TO: HONORABLE MAYOR AND FROM: Toni J. Taber, CMC
CITY COUNCIL City Clerk
SUBJECT: SEE BELOW DATE: May 24, 2022
SUBJECT: SB 1100 (Cortese): Open Meetings - Orderly Conduct Recommendation
As recommended by the Rules and Open Government Committee on May 11, 2022, adopt a position on SB 1100 (Cortese).
CEQA: Not a Project, File No. PP17-008, General Procedure and Policy Making resulting in no changes to the physical environment. (City Manager)
[Rules Committee referral 5/11/2022 - Item C.2]
COUNCIL AGENDA: 5/24/2022
ITEM: 2.19
FILE NO: 22-798
CITY COUNCIL ACTION REQUEST
Department(s):
CMO/API
Date:
05/04/22
Coordination:
CAO, City Clerk
Dept. Approval:
/s/ Sarah Zárate
CMO Approval:
SUBJECT: SB 1100 (CORTESE): OPEN MEETINGS - ORDERLY CONDUCT RECOMMENDED POSITION: None
RECOMMENDED ACTION:
1. Adopt a position on SB 1100 (Cortese).
2. Recommend this item be agendized for a May 24, 2022 City Council Meeting so that the City’s Legislative Representative can advocate the City’s position for SB 1100 (Cortese).
BILL SYNOPSIS:
Under existing California law, the Ralph M. Brown Act authorizes a legislative body to address disruptions through removal of an individual or group of individuals who “willfully interrupt” the proceedings of a public meeting. If, after their removal, order still cannot be restored, the legislative body can order that a meeting room be cleared entirely, while allowing news media to still observe the meeting. In these cases, the legislative body can establish a process to allow individuals who did not cause the disturbance to reenter the meeting room.
This bill authorizes a legislative body’s presiding member to remove an individual for disrupting the meeting after providing a warning that the individual is disrupting the proceedings, a request that the individual curtail the disruptive behavior or be subject to removal, and a reasonable opportunity to curtail the disruptive behavior. It defines “disrupting” as engaging in behavior that actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting, and includes, but is not limited to, both: a) A failure to comply with reasonable and lawful regulations adopted by a legislative body; b) Engaging in behavior that includes the use of force or true threats of force. The warning is not required for behavior that includes use of force or true threats of force.
Please note the bill is still going through the legislative process and may be further amended.
IMPACTS TO CITY OF SAN JOSE:
Civic engagement is essential to the democratic process; an individual disrupting a public meeting (as defined by this bill) has the effect of limiting public participation. This bill’s proposal would allow the presiding member of the City’s Brown Act legislative bodies—including the City Council, City Council Committees, and various boards and commissions—to eject an individual for disrupting the orderly conduct of a legislative body meeting. This bill confirms and clarifies how to respond to disruptive behaviors during the course of a meeting by having it statutorily provided for. If passed, the City would review and update any applicable policies and resolutions (e.g., Council Rules of Conduct Resolution No. 79870, Section 11: Disorderly Conduct; Council Policy 0-37: Code of Conduct for Public Meetings in the Council Chambers and Committee Rooms.
RULES AGENDA: 05/11/22
FILE: 22-216
ITEM: C(2)
POLICY ALIGNMENT:
This policy does not directly align with an existing 2022 Legislative Program policy position (Approved by Council on 11/30/21).
SUPPORTERS/OPPONENTS:
The bill is sponsored by the California State Association of Counties and the Urban Counties of California.
The bill is supported by local agencies, associations representing local agencies, and a coalition of Indivisible chapters from around the state. The bill is opposed by Californians for Good Governance and Stand UP.
STATUS OF BILL:
Senator Cortese introduced this bill on 2/16/22. Double-referred to Senate Committee on Governance and Finance and the Senate Committee on the Judiciary on 2/23/22. Passed Committee on Governance and Finance on 3/17/22 (Ayes 4, Noes 1). Passed Committee on the Judiciary on 4/19/22 (Ayes 9, Noes 2). This bill has now passed the Senate floor (Ayes 29, Noes, 7). It is now due to be heard in the Assembly Local Government Committee in June.
