In the final days for Governor Brown to take action on bills submitted to him, he signed five of significance to the interests of Californians Aware.
Attorney Fees for Prevailing Public Records Requester Only
SB 1244 by Wieckowski (D-Fremont) clarifies that, as explained by the summary of the Senate Judiciary Committee’s consultant,
only the requester of documents can recover attorney fees and court costs as a prevailing plaintiff (in litigation under the California Public Records Act (CPRA)). This bill is a response to the Newark Unified School District’s attempt to seek an award of attorney fees from a person who made a request for records under the CPRA. (The district had) inadvertently released documents to that person that were exempt from disclosure together with documents that were public documents disclosable under the CPRA. (It) sought an injunction requiring the person to return or destroy the inadvertently produced documents. The injunctive relief was granted and the (district then) attempted to recover attorney fees and court costs under the CPRA . . . Although the court refused to grant attorney fees to the public agency and explained in the court order that “plaintiff” means “a person seeking an order directing a public agency to disclose public records” for “purposes of the attorney fee provision” in Government Code Section “6259(d),” the author and sponsor of this bill wish to clarify in statute that “plaintiff” means a requester of public records in Government Code section 6259(d).
Contrary to an earlier report in CalAware today, the bill will not alter current law regarding attorney fees and court costs in reverse- CPRA actions.
Sexual Harassment/Discrimination Secrecy in Lawsuit Settlements
SB 820 by Leyva (D-Chino), signed September 30, will prohibit a settlement agreement filed in a civil or administrative action from barring the disclosure of factual information relating to certain claims of sexual assault, sexual harassment, or harassment or discrimination based on sex.
Film executive Harvey Weinstein has been accused by at least 80 women of sexual misconduct, including rape, sexual assault and harassment. For decades, his predatory behavior was kept secret in part due to the legal instruments that allowed him to hide behind the guise of confidentiality through secret settlements or lifelong nondisclosure agreements (NDAs) crafted to protect him. The settlements commonly included draconian penalties for breach of confidentiality or disclosure. Such agreements effectively barred victims from ever sharing their stories. The use of NDAs or secret settlements in these cases allows repeat offenders to continue to harass while silencing victims… Over the last year, other troubling instances of secret settlements enabling ongoing sexual harassment and assault have further confirmed the need for the legislation. SB 820, known as the STAND (Stand Together Against Non-Disclosures) Act, will ban secret settlements (confidentiality provisions in settlement agreements) in cases of sexual harassment, sexual assault and sex discrimination. The bill willpermit the claimant to request confidentiality if she/he so chooses.
Guardian ad Litem’s Use of Fictitious Name to File a Lawsuit
AB 2185 by Chiu (D-San Francisco) will authorize a guardian ad litem, upon leave of the court, to use a pseudonym or fictitious name to file a lawsuit and to redact personal identifying information from documents filed with the court.
Because of the fear of deportation or being detained, many undocumented immigrants are less likely to come forward to report crime or seek aid as victims, and there is also uncertainty for them to proceed with litigation. This bill will help ease some of the uncertainty by protecting their identity with anonymous filings, which will ultimately provide more access to the courts for undocumented immigrants and allow them to seek justice.
This bill will codify the federal standard on fictitious names and pseudonyms and provide such guidance to the courts. Without a uniform or standardized process for individuals to file litigation anonymously, it creates uncertainty for vulnerable groups of people to come forward to seek help or to access the courts and justice system. In addition, this bill will bring uniformity in state law by delineating a process for courts to follow in cases where a fictitious name or a pseudonym is being used and ensure more consistent results in these types of cases across the stat
One of the purposes of the bill is to ensure undocumented immigrants have access to justice in California, by allowing the use of fictitious names or pseudonyms to be used when filing civil litigation or an application to be appointed as a guardian ad litem. We want to ensure that an individual or a group of individuals who fears being retaliated against because of his or her or their collective immigration status does not serve as a barrier or obstacle in filing for a legal remedy that is otherwise available to any other individual. The aim of this bill is to allow an undocumented individual to proceed with the presumption to be able to file under a fictitious name or pseudonym.
Specifically, because many undocumented immigrants have fears of their status being used against them in court proceedings, immigration status will be a factor for courts to consider for whether they can proceed with a pseudonym, which would provide immigrants, especially undocumented immigrants, the opportunity to file anonymously.
Tightened Rules for State Advisory Meetings by Teleconference
AB 2958 by Quirk (D-Hayward) would require a member of a state agency’s advisory body with no rulemaking authority participating in a meeting by teleconference to be listed as such in the meeting notice and minutes, and would also require the body to designate a primary physical meeting location where a quorum will attend and where members of the public can physically attend and participate.
Senate Committee on Governmental Organization’s Consultant’s Explanation:
According to the author, “in June 2015, The Little Hoover Commission released a report titled ‘Conversations for a Workable Government.’ The report highlighted that while well intentioned, the state process for open meetings is archaic and hinders public participation. It also encouraged the Legislature to find ways to modernize public participation.”
Further, the author states that the “Legislature has exempted boards and commissions form Bagley-Keen because the restrictions are onerous to follow and actually stifle transparent and effective government. AB 2958 modernizes the teleconferencing provisions of Bagley-Keene to encourage more participation and engagement in public service. This bill protects public access to meetings while creating flexibility in how members of an advisory committee participate in meetings.”
