March 13, 2008 - Youngsville, LA Pic 3_thumb
As of the first of July, local public agencies
governed by the Brown Act must now see to it that any public record related to
a matter subject to discussion in open session that is made available to a
majority of the members of a legislative body less than 72 hours before a
regular meeting (i.e., after the agenda is posted) must at the same time make a
copy available for public inspection at a place listed on the meeting
  agenda. 

SB 343 by Senator Gloria Negrete McLeod (D-San Bernardino)
also provides that “The local agency also
may
post the writing on the local agency's Internet Web
site in a position and manner that makes it clear that the writing relates to
an agenda item for an upcoming meeting” (emphasis added).
  Aside from the fact that this
provision, voluntary in any event, does not require the agency to specify which
agenda item the material refers to, two other points severely limit this bill’s
mandatory provisions: 

  1. although the mandate relates to a document distributed
    to the board only after the meeting agenda has been posted, there is no
    requirement that the agency separately announce the existence of the
    document(s) distributed to the body; and 
  2. even if someone were somehow to
    learn of the existence of the document(s), it is not clear whether the
    agenda-designated office or location must post the material for complete
    round-the-clock viewing in a public place even outside business hours, as is
    the requirement for the agenda itself.
     
    Many if not most agencies subject to the Brown Act post their agendas at
    the close of business on Friday, for a meeting Monday or Tuesday evening.
      

Adding to the confusion is the fact
that the Brown Act does not now require, and never has required, posting of
agenda-related documents distributed to the body
on or before
the 72-hour mark, even if directly referenced in the
agenda.
  

Bottom line: documents
distributed to the body early may or may not be referenced on the posted
agenda; those distributed after that agenda posting may be required to be open
to review somewhere, but the agency need not alert the public that they are
available.
  

Agencies with the habit
of acting transparently will no doubt do the right thing in this case and let
the public know where it can view the late-distributed documents in the run-up
to the meeting.
  But some will no
doubt rely on the gaps in SB 343 and catch the public by surprise with records
in the body’s hands that no one in the community knew were available to
review.
  Or they may simply avoid
the bill’s coverage altogether by using special meetings for those matters
where they believe late-arriving
 
documents will be convenient. 

The California Association of Realtors,
principal sponsor of the bill, will presumably be keeping an eye on how it is
complied with.