FOR QUESTIONS CONTACT: Tom Westphal ([email protected])
Attachment
AMENDED IN SENATE APRIL 21, 2022
AMENDED IN SENATE APRIL 7, 2022
AMENDED IN SENATE MARCH 21, 2022
AMENDED IN SENATE MARCH 9, 2022
SENATE BILL No. 1100
Introduced by Senator Cortese
(Principal coauthor: Assembly Member Low)
February 16, 2022
An act to add Section 54957.95 to the Government Code, relating to local government.
legislative counsel’s digest
SB 1100, as amended, Cortese. Open meetings: orderly conduct. (1) Existing law, the Ralph M. Bro wn Act, requires, with specified exceptions, that all meetings of a legislative body of a local agency, as those terms are defined, be open and public and that all persons be permitted to attend and participate. Existing law requires every agenda for regular meetings of a local agenc y to pro vide an opportunity for members of the public to directly address the le gislative body on any item of interest to the public, before or during the le gislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body. Existing law authorizes the legislative body to adopt reasonable regulations to ensure that the intent of the provisions relating to this public comment requirement is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.
Existing law authorizes the members of the legislative body conducting the meeting to order the meeting room cleared and continue in session,
95 as prescribed, if a group or groups have willfully interrupted the orderly conduct of a meeting and order cannot be restored by the remo val of individuals who are willfully interrupting the meeting.
This bill w ould authorize the presiding member of the le gislative body conducting a meeting to remove an individual for disrupting the meeting. The bill, e xcept as pr ovided, would r equire removal to be preceded by a warning by the presiding member of the legislative body that the individual is disrupting the pr oceedings, a r equest that the individual curtail their disruptive behavior or be subject to r emoval, and a reasonable opportunity to curtail their disruptive behavior. The bill would define “disrupting” for this purpose. By establishing ne w requirements for local le gislative bodies, this bill w ould impose a state-mandated program.
(2) Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect. (3) The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.
This bill would make legislative findings to that effect.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
line 1 SECTION 1. The Legislature finds and declares as follows:
line 2 (a) It is the intent of the Le gislature to prescribe requirements line 3 for governing public meetings that are consistent with subdivision line 4 (c) of Section 54954.3 of the Go vernment Code, which provides line 5 that a legislative body of a local agenc y shall not prohibit public line 6 criticism of the policies, procedures, programs, or services of the line 7 agency, or of the acts or omissions of the legislative body. line 8 (b) It is further the intent of the Le gislature to prescribe line 9 requirements for governing public meetings to protect civil liberties 95 — 2 — SB 1100
line 1 in accordance with the United States Constitution, the California line 2 Constitution, and relevant law.
line 3 (c) It is further the intent of the Le gislature to codify the line 4 authority and standards for go verning public meetings in line 5 accordance with Acosta v. City of Costa Mesa, 718 F.3d 800, 811 line 6 (9th Cir. 2013), in which the court e xplained that an ordinance line 7 governing the decorum of a city council meeting is not f acially line 8 overbroad if it only permits a presiding officer to eject an attendee line 9 for actually disturbing or impeding a meeting.
line 10 SEC. 2. Section 54957.95 is added to the Government Code, line 11 to read:
line 12 54957.95. (a) In (1) In addition to authority exercised pursuant line 13 to Sections 54954.3 and 54957.9, the presiding member of the line 14 legislative body conducting a meeting may remove an individual line 15 for disrupting the meeting.
line 16 (2) Removal pursuant to this subdivision shall be pr eceded by line 17 a warning from the presiding member of the legislative body that line 18 the individual is disrupting the pr oceedings, a r equest that the line 19 individual curtail their disruptive behavior or be subject to line 20 removal, and a reasonable opportunity to curtail their disruptive line 21 behavior. This paragraph does not apply to any behavior described line 22 in paragraph (2) of subdivision (b).
line 23 (b) As used in this section, “disrupting” means eng aging in line 24 behavior during a meeting of a le gislative body that actually line 25 disrupts, disturbs, impedes, or renders infeasible the orderly line 26 conduct of the meeting and includes, but is not limited to, both of line 27 the following:
line 28 (1) A failure to comply with reasonable and lawful regulations line 29 adopted by a le gislative body pursuant to Section 54954.3 or line 30 54957.9 or any other law.
