Locals pay tab for open government

State lawmakers and voters agree on one thing: transparency in government.

Local government, that is. State government remains exempt.

Did voters know that when they approved Proposition 42 on June 3?

The proposition – approved by 61.7% of California’s electorate – puts into the state’s constitution a provision requiring local governments and agencies to comply with laws – the Public Records Act and the Brown Act — governing open meetings and access to public records.

Before this, the costs of covering those statutes was picked up by the state. Now, the local entities will cover the tab themselves.

By one estimate, the cost comes to about $48 million annually statewide. That figure includes staff pay to provide documents, paperwork costs such as copying and posting agendas, and legal costs to vet the information requests. In the context of a $100 billion state budget, the number may not appear large but strapped local governments, however, have a different view.

“When the Legislature says you have to respond, there is a cost to that. No matter if you are a teeny, tiny special district or Los Angeles County. They do not differentiate your ability to retain records.  The Legislature sets the rules,” said Jean Hurst of the California State Association of Counties, which did not take an official position on the ballot proposition.

Unchanged is state lawmakers’ own exemption from the open-meeting law, the Ralph M. Brown Act, the 60-year-old statute that deals with, among other things, close-door meetings and the advance posting of agendas by hundreds of city councils, 58 boards of supervisors, some 1,000 school districts and hundreds of other local agencies and special districts.

The Legislature has its own rules dealing with access to public documents. Those rules were not covered in Proposition 42.

Exempting themselves while forcing others to comply isn’t popular among the locals, although they were hesitant to complain for fear of appearing to be against open government.

“The only thing I think is notable is this is an important public policy measure, but it doesn’t seem to address the state. It addresses local agencies only,” Santa Rosa City Manager Kathy Millison said. “So we’re left wondering why that has been left out, but it will and does potentially have an effect on the cost.”

“The state has suspended those payments for about three years,” she added, “and that has not prevented us from fully complying with the Act.”

David Rabbitt, chairman of the Sonoma County Board of Supervisors, agreed.

“We’re supportive of Prop 42 because we have already been doing all of those things that the Brown Act has us do. And I think that’s just what good governance is all about, including putting up with some pretty erroneous public records requests, which you know can get expensive for all taxpayers,” he said. “But I think at the same time … it’s important for people to have access to information.”

State government generally is required to cover locals’ expenses in the case of a state-imposed rule.

But lawmakers believe the locals have a duty to comply with the public’s request for information and shouldn’t pay for it by billing the state. The locals, meanwhile, wonder if Proposition 42 is just the first of many attempts for the state to cut back on reimbursing local expenses.

Supporters of Proposition 42 say those costs aren’t onerous.

“Compliance with the Brown Act and the Public Records Act is not expensive, it’s not costly. However, in the past because local governments were able to shift these costs to the state – to force the state to reimburse them – they frankly exaggerated the costs that they were incurring so that they could have the state effectively subsidizing other local services,” said Peter Scheer of the First Amendment Coalition.

“It was free money, ‘Why not get as much as you can?’ was their attitude,” Scheer added.

The outcome is a cost once born by the state will now be passed on to locals.

“It was maybe a calculated move by the state to save some money, knowing that it would still happen anyway,” Rabbitt said. “But it puts the burden on local government. Of course, it’s one that we acknowledge and can absorb. It’s going to be rare for any jurisdiction to say that they are not going to provide that information to the public.”

The cost argument is not persuasive, according to a veteran local-government consultant.

“Any argument using cost as an excuse not to comply is not a real one,” Mike Madrid, a principal in grassrootslab,com, an information source for local governments. Madrid said posting information required by the Brown Act online even saves the locals’ money, and helps the public better locate that information. “Not only is this efficient for the taxpayers, it’s efficient for local government.”

Locals say they can handle the cost, but wonder whether the state will continue to pursue unfunded mandates.

The Commission on State Mandates, created to study the costs born by local governments because of the state’s rules, found in 2011 that provisions added to the California Public Records Act after 1975 were eligible for state reimbursement. The same is true for the Brown Act, which has been amended several times over the years.

But lawmakers believe amending the statute isn’t sufficient, and that constitutional language carries far more weight.

“They (legislators) made a policy decision,” Hurst said. “There is a constitutional language that these records be open to the public. In the current environment, with the city of Bell and the scandals in the Legislature, of all of us who care about public service, none of us want to be accused of hiding something from the public.”

The measure, known in the Legislature as SCA 3, was placed on the ballot by lawmakers, who earlier overwhelmingly approved it 78-0 in the Assembly and 37-0 in the Senate.
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Ed’s Note: Updates affiliation of Madrid, 23rd graf, and corrects identification of constitutional amendment to SCA 3, last graf.