The California Green Party, in announcing its opposition to Proposition 42 on next week’s ballot, uses a very blinkered rationale that ignores what made the measure necessary and exaggerates its impact on local government resources. The key phrasing of its position states:
Proposition 42 would amend the state constitution to mandate local government agencies comply with various state laws providing for public access to local government meetings and records of government officials. This would apply to cities, counties, and school and community college districts, as well as park, fire, water and other special districts.
Proposition 42 would also eliminate the state’s traditional responsibility to reimburse local governments for their costs to implement these laws, including certain parts of the Public Records Act – representing an annual cost shift in the tens of millions of dollars, as estimated by the California Legislative Analyst.
Local governments are often on very tight budgets. They also have far fewer tools to raise revenue than the state, and the tools they do have are often more regressive than those available to the state.
Transparency in government should not be dependent upon the finances or practices of any particular local government agency. Transparency should be even and guaranteed across all jurisdictions. The abdication of this in Proposition 42 is an example of what is wrong with our state’s priorities.
A Wildly Exaggerated Estimate of Cost Shift
First, the Legislative Analyst’s estimate of the cost impact of mandated services under the California Public Records Act—hence the cost to be shifted to local agencies—lacks credence, to put it mildly. As this space noted last year when that estimate became known as justification for halting certain CPRA requirements by making them unenforceable,
The mandate suspension proposals are examined by the Legislative Analyst’s Office here. But the purpose of suspending mandates, as shown with last year’s unplugging of certain open meeting law requirements, is supposedly to keep the state from having to pay unaffordable local government claims for the cost of performing extra services added to the law in the last few decades. In the case of the Brown Act, such documented reimbursement claims accumulated over the years to constitute multiple millions of dollars of obligations from the state to cities, counties and districts.
But unlike the Brown Act claim drain, there is no huge and continuing mountain of mandate reimbursement demands under the Public Records Act. In fact the Commission on State Mandates only approved the CPRA requirements for state reimbursement in May 2011, and the Legislative Analyst concedes, “As the CSM has yet to issue a statewide cost estimate, the annual state cost of funding the CPRA mandate is uncertain.” But nevertheless, the LAO insists, “given the breadth of activities required by the CPRA mandate and the number of local governments affected, we estimate that annual state costs could reach the tens of millions of dollars.”
The estimate is wildly conjectural. The costly Brown Act mandates such as meeting agenda composition and posting became costly simply because they were automatically triggered by every meeting, month after month, of every one of the thousands of local government bodies in the state. They understandably accumulated very rapidly, like the animated brooms propagating around Mickey Mouse in the Sorcerer’s Apprentice sequence of Fantasia. In contrast, the targeted CPRA mandates (help the requester make an informed request where possible; respond with a determination of access [but not necessarily deliver] within 10 days; redact educators’ home addresses) are triggered only upon specific requests, and the first and last of these three would come into play quite rarely.
The problem is that while the majority of local agencies that already do their best to get back to the requester with a determination within 10 days would probably continue to do so without the mandate, and needing no “best practices” preachments from Sacramento, there are some others that already consider servicing CPRA requests a low priority if not a nuisance. If they took advantage of the mandate suspension to adopt a “when we get around to it” and hide-the-ball standard, nothing could compel them to do better—not even a lawsuit.
And this exploitation of the suspension would probably happen very quietly. Again in contrast with the Brown Act suspension last year, in that episode almost no local agencies took advantage to go dark because to stop posting agendas would have been a very conspicuous and politically damaging frustration of public expectations, whereas only the individual CPRA requester would notice if the agency stopped being as responsive or helpful as the law previously required. In a relatively small but persistent percentage of instances brought to CalAware’s attention, the public records request never gets a response of any kind after months of waiting. Those agencies are the ones who look forward to the proposed suspensions.
In short, reimbursement claims to the state for public records access mandates would probably be modest, since the mandates for which those claims could be made are very few. Accordingly, what local agencies would lose under Proposition 42 would not be any income they have ever had, but simply the windfall they might expect to gain by charging the state for services they’d already been providing routinely with no expectation of gain—getting back to the records requester with a determination of what if anything would be made available, within 10 days—or for services seldom called upon or provided: assisting the requester to focus or otherwise improve a vaguely articulated request. If Proposition 42 passes, there will simply be no great “cost shift” to local governments; there will only be a disappointed expectation of marginal extra revenue.
No Discrimination Against Local Agencies
Second, contrary to the Greens’ suggestion, Proposition 42 would actualy make transparency “even and guaranteed across all jurisdictions.” Unlike local government agencies, neither state executive branch agencies, legislative branch entities or courts and other judicial branch organizations have ever been compensated by reimbursement claim to the state general fund for costs incurred in complying with their respective transparency obligations. They have had either to provide access to their meetings, proceedings and records free or at very modest charges to the public. Proposition 42 would simply put local government agencies under the same burden.
Reaction to a History of Abuse
Third, the proposal to get local government out of the reimbursement claim game is not an abdication of some natural law duty of state to local government. The requirement to reimburse local agencies for new state-mandated costs is a constitutional one, but so is the right of Californians to gain access to the meetings of public bodies and the records of state agencies and officials. Proposition 42 is nothing more than a harmonization of those fundamental rights—of local government to cost recovery and of citizens to transparency—in a manner that makes the latter a very limited exception to the former in the interests of viability.
Experience with the Brown Act shows that local agencies gradually built up the mountain of state reimbursement obligations by demanding payment for the cost of preparing and posting meeting agendas—a function that had always been routine long before it was legally required—and by too often grossly overstating the actual costs involved. The zest for maximizing this novel revenue source before long reached a peak where consultant firms emerged to provide local agencies the service of collecting data and processing Brown Act reimbursement claims. Senate Constitutional Amendment 3 of last summer, which placed Proposition 42 on the ballot for voter approval, expressed as much as anything else the Legislature’s exasperation with how the Brown Act mandate reimbursement process was open to being gamed—not to save local officials money but to gain them money for keeping their meeting agendas visible and meaningful to the public.
Without question, the majority of local agencies have been diligent and conscientious in dealing with the undeniable costs of transparency. Proposition 42 cannot be read as a rebuke to them. Unfortunately, the excesses of a minority have persisted long enough to become very conspicuous to lawmakers, making it easier for them to try to put a stop to what many of them see as an appallingly costly charade. But fortunately for the compliant majority, if Proposition 42 passes, they are unlikely to miss a single nickel they might have reasonably expected to win.