such meeting. (c) Writings which are public records under subdivision (a) and which are distributed during a public meeting and prior to commencement of their discus- sion at such meeting shall be made available for public inspection prior to commencement of, and during, their discussion at such meeting. (d) Writings which are public records under subdivision (a) and which are distributed during their discussion at a public meeting shall be made available for public inspection immediately or as soon thereafter as is prac- ticable. (e) Nothing in this section shall be construed to prevent a state agency from charging a fee or deposit for a copy of a public .record pursuant to Section 6257. The writings described in subdivisions (b) , (c) , and (d) are subject to the requirements of the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) , and shall not be construed to exempt from public inspection any record required to be disclosed by that act, or to limit the public's right to inspect any record covered by that act. This section shall not apply to any writings properly discussed in a closed session of the state agency. Nothing in this article shall be construed to require a state agency to place any paid advertisement -or any other paid notice in any publication. (f) "Writing" for purposes of this section means "writing" as defined under Section 6252. �S 11125.2 Any state agency shall publicly report at a subsequent public meeting any action taken, and any roll call vote thereon, to appoint, employ, or dismiss a public employee arising out of any closed session of the state agency. 9 11126. Nothing contained in this article shall be construed to prevent a state agency from holding closed sessions during a regular or special meeting to consider the appointment, employment or dismissal of a public employee or to hear complaints or charges brought against such employee by another person or employee unless such employee requests a public hearing. As a condition to holding a closed session on the complaints or charges to consider disciplinary action or to consider dismissal such employee shall be given written notice of his or her right to have a public hearing rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding a regular or special meeting. If notice is not given, any disciplinary or other action taken against any employee at such closed session shall be null and void. The state agency also may exclude from any such public or private meeting, during the examination of a witness, any or all other witnesses in the matter being investigated by the state agency. Following the public hearing or closed session the agency may deliberate on the decision to be reached in a closed session. -29- For the purposes of this section, the term "employee" shall not include any person who is elected to, or appointed to a public office by, any state agency; provided, however, that officers of the California State University and Colleges who receive compensation for their services other than per diem and ordinary and necessary expenses shall, when engaged in such capacity, be . considered employees. Nothing in this article shall be construed to prevent state agencies., which administer the licensing of persons engaging in businesses or profes- sions, from holding closed sessions to prepare, approve, grade or .administer examinations. Nothing in this article shall be construed to prevent an advisory body o£ a state agency which administers the licensing of persons engaged in busi- nesses or professions from conducting a closed session to discuss matters which the advisory body has found would constitute an unwarranted invasion of the privacy of an individual licensee or applicant if discussed in an open meeting, provided that the advisory body does not include a quorum of the mem- bers of the state agency it advises. Such matters may include review of an - applicant's qualifications for licensure and an inquiry specifically related to the state agency's enforcement program concerning an individual licensee or applicant where the inquiry occurs prior to the filing of a civil, criminal, or administrative disciplinary action against the licensee or applicant by the state agency. Nothing in this article shall be construed to prohibit a state agency from holding a closed session to deliberate on a decision to be reached based upon evidence introduced in a proceeding required to be conducted pursuant to Chapter 5 (commencing with Section 11500) of Part 1, Division 3, Title 2 of the Government Code or similar provision of law. Nothing in this article shall be construed to prevent any state agency from holding a closed session to consider matters affecting the national security. Nothing in this article shall be construed to grant a right to enter any correctional institution or the grounds of a correctional institution where that right is not otherwise granted by law, nor shall anything in this article be construed to prevent a state agency from holding a closed session when con- sidering and acting upon the determination of a term, parole, or release of any individual or other disposition of an individual case, or if public dis- closure of the subjects under discussion or consideration is expressly prohib- ited by statute. Nothing in this article shall be construed to