11120-11132
GOVERNMENT CODE
SECTION 11120-11132
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.
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.
This article shall be known and may be cited as the Bagley-Keene
Open Meeting Act.
11121. As used in this article, "state body" means each of the
following:
(a) Every state board, or commission, or similar multimember body
of the state that is created by statute or required by law to conduct
official meetings and every commission created by executive order.
(b) A board, commission, committee, or similar multimember body
that exercises any authority of a state body delegated to it by that
state body.
(c) An advisory board, advisory commission, advisory committee,
advisory subcommittee, or similar multimember advisory body of a
state body, if created by formal action of the state body or of any
member of the state body, and if the advisory body so created
consists of three or more persons.
(d) A board, commission, committee, or similar multimember body on
which a member of a body that is a state body pursuant to this
section serves in his or her official capacity as a representative of
that state body and that is supported, in whole or in part, by funds
provided by the state body, whether the multimember body is
organized and operated by the state body or by a private corporation.
11121.1. As used in this article, "state body" does not include any
of the following:
(a) State agencies provided for in Article VI of the California
Constitution.
(b) Districts or other local agencies whose meetings are required
to be open to the public pursuant to the Ralph M. Brown Act (Chapter
9 (commencing with Section 54950) of Part 1 of Division 2 of Title
5).
(c) State agencies provided for in Article IV of the California
Constitution whose meetings are required to be open to the public
pursuant to the Grunsky-Burton Open Meeting Act (Article 2.2
(commencing with Section 9027) of Chapter 1.5 of Part 1 of Division 2
of Title 2).
(d) State agencies when they are conducting proceedings pursuant
to Section 3596.
(e) State agencies provided for in Section 109260 of the Health
and Safety Code, except as provided in Section 109390 of the Health
and Safety Code.
(f) The Credit Union Advisory Committee established pursuant to
Section 14380 of the Financial Code.
11121.9. Each state body shall provide a copy of this article to
each member of the state body upon his or her appointment to
membership or assumption of office.
11121.95. Any person appointed or elected to serve as a member of a
state body who has not yet assumed the duties of office shall
conform his or her conduct to the requirements of this article and
shall be treated for purposes of this article as if he or she has
already assumed office.
11122. As used in this article "action taken" means a collective
decision made by the members of a state body, a collective commitment
or promise by the members of the state body to make a positive or
negative decision or an actual vote by the members of a state body
when sitting as a body or entity upon a motion, proposal, resolution,
order or similar action.
11122.5. (a) As used in this article, "meeting" includes any
congregation of a majority of the members of a state body at the same
time and place to hear, discuss, or deliberate upon any item that is
within the subject matter jurisdiction of the state body to which it
pertains.
(b) (1) A majority of the members of a state body shall not,
outside of a meeting authorized by this chapter, use a series of
communications of any kind, directly or through intermediaries, to
discuss, deliberate, or take action on any item of business that is
within the subject matter of the state body.
(2) Paragraph (1) shall not be construed to prevent an employee or
official of a state agency from engaging in separate conversations
or communications outside of a meeting authorized by this chapter
with members of a legislative body in order to answer questions or
provide information regarding a matter that is within the subject
matter jurisdiction of the state agency, if that person does not
communicate to members of the legislative body the comments or
position of any other member or members of the legislative body.
(c) The prohibitions of this article do not apply to any of the
following:
(1) Individual contacts or conversations between a member of a
state body and any other person that do not violate subdivision (b).
(2) (A) The attendance of a majority of the members of a state
body at a conference or similar gathering open to the public that
involves a discussion of issues of general interest to the public or
to public agencies of the type represented by the state body, if a
majority of the members do not discuss among themselves, other than
as part of the scheduled program, business of a specified nature that
is within the subject matter jurisdiction of the state body.
(B) Subparagraph (A) does not allow members of the public free
admission to a conference or similar gathering at which the
organizers have required other participants or registrants to pay
fees or charges as a condition of attendance.
(3) The attendance of a majority of the members of a state body at
an open and publicized meeting organized to address a topic of state
concern by a person or organization other than the state body, if a
majority of the members do not discuss among themselves, other than
as part of the scheduled program, business of a specific nature that
is within the subject matter jurisdiction of the state body.
(4) The attendance of a majority of the members of a state body at
an open and noticed meeting of another state body or of a
legislative body of a local agency as defined by Section 54951, if a
majority of the members do not discuss among themselves, other than
as part of the scheduled meeting, business of a specific nature that
is within the subject matter jurisdiction of the other state body.
(5) The attendance of a majority of the members of a state body at
a purely social or ceremonial occasion, if a majority of the members
do not discuss among themselves business of a specific nature that
is within the subject matter jurisdiction of the state body.
(6) The attendance of a majority of the members of a state body at
an open and noticed meeting of a standing committee of that body, if
the members of the state body who are not members of the standing
committee attend only as observers.
11123. (a) All meetings of a state body shall be open and public
and all persons shall be permitted to attend any meeting of a state
body except as otherwise provided in this article.
(b) (1) This article does not prohibit a state body from holding
an open or closed meeting by teleconference for the benefit of the
public and state body. The meeting or proceeding held by
teleconference shall otherwise comply with all applicable
requirements or laws relating to a specific type of meeting or
proceeding, including the following:
(A) The teleconferencing meeting shall comply with all
requirements of this article applicable to other meetings.
(B) The portion of the teleconferenced meeting that is required to
be open to the public shall be audible to the public at the location
specified in the notice of the meeting.
