August 30, 2011

Taxation and Government Finance Committee
Legislative Committee

The following is for study only and has NOT been approved by the Taxation and Government Finance Committee, Legislative or Executive Committees or the Board of Directors.

Issue:
Should county property tax assessment appeals boards be required to comply with the Brown Act?

Action:
Optional.

Options:
1. Sponsor legislation that would require property tax assessment appeals boards to comply with the Brown Act.
2. Support legislation that would require property tax assessment appeals boards to comply with the Brown Act.
3. Other.
4. Do Nothing.

Status/Summary:
In 1996, then Attorney General Daniel Lundgren issued an opinion which concluded: "The Ralph M. Brown Act … does not apply to the hearings of a county board of supervisors when acting as the county board of equalization or to the hearings of an assessment appeals board."  This result was reached because there is a state statute that specifically enumerates the situations under which a closed session can be held and concludes with the prohibition on any other legislative body of any local agency holding a closed session.  Since there is "no mention in the Brown Act of county boards of equalization or county assessment appeals boards" holding closed sessions, the Brown Act does not apply to county assessment appeals boards.  That said, from a common sense perspective the Brown Act should apply to local assessment appeals boards.  The public should be duly notified of meetings of local boards and their right to participate in the meetings should be protected.  Moreover, local boards that have quasi-judicial functions such as assessment appeals boards arguably should be specifically allowed to meet in closed session to adjudicate such matters.

Discussion
During the discussion at the June C.A.R. business meetings on Assembly Bill 392 (Alejo) which is sponsored by C.A.R. and would amend the Brown Act to require local agencies to post agendas and staff reports on their websites, the question arose as to whether real estate-related boards – namely the county property tax assessment appeals boards (and, possibly, county code enforcement appeals boards) – established by local agencies are required to comply with the Brown Act.  The Brown Act is the state law that requires that the public be adequately informed about meetings of local agencies and protects the right of the public to participate in those meetings.

The Brown Act specifies that it applies to any "commission, committee, board, or other body of a local agency …" And, more specifically with regard to local assessment appeals boards, the state's Revenue and Taxation Code provides that "Equalization hearings shall be open and public except that, upon conclusion of the taking of evidence, the county board may deliberate in private in reaching a decision."  Therefore, according to the state's statutes, local assessment appeals boards are required to comply with the Brown Act.

However, in 1996, then Attorney General Daniel Lundgren issued an opinion which concluded: "The Ralph M. Brown Act … does not apply to the hearings of a county board of supervisors when acting as the county board of equalization or to the hearings of an assessment appeals board."  This result was reached because there is a state statute that specifically enumerates the situations under which a closed session can be held and concludes with the prohibition on any other legislative body of any local agency holding a closed session.  Since there is "no mention in the Brown Act of county boards of equalization or county assessment appeals boards" holding closed sessions, the opinion finds "Accordingly, nothing in the Brown Act authorizes the holding of a closed session by either board."  As a result, since there is nothing in the Brown Act to outweigh the general prohibition in state statute on the holding of closed meetings, the Brown Act does not apply to county assessment appeals boards.

Some may point to the Revenue and Taxation Code section stating that equalization hearings are to be open to the public and that county boards may deliberate in private to reach a decision and argue that local assessment appeals boards are required to comply with the Brown Act and may meet in closed session.  Be that as it may, the Attorney General opinion has the force of law and, absent legislation overturning the opinion, will continue to be the law of the state.

Other than the closed session issue, it would be difficult to argue that local boards should not be subject to the Brown Act.  The public should be duly notified of meetings of local boards and their right to participate in the meetings should be protected.  And with regard to the closed session issue, local boards that have quasi-judicial functions such as assessment appeals boards arguably should be specifically allowed to meet in closed session to adjudicate such matters.  City councils, for example, often meet in closed session to discussing sensitive issues such as real estate purchases or pending litigation as provided by the Brown Act.  Similarly, local assessment appeals boards could be specifically authorized to meet in closed session by the Brown Act thus requiring meetings to be open and public while allowing for closed sessions so the boards may deliberate in private.