prevent any closed session to consider the conferring of honorary degrees, or gifts, donations and bequests which the donor or proposed donor has requested in writing to be kept confidential. Nothing in this article shall be construed to prevent the Alcoholic Beverage Control Appeals Board from holding a closed session for the purpose of holding a deliberative conference as provided in Section 11125 of the Government Code. Nothing in this article shall be construed to prevent the Trustees of the California State Colleges from holding closed sessions dealing with site selection for such state colleges. Nothing in this article shall be construed to prevent the California Postsecondary Education Commission from holding closed sessions to consider matters pertaining to the appointment or termination of the Director of the California Postsecondary Education Commission. -30- "1h Nothing in this article shall be construed to prevent the Franchise Tax Board from holding closed sessions for the purpose of discussion of confiden- tial tax returns or data the public disclosure of which is prohibited by law, r or from considering matters pertaining to the appointment or removal of the executive officer of the Franchise Tax Board. Nothing in this article shall be construed to prevent the Board of Correc- tions from holding closed sessions when considering reports of crime condi- tions under the provisions of Section 6027 of the Penal Code. Nothing in this article shall be construed to prevent the State Air Resources Board from holding closed sessions when considering the proprietary specifications and performance data of manufacturers. Nothing in this article shall be construed to prevent the Board of Admin- istration of the Public Employees' Retirement System from holding closed ses- sions when considering investment decisions. Nothing in this article shall be construed to prevent the Teachers' Retirement Board of the State Teachers' Retirement System from holding closed sessions when considering investment decisions. Nothing in this article shall be construed to prevent the governing body of a state agency, or such boards, commissions, administrative officers, or other representatives as may properly be designated by law or by such govern- ing body, from holding closed sessions with its representatives at any time in discharging its responsibilities under Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of this code as such sessions relate to salaries, salary schedules, or compensation paid in the form of fringe bene- fits. For the purposes enumerated in the preceding sentence, a state agency may also meet with a state conciliator who has intervened in the proceedings, providing that a quorum of the state agency is present. For purposes of this paragraph, a state agency may not otherwise meet without using a designated representative, but it may appoint from its membership a member or members to . act as its designated representative, with whom it may meet in closed session. Notwithstanding any other provision of law, any meeting of the Public Utilities Commission at which the rates of entities under the commission's jurisdiction are changed shall be open and public. Nothing in this article shall be construed to prevent the Public Utilities �- Commission from holding closed sessions to deliberate on the institution of proceedings, disciplinary actions against regulated utilities, or litigation. Nothing in this article shall be construed to prevent the examining com- mittee established by the Board of Forestry pursuant to Section 763 of the Public Resources Code from conducting a closed session to consider discipli- nary action against an individual professional forester prior to the filing of an accusation against the forester pursuant to Section 11503. Nothing in this article shall be construed to prevent an administrative committee established by the Board of Accountancy pursuant to Section 5020 of the Business and Professions Code from conducting a closed session to consider disciplinary action against an individual accountant prior to the filing of an accusation against the accountant pursuant to Section 11503. Nothing in this article shall be construed to prevent an examining commit- tee established by the Board of Accountancy pursuant to Section 5023 of the Business and Professions Code from conducting a closed hearing to interview an individual applicant or accountant regarding the applicant's qualifications. 9 11126.1. The state agency shall designate a clerk or other officer or employee of the state agency, who shall then attend each closed session of the -31- state agency and keep and entcr in a minute book a record of topics discussed and decisions made at the meeting. The minute book made pursuant to this sec- tion is not a public record subject to inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) , and shall be kept confidential. The minute book shall be avail- able to members of the state agency or , if a violation of this chapter is alleged to have occurred at a closed session, to a court of general jurisdic- tion wherein the state agency lies. Such minute book may, but need not, con- sist of a recording of the closed session. 