06. SB 711 labor relationsCUPERTINO
SUMMARY
City Hall
10300 Torre Avenue
Cupertino, CA 95014-3255
{408} 777-3212
FAX: (408) 777-3366
PUBLIC AND ENVIRONMENTAL AFFAIRS
Agenda Item No. ~ Meeting Date: June 16, 2009
SUBJECT
Authorize the mayor to sign a letter opposing SF3 711 regarding labor relations.
BACKGROUND
The Ralph M. Brown Act requires the meetings of the legislative body of a local
agency to be conducted openly and publicly=, with specified exceptions. Under the
act, the legislative body of a local agency m~~y hold a closed session with the Iocal
agencies' designated representatives regarding negotiations concerning employee
compensation but is required, in an open and public session prior to those closed
sessions, to disclose specified information identifying the agency's designated
representatives.
Existing law prohibits a closed session from. including any final action on the
proposed compensation of unrepresented employees. The act also requires the
legislative body of a Local agency to publicl~~ report any action taken rn closed
session, as prescribed, including the approval of an agreement concluding labor
negotiations with represented employees alter the agreement is final and has been
accepted or ratified by the other party.
The act provides a legislative body or elected official is not in violation of certain
provisions of the act if the agenda that describes a closed session item is in substantial
compliance by including specified information.
This bill would addi#ionally require a local agency, before holding a closed session
regarding employee compensation, to identify the employee or class of employees
that are the subject of the negotiations, the representatives of the employees, and to
provide an oral report by its designated representative on the current status of the
negotiations. The bill would additionally require any action of the legislative body on
the collective bargaining agreement or initi;~l proposal to be taken at an open and
public session. This bill contains other relat+~d provisions and other existing laws.
LEGISLATIVE COMMITTEE RECOMMENL-ATION
s-~
June 16, 2009
Page 2
Based on a-mail communications received from Mayor Mahoney and Councilmember Wong
in opposition, it is the recommendation of the Legislative Committee that the council oppose
SB 711 as it is currently written.
Approved for submission to the
City Council:
Attachment A: SB 711 Amended Bill Text
Attachment B: Bill Analysis
C~'~~-
David W. Knapp,
City Manager
s-2
Public & Environmental Affairs Director
June 16, 2009 Page 3
Attachment A
SB 711 AMENDED BILL TEXT
AMENDED IN SENATE APRIL 13, 2009
INTRODUCED BY Senator Leno
FEBRUARY 27, 2009
An act to amend Sections 54954.5, 5•&957.1, and 54957.6 of the
Government Code, relating to public meetings.
LEGISLATIVE COUNSEL'S DIGEST
SB 711, as amended, Leno. Public meetings: closed sessions: Tabor
negotiations.
(1) The Ralph M. Brown Act requires the meetings of the
legislative body of a local agency to be conducted openly and
publicly; with specified exceptions. Under the act, the legislative
body of a local agency may hold a closed session with the local
agencies' designated representatives regarding negotiations
concerning employee compensation but is required, in an open and
public session prior to those closed sessions, to disclose specified
information identifying the agency's designated representatives.
Existing Taw prohibits a closed session from including any final
action on the proposed compensation of unrepresented employees. The
act also requires the legislative body of a local agency to publicly
report any action taken in closed sese;ion, as prescribed, including
the approval of an agreement concludir.~g labor negotiations with
represented employees after the agreement is final and has been
accepted or ratified by the other party. The act provides a
legislative body or elected official is not in violation of certain
provisions of the act if the agenda tkLat describes a closed session
item is in substantial compliance by including specified information.
This bill would additionally requ:_re a local agency, before
holding a closed session regarding emF~loyee compensation, to identify
the employee or class of employees th~it are the subject of the
negotiations, the representatives of i~he employees, and -a~~
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to provide an oral report by its designated
representative on the current status ~f the negotiations The
bill would additionally require any =~ebe-
action of the legislative body on the collective bargaining
agreement or initial proposal to be taken at an open and public
session.