(C) If the state body elects to conduct a meeting or proceeding by
teleconference, it shall post agendas at all teleconference
locations and conduct teleconference meetings in a manner that
protects the rights of any party or member of the public appearing
before the state body. Each teleconference location shall be
identified in the notice and agenda of the meeting or proceeding, and
each teleconference location shall be accessible to the public. The
agenda shall provide an opportunity for members of the public to
address the state body directly pursuant to Section 11125.7 at each
teleconference location.
(D) All votes taken during a teleconferenced meeting shall be by
rollcall.
(E) The portion of the teleconferenced meeting that is closed to
the public may not include the consideration of any agenda item being
heard pursuant to Section 11125.5.
(F) At least one member of the state body shall be physically
present at the location specified in the notice of the meeting.
(2) For the purposes of this subdivision, "teleconference" means a
meeting of a state body, the members of which are at different
locations, connected by electronic means, through either audio or
both audio and video. This section does not prohibit a state body
from providing members of the public with additional locations in
which the public may observe or address the state body by electronic
means, through either audio or both audio and video.
11123.1. All meetings of a state body that are open and public
shall meet the protections and prohibitions contained in Section 202
of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec.
12132), and the federal rules and regulations adopted in
implementation thereof.
11124. No person shall be required, as a condition to attendance at
a meeting of a state body, to register his or her name, to provide
other information, to complete a questionnaire, or otherwise to
fulfill any condition precedent to his or her attendance.
If an attendance list, register, questionnaire, or other similar
document is posted at or near the entrance to the room where the
meeting is to be held, or is circulated to persons present during the
meeting, it shall state clearly that the signing, registering, or
completion of the document is voluntary, and that all persons may
attend the meeting regardless of whether a person signs, registers,
or completes the document.
11124.1. (a) Any person attending an open and public meeting of the
state body shall have the right to record the proceedings with an
audio or video recorder or a still or motion picture camera in the
absence of a reasonable finding by the state body that the recording
cannot continue without noise, illumination, or obstruction of view
that constitutes, or would constitute, a persistent disruption of the
proceedings.
(b) Any audio or video recording of an open and public meeting
made for whatever purpose by or at the direction of the state body
shall be subject to inspection pursuant to the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1), but may be erased or destroyed 30 days after the
recording. Any inspection of an audio or video recording shall be
provided without charge on equipment made available by the state
body.
(c) No state body shall prohibit or otherwise restrict the
broadcast of its open and public meetings in the absence of a
reasonable finding that the broadcast cannot be accomplished without
noise, illumination, or obstruction of view that would constitute a
persistent disruption of the proceedings.
11125. (a) The state body shall provide notice of its meeting to
any person who requests that notice in writing. Notice shall be given
and also made available on the Internet at least 10 days in advance
of the meeting, and shall include the name, address, and telephone
number of any person who can provide further information prior to the
meeting, but need not include a list of witnesses expected to appear
at the meeting. The written notice shall additionally include the
address of the Internet site where notices required by this article
are made available.
(b) The notice of a meeting of a body that is a state body shall
include a specific agenda for the meeting, containing a brief
description of the items of business to be transacted or discussed in
either open or closed session. A brief general description of an
item generally need not exceed 20 words. A description of an item to
be transacted or discussed in closed session shall include a citation
of the specific statutory authority under which a closed session is
being held. No item shall be added to the agenda subsequent to the
provision of this notice, unless otherwise permitted by this article.
(c) Notice of a meeting of a state body that complies with this
section shall also constitute notice of a meeting of an advisory body
of that state body, provided that the business to be discussed by
the advisory body is covered by the notice of the meeting of the
state body, provided that the specific time and place of the advisory
body's meeting is announced during the open and public state body's
meeting, and provided that the advisory body's meeting is conducted
within a reasonable time of, and nearby, the meeting of the state
body.
(d) A person may request, and shall be provided, notice pursuant
to subdivision (a) for all meetings of a state body or for a specific
meeting or meetings. In addition, at the state body's discretion, a
person may request, and may be provided, notice of only those
meetings of a state body at which a particular subject or subjects
specified in the request will be discussed.
(e) A request for notice of more than one meeting of a state body
shall be subject to the provisions of Section 14911.
(f) The notice shall be made available in appropriate alternative
formats, as required by Section 202 of the Americans with
Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and the federal
rules and regulations adopted in implementation thereof, upon request
by any person with a disability. The notice shall include
information regarding how, to whom, and by when a request for any
disability-related modification or accommodation, including auxiliary
aids or services may be made by a person with a disability who
requires these aids or services in order to participate in the public
meeting.
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
body by any person in connection with a matter subject to discussion
or consideration at a public meeting of the body, are disclosable
public records under the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1), and shall
be made available upon request without delay. However, this section
shall not include any writing exempt from public disclosure under
Section 6253.5, 6254, or 6254.7 of this code, or Section 489.1 or 583
of the Public Utilities Code.
(b) Writings that are public records under subdivision (a) and
that are distributed to members of the state body prior to or during
a meeting, pertaining to any item to be considered during the
meeting, shall be made available for public inspection at the meeting
if prepared by the state body or a member of the state body, or
after the meeting if prepared by some other person. These writings
shall be made available in appropriate alternative formats, as
required by Section 202 of the Americans with Disabilities Act of
1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations
adopted in implementation thereof, upon request by a person with a
disability.
(c) In the case of the Franchise Tax Board, prior to that state
body taking final action on any item, writings pertaining to that
item that are public records under subdivision (a) that are prepared
and distributed by the Franchise Tax Board staff or individual
members to members of the state body prior to or during a meeting
shall be:
(1) Made available for public inspection at that meeting.
(2) Distributed to all persons who request notice in writing
pursuant to subdivision (a) of Section 11125.
(3) Made available on the Internet.
