BILL ANALYSIS Ó
SCA 3
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Date of Hearing: August 14, 2013
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
SCA 3 (Leno and Steinberg) - As Amended: June 20, 2013
SENATE VOTE : 37-0
SUBJECT : Public information.
SUMMARY : Proposes amendments to the California Constitution
that require local agencies to comply with the California Public
Records Act and the Ralph M. Brown Act and exempt the state from
reimbursing local agencies for related costs. Specifically,
this bill :
1)Proposes an amendment to the California Constitution
(Constitution) that requires each local agency to comply with
the California Public Records Act (CPRA) and the Ralph M.
Brown Act (Brown Act), and with any subsequent statutory
enactment amending either act, enacting a successor act, or
amending any successor act that contains findings
demonstrating that the statutory enactment furthers the
purposes of Section 3 of Article I of the Constitution.
2)Proposes an amendment to the Constitution that provides that
the Legislature may, but need not, reimburse local agencies
for legislative mandates contained in statutes within the
scope of 1), above.
EXISTING LAW :
1)Provides, pursuant to the Constitution, that 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.
2)Provides, pursuant to the Constitution, that statutes, court
rules, or other authorities must be broadly construed if they
further the people's right of access, and narrowly construed
if they limit the right of access. A statute, court rule, or
other authority that limits the right of access must be
adopted with findings demonstrating the interest protected by
the limitation and the need for protecting that interest.
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3)Requires, pursuant to the Constitution, the state to reimburse
local governments for the cost of new programs or higher
levels of service mandated by the Legislature or any state
agency. Provides exceptions for the following: mandates
requested by the affected local agency; legislation defining a
new crime or changing an existing definition of a crime; or,
mandates enacted prior to 1975, or executive orders or
regulations initially implementing such legislation.
4)Establishes, pursuant to the Brown Act, standards for local
public agencies' open and public meetings. Requires the
meetings of local governments' legislative bodies to be "open
and public," thereby ensuring the people's access to
information so they may retain control over the public
agencies that serve them. Prohibits closed meetings, with
specified exceptions, and requires local agencies to post
hearing notices, provide the public with copies of materials
distributed during open meetings, and follow related
provisions to ensure public access to the meetings and
deliberations of local agencies' legislative bodies.
5)Provides, pursuant to the CPRA, for public access to public
agencies' records. Requires, with specified exceptions, that
public records be open to inspection and that every person has
the right to inspect any public record. Public records are
defined to include any writing containing information related
to the conduct of the public's business prepared, owned, used,
or retained by any state or local agency. Outlines conditions
for public agency compliance with the CPRA, including the
requirement to offer reasonable assistance to persons making
requests for information, timeframes for compliance, providing
written notice when a request is denied, and similar
provisions.
FISCAL EFFECT : Unknown. This bill is keyed fiscal.
COMMENTS :
1)This bill proposes amendments to the Constitution that would
require local agencies to comply with the PRA and the Brown
Act, and that would exempt the state from reimbursing local
agencies for these costs. If enacted, SCA 3 would appear on
the ballot in the next statewide election in June of 2014.
This bill is sponsored by the authors.
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2)According to the author, "SCA 3 provides that compliance with
the CPRA and the Brown Act is essential to implementation of
Article 1, Section 3 (b) of the Constitution, that compliance
by local agencies with those laws is a matter of
constitutional principle and not just a statutory mandate, and
that, therefore, the costs incurred by local agencies for
compliance with the statutes are not subject to reimbursement
pursuant to Article XIII B as a state mandated local program.
SCA 3's cross-referencing of the statutory standards for
compliance with the CPRA and the Brown Act in Article I,
Section 3 does not 'constitutionalize' the CPRA and Brown Act
provisions in the sense that it directly adopts the words of
those acts into the Constitution and prevents future
legislative amendment of the statutes. SCA 3 does not do
that. Nor does SCA 3 'constitutionalize' the exemptions and
limitations under those statutes. SCA 3 does not change the
standards for compliance with those statutes, but instead
provides that compliance with those provisions is a
constitutional mandate and not a state reimbursable mandate
under Section 6 of Article XIII B."
3)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 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.
The Brown Act requires all meetings of local legislative
bodies to be open and public, and requires local agencies to
post hearing notices and agendas and provide the public with
copies of materials distributed during open meetings. In the
past, the state has reimbursed local governments for costs of
complying with the Brown Act.
The California Constitution requires that, whenever the
Legislature or any state agency mandates a new program of
higher level of service on any local government, the state
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must reimburse local agencies for the costs of the program or
new level of service. However, the Legislature is not
required to provide reimbursement for mandates requested by
the affected local agency, legislation defining a new crime or
changing an existing definition of a crime, or mandates
enacted prior to 1975, or executive orders or regulations
initially implementing such legislation.
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 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.