The bill would revise the prohibition against a closed session
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6-3
June 16, 2009
Page 4
i~~t~}ng-an}~€i~zl vete Th~~~~~~- for these
purposes and require -~ any final
action taken pursuant to a closed
session to be conducted during an open and public regular meeting of
the legislative body, -ate,-- but only
after
...~~.. ~~u~~~ specified public disclosures The
bill would also make a conforming change to delete the requirement
that the legislative body publicly report the action taken in closed
session after the agreement is final. The bill would also make
conforming changes to the information required to be included in an
agenda describing a closed session, for purposes of compliance with
the act.
The bill would impose a state-mandated local program by imposing
new duties upon local agencies.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 54954.5 of the Government Code is amended to
read:
54954.5. For purposes of describing closed session items pursuant
to Section 54954.2, the agenda may describe closed sessions as
provided below. No legislative body or elected official shall be in
violation of Section 54954.2 or 54956 if the closed session items
were described in substantial compliance with this section.
Substantial compliance is satisfied by including the information
provided below, irrespective of its format.
(a) With respect to a closed session held pursuant to Section
54955.7:
LICENSE/PERMIT DETERMINATION
Applicant(s}: (Specify number of applicants)
(b) With respect to every item of business to be discussed in
closed session pursuant to Section 54956.8:
CONFERENCE WITH REAL PROPERTY NEGOTIATORS
Property: {Specify street address, or if no street address, the
parcel number or other unique refezence, of the real property under
negotiation)
Agency negotiator: {Specify names of negotiators attending the
closed session) (If circumstances necessitate the absence of a
specified negotiator, an agent or designee may participate in place
of the absent negotiator so long as the name of the agent or designee
is announced at an open session held prior to the closed session.)
Negotiating parties: (Specify name of party (not agent))
Under negotiation: (Specify whether instruction to negotiator will
6-4
June 16, 2009
Page 5
concern price, terms of payment, or both)
(c) With respect to every item of business to be discussed in
closed session pursuant to Section 54956.9:
CONFERENCE WITH LEGAL COUNSEL--EXISTING LITIGATION
(Subdivision (a) of Section 54956.9}
Name of case: (Specify by reference to claimant's name, names of
parties, case or claim numbers}
or
Case name unspecified: (Specify whether disclosure would
jeopardize service of process or existing settlement negotiations}
CONFERENCE WITH LEGAL COUNSEL--ANTICIPATED LITIGATION
Significant exposure to litigation pursuant to subdivision (b) of
Section 54956.9: (Specify number of pctential cases)
(In addition to the information noticed above, the agency may be
required to provide additional information on the agenda or in an
oral statement prior to the closed session pursuant to subparagraphs
(B} to (E}, inclusive, of paragraph (3) of subdivision (b) of Section
54956.9.}
Initiation of litigation pursuant to subdivision (c) of Section
54956.9: {Specify number of potential cases)
(d) With respect to every item of lousiness to be discussed in
closed session pursuant to Section~54356.95:
LIABILITY CLAIMS
Claimant: (Specify name unless unsP~ecified pursuant to Section
54961)
Agency claimed against: (Specify name)
(e) With respect to every item of lousiness to be discussed in
closed session pursuant to Section 54~~57:
THREAT TO PUBLIC SERVICES OR FACILITIES
Consultation with: (Specify name of law enforcement agency and
title of officer, or name of applicable agency representative and
title)
PUBLIC EMPLOYEE APPOINTMENT
Title: (Specify description of position to be filled)
PUBLIC EMPLOYMENT
Title: {Specify description of position to be filled}
PUBLIC EMPLOYEE PERFORMANCE EVALUATION
Title: (Specify position title of e;mployee being reviewed}
PUBLIC EMPLOYEE DISCIPLINE/DISMISS~~T,/RELEASE
(No additional information is required in connection with a closed
session to consider discipline, dismi:3sa1, or release of a public
employee. Discipline includes potenti~~l reduction of compensation.)
