A new bill proposing to open the meetings of standing committees of state government boards and commissions will test the commitment of Governor Gavin Newsom to the transparency he has so often cited as a policy priority.

The Brown Act provides that its open meeting and public notice rules for multimember bodies in local government generally apply only to meetings of a majority of the body’s members, ”except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies” subject to the Act. (emphasis added),

In effect, for example, when two members of a five-member city council huddle long enough to establish facts and make recommendations to the council on a particular limited issue, and then wind up, the Brown Act does not apply to such ad hoc meetings. But when the city council assigns two members an ongoing advisory responsibility concerning certain issues—a “continuing subject matter jurisdiction”—they constitute a standing committee, to which the Act applies. Two council members looking into parents’ complaints about damaged playground equipment will not need to meet publicly, while a permanent two-member parks and recreation committee will.

But the Bagley-Keene Open Meeting Act, which sets open meeting rules for statewide boards, commissions and councils, makes no such distinctions. Standing committees are mentioned only once, in a provision addressing a situation where such bodies choose to hold “open and noticed” meetings, but no rule requires them to comply with the Act so long as they have fewer than three members.

That gap has led a number of state bodies to conduct much of their business through two-member committees—including standing committees, according to a recently introduced SB 53 by Senator Scott Wilk (R-Santa Clarita). A fact sheet prepared for the bill says:

Multiple state agencies have used this . . . to mean that standing committees can hold closed door meetings as long as they contain two rather than three members and do not vote to take action on items. These agencies purposefully limit their standing committees to two members for the explicit purpose of avoiding open meeting requirements.

Accordingly, SB 53 would

(C)larify the language of the statute explaining that when two-member advisory committees are acting in an official capacity of a state body and are funded in whole or part by the state body, they are also subject to the full provisions of the Bagley-Keene Open Meeting Act.

The bill is Wilk’s third attempt to open up the two member standing committees of state bodies. The first two attempts won overwhelming support in the Legislature but were vetoed by Governor Jerry Brown. Of the 2014 bill he said:

Any meeting involving formal action by a state body should be open to the public. An advisory committee, however, does not have authority to act on its own and must present any findings and recommendations to a larger body in a public setting for formal action. That should be sufficient.

That rationale would justify the closing of all committee meetings under the Brown Act as well as all committee hearings in the Legislature; after all, they too can’t make policy on their own, and “must present any findings and recommendations to a larger body in a public setting for formal action.” Brown’s reasoning obviously traced to the fact that in this case it would be the deliberative processes of this own executive branch that would be affected. In vetoing the 2015 bill he said:

My thinking on this matter has not changed from last year when I vetoed a similar measure, AB 2058. I believe strongly in transparency and openness but the more informal deliberation of advisory bodies is best left to current law.

Brown was never that interested in enforcing, much less improving, the Brown Act. His stance could be downright sarcastic. When he met with the Los Angeles County Board of Supervisors in 2011 in a closed session that the county later admitted was illegitimate, he acknowledged there would be questions about whether his presence was in violation of the law.According to a transcript obtained by the Los Angeles Times, he said at one point, “Let’s get our Brown Act cover story.”

In vetoing a 2014 measure that would have ended officials’ power to frustrate citizens’ efforts to address local councils, boards, commissions and advisory bodies, Brown misstated both the nature of the bill and its impact on meetings under the Brown Act: “This bill adds certain procedures to the Brown Act, which at best will enlongate but in no way enhance the quality of debate at the local level.”

But AB 194 by Assembly Member Nora Campos (D-San Jose) added no procedures to the law.  Instead, it prohibited certain all-too-frequent practices by local bodies such as:

  • using up the allotted time for disfavored citizen speakers by interrupting and challenging their comments,
  • forcing citizens to voice their comments on agenda items at the beginning of meetings, before the body has heard staff’s presentation,
  • forbidding citizens from criticizing the actions of staff officials, or
  • treating speakers with more or less accommodation depending on what they have to say.

Likewise, nothing in the bill would have “elongated” the meetings, since it left intact the Brown Act rule that local bodies retain full authority to determine the time limits for individual speakers or for comment on particular topics.

Newly elected Governor Gavin Newsom has waxed enthusiastic on government transparency in general for years. The first real test of his commitment as chief executive is likely to be SB 53, which once more proposes to impose on state government boards and commissions the principles that have bound local government bodies for the past quarter century.