BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
SCA 3 (Leno) - Public records and open meetings: local mandate
reimbursement.
Amended: June 20, 2013 Policy Vote: G&F 6-0
Urgency: No Mandate: No
Hearing Date: June 25, 2013
Consultant: Mark McKenzie
This bill meets the criteria for referral to the Suspense File.
Bill Summary: SCA 3, if approved by the voters, would require
local agencies to comply with the California Public Records Act
(CPRA) and the Ralph M. Brown Act (Brown Act), as well as with
future amendments to those statutes, and disclaim state
reimbursement for legislative mandates related to those current
and future provisions.
Fiscal Impact:
One-time Secretary of State ballot printing/mailing costs
of $330,000 to $390,000 in 2013-14 (General Fund), assuming
six pages in the ballot pamphlet and a cost of $55,000 to
$65,000 per page. Actual costs may be higher or lower,
depending on the length of required elements and the overall
size of the ballot (see staff comments).
Relieving the state from reimbursement for mandated costs
related to the CPRA and Brown Act would result in unknown
future state General Fund savings, likely in the millions,
and potentially in the tens of millions annually. To the
extent the Legislature enacts future mandates related to
those acts that would currently be subject to reimbursement,
there would be additional future savings.
Background: Existing law, the CPRA, requires state and local
agencies to make public records open to inspection by every
person, with specified statutory exceptions, and to provide
copies of public records to any person, upon payment of fees
covering direct costs of duplication, or a statutory fee if
applicable. If a public record is in an electronic format,
public agencies are required to make that information available
in an electronic format, and in any other electronic format that
SCA 3 (Leno)
Page 1
a public agency has used to create copies for its own use, upon
request. Local agencies are required to assist the public with
identifying and locating public records, and to respond to
requests within ten days, as specified.
Existing law, the Brown Act, requires that all meetings of local
legislative bodies be open and public, and requires local
agencies to post hearing notices and provide the public with
copies of materials distributed during open meetings. In the
past, the state has reimbursed local governments for costs
resulting from certain provisions of the Brown Act, such as the
requirement to prepare and post agendas for public meetings.
Proposition 30, "The Schools and Local Public Safety Protection
Act of 2012," specifies that any requirement that a local agency
comply with the Brown Act shall not be a reimbursable mandate.
In 2004, California voters approved Proposition 59, which
incorporated the right of public access to information contained
in the CPRA and other open meetings and public records laws into
the California Constitution. Section 3 of Article I of the
Constitution requires the meetings of public bodies and the
writings of public officials to be open to public scrutiny as a
result of the basic right of the people of the State to have
access to information concerning the conduct of the people's
business.
Section 6 of Article XIII B of the California Constitution
requires the state to reimburse local agencies for all costs
mandated by the state, including direct and indirect costs. The
Legislature is exempt from reimbursement requirements for
mandates enacted prior to 1975, mandates requested by the
affected local agency, and legislation that defines a new crime
or changes an existing definition of a crime. Existing
statutory law provides additional exemptions from reimbursement
for mandates that impose duties necessary to implement a ballot
measure, impose requirements mandated by federal law, as well as
those for which there are savings or fee authority sufficient to
offset the costs of the mandated new program or higher level of
service.
The Commission on State Mandates (Commission) issued a Statement
of Decision on May 11, 2011 (Case No.: 02-TC-10 and 02-TC-51),
determining that a number of provisions in the CPRA impose
reimbursable state-mandated programs on local agencies.
SCA 3 (Leno)
Page 2
Although the core provisions of the CPRA were enacted in 1968,
and are thus not subject to state-reimbursement, this test claim
found that certain provisions enacted after 1975 are
reimbursable state-mandated activities, including the following:
Providing a copy of public records in an electronic
format used by the agency.
Notifying a requesting party whether records are public
and subject to disclosure within 10 days, and the reasons
for that determination.
Providing a reason to a requesting party if an extension
of the 10-day period is necessary due to unusual
circumstances.
