CALIFORNIANS AWARE

OPEN GOVERNMENT FREE SPEECH PROTECTED REPORTING

July 11, 2017

Assemblymember Raul Bocanegra

California State Capitol
P.O. Box 942849, Sacramento, CA 94249-0039
RE: AB 1455 OPPOSE
Dear Assemblymember Bocanegra,

Californians Aware (CalAware), a nonpartisan nonprofit organization established to combat

needless secrecy in government, opposes AB 1455, which would create a major new exemption
from disclosure under the California Public Records Act (CPRA).

The bill would permit cities and other local agencies whose employee relations are governed by
the Meyers-Milias-Brown Act to deny pubic access to records that reveal a local agencys
deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes,
research, work products, theories, or strategy, or that provide instruction, advice, or training to
employees who do not have full collective bargaining and representation rights under that
chapter.

The bill is in reaction to a January 2016 order by a superior court judge requiring Orange
County to disclose to a local blogger, during the course of its negotiations with the deputy
sheriffs bargaining unit, the offers and counter -offers made by the parties to the negotiations.
Unlike any other known CPRA disclosure demand litigation, the county supported the
requester, possibly because its all-Republican Board of Supervisors had been unsuccessful with
its proposed COIN ordinance, or because the requester was a former executive director of the
California Republican Party, or both.

In any event, it is extremely unlikely that other local agencies would support disclosure of their
employee bargaining documentation, especially during the course of active negotiations.
Without that support, records requesters would find it extremely difficult to convince a court
that disclosure would not put the public agency possessing the records at a serious and unfair
bargaining disadvantage, especially during negotiations, given the CPRAs Government Code
Section 6255, subd. (a), which provides:
The agency shall justify withholding any record by demonstrating that the record
in question is exempt under express provisions of this chapter or that
on the facts of the particular case the public interest served by not disclosing the
record clearly outweighs the public interest served by disclosure of the record.
(Emphasis added)

In short, the CPRA already provides a high if not insurmountable bar to disclosure under these
circumstances; local public agencies simply dont need this bill.

2218 Homewood Way Carmichael, CA 95608 916 487-7000 info@calaware.org www.calaware.org

 AB 1455 -- OPPOSE
Californians Aware
July 11, 2017
Page 2 of 3

. It has been argued, however, that AB 1455 simply provides to local agencies the exemption from
disclosure already enjoyed by state agencies under Government Code Section 6254 (p). But
there is good reason for treating local agencies differently in this regard.
.
. For one thing, the Meyers-MiliasBrown Act allows any employee group, including
department heads and managers, to be recognized as a bargaining entity by the elected
legislative body. Being given that status means that their members are no longer unrepresented
employees for purposes of the Ralph M. Brown Act, whose salary and benefits must be
approved by the bodys vote in open session. For example, the City of Santa Rosa recognizes
the following managerial employee organizations: Public Safety Management Association
(Employee Unit 9); Executive Management (Employee Unit 10); Middle Management
(Employee Unit 11); City Attorney (Employee Unit 15); Santa Rosa City Attorneys
Association (Employee Unit 17), Santa Rosa Management Association (Employee Unit 18).
.
Another factor is the reality of local agencies employee compensation as the key driver of
their staggering pension obligations, which have prompted far more public attention and
concern in recent years than shortfalls at the state level.
In a way, (the plight of ) Richmond is a preview of what California cities face in
the years ahead. According to (the Public Employees Retirement System) there
were two active workers for every retiree in its system in 2001. Today, there are
1.3 workers for each retiree. In the next 10 or 20 years, there will be as few as 0.6
workers for each retiree collecting a pension.
Judy Lin, Los Angeles Times, Cutting jobs, street repairs, library books to keep up with
pension costs, February 16, 2017.

But the strongest argument for keeping more scrutiny on local agency employee
bargaining than that at the state level is that there, the Ralph Dills Act requires a
transparency procedure under which, prior to negotiating a new contract, state
negotiators and the union representing the bargaining unit release initial bargaining
proposals in a public meeting, called a "sunshine" meeting. The Dills Act requires such
meetings to provide the public with an opportunity to become familiar with the proposals
and to comment on them. If any substantive item is introduced in the process after that,
within 48 hours such proposals and the position, if any, taken thereon by the representatives
of the employer, shall be a public record. Government Code section 3523. The same rules
govern school and community college district employee bargaining, but provide yet a further
safeguard:
Before a public school employer enters into a written agreement with an
exclusive representative covering matters within the scope of representation,
the major provisions of the agreement, including, but not limited to, the costs
that would be incurred by the public school employer under the agreement for
the current and subsequent fiscal years, shall be disclosed at a public meeting
of the public school employer in a format established for this purpose by the
Superintendent of Public Instruction. Government Code section 3547.5.

2218 Homewood Way Carmichael, CA 95608 916 487-7000 info@calaware.org www.calaware.org

AB 1455 -- OPPOSE
Californians Aware
July 11, 2017
Page 2 of 3

The California Supreme Court has commented on this approach favorably: "Thus, although
the public is excluded from actual negotiating sessions . . . its opportunity to be fully
informed and to express its views is preserved." San Mateo City School District v. PERB, 33
Cal.3d 850, 864 (1983).

Finally, the bill is unconstitutional. It fails to include, and could not credibly do so, the findings
mandated by Article 1, section 3, subdivision (b), paragraphs (1) and (7) of the California
Constitution:
(b) (1) The people have the right of access to information concerning the conduct of
the peoples business, and, therefore, the meetings of public bodies and the writings
of public officials and agencies shall be open to public scrutiny.
*****
(7) In order to ensure public access to the meetings of public bodies and the
writings of public officials and agencies, as specified in paragraph (1), each local
agency is hereby required to comply with the California Public Records Act . . . and
the Ralph M. Brown Act, and with any subsequent statutory enactment amending
either act, enacting a successor act, or amending any successor act that contains
findings demonstrating that the statutory enactment furthers the purposes of this
section. (Emphasis added)

AB 1455 can hardly be said to further the purposes of a constitutional right in the people of
access to information concerning the conduct of the peoples business. Instead, it furthers the
purposes common to local elected officials and the employee units they negotiate withto keep
the public unaware of what is on the bargaining table until it is too late to affect the process.

I would be happy to answer any questions you may have on this matter.

Sincerely,

Terry Francke
General Counsel cc: Chair and Members, Senate Judiciary Committee

2218 Homewood Way Carmichael, CA 95608 916 487-7000 info@calaware.org www.calaware.org