9 11126.3. Prior to holding any closed session, the state agency shall state the general reason or reasons for the closed session, and cite the statutory or other legal authority under which the session is being held. In the closed session, the state agency may consider only those matters covered in its statement. The statement shall be made as part of the notice provided for the meeting. Nothing in this section shall require or authorize the giving of names or other information which would constitute an invasion of privacy or otherwise unnecessarily divulge the particular facts concerning the closed session. SS 11126.5. In the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the state agency conducting the meeting may order the meeting room cleared and continue in session. Nothing in this section shall prohibit the state agency from establishing a procedure for readmitting an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting. Only matters appear- ing on the agenda may be considered in such a session. Duly accredited repre- sentatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this sec- tion. SS 11126.7. No fees may be charged by a state agency for carrying out any pro- vision of this article, except as specifically authorized pursuant to this article. 9 11127. The provisions of this article shall apply to every state agency unless the agency is specifically excepted by law. 9 11128. All closed sessions of a state agency shall be held only during a regular or special meeting of the agency. ss 11129. Any hearing being held, or noticed or ordered to be held by a state agency at any meeting may by order or notice of continuance be continued or recontinued to any subsequent meeting of the state agency. A copy of the order or notice of continuance shall be conspicuously posted on or near the door of the place where the hearing was held within 24 hours after the time of the continuance; provided, that if the hearing is continued to a time less than 24 hours after the time specified in the order or notice of hearing, a copy of the order or notice of continuance of hearing shall be posted imme- diately following the meeting at which the order or declaration of continuance was adopted or made. -32- SS 11130. Any interested person may commence an action by mandamus, injunc- tion, or declaratory relief for the purpose of stopping or preventing - ( violations or threatened violations of this article or to determine the applicability of this article to actions or threatened future action by mem- bers of the state agency. 9 11130.5. A court may award court costs and reasonable attorney fees to the plaintiff in an action brought pursuant to Section 11130 where it is found that a state agency has violated the provisions of this article. Such costs and fees shall be paid by the state agency and shall not become a personal liability of any public officer or employee thereof. A court may award court costs and reasonable attorney fees to a defendant in any action brought pursuant to Section 11130 where the defendant has pre- vailed in a final determination of such action and the court finds that the action was clearly frivolous and totally lacking in merit. $ 11130.7. Each member of a state agency who attends a meeting of such agency in violation of any provision of this article, with knowledge of the fact that the meeting is in 'violation thereof, is guilty of a misdemeanor. 9 11131. No state agency shall conduct any meeting, conference, or other function in any facility that prohibits the admittance of any person, or per- sons, on the basis of race, religious creed, color, national origin,, ancestry, or sex. As used in this section, "state agency" means and . includes every state office, officer, department, division, bureau, board, council, commis- . (' sion, or other state agency. -33- iDA EDUCATION CODE Sections 35145, 35145.5, 35146 5 35145. Except as provided in Sections 54957 and 54957.6 of the Government Code and in Section 35146 of, and subdivision (c) of Section 48914 of, this ning board of any school district shall obeernopen code, all meetings of the gover to the public, and all actions authorized or requi ed by law of the governing 9 board shall be taken at such meetings and shall be subject to the following requirements: (a) Minutes must be taken at all such meetings, recording all actions taken by the governing board. Such minutes shall constitute public records, and shall be available to the Pl where members of the public, (b) An agenda shall be posted at a place including district employees, may view the same at least 48 hours prior to the time of regular meetings and at least 24 hours prior to special meet- ings. This agenda must include, but is not limited to See ems on which thn governing board may take action at that meeting. 72121 relating to community colleges.] �S 35145.5. It is the intent of the Legislature that members of the public be able to place matters directly related to school district business on the agenda of school district governing board meetings, and that members of the public be able to addch ress vern Governing boards shall lnadopt reasonable regulations g items on the agenda as to items are taken up. specify reason- insure that this intent is carried out. Such regulations may sp Y able procedures to insure the proper functioning of governing board meetings. This subdivision shall not preclude the taking of testimony at regularly scheduled meetings on matters not on the agenda which any member of the public may wish to bring before the board, provided that no action is taken by the {\ board on such matters at the same meeting at which such testimony is taken. Nothing in this paragraph shall be deemed to lim See u similar rther riSection n on 1 72121.5 same subject matter at a subsequent meeting. relating to community colleges.] 