(f) With respect to every item of kusiness to be discussed in
closed session pursuant to Section 54'_x57.6:
CONFERENCE WITH LABOR NEGOTIATORS
Agency designated representatives: (Specify names of designated
representatives attending the closed :>ession) {If circumstances
necessitate the absence of a specified designated representative, an
agent or designee may participate in place of the absent
representative so long as the name of the agent or designee is
announced at an open session held prior to the closed session.}
The employee or class of employees that are the subject of the
negotiations
Representative of the employees
Employee organization: (Specify name of organization representing
employee or employees in question)
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June 16, 2OQ9
Page 6
or
Unrepresented employee: (Specify position title of unrepresented.
employee who is the subject of the negotiations}
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Oral reports by agency's designated representative on the current
status of the negotiations
(g) With respect to closed sessions called pursuant to Section
54957.8:
CASE REVIEW/PLANNING
{No additional information is required in connection with a closed
session to consider case review or planning.}
(h) With respect to every item of business to be discussed in
closed session pursuant to Sections 1461, 32106, and 32155 of the
Health and Safety Code or Sections 37606 and 37624.3 of the
Government Code:
REPORT INVOLVING TRADE SECRET
Discussion will concern: (Specify whether discussion will concern
proposed new service, program, or facility}
Estimated date of public disclosure: (Specify month and year)
HEARINGS
Subject matter: (Specify whether testimony/deliberation will
concern staff privileges, report of medical audit committee, or
report of quality assurance committee}
(i} With respect to every item of business to be discussed in
closed session pursuant to Section 54956.86:
CHARGE OR COMPLAINT INVOLVING INFORMATION PROTECTED BY FEDERAL LAW
(No additional information is required in connection with a closed
session to discuss a charge or complaint pursuant to Section
54956.86.)
(j) With respect to every item of business to be discussed in
closed session pursuant to Section 54956.96:
CONFERENCE INVOLVING A JOINT POWERS AGENCY (Specify by name)
Discussion will concern: (Specify closed session description used
by the joint powers agency)
Name of local agency representative on joint powers agency board:
(Specify name)
(Additional information listing the names of agencies or titles of
representatives attending the closed session as consultants or other
representatives.)
(k) With respect to every item of business to be discussed in
closed session pursuant to Section 54956.75:
AUDIT BY BUREAU OF STATE AUDITS
SEC. 2. Section 54957.1 of the Government Code is amended to read:
54957.1. (a} The legislative body of any local agency shall
publicly report any action taken in closed session and the vote or
abstention on that action of every member present, as follows:
(1) Approval of an agreement concluding real estate negotiations
pursuant to Section 54956.8 shall be reported after the agreement is
final, as follows:
6-6
June 16, 2009
Page 7
(A} If its own approval renders the: agreement final, the body
shall report that approval and the suk~stance of the agreement in open
session at the public meeting during which the closed session is
held.
{B) If final approval rests with tie other party to the
negotiations, the local agency shall disclose the fact of that
approval and the substance of the agreement upon inquiry by any
person, as soon as the other party or its agent has informed the
local agency of its approval.
(2) Approval given to its legal counsel to defend, or seek or
refrain from seeking appellate review or relief, or to enter as an
amicus curiae in any form of litigation as the result of a
consultation under Section 54956.9 sh~t11 be reported in open session
at the public meeting during which the: closed session is held. The
report shall identify, if known, the ~idverse party or parties and the
substance of the litigation. In the c~~se of approval given to
initiate or intervene in an action, the announcement need not
identify the action, the defendants, or other particulars, but. shall
specify that the direction to initiatE: or intervene in an action has
been given and that the action, the defendants, and the other
particulars shall, once formally commE:nced, be disclosed to any
person upon inquiry, unless to do so vvould jeopardize the agency's
ability to effectuate service of procE:ss on one or more unserved
parties, or that to do so would jeopardize its ability to conclude
existing settlement negotiations to ii~s advantage.
(3} Approval given to its legal counsel of a settlement of pending
litigation, as defined in Section 549!i6.9, at any stage prior to or
during a judicial or quasi-judicial p;:oceeding shall be reported
after the settlement is final, as follows:
{A) If the legislative body accept:a a settlement offer signed by
the opposing party, the body shall re~~ort its acceptance and identify
the substance of the agreement in open session at the public meeting
during which the closed session is he:Ld.
