BILL ANALYSIS Ó
SCA 3
Page 1
SENATE THIRD READING
SCA 3 (Leno and Steinberg)
As Amended June 20, 2013
2/3 vote
SENATE VOTE :37-0
LOCAL GOVERNMENT 9-0 BUDGET
24-0
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|Ayes:|Achadjian, Levine, Alejo, |Ayes:|Skinner, Gorell, Bloom, |
| |Bradford, Gordon, | |Campos, Chavez, Chesbro, |
| |Melendez, Mullin, Rendon, | |Daly, Dickinson, Gordon, |
| |Waldron | |Grove, Harkey, |
| | | |Jones-Sawyer, Mansoor, |
| | | |Melendez, Mitchell, |
| | | |Morrell, Mullin, |
| | | |Muratsuchi, Nazarian, |
| | | |Nestande, Patterson, |
| | | |Stone, Ting, Wagner |
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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 :
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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.
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
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requests for information, timeframes for compliance, providing
written notice when a request is denied, and similar
provisions.
FISCAL EFFECT : According to the Budget Committee, there are
one-time General Fund costs of about $220,000 to include an
analysis of this measure, and arguments for and against the
measure, in the state voter pamphlet. Unknown future state
General Fund savings, from relieving the state from
reimbursement for mandated costs related to the CPRA and the
Brown Act.
COMMENTS : 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.
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."
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
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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 10 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 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.
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
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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 unusual
circumstances; providing assistance to the public in identifying
and locating public records; and, 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 (Budget
Committee), 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 (Budget and Fiscal Review
Committee), 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.
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.
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"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
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."
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
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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 indefinite
financial obligations on local agencies' local funds, as SCA
proposes."
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.
Analysis Prepared by : Angela Mapp / L. GOV. / (916) 319-3958
FN: 0002051