4)In 1984, the Legislature created the Commission on State
Mandates (Commission), which decides test claims to determine
whether the Legislature or a state agency imposed a
state-mandated local program. If the Commission identifies a
state-mandated program, it adopts parameters and guidelines
defining what activities will be reimbursed, and adopts
statewide cost estimates.
The State Constitution requires the Legislature to appropriate
funds in the budget bill to pay all outstanding claims for a
mandate, or to suspend or repeal the mandate.
The Commission recently determined that a number of provisions
in the CPRA impose reimbursable state-mandated programs on
local agencies. Although the core provisions of the CPRA were
enacted in 1968, and are not subject to state reimbursement,
the recent test claim found that certain provisions enacted
after 1975 are reimbursable state-mandated activities,
including:
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
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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 Governor's 2013-14 Budget suspended or deferred a number
of mandates, including the CPRA mandates noted above. The
Legislature in June of this year approved AB 76 (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 vetoed this measure in favor of SB 71 (Committee on
Budget and Fiscal Review), 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.
1)According to the California Newspaper Publishers Association
(CNPA), in support, "As the Brown Act and CPRA were both
enacted prior to the operative date of the mandate law passed
in 1979 their core provisions are not state reimbursable
mandates. The Commission on State Mandates (CSM), however,
determined provisions in the Brown Act requiring agencies to
post agendas and report out actions taken in closed session
and provisions in the CPRA that require agencies to provide
assistance with record requests additional notice and the
removal of certain information from school employee records to
be new local programs that are state reimbursable mandates.
"CNPA has argued these duties create no meaningful costs that
should be reimbursed by the state. The CSM, though, has
found, at least with respect to the Brown Act that the state
is required to reimburse local agencies an annual cost of
about $20 million. Since the agenda posting law was authored
by then-Assemblyman Lloyd Connelly in 1986 (Ch. 641), it has
been repeatedly threatened by incredibly large claims for
reimbursement, on the one hand, and suspension of the law
through the state budget process during tight fiscal times, on
the other?
"In 2012, the voters approved Proposition 30?(which) added a
section to the Constitution exempting the Brown Act from state
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mandate reimbursement requirements. This year, however, the
Governor included previously suspended Brown Act mandates in
his proposed 2013-2014 budget despite the passage of
Proposition 30?CNPA learned in conversations with the LAO's
office that the reason for the continued suspension was
because the provision in Proposition 30 that exempted the
Brown Act from state mandate reimbursement requirements was
'not self-executing.' In other words, in order for the
Proposition 30 exemption to become effective, the CSM had to
issue a ruling that exempted the Brown Act from the state
mandate reimbursement requirement. The sections of the CPRA
determined to be state reimbursable mandates faced a similar
fate in the 2013-2014 budget. CNPA believes that SCA 3 is the
best solution to resolve this continually frustrating issue."
2)A number of local government organizations have raised
concerns with this measure. The California State Association
of Counties (CSAC) writes, "We are deeply concerned that
SCA 3 represents a shift in course by the Legislature and
Governor, whereby mandates that are politically popular may be
put before the voters in order to relieve the state from
reimbursement. SCA 3 sets a troubling precedent which leads
to an additional concern about future costs.
"While it may be true that the Legislature has made only minor
amendments to the Acts over the last several years, we believe
that it is the Legislature's consideration of costs that has
tempered action in this area. Since 2001, CSAC has followed
72 bills that would have amended the Brown Act or the Public
Records Act. Those bills died in the Appropriations
Committees likely due to estimated costs associated with
reimbursable mandates. Without this 'threat' of state costs
for mandate reimbursement, the Legislature will have fewer
reasons to withhold amendments to the Acts in the future.
These potential future changes leave counties vulnerable to
cost increases that we cannot control."
The Association of California Water Agencies, in opposition,
expresses similar concerns and also notes that "SCA 3 would
violate the spirit of 2010's Proposition 22, which limited the
state's ability to use local funds for state purposes.
Proposition 22 was an indication that the state was getting
its financial affairs in order and boosted the public's
confidence, which supported the passage of Proposition 30 in
2012. The state should not now reverse course by imposing
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indefinite financial obligations on local agencies' local
funds, as SCA proposes."
3)Support arguments : Supporters argue that this bill will
provide certainty in the protection
of government transparency by requiring local agencies to comply
with the PRA and the Brown Act.
Opposition arguments : Opponents contend this bill sets a
dangerous precedent in exempting state mandates and will
impose unmanageable costs on local governments.
REGISTERED SUPPORT / OPPOSITION :
Support
California Newspaper Publishers Association
Common Cause
Consumer Attorneys of California
First Amendment Coalition
Concerns
Association of California Health Care Districts
California Special Districts Association
California State Association of Counties
County of Los Angeles
League of California Cities
Rural County Representatives of California
Urban Counties Caucus
Opposition
Association of California Water Agencies
California Association of Clerks and Election Officials
Analysis Prepared by : Angela Mapp / L. GOV. / (916) 319-3958