(B) If final approval rests with some other party to the
litigation or with the court, then as soon as the settlement becomes
final, and upon inquiry by any person, the local agency shall
disclose the fact of that approval, a~zd identify the substance of the
agreement.
{4) Disposition reached as to claims discussed in closed session
pursuant to Section 54956.95 shall be reported as soon as reached in
a manner that identifies the name of ~~he claimant, the name of the
local agency claimed against, the sub;~tance of the claim, and any
monetary amount approved for payment ~~nd agreed upon by the claimant.
(5) Action taken to appoint, emplo~~, dismiss, accept the
resignation of, or otherwise affect the employment status of, a
public employee in closed session pur,~uant to Section 54957 shall be
reported at the public meeting during which the closed session is
held. Any report required by this paregraph shall identify the title
of the position. The general requirern~~nt of this paragraph
notwithstanding, the report of a dismissal or of the nonrenewal of an
employment contract shall be deferred until the first public meeting
following the exhaustion of administrative remedies, if any.
(6} Pension fund investment transa~~tion decisions made pursuant to
Section 54956.81 shall be disclosed at the first open meeting of the
legislative body held after the earlier of the close of the
6-7
June 16, 2009
Page 8
investment transaction or the transfer of pension fund assets for the
investment transaction..
(b) Reports that are required to be made pursuant to this section
may be made orally or in writing. The legislative body shall provide
to any person who has submitted a written request to the legislative
body within 24 hours of the posting of the agenda, or to any person
who has made a standing request for all documentation as part of a
request for notice of meetings pursuant to Section 54954.1 or 54956,
if the requester is present at the time the closed session ends,
copies of any contracts, settlement agreements, or other documents
that were finally approved or adopted in the closed session. If the
action taken results in one or more substantive amendments to the
related documents requiring retyping, the documents need not be
released until the retyping is completed during normal business
hours, provided that the presiding officer of the legislative body or
his or her designee orally summarizes the substance of the
amendments for the benefit of the document requester or any other
person present and requesting the information.'
(c) The documentation referred to in subdivision (b) shall be
available to any person on the next business day following the
meeting in which the action referred to is taken or; in the case of
substantial amendments, when any necessary retyping is complete.
(d) Nothing in. this section shall be construed to require that the
legislative body approve actions not otherwise subject to
legislative body approval.
(e} No action for injury to a reputational, liberty, or other
personal interest may be commenced by or on behalf of any employee or
former employee with respect to whom a disclosure is made by a
legislative body in an effort to comply with this section.
(fy This section is necessary to implement, and reasonably within
the scope of, paragraph (1} of subdivision {b} of Section 3 of
Article I of the California Constitution.
SEC. 3. Section 54957.6 of the Government Code is amended to read:
54957.6. {a) (1) Notwithstanding any other law, a legislative
body of a local agency may hold a closed session pursuant to this
section with the local agency's designated representatives regarding
the salaries, salary schedules, or compensation paid in the form of
fringe benefits of its represented and unrepresented employees, and,
for represented employees, any other matter within the statutorily
provided scope of representation.
(2) Before holding a closed session pursuant to paragraph (1}, the
legislative body of the local agency shall hold an open and public
session in which it does all of the following:
(A) Identifies the agency's designated representatives, the
employee or class of employees that are the subject of the
negotiations, and the representatives of the employees.
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represent~a~i~es e€ the-publie emfrleyeee.
(B) Provides an oral report by its designated representative on
the cu.rxent status of the negotiations.
(3) The notice required by
6-8
June 16, 2009
Page 9
subparagraph (A) of paragraph (2) may be given
orally or as part of the meeting agenda.
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(b) A closed session of a legisl~itive body of a local
agency authorized pursuant to this sec:t ion is subject to all of the
following conditions:
(1) The closed session shall be on:y for the purpose of reviewing
the position of the local agency and :Instructing the local agency's
designated representatives.
{2) The closed session may only ta3;e place prior to and during
consultations and discussions with re~~resentatives of employee
organizations and unrepresented employees.