Providing assistance to the public in identifying and
locating public records.
Redacting or withholding home address and telephone
contact information of school district employees from
public records that are subject to disclosure.
The Commission adopted Parameters and Guidelines on this test
claim on April 19, 2013, which provides guidance to local
agencies seeking reimbursement, but has not adopted a statewide
cost estimate, which gives the Legislature an estimate of the
projected annual General Fund costs associated with the mandate.
Proposed Law: SCA 3, if approved by the voters, would amend the
California Constitution in the following ways:
Amend Section 3 of Article I to require local agencies
to comply with the CPRA and the Brown Act, any successor to
those acts, and with any subsequent statutory amendments to
those acts or their successors that contain findings that
demonstrate furtherance of the purposes of those acts.
Amend Section 6 of Article XIII B to exempt the state
from the requirement to reimburse local agencies for
state-mandated new programs or higher levels of service
enacted within the scope of the CPRA or Brown Act, or any
subsequent statutory amendments to those acts, as
specified.
Staff Comments: The Governor's 2013-14 Budget, released in
January of this year, proposed to suspend or defer a number of
mandates, including the CPRA mandates that were recently
identified in the above-mentioned Statement of Decision. When a
mandate is suspended, there is no obligation that local agencies
comply with the statutory requirements. Notwithstanding
SCA 3 (Leno)
Page 3
proposals to suspend existing and recently-adopted
state-mandated local programs, the state owes local governments
$900 million for mandate payments that existed prior to 2004,
which aren't projected to be repaid from the General Fund until
2021.
The Legislature recently approved AB 76 (Assembly Committee on
Budget), a budget trailer bill that deemed certain provisions of
the CPRA as "best practices" and made local agency compliance
optional with respect to specified provisions that were recently
deemed to be reimbursable state mandates. The Governor has not
acted on this measure to date, and the Legislature recently
adopted SB 71 (Senate Committee on Budget and Fiscal Review) as
a substitute trailer bill that includes all of the provisions of
AB 76 except those related to the CPRA mandate and an additional
item related to a local agency ethics training mandate. As an
alternative to the original budget trailer bill proposal making
CPRA mandated activities optional, SCA 3, if approved by the
voters, would ensure future General Fund savings. If enacted,
this measure would appear on the ballot in the next statewide
election in June of 2014.
SCA 3, if approved by the voters, would enshrine in the
Constitution the responsibility for local agencies to pay for
any costs related to providing the public right of access to the
meetings of public bodies and the writings of public officials
and agencies. The magnitude of any future savings related to
the permanent ongoing relief of state reimbursement for
legislative mandates related to the CPRA and Brown Act are
unknown as the Commission has not issued a statewide cost
estimate related to the CPRA mandates approved in the 2011 test
claim noted above. The Legislative Analyst's Office (LAO)
analysis of the Governor's proposed budget estimates that annual
state costs could reach the tens of millions of dollars, given
the breadth of activities required by the CPRA mandate and the
number of local governments affected. There would be additional
future savings to the extent that the Legislature enacts future
mandates related to the CPRA and Brown Act that would currently
be subject to reimbursement. Staff notes that local agencies
would still be entitled to state subventions of funds for local
costs incurred prior to voter approval of this measure for any
CPRA and Brown Act requirements deemed by the Commission to
impose a reimbursable state-mandated local program, pursuant to
existing law.
SCA 3 (Leno)
Page 4
The Secretary of State would incur one-time costs to present
this measure to the voters. Ballot printing and distribution
costs noted above are based upon an assumed length of six pages
in the ballot pamphlet for the required title and summary, LAO
analysis, arguments in support and opposition, and the text of
the proposal. Actual costs could be higher or lower, depending
on the length of those required elements, as well as the overall
size of the ballot pamphlet. Generally, printing and mailing
costs can vary from $55,000 to $65,000 per page, but more
lengthy ballots may have a lower cost per page.