Proposition 42

ANALYSIS BY THE LEGISLATIVE ANALYST

BACKGROUND

California Has Thousands of Local Governments. Californians receive services from thousands of local governments—counties, cities, school and community college districts, and special districts (such as fire districts, flood control districts, and water districts). Each local government has a local governing body (such as a city council or county board of supervisors) that makes decisions about its programs, services, and operations.

Public Access to Local Government Information. The State Constitution requires that meetings of governing bodies and writings of public officials and agencies be open to public scrutiny. Two state laws establish rules local governments must follow to provide public access to local government information and meetings.

- California Public Records Act. This law allows every person to inspect and obtain copies of state and local government documents. It requires state agencies and local governments to establish written guidelines for public access to documents and to post these guidelines at their offices.

- Ralph M. Brown Act. This law governs meetings of the governing bodies of local governments. It requires local governing bodies to provide public notice of agenda items and to hold meetings in an open forum.

State Payments for Public Records and Brown Act Costs. Over the years, the Legislature has modified the Public Records Act and Brown Act from time to time. Some of these changes have increased local government responsibilities and costs. The state generally must pay local governments for their costs when it increases their responsibilities—a requirement that state officials consider when reviewing proposals that increase local government costs. Under current law, the state must pay local governments for their costs to implement certain parts of the Public Records Act (such as the requirement to assist members of the public seeking records and to tell individuals seeking records whether the records can be provided). The amount of money the state owes local governments for their Public Records Act costs is not known yet, but is estimated to be in the tens of millions of dollars annually. In addition, the state previously has paid local governments for their costs resulting from certain parts of the Brown Act. However, California voters amended the State Constitution in 2012 to eliminate the state's responsibility to pay local governments for these Brown Act costs.

PROPOSAL

This measure:

• Adds to the State Constitution the requirement that local governments follow the Public Records Act and the Brown Act.
• Eliminates the state's responsibility to pay local governments for their costs related to these laws. (As noted above, state responsibility to pay for local Brown Act costs was eliminated in 2012.)

The measure applies to the current requirements of these laws, as well as any future changes to either law that are made to improve public access to government information or meetings.

FISCAL EFFECTS

Effect on State Costs and Local Revenues. By eliminating the state's responsibility for paying local government costs to follow the Public Records Act, the measure would result in savings to the state and comparable revenue reductions to local governments. The impact is likely in the tens of millions of dollars a year.

Potential Effect on Local Costs. The measure could also change the future behavior of state officials. This is because under Proposition 42, the state could make changes to the Public Records Act and it would not have to pay local governments for their costs. Thus, state officials might make more changes to this law than they would have otherwise. In this case, local governments could incur additional costs—potentially in the tens of millions of dollars annually in the future .

Visit http://cal-access.sos.ca.gov for details about financial contributions for this proposition.

Everyone has heard the old saw “you can't fight city hall.” It turns out it is flatly untrue. Millions of Californians seek answers from public officials and bureaucrats in cities, counties, school districts, water agencies, and every type of government agency, using the information they gain to enter the political process and positively affect public policy.

Powerful tools like the California Public Records Act give citizens and businesses the ability to obtain the records they need to be effective advocates and protect the interests of the community. The Ralph M. Brown Open Meeting Law gives us the right to be in the room and heard as policy is developed during city council, board of supervisor, school board, and special district meetings.

In 2004, these laws giving Californians the right to access public records and attend meetings of local public bodies were made even more powerful when over 82 percent of the voters approved an amendment to the state constitution that says, in part: “The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”

In the past few years, though, key provisions of these great laws have been threatened when the state suffers fiscal crisis. In short, the state and local governments have been in long disagreement about the amount and level of state financial support for the local costs of complying with the public's civil right of access to government. At times key provisions of these laws have become optional for local government agencies by virtue of tough decisions made in the state budget process. While most governments continued to comply during these short periods of fiscal stress, the public's fundamental rights should not depend on the good graces of local officials.

Proposition 42 will clarify that local government agencies and not the state are responsible for the costs associated with their compliance with our access laws. It will ensure access to public records and meetings that are essential to expose and fight public corruption, like that experienced by the citizens of the City of Bell when public officials engaged in criminal acts and sacked the city's coffers.