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(3) The closed session may in~~lude
discussion of an agency's available =unds and funding
priorities, but only insofar as these discussions relate to providing
instructions to the local agency's designated representative.
(4) The closed session -gtt-r-s~•--" "~ }`'~~ ^"'~-•
shall not include any final =~-
action
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(c) Any final action vn an agreeme:~t subject to this section shall
be conducted during an open and publi~~ regular meeting of the
legislative body. The proposed agreem~snt and a summary of its major
provisions, including, but not Limited to, the costs that would be
incurred by the Local agency under th° agreement for the current and
subsequent fiscal years, shall be dis~Iosed at a public meeting.
Final action shall not take place on ,any proposal until a reasonable
time has elapsed after disclosure of the proposal to enable the
public to become informed and the public has the opportunity to
express itself regarding the proposal at a meeting of the Legislative
body.
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(d) For the purposes enumerated in this section, a
legislative body of a local agency ma•y also meet with a state
conciliator who has intervened in the proceedings.
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(e) For the purposes of this section, "employee"
includes an officer or an independent contractor who functions as an
6-9
June 1b, 2009
Page 10
officer or an employee, but shall not include an elected official,
member of a legislative body, or other independent contractor.
SEC. 4. Sf the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.
6-10
June 16, 2009
BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Patricia Wiggins, Chair
BILL NO: SB 711
AU'PHOR: Leno
VERSION: 4/13/09
Weinberger
HEARING: 4/15/09
FISCAL: Yes
CONSULTANT:
BROWN ACT AND EA4PLOYEE NEGOTIATIONS
Background
Page 11
ATTACHMENT B
The Ralph M. Brown Act requ:•.res the meetings of local
governments' legislative bodies to be "open and public,"
thereby ensuring people's access to information so that
they may retain control over the public agencies that serve
them.
Private discussions among a majority of a legislative body
are prohibited, unless expressly authorized under the Brown
Act. Legislative bodies caii meet in closed sessions only
for the following reasons:
Discussions with leg~~1 counsel on pending
litigation or liabilit~r claims.
Threats to public buildings or access to public
services.
Public employee personnel issues.
Conferences with the body's representative on labor
negotiations.
A conference with reel property negotiators.
Multi-jurisdictional drug cases.
District hpspital peE:r reviews, quality assurance
committees, or reports involving trade secrets.
A license or permit <ietermination for those with
criminal records.
Local officials must place .a closed meeting item on an
agenda and cite their statuL-ory authority to meet behind
closed doors. They must re~~ort on any action taken in
closed session and provide ^~he vote of every elected member
present.
Some newspaper publishers a~zd advocates for open government
want local agencies' closed session discussions of labor
negotiations to be more tra:zsparent.
6-11
June 16, 2009
Page 12
Proposed Law
I. Closed sessions regarding labor negotiations .
Existing law allows a local legislative body to hold closed sessions
with designated representatives regarding the salaries,
salary schedules, or compensation paid in the form of
fringe benefits of its represented and unrepresented
employees, and, for represented employees, any other matter
within the statutorily provided scope of representation.
Before the closed session, the body must meet in open
session and identify its designated representatives.
Senate Bill 711 requires a local legislative body, in an
open session before the closed session, to:
Identify, orally or as part of the meeting agenda,
the agency's designated representatives, the employee
or class of employees that are the subject of the
negotiations, and the representatives of the
employees.
Provide an oral report by the agency~s designated
representative on the current status of the
negotiations.
Existing law allows a local legislative body to approve an
agreement concluding labor negotiations with its
represented employees in closed session. The legislative
body must report the approval of the agreement after the
agreement is final and has been accepted or ratified by the
other party. The report must identify the item approved
and the other party or parties. Closed session may not
include final action on the proposed compensation of one or
more unrepresented employees. Senate Bill 711 deletes the
reporting requirement and prohibits a closed session from
including any final action, regardless of whether it
relates to represented or unrepresented employees.