line 31 (2) Engaging in behavior that includes use of force or true threats line 32 of force.
line 33 SEC. 3. The Legislature finds and declares that Section 2 of line 34 this act, which adds Section 54957.95 to the Go vernment Code, line 35 imposes a limitation on the public’s right of access to the meetings line 36 of public bodies or the writings of public officials and agencies line 37 within the meaning of Section 3 of Article I of the California line 38 Constitution. Pursuant to that constitutional pro vision, the line 39 Legislature makes the following findings to demonstrate the interest line 40 protected by this limitation and the need for protecting that interest:
95 SB 1100 — 3 —
line 1 This act is necessary to give legislative bodies clear authorization line 2 to restore order to meetings in the event of actual disruptions that line 3 are disturbing, disrupting, impeding, or rendering infeasible the line 4 orderly conduct of the meeting and, thereby , preserve the rights line 5 of other members of the public at the meeting and allo w the line 6 legislative body to continue its work on behalf of the public. line 7 SEC. 4. The Legislature finds and declares that Section 2 of line 8 this act, which adds Section 54957.95 to the Go vernment Code, line 9 furthers, within the meaning of paragraph (7) of subdi vision (b) line 10 of Section 3 of Article I of the California Constitution, the purposes line 11 of that constitutional section as it relates to the right of public line 12 access to the meetings of local public bodies or the writings of line 13 local public officials and local agencies. Pursuant to paragraph (7) line 14 of subdi vision (b) of Section 3 of Article I of the California line 15 Constitution, the Legislature makes the following findings:
line 16 This act is necessary to give legislative bodies clear authorization line 17 to restore order to meetings in the event of actual disruptions that line 18 are disturbing, disrupting, impeding, or rendering infeasible the line 19 orderly conduct of the meeting and, thereby , preserve the rights line 20 of other members of the public at the meeting and allo w the line 21 legislative body to continue its work on behalf of the public.
O
95 — 4 — SB 1100
Senator Dave Cortese (D- San Jose) · SB XXXX Fact Sheet · 2/14/2022
SENATOR DAVE CORTESE
SB 1100 – Brown Act Modernization to
Ensure Open & Safe Meetings
SUMMARY
SB 1100 will ensure safe, open, and accessible public
meetings by creating a process to restore order when
disruptions occur that prevent a meeting from
continuing in accordance with law.
BACKGROUND
The Ralph M. Brown Act was enacted in 1953 to
govern the conduct of public meetings for local
legislative bodies.
The Brown Act in the California Government Code
has been amended before to expand public
accessibility while also remaining consistent with the
California Constitution and First Amendment
principles, including through SB 274 (Wieckowski,
2021) and AB 361 (Robert Rivas, 2021).
The Brown Act, as it stands, authorizes a legislative
body to address disruptions through removal of an
individual or group of individuals who “willfully
interrupt” the proceedings of a public meeting. If,
after their removal, order still cannot be restored, the legislative body can order that a meeting room be
cleared entirely, while allowing news media to still
observe the meeting. In these cases, the legislative
body can establish a process to allow individuals who
did not cause the disturbance to reenter the meeting
room.
ISSUE
It has become increasingly clear that the mechanisms
provided by the Brown Act to deal with disruptions
during public meetings are insufficient. Across
California, public officials and attendees continue to
deal with disorderly conduct during meetings at such
a high magnitude that critical business and the
legislative process as a whole becomes impaired.
We must take steps to clarify what behavior should
be deemed as disruptive to ensure that this definition
is only used with absolute neutrality for those rare
occurrences and prioritize the safety of our officials
who sit on local governing bodies as well as the
public.
THIS BILL
This bill would modernize the Brown Act to meet the
needs of our present-day local governance systems
by:
• Defining what a “willful interruption” is to
ensure an individual(s) is removed from a
public meeting if they substantially impair or
render infeasible the orderly conduct of the
meeting in accordance with law; and
• Establishing a warning system to require that
removal of an individual(s) causing a willful
interruption be preceded by a request that
the individual curtail their disruptive behavior
or be subject to removal.
FOR MORE INFORMATION
Tara Sreekrishnan
Office of Senator Dave Cortese
[email protected]