Proposition 42 will cement in the Constitution the public's civil right to know what the government is doing and how it is doing it. It will add independent force to the state's laws that require local governments to comply with open meeting and public record laws and future changes to those laws made by the Legislature.

Proposition 42 will eliminate the possibility that local agencies can deny a request for public information or slam a meeting door shut based on cost. As Thomas Jefferson said, “Information is the currency of democracy.” Tell the bureaucrats that the people—not the government—ought to decide what we need to know. Vote yes on Proposition 42.

MARK LENO, Member

California State Senate

THOMAS W. NEWTON, Executive Director

California Newspaper Publishers Association

The proponents are basically right that “Proposition 42 will eliminate the possibility that local agencies can [lawfully] deny a request for public information or slam a meeting door based on [the]] cost” of complying with these state laws. It would do so by imposing the cost of complying upon local governments. An alternative would be to require that the state government pay.

Over many years, I have provided arguments against state and local ballot measures so that voters will receive more information about the measures before voting.

I have also used the California Public Records Act and open meeting laws to attempt to positively influence decision-making at the local level. When those laws are violated, a civil lawsuit may be filed, and the official misconduct involved may be reported to the civil grand jury in the county.

However, the ability of individuals to make a difference—even at the local level—has been undermined in recent years by the influence of big money and by the empowerment of various regional agencies throughout California headed by board members never elected to those regional positions.

For example, in the San Francisco Bay Area, regional agencies just adopted plans that will cram millions of new residents from around the world into existing metropolitan transportation corridors. Bus-only lanes are being created. HOV (high occupancy vehicle) lanes are being converted into “Express Lanes” that also allow toll-payers.

All lanes on freeways may become toll lanes in the years ahead. It is happening across the country.

GARY WESLEY

Local governments are run by employees and politicians who may or may NOT want to share information or receive public input before making decisions.

In 2004, California voters approved an initiative state constitutional amendment designed to halt the rolling back of state laws that guaranteed access to many public records and mandated that meetings of local government legislative bodies usually be held in public and that decisions of local legislative bodies could be made only after an opportunity for public input (California Constitution, article I, section 3(b)) .

Some local governments responded by objecting that the new constitutional provision did not supersede another provision of the State Constitution (article XIII B, section 6) which requires that the State pay to local governments the cost of implementing any new State mandates.

Proposition 42 would amend the California Constitution to clarify that the State need not pay a local government for the cost of complying with the open meeting law applicable to local governments (the Brown Act —Government Code sections 54950-54963) or with the Public Records Act (Government Code sections 6250-6270) as written or later changed—as long as any change “contains findings demonstrating that the statutory enactment further the purposes of” the constitutional guarantee of public access and input.

The main issue presented by this proposition is whether voters believe that the cost of complying with these important state laws should be borne by local governments or by the state government.

GARY WESLEY

Our democracy depends upon informed and active participation in government. Proposition 42 is a simple measure that protects the basic right to know how government conducts our business.

Mr. Wesley's primary argument against Proposition 42 recites a lot of facts—most of which we agree with—but doesn't make much of an argument about why local government agencies should look to the state to pay their costs associated with compliance with your freedom of information laws like the California Public Records Act and Ralph M. Brown Open Meeting Law.

Compliance with our state and local laws requiring open meetings and access to public records is a matter of constitutional principle.

The fact is every state agency pays its own costs of compliance with the public records act and the Bagley–Keene Act, which is similar to the Brown Act and requires state boards and commissions to meet in open and public sessions.

When agencies pay their own costs of compliance, there is a built-in incentive to innovate to keep those costs down, like streamlining record request processes and putting commonly requested records online for easy public access. If the state pays local agencies for the purely local obligation of complying with these fundamentally important laws, though, there is no incentive to improve.

It's simple; the state pays its own costs and local agencies should pay theirs.

Protect your civil right to know and vote YES on Proposition 42.

JAMES W. EWERT, General Counsel

California Newspaper Publishers Association DONNA FRYE, President

Californians Aware JENNIFER A. WAGGONER, President

League of Women Voters of California

Arguments printed on this page are the opinions of the authors and have not been checked for accuracy by any official agency.