Senate Bill 711 requires that a final action on any
agreement must be conducted during an open and public
regular meeting of the legislative body. The proposed
agreement and a summary of its major provisions, including
the costs that would be incurred by the local agency under
the agreement for the current and subsequent fiscal years,
must be disclosed at a public meeting. Final action cannot
take place on any proposal until a reasonable time has
elapsed after disclosure of the proposal to enable the
public to become informed and until the public has the
opportunity to express itself regarding the proposal at a
meeting of the legislative body.
II. Agenda requirement To assist legislative bodies in
preparing agendas for closed-session meetings, the
Legislature established a model format for closed session
agenda item descriptions. Use of the model format is
strictly voluntary. However, substantial compliance with
the model format assures 'the legislative body that it will
6-12
June 16, 2009
Page 13
not be found in violation o:E the Brown Act's closed session
agenda requirements. The model format for describing a
closed session agenda item :celating to labor negotiations
identifies
Designated represent~~tives of the local agency
attending the closed session.
The name of the orga~iization representing the
employee or employees :Ln question.
The position title o:_° an unrepresented employee who
is the subject of the ~iegotiations.
Senate Bill 711 amends the rnodel agenda format to include:
The employee or class of employees that are the
subject of the negotiai~ions.
The representative o:` the employees.
The oral report by the agency's designated
representative on the current status of the
negotiations.
l~nmmeont a
1. Enhancing public accowztability The Brown Act allows
local agencies, other than ;school districts, to conceive,
negotiate, and finalize labor deals entirely behind closed
doors. By contrast, the Rodda Act, which governs school
districts' labor negotiations, provides substantial
opportunities for public sc:cutiny during, and at the
conclusion of, those negoti:~tions. Rather than being
simply informed of a fait accompli, the public can
scrutinize and comment on 1<~bor agreements before school
officials give any agreement; their final approval. By
closing the loophole that a:Llows local governments to take
final action on labor collec=tive bargaining agreements in
closed session, SB 711 move:s the Brown Act's labor
negotiation provisions towa~cds the sensible, transparent
standards that already apple to public school districts.
2. Disrupting the balance_ All delicate negotiations
benefit from some degree of secrecy. SB 711's requirement
that local agencies' represESntatives provide public reports
on the status of active labor negotiations could Limit the
strategies and bargaining positions that can be adopted by
local officials who are negotiating labor agreements on the
public's behalf. Negotiators might be reluctant to make
proposals or counter-offers that make strategic sense, but
would invite public controversy, if those temporary
bargaining positions must bc; disclosed as part of a public
update on the negotiations. The Brown Act balances the
public's interest in giving local officials enough
independence to negotiate ei_fectively with the public's
interest in being fully informed about the outcomes of
those negotiations. By increasing the transparency of the
labor negotiation process, rind not just the proposals that
the negotiations produce, SB 711 threatens to disrupt that
balance.
6-13
June 16, 2009
Page 14
3. Let's be reasonable SB 711 prohibits final action on
a proposal that results from labor negotiations that are
discussed in closed session until a "reasonable" time has
elapsed after proposal's public disclosure. SB 711's use
of the term "reasonable" is similar to statutory language
that governs public notice of schools districts' labor
negotiations. However, some local officials worry that
this vague standard may invite controversy over precisely
how long they must wait before taking final action on a
proposal. The Committee may wish to consider amending SB
711 to clarify that final action on a proposal must occur
at a public meeting that a,s subsequent to the one at which
the proposal is disclosed. This change would ensure that a
minimum of 24 hours would elapse between the disclosure. of
a proposal and final action on it.
4. State mandate The California Constitution requires
the state to reimburse local governments for the costs of
new or expanded state mandated local programs. Because SB
711 imposes new duties on local agencies, Legislative
Counsel says that the bill imposes a new state mandate. SB
711 requires the state to reimburse local agencies if the
Commission on State Mandates determines that the bill
imposes a reimbursable mandate.
Support and Opposition (4/9/09)
Support California Newspaper Publishers Association,
Californians Aware.
Opposition County of San Bernardino, California
Association of Clerks and Elections Officials, American
Federation of State, County, and Municipal Employees.
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