35146. Notwithstanding the provisions of Section 35145 of af this cde and school district Section 54950 of the Government Code, the governing body shall, unless a request by the parent has been made pursuant to this section, hold closed sessions if the board is considering the suspension of, or disci- plinary action or any other action except expulsion in connection with any pupil of the school district, if a public hearing upon such u chion wo be uld lead to the giving out of information concerning school pup ils w with Section 49073) of Chapter 6.5 of in violation of Article 5 (commencing Part 27 of this code. ed session of the governing board of the district Before calling such clos boar to consider these matters, the governing personal service,cif thel pupil writing, by registered or certified mail or by p is a minor, notify the pupil and his or her parent or guardian, or the pupil if the pupil is an adult, of the intent of the governing board of the district to call and hold such closed session. Unless the pupil, or his or her parent, after receipt of such written or guardian shall, in writing, within 48 hours rning board be held notice of intention, request that the hearing of the gave ring ducted uby i thee governingeboard ina closed osession. if consider c such shallters written request is -34- served upon the clerk or secretary of the governing board, the meeting shall / be public except that any discussion at such meeting that might be in conflict ( with the right to privacy of any pupil other than the pupil requesting the public meeting or on behalf of whom such meeting is requested, shall be in closed session. Whether the matter is considered at a closed session or at a public meeting, the final action of the governing board of the school district shall be taken at a public meeting and the result of such action shall be a public record of the school district. -35- Y (tip SPECIAL PROVISIONS STATE LEGISLATURE / Government Code Sections 9027-9032 `( $ 9027. All meetings of the Assembly and Senate and the committees and sub- committees thereof, and any conference committee, shall be open and public and all the proceedings shall be conducted openly so that the public may remain informed, except as otherwise provided in this article. All meetings of any conference committee shall be open to press represen- tatives accredited by the Joint Rules Committee. 9 9028. Any such meetings at which the discussion or adoption of any proposed resolution, rule, regulation, or formal action occurs, or at which a majority or quorum of the body is in attendance, shall be held only after full and timely notice to the public as provided by the Joint Rules of the Senate and Assembly. s� 9029. Nothing contained in this article shall be construed to prevent: the Assembly or the Senate or a committee or subcommittee thereof from holding executive sessions to consider the appointment of members to committees or to the chairmanship or vice chairmanship thereof, or to consider the appointment, employment or dismissal of a public officer or employee or to hear complaints or charges brought against such officer or employee, or an elected public official, or to consider matters relating to internal house management, or to consider assignment of bills to committee, or affecting the safety and security of the State Capitol or Members of the Legislature, its staff and employees, or the Members of the Assembly or the Senate from meeting privately in caucus with members of their own political party. $ 9030. Each Member of the Legislature who attends a meeting of the Assembly, the Senate, or any committee or subcommittee thereof, where action is taken in violation of Section 9027, with knowledge of the fact that the meeting is in violation thereof, is guilty of a misdemeanor. $ 9031. 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 Section 9027 by Members of the Legislature or to determine the applicability of this chapter to actions or threatened future action of the Legislature. 9 9032. If any provision of this article, or the application thereof, to any person or circumstance is held invalid, the validity of the remainder of such article and the application of such provision to other persons and circum- stances shall not be affected thereby. -36- r 1 ID SPECIAL PROVISIONS REGENTS UNIVERSITY OF CALIFORNIA California Constitution, Article IX, Section 9, Subdivision (g) Education Code Section 92030 CALIFORNIA CONSTITUTION $ 9 (g) . Meetings of the Regents of the University of California shall be public, with exceptions and notice requirements as may be provided by statute. EDUCATION CODE s� 92030. All meetings of the Regents of the University of California shall, except as otherwise provided in this section, be open to the public. The cor- poration shall establish the time and place for holding regular meetings, but may, as occasioned by necessity, hold