(d) Prior to the State Board of Equalization taking final action
on any item that does not involve a named tax or fee payer, writings
pertaining to that item that are public records under subdivision (a)
that are prepared and distributed by board staff or individual
members to members of the state body prior to or during a meeting
shall be:
(1) Made available for public inspection at that meeting.
(2) Distributed to all persons who request or have requested
copies of these writings.
(3) Made available on the Internet.
(e) Nothing in this section shall be construed to prevent a state
body from charging a fee or deposit for a copy of a public record
pursuant to Section 6253, except that no surcharge shall be imposed
on persons with disabilities in violation of Section 202 of the
Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and
the federal rules and regulations adopted in implementation thereof.
The writings described in subdivision (b) 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 limit or delay the public's right to inspect 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 be construed to be applicable to any writings solely because they
are properly discussed in a closed session of a state body. Nothing
in this article shall be construed to require a state body 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.
11125.2. Any state body shall report publicly at a subsequent
public meeting any action taken, and any rollcall vote thereon, to
appoint, employ, or dismiss a public employee arising out of any
closed session of the state body.
11125.3. (a) Notwithstanding Section 11125, a state body may take
action on items of business not appearing on the posted agenda under
any of the conditions stated below:
(1) Upon a determination by a majority vote of the state body that
an emergency situation exists, as defined in Section 11125.5.
(2) Upon a determination by a two-thirds vote of the state body,
or, if less than two-thirds of the members are present, a unanimous
vote of those members present, that there exists a need to take
immediate action and that the need for action came to the attention
of the state body subsequent to the agenda being posted as specified
in Section 11125.
(b) Notice of the additional item to be considered shall be
provided to each member of the state body and to all parties that
have requested notice of its meetings as soon as is practicable after
a determination of the need to consider the item is made, but shall
be delivered in a manner that allows it to be received by the members
and by newspapers of general circulation and radio or television
stations at least 48 hours before the time of the meeting specified
in the notice. Notice shall be made available to newspapers of
general circulation and radio or television stations by providing
that notice to all national press wire services. Notice shall also be
made available on the Internet as soon as is practicable after the
decision to consider additional items at a meeting has been made.
11125.4. (a) A special meeting may be called at any time by the
presiding officer of the state body or by a majority of the members
of the state body. A special meeting may only be called for one of
the following purposes when compliance with the 10-day notice
provisions of Section 11125 would impose a substantial hardship on
the state body or when immediate action is required to protect the
public interest:
(1) To consider "pending litigation" as that term is defined in
subdivision (e) of Section 11126.
(2) To consider proposed legislation.
(3) To consider issuance of a legal opinion.
(4) To consider disciplinary action involving a state officer or
employee.
(5) To consider the purchase, sale, exchange, or lease of real
property.
(6) To consider license examinations and applications.
(7) To consider an action on a loan or grant provided pursuant to
Division 31 (commencing with Section 50000) of the Health and Safety
Code.
(8) To consider its response to a confidential final draft audit
report as permitted by Section 11126.2.
(9) To provide for an interim executive officer of a state body
upon the death, incapacity, or vacancy in the office of the executive
officer.
(b) When a special meeting is called pursuant to one of the
purposes specified in subdivision (a), the state body shall provide
notice of the special meeting to each member of the state body and to
all parties that have requested notice of its meetings as soon as is
practicable after the decision to call a special meeting has been
made, but shall deliver the notice in a manner that allows it to be
received by the members and by newspapers of general circulation and
radio or television stations at least 48 hours before the time of the
special meeting specified in the notice. Notice shall be made
available to newspapers of general circulation and radio or
television stations by providing that notice to all national press
wire services. Notice shall also be made available on the Internet
within the time periods required by this section. The notice shall
specify the time and place of the special meeting and the business to
be transacted. The written notice shall additionally specify the
address of the Internet Web site where notices required by this
article are made available. No other business shall be considered at
a special meeting by the state body. The 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 of the state body
a written waiver of notice. The waiver may be given by telegram,
facsimile transmission, or similar means. The written notice may also
be dispensed 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 regardless of whether any action is taken at the
special meeting.
(c) At the commencement of any special meeting, the state body
must make a finding in open session that the delay necessitated by
providing notice 10 days prior to a meeting as required by Section
11125 would cause a substantial hardship on the body or that
immediate action is required to protect the public interest. The
finding shall set forth the specific facts that constitute the
hardship to the body or the impending harm to the public interest.
The finding shall be adopted by a two-thirds vote of the body, or, if
less than two-thirds of the members are present, a unanimous vote of
those members present. The finding shall be made available on the
Internet. Failure to adopt the finding terminates the meeting.
11125.5. (a) 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 state body may hold
an emergency meeting without complying with the 10-day notice
requirement of Section 11125 or the 48-hour notice requirement of
Section 11125.4.
(b) For purposes of this section, "emergency situation" means any
of the following, as determined by a majority of the members of the
state body during a meeting prior to the emergency meeting, or at the
beginning of the emergency meeting:
(1) Work stoppage or other activity that severely impairs public
health or safety, or both.
(2) Crippling disaster that severely impairs public health or
safety, or both.
(c) However, newspapers of general circulation and radio or
television stations that have requested notice of meetings pursuant
to Section 11125 shall be notified by the presiding officer of the
state body, or a designee thereof, one hour prior to the emergency
meeting by telephone. Notice shall also be made available on the
Internet as soon as is practicable after the decision to call the
emergency meeting has been made. If telephone services are not
functioning, the notice requirements of this section shall be deemed
waived, and the presiding officer of the state body, or a designee
thereof, shall notify those newspapers, radio stations, or television
stations of the fact of the holding of the emergency meeting, the
purpose of the meeting, and any action taken at the meeting as soon
after the meeting as possible.