Bagley-Keene Act of 1967. When the Legislature enacted Bagley-Keene Act, it essentially said that when a body sits down to develop its consensus, there needs to be a seat at the table reserved for the public. In doing so, the Legislature has provided the public with the ability to monitor and be part of the decision-making process. If the body were permitted to meet in secret, the public’s role in the decision-makingprocesswouldbenegated. Therefore,absentaspecificreasonto keep the public out of the meeting, the public should be allowed to monitor and participate in the decision-making process.
Teleconferencing and Bagley-Keene. Video and teleconferencing are in widespreadusethroughoutstategovernment. Undercurrentlaw,theuseofvideo conferencing is authorized for a number of civil and criminal court appearances. This technology allows for a reduction in administration costs, transportation, security, and overtime during inmate transfer to courthouses, increased safety to correctional and court staff, and the reduction of escape risks.
Under current law, if a meeting is held via teleconference, all of the following conditions apply:
- a) The portion of the meeting open to the public must be audible to the public at the location specified in the notice of the meeting.
- b) Agendas must be posted at all teleconference locations.
- c) Each teleconference location must be identified in the notice and agenda of the meeting, and must be accessible to the public prior to the meeting.
- d) The agenda must provide opportunity for members of the public to address the state body directly.
- e) All votes taken during a teleconference meeting must be taken by rollcall.
- f) At least one member of the state body conducting the meeting must be physically present at the location specified in the notice of the meeting.
Current law requires each teleconference location to be identified in the notice and agenda and be accessible to the public. The exemption provided in AB1976 allows agricultural state bodies to only post one physical location, and only requires one member to be in attendance at that particular location. This bill seeks to put in place a similar location exemption for all advisory state bodies; however, this bill requires that a quorum of the members of the advisory state body be present at the noticed physical location.
Advisory state bodies. Often, state boards, commissions, or similar multimember bodies of the state with rulemaking and policy authority create advisory boards, committees, or commissions for the purposes of making recommendations to the rulemaking state body. These advisory state bodies are subject to the same teleconference location requirements in Bagley-Keene as the rulemaking state body to which they make recommendations.
The author points out that these advisory state bodies are comprised of individuals spread throughout the state, often serve without a per diem, and must provide for their own travel and lodging when attending meetings. Further, the author argues that current teleconference location requirements means someone teleconferencing in to the meeting potentially would have to publicly notice their home address and invite the public, or, secure a public meeting place at their own expense.
Protection for Students, Parents Addressing School Boards
SB 1036 by Wilk (R-Santa Clarita) will prohibit a school or community college district board from releasing educational or contact information of a pupil or of the parent or guardian of a pupil in the minutes of a meeting he or she has provided a written request to the secretary or clerk of the governing body to exclude his or her personal information or the name of his or her minor child.
Current California and Federal laws allow for the publishing and release of personal information such as full names, home addresses, telephone numbers, et cetera by California school boards in the minutes of their board meetings. This release of information has led to troubling issues in our school communities. Primarily, the release of information, or potential thereof, can have the effect of suppressing participation and dissent. On controversial issues before the board, some students, parents, guardians or relatives feel the release of their home address for instance, presents the potential for harm or other harassment based on their testimony during the meeting. Additionally, it has been applied selectively with some persons’ information released and others’ not. This has led to the perception that the release of personal information may be employed in a manner leading to intimidation on the part of the individual school board during instances where they receive unfavorable testimony from members of the school community.
Freedom to Testify re Alleged Crimes or Sexual Harassment
AB 3109 by Stone (Scotts Valley) will make a provision in a contract or settlement agreement void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.
AB 3109 will protect parties from being forced into unwittingly giving up fundamental rights when they enter into settlement agreements, by making certain objectionable provisions unenforceable. Specifically, the bill targets pernicious provisions often used in settlements that prohibit a plaintiff from speaking about the underlying harm, even to the point of prohibiting testimony on criminal conduct or sexual harassment in judicial, administrative, or legislative hearings.
The danger of nondisclosure agreements that are so sweeping that they prohibit public testimony was recently illustrated in the case of McKayla Maroney, an Olympic gymnast who was subject to a$100,000 fine for testifying in a criminal trial against a team doctor who sexually abused Maroney and several other gymnasts. Confidentiality provisions in settlement agreements are sometimes appropriate; but they should never be so sweeping as to prevent a person from offering relevant testimony in a public forum on a matter of public concern.
As sponsor of the bill, the California Employment Lawyers Association writes:
“In recent months, the #MeToo movement has helped expose a large number of sexual predators, like Harvey Weinstein and Larry Nassar, who sexually harassed and assaulted multiple victims over the course of many years without any sort of legal or public scrutiny. In large part, the unlawful conduct was able to continue because many women were forced to sign nondisclosure agreements as a condition of settling their claims. These nondisclosure agreements effectively silenced the victims and prevented them from warning others or helping corroborate or support the claims of others who were victimized by the same perpetrator. […] These silencing mechanisms are an affront to our justice system. A victim should never be prohibited from offering relevant testimony in a public forum on a matter of public concern, especially when this testimony could prevent these horrific acts from happening to others.”