special meetings. Public notice shall be given for such meetings. Such notice shall be given by notifying any news- paper of general circulation or any television or radio station, and shall be - delivered personally or by mail so that the notice may be published or broad- cast at least 24 hours before the time of such meeting. The Regents of the University of California may also hold closed sessions when it meets to consider or discuss: (a) matters relating to or .affecting the national security; {b) the conferring of honorary degrees or other honors tor commemorations; (c) those matters involving gifts, devises and bequests; (d) matters involving purchase and sale of investments for endowment and pen- sion funds; (e) matters involving litigation when discussion in open session concerning such matters would adversely affect or be detrimental to the public interest; (f) matters involving acquisition and disposition of property; (g) matters relating to the appointment, employment, performance, compensation, or dismissal of officers and employees, excluding individual regents other than the president of the university; and (h) matters relating to complaints or charges brought against officers or employees of the university, excluding . individual regents other than the president of the university unless such officer or employee requests a public hearing. There also may be excluded from any such public or closed meeting during the examination of a witness, any or all other witnesses in the matter being investigated. t -37- March 25, 1983 James E. S imon P ort er,S 1mon and Graham Truckee, California 95734 D ear Jim, Yesterday, March 24, 1983, the Truckee Donner Public Utility District Board of Directors held a special meeting with Rick '31umfield of Authur Anderson, Inc. While I questioned the proceedure for calling the meeting and do have concerns over its legality, I am none-the-less more concerned with what happened after the special meeting was adjourned at 5:20pm. When I adjourned the special meeting at 5: 20 I left the board room to make a phone call. Directors Corbett, Kuttle and VanLandingham remained to talk with the Manager, Jim Ward. A few minutes later I returned to the board room to give the manager a message. I observed two of the three directors (Kuttle and VanLandingham) discussing an issue relative to board policy (interest charges on late payments) with the manager. Director Corbett was sitting there listening. I turned and left the room believing that a violation of the secret meeting laws was taking place. Today, I called Manager Ward and asked him how long this meeting lasted. He told me that the discussion lasted thirty minutes or so. Please review the facts and in your capacity as Council to the District, provide each director and the manager with an opinion of this situation. Could you also amplify on the topic of what is a properly called public meeting vs. an illegal or improper meeting as outlined in the Ralph M. Brown Act? Thank you for your prompt attffition to this matter. Sincerely, i 7do,A. Maass 1r Truckee Donner PUD cc Jim Ward John Corbett Karl Kuttle Dick VanLandingham (1`1. LFC;AL OPINION DATE: MARCH 31 , 1983 TO: BOARD OF DIRECTORS, TRUCKEE DONNER PUBLIC UTILITY �-. DISTRICT FROM: JAMES ERNEST SIMON, DISTRICT COUNSEL QUESTION PRESENTED By letter dated March 25 , 1983, President Maass has requested an opinion as to whether a special meeting which occurred on March 24 , 1983 , was in violation of the California Secret Meeting Laws. CONCLUS-ION We have determined that, depending upon the subject matter actually discussed at the meeting, the deliberations made, and the action taken, a technical violation of the Ralph M. Brown Act may have occurred. FACTUAL BACKGROUND We are advised that a special meeting was held on March 24 , 1983 , pursuant to written or telephonic notice to all Directors . The subject matter of the meeting according to the agenda concerned discussions with the District' s accountants For purposes of discussing the annual audit. The meeting was convened in the late afternoon and adjourned by President Maass at 5: 20 . We are advised that thereafter Directors Corbett, Kuttel and ' VanLandingham remained engaged in a discussion with the General of the Manager James Ward. We understand that the subject matter -1- Board of. Directors March 31 , 1982 Page 2 discussion related to implementation of the District' s policy concerning interest on late payments to the District. We have no information detailing the specifics of the discussion. �-. President Maass is of the opinion that a violation of the secret meeting laws may have occurred inasmuch as the meeting apparently lasted approximately 30 minutes. DISCUSSION A brochure entitled "Secret Meeting Laws and Public Agencies" published by the Legal information Center of the California Department of Justice is reproduced and attached herewith. Please note that this brochure was published April 1 , 1981 , and is therefore somewhat dated. The Truckee Donner Public Utility District falls within the provisions of the Ralph M. Brown Act, the purpose of which is to ensure that all deliberations and actions of local public agencies are performed in public. The Act was specifically designed to discourage and prevent secret meetings. F The issue presented here