(d) The minutes of a meeting called pursuant to this section, a
list of persons who the presiding officer of the state body, or a
designee thereof, notified or attempted to notify, a copy of the
rollcall vote, and any action taken at the meeting shall be posted
for a minimum of 10 days in a public place, and also made available
on the Internet for a minimum of 10 days, as soon after the meeting
as possible.
11125.6. (a) An emergency meeting may be called at any time by the
president of the Fish and Game Commission or by a majority of the
members of the commission to consider an appeal of a closure of or
restriction in a fishery adopted pursuant to Section 7710 of the Fish
and Game Code. In the case of an emergency situation involving
matters upon which prompt action is necessary due to the disruption
or threatened disruption of an established fishery, the commission
may hold an emergency meeting without complying with the 10-day
notice requirement of Section 11125 or the 48-hour notice requirement
of Section 11125.4 if the delay necessitated by providing the 10-day
notice of a public meeting required by Section 11125 or the 48-hour
notice required by Section 11125.4 would significantly adversely
impact the economic benefits of a fishery to the participants in the
fishery and to the people of the state or significantly adversely
impact the sustainability of a fishery managed by the state.
(b) At the commencement of an emergency meeting called pursuant to
this section, the commission shall make a finding in open session
that the delay necessitated by providing notice 10 days prior to a
meeting as required by Section 11125 or 48 hours prior to a meeting
as required by Section 11125.4 would significantly adversely impact
the economic benefits of a fishery to the participants in the fishery
and to the people of the state or significantly adversely impact the
sustainability of a fishery managed by the state. The finding shall
set forth the specific facts that constitute the impact to the
economic benefits of the fishery or the sustainability of the
fishery. The finding shall be adopted by a vote of at least four
members of the commission, or, if less than four of the members are
present, a unanimous vote of those members present. Failure to adopt
the finding shall terminate the meeting.
(c) Newspapers of general circulation and radio or television
stations that have requested notice of meetings pursuant to Section
11125 shall be notified by the presiding officer of the commission,
or a designee thereof, one hour prior to the emergency meeting by
telephone.
(d) The minutes of an emergency meeting called pursuant to this
section, a list of persons who the president of the commission, or a
designee thereof, notified or attempted to notify, a copy of the
rollcall vote, and any action taken at the meeting shall be posted
for a minimum of 10 days in a public place as soon after the meeting
as possible.
11125.7. (a) Except as otherwise provided in this section, the
state body shall provide an opportunity for members of the public to
directly address the state body on each agenda item before or during
the state body's discussion or consideration of the item. This
section is not applicable if the agenda item has already been
considered by a committee composed exclusively of members of the
state body at a public meeting where interested members of the public
were afforded the opportunity to address the committee on the item,
before or during the committee's consideration of the item, unless
the item has been substantially changed since the committee heard the
item, as determined by the state body. Every notice for a special
meeting at which action is proposed to be taken on an item shall
provide an opportunity for members of the public to directly address
the state body concerning that item prior to action on the item. In
addition, the notice requirement of Section 11125 shall not preclude
the acceptance of testimony at meetings, other than emergency
meetings, from members of the public if no action is taken by the
state body at the same meeting on matters brought before the body by
members of the public.
(b) The state body may adopt reasonable regulations to ensure that
the intent of subdivision (a) is carried out, including, but not
limited to, regulations limiting the total amount of time allocated
for public comment on particular issues and for each individual
speaker.
(c) The state body shall not prohibit public criticism of the
policies, programs, or services of the state body, or of the acts or
omissions of the state body. Nothing in this subdivision shall confer
any privilege or protection for expression beyond that otherwise
provided by law.
(d) This section is not applicable to closed sessions held
pursuant to Section 11126.
(e) This section is not applicable to decisions regarding
proceedings held pursuant to Chapter 5 (commencing with Section
11500), relating to administrative adjudication, or to the conduct of
those proceedings.
(f) This section is not applicable to hearings conducted by the
California Victim Compensation and Government Claims Board pursuant
to Sections 13963 and 13963.1.
(g) This section is not applicable to agenda items that involve
decisions of the Public Utilities Commission regarding adjudicatory
hearings held pursuant to Chapter 9 (commencing with Section 1701) of
Part 1 of Division 1 of the Public Utilities Code. For all other
agenda items, the commission shall provide members of the public,
other than those who have already participated in the proceedings
underlying the agenda item, an opportunity to directly address the
commission before or during the commission's consideration of the
item.
11125.8. (a) Notwithstanding Section 11131.5, in any hearing that
the California Victim Compensation and Government Claims Board
conducts pursuant to Section 13963.1 and that the applicant or
applicant's representative does not request be open to the public, no
notice, agenda, announcement, or report required under this article
need identify the applicant.
(b) In any hearing that the board conducts pursuant to Section
13963.1 and that the applicant or applicant's representative does not
request be open to the public, the board shall disclose that the
hearing is being held pursuant to Section 13963.1. That disclosure
shall be deemed to satisfy the requirements of subdivision (a) of
Section 11126.3.
11125.9. Regional water quality control boards shall comply with
the notification guidelines in Section 11125 and, in addition, shall
do both of the following:
(a) Notify, in writing, all clerks of the city councils and county
boards of supervisors within the regional board's jurisdiction of
any and all board hearings at least 10 days prior to the hearing.
Notification shall include an agenda for the meeting with contents as
described in subdivision (b) of Section 11125 as well as the name,
address, and telephone number of any person who can provide further
information prior to the meeting, but need not include a list of
witnesses expected to appear at the meeting. Each clerk, upon receipt
of the notification of a board hearing, shall distribute the notice
to all members of the respective city council or board of supervisors
within the regional board's jurisdiction.
