BILL ANALYSIS SENATE LOCAL GOVERNMENT COMMITTEE Senator Gloria Negrete McLeod, Chair BILL NO: SB 343 HEARING: 4/18/07 AUTHOR: Negrete McLeod FISCAL: No VERSION: 4/9/07 CONSULTANT: Weinberger BROWN ACT AND AGENDA MATERIALS Background and Existing Law The Ralph M. Brown Act requires 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. The Brown Act requires local agencies to post an agenda for a regular meeting of a local legislative body at least 72 hours before the meeting in a location that is freely accessible to members of the public. The act generally prohibits any action or discussion of items not on the posted agenda, with specified exceptions. Except for certain exempt documents, any writings distributed to a majority of the legislative body are public records and must be made available upon request without delay. Any writings prepared by the local agency in connection with a matter subject to discussion or consideration at a public meeting must be made available for public inspection at the meeting. Some local agencies' staff-produced background materials relating to agenda items are not distributed until the day on which the local legislative body considers those items. On occasion, staff reports containing complex or unforeseen information are distributed just moments before a legislative body considers a related agenda item, leaving little time for anyone to review such writings. SB 343's sponsors want the Legislature to require that writings included in a regular meeting agenda packet be available to the public at least 72 hours before the meeting. Proposed Law SB 343 -- 4/9/07 -- Page 2 Senate Bill 343 prohibits, on and after July 1, 2008, local legislative bodies from discussing or acting upon any agenda item in an open and public regular meeting unless the writings related to that item in the agenda packet are made available to the public no later than the date the agency posts the agenda that includes that item. Comments 1. From translucent to transparent . The last-minute release of agenda packet materials leaves citizens feeling blindsided by their governments, impedes informed debate, and produces unnecessary costs and delays when new information prompts the continuation of agenda items to future meetings. The deliberations and decisions of local legislative bodies are not truly transparent if the public lacks sufficient access to the writings that shape those deliberations and actions. By guaranteeing a minimum period of time to read, consider, and react to the contents of local agencies' regular meeting agenda packets, SB 343 promotes greater public transparency, thereby furthering the fundamental purpose of the Brown Act. 2. Too much pain, too little gain . In response to anecdotal complaints about last-minute releases of agenda packets, SB 343 imposes an overly severe new deadline on local governments. Most local agencies try to make agendas and related materials available to the public as soon as possible. However, the preparation of agendas and agenda packets is a complex process, particularly in jurisdictions in which multiple local legislative bodies hold frequent meetings. Sometimes it's impossible for staff to compile a complete agenda packet 72 hours before a meeting. Local governments worry that an unconditional 72-hour deadline on agenda packets will result in widespread delays if background materials aren't ready in time. More generally, local governments are concerned that such a deadline would disrupt their operations by placing unnecessary strain on the already complex task of managing the flow of paper and information. 3. Not transparent enough ? SB 343 may take an insufficient step towards greater local government SB 343 -- 4/9/07 -- Page 3 transparency. For example, a local legislative body's actions are not influenced exclusively by information contained in an agenda packet, or even by information produced by a local agency. SB 343 may not increase public access to some written materials that are submitted to local decision-makers by private third parties. The Committee may wish to consider whether SB 343 should be amended to ensure that the public has sufficient access to the full range of written materials that are made available to members of local legislative bodies to inform their consideration of agenda items. 4. Do no harm . While there may be agreement on the principle of making written agenda materials available soon enough to allow for informed consideration of issues, the challenge lies in implementing this principle without creating impediments for local governments. For example, many local agencies currently post their regular meeting agendas far in advance of the 72-hour Brown Act deadline. Requiring that agenda packet materials be made available at the same time that the agenda is posted could have the unintended consequence of preventing those agencies from posting their agendas as far in advance. Similarly, agencies faced with meeting an agenda packet deadline could respond by restricting the amount of information, or types of background materials, that they would otherwise include in a packet. The Committee may wish to consider whether SB 343 should be amended to help guide local compliance with an agenda packet deadline. 5. A packet by any other name . SB 343 applies to writings included in an "agenda packet," a term used in the Brown Act without definition. Although there is a general understanding of what constitutes an "agenda packet," the absence of a statutory definition may confound local agencies' efforts to comply with SB 343 and could allow local agencies to dodge SB 343's requirements by distributing documents under a different name. The Committee may wish to consider whether the term "agenda packet" should be defined to ensure that SB 343 applies to any document that an agency's staff compiles and distributes to its decision-makers that is comprised of writings directly pertaining to items to be considered at a meeting of the agency's legislative body. SB 343 -- 4/9/07 -- Page 4 6. Special exception ? By applying only to regular meetings of local legislative bodies, SB 343 may have the unintended consequence of inviting local agencies to call more special meetings, as permitted under the Brown Act. Special meetings may be called at least 24 hours before a meeting by the presiding officer, or a majority, of a local legislative body, subject to specified public notice requirements and additional conditions. If SB 343 becomes law, legislators may wish to remain vigilant to determine whether local governments use special meetings to avoid the requirements that apply regular meetings' written agenda materials. The Committee may wish to consider whether SB 343 should be amended to prevent the misuse of special meetings as a loophole. 7. No mandate . Because Legislative Counsel says that SB 343 does not create a new state-mandated local program, the bill does not go to the Senate Appropriations Committee. Support and Opposition (4/12/07) Support : California Association of Realtors, American Federation of State, County, and Municipal Employees, Orange County Association of Realtors. Opposition : Unknown.