concerns in part when the meeting ended; that is was it properly adjourned. Generally speaking, Robert' s Rules of Order under which the District generally conducts its meetings , require that a Motion To Adjourn be made. Such a motion is undebateable , cannot be amended , and cannot be reconsidered. In the absence of a motion I and subsequent vote, it is unlikely that an adjournment is technically proper. Under the facts presented, it is assumed that the motion was made , voted upon, and the meeting properly adjourned. -2- Board of Directors March 31 , 1992 Page 3 Once the meeting was adjourned, the inquiry now focuses upon whether another meeting took place. A meeting is generally defined as any gathering of a quorum of a legislative body, no matter how informal , where business is transacted or discussed. The California Attorney General rendered an opinion in 1963 that an "informal, " "study," "discussion, " "informational, " "fact finding, " or "precouncil" gatherings of the majority of the members of a board were probably "meetings" whether or not anv action was taken_ (See Secret Meeing Laws, page 6. ) The legislative purpose of the Brown Act was reiterated in Carlson v. Paradise Unified School District (1971) 18 Cal.App. 3d 196 , 199. In the event that the special meeting held March 24 , 1983 , was properly adjourned, and various Board members informally remained at which time Board business was transacted or discussed, a technical violation of the open meeting law (Government Code §54943) may have occurred. In the event however that no "meeting" occurred, in that no group discussions were had nor business transacted, the spirit of the law may well have been complied with. For example , if the gathering did not involve the collective acquisition and exchange of facts which were preliminary to some future Board decision, it is conceivable that the gathering was not a "meeting" of the type which the Brown Act was designed to protect by ensuring that it be held in a public and open environment. For purposes of future activities , it is advised that all meetings of the District_ be formally adjourned upon motion and -3- Board of Directors March 31 , 1982 Page 4 that at all "informal" gatherings among three or more members of the Board any discussion whatsoever about Board business by avoided. JES:cjg Attachments: Secret Meeting yaws Letter dated March 25, 1983 i i I I 9r i I t r f i i -4- Truckee Danner Public Utility District Post Office Box 309 • 11570 Donner Pass Road e Truckee. California 95734 (916) 587-3896 A7)ril 4, 1983 Roberta hie me y, Forman ivevada County Grand Jury HAI:i� LEL DIE IRE D 123 Glasson Way Grass Valley, California i Lear iris . I{ierney and I"embers of the Grand Jury, i As a teacher of American Government at Tahoe Truckeesigh School for the -oast fourteen years , I have always strived to Instill in my students the need for our citizens to become involved In g ove rnme nt. I have always stressed the fact that non Involve-pent of the electorate may lead to government officials doing "their own thing". Incidents life Watergate and ABSCAMI make it difficult for me to convince my students as well as adults that such dishonesty i in government is the exception, not the rule . i As a member of the Board of Directors of the Truckee Donner j Public Utility District for the past six years , I have attempted to put good, sound governmental principles into practice . However during the past few months some disturbing events have occurred within the district that concern me greatly. Some directors are j taking it upon themselves to act individually in the operation and managment of the District. Such actions are contrary to District Policy, 72-04. In addition aller-ed violations of the Brown Act ,.-. may have occurred. One such example is outlined in a letter I sent to our District Council , Mr. Jim Simon of Porter, Simon, and Graham. of Truckee . j i ,y concern is not over one or two specific examples of alleged violations of District Policy or State Lags but more of an attitude on the part of some directors that they ?nave the right to ignore j District Policy and State La1as . They cannot accept the fact that the TDPi7D Board gov rns only when it sits collectively in a le7,ally called meeting. Directors do not have the right to govern as individuals ; but a few of the directors believe they do have such rights . +� I am as'•�Ting that the Grand Jury, as a "lratehdo-;" for the COmr+nunity, investigate governing aspects of the _'rucY_ee Donner Lublic Utility District and take any actions as deemed appronrinte in order to assure the people of Truckee that they are being, re-oresented adequately and ;rithin the scope of t-ie District Policies and the f 1a�"rs of the State of California. I i vs . Roberta Fiemey, Forman jNevada County Grand Jury Page 2 I I have attached sore -1_etters and documents that may help clarify and amplify upon the situation. If I can boe of further I assistance , please do not hesitate to contact me . Sincerely, James A. Maass , President I Board of Directors i cc Board of Directors Jim Simon, District Council Jim Ward, District Manager A/N Letter dated March 25, 1983, Maass to Simon Legal Opinion dated March 31, 1983, Simon to Board of Lirectors Letter dated April 3, 1983, Maass to Simon District Policy 72-04