(b) Notify, in writing, all newspapers with a circulation rate of
at least 10,000 within the regional board's jurisdiction of any and
all board hearings, at least 10 days prior to the hearing.
Notification shall include an agenda for the meeting with contents as
described in subdivision (b) of Section 11125 as well as the name,
address, and telephone number of any person who can provide further
information prior to the meeting, but need not include a list of
witnesses expected to appear at the meeting.
11126. (a) (1) Nothing in this article shall be construed to
prevent a state body from holding closed sessions during a regular or
special meeting to consider the appointment, employment, evaluation
of performance, or dismissal of a public employee or to hear
complaints or charges brought against that employee by another person
or employee unless the employee requests a public hearing.
(2) As a condition to holding a closed session on the complaints
or charges to consider disciplinary action or to consider dismissal,
the employee shall be given written notice of his or her right to
have a public hearing, rather than a closed session, and that 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 the closed session shall be null and void.
(3) The state body also may exclude from any public or closed
session, during the examination of a witness, any or all other
witnesses in the matter being investigated by the state body.
(4) Following the public hearing or closed session, the body may
deliberate on the decision to be reached in a closed session.
(b) For the purposes of this section, "employee" does not include
any person who is elected to, or appointed to a public office by, any
state body. However, officers of the California State University who
receive compensation for their services, other than per diem and
ordinary and necessary expenses, shall, when engaged in that
capacity, be considered employees. Furthermore, for purposes of this
section, the term employee includes a person exempt from civil
service pursuant to subdivision (e) of Section 4 of Article VII of
the California Constitution.
(c) Nothing in this article shall be construed to do any of the
following:
(1) Prevent state bodies that administer the licensing of persons
engaging in businesses or professions from holding closed sessions to
prepare, approve, grade, or administer examinations.
(2) Prevent an advisory body of a state body that administers the
licensing of persons engaged in businesses or professions from
conducting a closed session to discuss matters that 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 the advisory body does not include a quorum of the members
of the state body it advises. Those matters may include review of an
applicant's qualifications for licensure and an inquiry specifically
related to the state body'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 body.
(3) Prohibit a state body from holding a closed session to
deliberate on a decision to be reached in a proceeding required to be
conducted pursuant to Chapter 5 (commencing with Section 11500) or
similar provisions of law.
(4) 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 body from holding a closed session when
considering and acting upon the determination of a term, parole, or
release of any individual or other disposition of an individual case,
or if public disclosure of the subjects under discussion or
consideration is expressly prohibited by statute.
(5) Prevent any closed session to consider the conferring of
honorary degrees, or gifts, donations, and bequests that the donor or
proposed donor has requested in writing to be kept confidential.
(6) 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.
(7) (A) Prevent a state body from holding closed sessions with its
negotiator prior to the purchase, sale, exchange, or lease of real
property by or for the state body to give instructions to its
negotiator regarding the price and terms of payment for the purchase,
sale, exchange, or lease.
(B) However, prior to the closed session, the state body shall
hold an open and public session in which it identifies the real
property or real properties that the negotiations may concern and the
person or persons with whom its negotiator may negotiate.
(C) For purposes of this paragraph, the negotiator may be a member
of the state body.
(D) For purposes of this paragraph, "lease" includes renewal or
renegotiation of a lease.
(E) Nothing in this paragraph shall preclude a state body from
holding a closed session for discussions regarding eminent domain
proceedings pursuant to subdivision (e).
(8) 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.
(9) Prevent the Council for Private Postsecondary and Vocational
Education from holding closed sessions to consider matters pertaining
to the appointment or termination of the Executive Director of the
Council for Private Postsecondary and Vocational Education.
(10) Prevent the Franchise Tax Board from holding closed sessions
for the purpose of discussion of confidential tax returns or
information the public disclosure of which is prohibited by law, or
from considering matters pertaining to the appointment or removal of
the Executive Officer of the Franchise Tax Board.
(11) Require the Franchise Tax Board to notice or disclose any
confidential tax information considered in closed sessions, or
documents executed in connection therewith, the public disclosure of
which is prohibited pursuant to Article 2 (commencing with Section
19542) of Chapter 7 of Part 10.2 of Division 2 of the Revenue and
Taxation Code.
(12) Prevent the Corrections Standards Authority from holding
closed sessions when considering reports of crime conditions under
Section 6027 of the Penal Code.
(13) Prevent the State Air Resources Board from holding closed
sessions when considering the proprietary specifications and
performance data of manufacturers.
(14) Prevent the State Board of Education or the Superintendent of
Public Instruction, or any committee advising the board or the
Superintendent, from holding closed sessions on those portions of its
review of assessment instruments pursuant to Chapter 5 (commencing
with Section 60600) of, or pursuant to Chapter 9 (commencing with
Section 60850) of, Part 33 of Division 4 of Title 2 of the Education
Code during which actual test content is reviewed and discussed. The
purpose of this provision is to maintain the confidentiality of the
assessments under review.
(15) Prevent the California Integrated Waste Management Board or
its auxiliary committees from holding closed sessions for the purpose
of discussing confidential tax returns, discussing trade secrets or
confidential or proprietary information in its possession, or
discussing other data, the public disclosure of which is prohibited
by law.
(16) Prevent a state body that invests retirement, pension, or
endowment funds from holding closed sessions when considering
investment decisions. For purposes of consideration of shareholder
voting on corporate stocks held by the state body, closed sessions
for the purposes of voting may be held only with respect to election
of corporate directors, election of independent auditors, and other
financial issues that could have a material effect on the net income
of the corporation. For the purpose of real property investment
decisions that may be considered in a closed session pursuant to this
paragraph, a state body shall also be exempt from the provisions of
paragraph (7) relating to the identification of real properties prior
to the closed session.
(17) Prevent a state body, or boards, commissions, administrative
officers, or other representatives that may properly be designated by
law or by a state body, from holding closed sessions with its
representatives in discharging its responsibilities under Chapter 10
(commencing with Section 3500), Chapter 10.3 (commencing with Section
3512), Chapter 10.5 (commencing with Section 3525), or Chapter 10.7
(commencing with Section 3540) of Division 4 of Title 1 as the
sessions relate to salaries, salary schedules, or compensation paid
in the form of fringe benefits. For the purposes enumerated in the
preceding sentence, a state body may also meet with a state
conciliator who has intervened in the proceedings.
(18) (A) Prevent a state body from holding closed sessions to
consider matters posing a threat or potential threat of criminal or
terrorist activity against the personnel, property, buildings,
facilities, or equipment, including electronic data, owned, leased,
or controlled by the state body, where disclosure of these
considerations could compromise or impede the safety or security of
the personnel, property, buildings, facilities, or equipment,
including electronic data, owned, leased, or controlled by the state
body.
(B) Notwithstanding any other provision of law, a state body, at
any regular or special meeting, may meet in a closed session pursuant
to subparagraph (A) upon a two-thirds vote of the members present at
the meeting.
(C) After meeting in closed session pursuant to subparagraph (A),
the state body shall reconvene in open session prior to adjournment
and report that a closed session was held pursuant to subparagraph
(A), the general nature of the matters considered, and whether any
action was taken in closed session.
(D) After meeting in closed session pursuant to subparagraph (A),
the state body shall submit to the Legislative Analyst written
notification stating that it held this closed session, the general
reason or reasons for the closed session, the general nature of the
matters considered, and whether any action was taken in closed
session. The Legislative Analyst shall retain for no less than four
years any written notification received from a state body pursuant to
this subparagraph.
(d) (1) 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.
(2) Nothing in this article shall be construed to prevent the
Public Utilities Commission from holding closed sessions to
deliberate on the institution of proceedings, or disciplinary actions
against any person or entity under the jurisdiction of the
commission.
(e) (1) Nothing in this article shall be construed to prevent a
state body, based on the advice of its legal counsel, from holding a
closed session to confer with, or receive advice from, its legal
counsel regarding pending litigation when discussion in open session
concerning those matters would prejudice the position of the state
body in the litigation.
(2) For purposes of this article, all expressions of the
lawyer-client privilege other than those provided in this subdivision
are hereby abrogated. This subdivision is the exclusive expression
of the lawyer-client privilege for purposes of conducting closed
session meetings pursuant to this article. For purposes of this
subdivision, litigation shall be considered pending when any of the
following circumstances exist:
(A) An adjudicatory proceeding before a court, an administrative
body exercising its adjudicatory authority, a hearing officer, or an
arbitrator, to which the state body is a party, has been initiated
formally.
(B) (i) A point has been reached where, in the opinion of the
state body on the advice of its legal counsel, based on existing
facts and circumstances, there is a significant exposure to
litigation against the state body.
(ii) Based on existing facts and circumstances, the state body is
meeting only to decide whether a closed session is authorized
pursuant to clause (i).
(C) (i) Based on existing facts and circumstances, the state body
has decided to initiate or is deciding whether to initiate
litigation.
(ii) The legal counsel of the state body shall prepare and submit
to it a memorandum stating the specific reasons and legal authority
for the closed session. If the closed session is pursuant to
paragraph (1), the memorandum shall include the title of the
litigation. If the closed session is pursuant to subparagraph (A) or
(B), the memorandum shall include the existing facts and
circumstances on which it is based. The legal counsel shall submit
the memorandum to the state body prior to the closed session, if
feasible, and in any case no later than one week after the closed
session. The memorandum shall be exempt from disclosure pursuant to
Section 6254.25.
(iii) For purposes of this subdivision, "litigation" includes any
adjudicatory proceeding, including eminent domain, before a court,
administrative body exercising its adjudicatory authority, hearing
officer, or arbitrator.
(iv) Disclosure of a memorandum required under this subdivision
shall not be deemed as a waiver of the lawyer-client privilege, as
provided for under Article 3 (commencing with Section 950) of Chapter
4 of Division 8 of the Evidence Code.
(f) In addition to subdivisions (a), (b), and (c), nothing in this
article shall be construed to do any of the following:
(1) Prevent a state body operating under a joint powers agreement
for insurance pooling from holding a closed session to discuss a
claim for the payment of tort liability or public liability losses
incurred by the state body or any member agency under the joint
powers agreement.
(2) Prevent the examining committee established by the State Board
of Forestry and Fire Protection, pursuant to Section 763 of the
Public Resources Code, from conducting a closed session to consider
disciplinary action against an individual professional forester prior
to the filing of an accusation against the forester pursuant to
Section 11503.
(3) Prevent the enforcement advisory committee established by the
California 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
the qualifications examining committee established by the California
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.
(4) Prevent a state body, as defined in subdivision (b) of Section
11121, from conducting a closed session to consider any matter that
properly could be considered in closed session by the state body
whose authority it exercises.
(5) Prevent a state body, as defined in subdivision (d) of Section
11121, from conducting a closed session to consider any matter that
properly could be considered in a closed session by the body defined
as a state body pursuant to subdivision (a) or (b) of Section 11121.
(6) Prevent a state body, as defined in subdivision (c) of Section
11121, from conducting a closed session to consider any matter that
properly could be considered in a closed session by the state body it
advises.
(7) Prevent the State Board of Equalization from holding closed
sessions for either of the following:
(A) When considering matters pertaining to the appointment or
removal of the Executive Secretary of the State Board of
Equalization.
(B) For the purpose of hearing confidential taxpayer appeals or
data, the public disclosure of which is prohibited by law.
(8) Require the State Board of Equalization to disclose any action
taken in closed session or documents executed in connection with
that action, the public disclosure of which is prohibited by law
pursuant to Sections 15619 and 15641 of this code and Sections 833,
7056, 8255, 9255, 11655, 30455, 32455, 38705, 38706, 43651, 45982,
46751, 50159, 55381, and 60609 of the Revenue and Taxation Code.
(9) Prevent the California Earthquake Prediction Evaluation
Council, or other body appointed to advise the Secretary of Emergency
Management or the Governor concerning matters relating to volcanic
or earthquake predictions, from holding closed sessions when
considering the evaluation of possible predictions.
(g) This article does not prevent either of the following:
(1) The Teachers' Retirement Board or the Board of Administration
of the Public Employees' Retirement System from holding closed
sessions when considering matters pertaining to the recruitment,
appointment, employment, or removal of the chief executive officer or
when considering matters pertaining to the recruitment or removal of
the Chief Investment Officer of the State Teachers' Retirement
System or the Public Employees' Retirement System.
(2) The Commission on Teacher Credentialing from holding closed
sessions when considering matters relating to the recruitment,
appointment, or removal of its executive director.
(h) This article does not prevent the Board of Administration of
the Public Employees' Retirement System from holding closed sessions
when considering matters relating to the development of rates and
competitive strategy for plans offered pursuant to Chapter 15
(commencing with Section 21660) of Part 3 of Division 5 of Title 2.
(i) This article does not prevent the Managed Risk Medical
Insurance Board from holding closed sessions when considering matters
related to the development of rates and contracting strategy for
entities contracting or seeking to contract with the board, entities
with which the board is considering a contract, or entities with
which the board is considering or enters into any other arrangement
under which the board provides, receives, or arranges services or
reimbursement, pursuant to Part 6.2 (commencing with Section 12693),
Part 6.3 (commencing with Section 12695), Part 6.4 (commencing with
Section 12699.50), Part 6.5 (commencing with Section 12700), Part 6.6
(commencing with Section 12739.5), or Part 6.7 (commencing with
Section 12739.70) of Division 2 of the Insurance Code.
(j) Nothing in this article shall be construed to prevent the
board of the State Compensation Insurance Fund from holding closed
sessions in the following:
(1) When considering matters related to claims pursuant to Chapter
1 (commencing with Section 3200) of Division 4 of the Labor Code, to
the extent that confidential medical information or other
individually identifiable information would be disclosed.
(2) To the extent that matters related to audits and
investigations that have not been completed would be disclosed.
(3) To the extent that an internal audit containing proprietary
information would be disclosed.
(4) To the extent that the session would address the development
of rates, contracting strategy, underwriting, or competitive
strategy, pursuant to the powers granted to the board in Chapter 4
(commencing with Section 11770) of Part 3 of Division 2 of the
Insurance Code, when discussion in open session concerning those
matters would prejudice the position of the State Compensation
Insurance Fund.
(k) The State Compensation Insurance Fund shall comply with the
procedures specified in Section 11125.4 of the Government Code with
respect to any closed session or meeting authorized by subdivision
(j), and in addition shall provide an opportunity for a member of the
public to be heard on the issue of the appropriateness of closing
the meeting or session.
11126.1. The state body shall designate a clerk or other officer or
employee of the state body, who shall then attend each closed
session of the state 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 to members of the state body or, if a violation of this
chapter is alleged to have occurred at a closed session, to a court
of general jurisdiction. Such minute book may, but need not, consist
of a recording of the closed session.
11126.2. (a) Nothing in this article shall be construed to prohibit
a state body that has received a confidential final draft audit
report from the Bureau of State Audits from holding closed sessions
to discuss its response to that report.
(b) After the public release of an audit report by the Bureau of
State Audits, if a state body meets to discuss the audit report, it
shall do so in an open session unless exempted from that requirement
by some other provision of law.
11126.3. (a) Prior to holding any closed session, the state body
shall disclose, in an open meeting, the general nature of the item or
items to be discussed in the closed session. The disclosure may take
the form of a reference to the item or items as they are listed by
number or letter on the agenda. If the session is closed pursuant to
paragraph (2) of subdivision (d) of Section 11126, the state body
shall state the title of, or otherwise specifically identify, the
proceeding or disciplinary action contemplated. However, should the
body determine that to do so would jeopardize the body's ability to
effectuate service of process upon one or more unserved parties if
the proceeding or disciplinary action is commenced or that to do so
would fail to protect the private economic and business reputation of
the person or entity if the proceeding or disciplinary action is not
commenced, then the state body shall notice that there will be a
closed session and describe in general terms the purpose of that
session. If the session is closed pursuant to subparagraph (A) of
paragraph (2) of subdivision (e) of Section 11126, the state body
shall state the title of, or otherwise specifically identify, the
litigation to be discussed unless the body states that to do so would
jeopardize the body's ability to effectuate service of process upon
one or more unserved parties, or that to do so would jeopardize its
ability to conclude existing settlement negotiations to its
advantage.
(b) In the closed session, the state body may consider only those
matters covered in its disclosure.
(c) The disclosure shall be made as part of the notice provided
for the meeting pursuant to Section 11125 or pursuant to subdivision
(a) of Section 92032 of the Education Code and of any order or notice
required by Section 11129.
(d) If, after the agenda has been published in compliance with
this article, any pending litigation (under subdivision (e) of
Section 11126) matters arise, the postponement of which will prevent
the state body from complying with any statutory, court-ordered, or
other legally imposed deadline, the state body may proceed to discuss
those matters in closed session and shall publicly announce in the
meeting the title of, or otherwise specifically identify, the
litigation to be discussed, unless the body states that to do so
would jeopardize the body's ability to effectuate service of process
upon one or more unserved parties, or that to do so would jeopardize
its ability to conclude existing settlement negotiations to its
advantage. Such an announcement shall be deemed to comply fully with
the requirements of this section.
(e) Nothing in this section shall require or authorize a
disclosure of names or other information that would constitute an
invasion of privacy or otherwise unnecessarily divulge the particular
facts concerning the closed session or the disclosure of which is
prohibited by state or federal law.
(f) After any closed session, the state body shall reconvene into
open session prior to adjournment and shall make any reports, provide
any documentation, and make any other disclosures required by
Section 11125.2 of action taken in the closed session.
(g) The announcements required to be made in open session pursuant
to this section may be made at the location announced in the agenda
for the closed session, as long as the public is allowed to be
present at that location for the purpose of hearing the announcement.
11126.4. (a) Nothing in this article shall be construed to prevent
the California Gambling Control Commission from holding a closed
session when discussing matters involving trade secrets, nonpublic
financial data, confidential or proprietary information, and other
data and information, the public disclosure of which is prohibited by
law or a tribal-state gaming compact.
(b) Discussion in closed session authorized by this section shall
be limited to the confidential data and information related to the
agendized item and shall not include discussion of any other
information or matter.
(c) Before going into closed session the commission shall publicly
announce the type of data or information to be discussed in closed
session, which shall be recorded upon the commission minutes.
(d) Action taken on agenda items discussed pursuant to this
section shall be taken in open session.
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 state
body conducting the meeting may order the meeting room cleared and
continue in session. Nothing in this section shall prohibit the state
body from establishing a procedure for readmitting an individual or
individuals not responsible for willfully disturbing the orderly
conduct of the meeting. Notwithstanding any other provision of law,
only matters appearing on the agenda may be considered in such a
session. 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.
11126.7. No fees may be charged by a state body for providing a
notice required by Section 11125 or for carrying out any provision of
this article, except as specifically authorized pursuant to this
article.
11127. Each provision of this article shall apply to every state
body unless the body is specifically excepted from that provision by
law or is covered by any other conflicting provision of law.
11128. Each closed session of a state body shall be held only
during a regular or special meeting of the body.
11128.5. The state body may adjourn any regular, adjourned regular,
special, or adjourned special meeting to a time and place 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 state body may
declare the meeting adjourned to a stated time and place and he or
she shall cause a written notice of the adjournment to be given in
the same manner as provided in Section 11125.4 for special meetings,
unless that 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 law or regulation.
11129. Any hearing being held, or noticed or ordered to be held by
a state body at any meeting may by order or notice of continuance be
continued or recontinued to any subsequent meeting of the state body
in the same manner and to the same extent set forth in Section
11128.5 for the adjournment of meetings. 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 immediately following the
meeting at which the order or declaration of continuance was adopted
or made.
11130. (a) The Attorney General, the district attorney, or 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 this article or to determine
the applicability of this article to past actions or threatened
future action by members of the state body or to determine whether
any rule or action by the state body to penalize or otherwise
discourage the expression of one or more of its members is valid or
invalid under the laws of this state or of the United States, or to
compel the state body to audio record its closed sessions as
hereinafter provided.
(b) The court in its discretion may, upon a judgment of a
violation of Section 11126, order the state body to audio record its
closed sessions and preserve the audio recordings for the period and
under the terms of security and confidentiality the court deems
appropriate.
(c) (1) Each recording so kept shall be immediately labeled with
the date of the closed session recorded and the title of the clerk or
other officer who shall be custodian of the recording.
(2) The audio recordings shall be subject to the following
discovery procedures:
(A) In any case in which discovery or disclosure of the audio
recording is sought by the Attorney General, the district attorney,
or the plaintiff in a civil action pursuant to this section or
Section 11130.3 alleging that a violation of this article has
occurred in a closed session that has been recorded pursuant to this
section, the party seeking discovery or disclosure shall file a
written notice of motion with the appropriate court with notice to
the governmental agency that has custody and control of the audio
recording. The notice shall be given pursuant to subdivision (b) of
Section 1005 of the Code of Civil Procedure.
(B) The notice shall include, in addition to the items required by
Section 1010 of the Code of Civil Procedure, all of the following:
(i) Identification of the proceeding in which discovery or
disclosure is sought, the party seeking discovery or disclosure, the
date and time of the meeting recorded, and the governmental agency
that has custody and control of the recording.
(ii) An affidavit that contains specific facts indicating that a
violation of the act occurred in the closed session.
(3) If the court, following a review of the motion, finds that
there is good cause to believe that a violation has occurred, the
court may review, in camera, the recording of that portion of the
closed session alleged to have violated the act.
(4) If, following the in camera review, the court concludes that
disclosure of a portion of the recording would be likely to
materially assist in the resolution of the litigation alleging
violation of this article, the court shall, in its discretion, make a
certified transcript of the portion of the recording a public
exhibit in the proceeding.
(5) Nothing in this section shall permit discovery of
communications that are protected by the attorney-client privilege.
11130.3. (a) Any interested person may commence an action by
mandamus, injunction, or declaratory relief for the purpose of
obtaining a judicial determination that an action taken by a state
body in violation of Section 11123 or 11125 is null and void under
this section. Any action seeking such a judicial determination shall
be commenced within 90 days from the date the action was taken.
Nothing in this section shall be construed to prevent a s