There’s been a growing alarm in recent days about a rumored suspension of the Brown Act, with both citizens and public officials not sure what to think about what may be left of the open meeting law for local councils, boards and commissions. The good news is that the worst of the anxieties result from a hugely exaggerated understanding of what has happened and what the result might be. The bad news is that the path to a permanent end to such crises is vulnerable to the same species of dubious economy trigger that caused the crises in the first place. And an Assembly committee is using that trigger to make sure that the public gets no chance to end such situations.
You can change that situation if you act now, but only if you act now by signing the CalAware petition here.
Background: The Revolt Against Unfunded Mandates
It is an ancient and accurate complaint that sovereign law mills like the Congress and the California Legislature freely impose on others rules (and their attendant costs) from which they exempt themselves. In California and elsewhere this inequity—some would say iniquity—burdens not only individuals and groups in the private sector but subordinate government agencies like cities, counties and special districts. Reacting to this phenomenon, the state constitution was amended in the post Prop 13 era to provide that whatever new burdens the legislature placed on local government from thence forward, the legislature must appropriate funds to pay for. There would be no new or higher level of local government activity mandated by Sacramento that Sacramento was unwilling or unable to reimburse the locals for—no “unfunded state mandates,” as the phrase went. No state subsidy? The mandate simply switched off; no one, including the courts, could force the locals to sustain the program or service.
The idea was and is fair, rational and appealing as a good government proposition in the abstract. But in some cases, the unanticipated consequences left most people baffled if not appalled. One of the prime examples was the effect on the Brown Act. After several “test claims” for reimbursement were approved by the Commission on State Mandates, cities, counties, school districts and special districts found that they could get a windfall of cash for doing something they had always done: preparing and posting meeting agendas for their governing and other bodies as mandated by Brown Act amendments passed in 1986—but as, in fact, routinely done anyway since time immemorial to satisfy practical and political expectations. Almost all other cost-triggering requirements in the Brown Act predate passage of the constitutional reimbursement requirement, but the 1986 amendments came thereafter, making even the modest bureaucratic tasks of preparing and posting agendas with a “brief general description” of items to be addressed, adequately spelled out in 20 or fewer words, a basis for demanding a state subsidy, on the theory that this requirement constituted a “new or higher level of service” justifying claims for reimbursement. All that was required was adequate paperwork to document the local agency’s costs.
Reimbursement Abuses, Enormous State Payables
The result was a temptation for local officials to err on the side of the creative in claiming costs for reimbursement. A 2011 report to lawmakers by the Legislative Analyst’s Office (LAO) cited as examples of claims by local noneducation agencies:
- County of Santa Barbara. For 384 meetings in 2005-06, the county claimed $78,044. The county claimed the “flat rate” (then $134 per agenda) for most of the meetings. For 41 meetings with lengthy agendas, the county claimed 30 minutes of staff time (at a $44.60 hourly rate) for each item on the agenda.
- City of Vista. For 109 meetings in 2005-06, the city claimed $20,174. The city claimed the flat rate for 90 shorter agendas. The city claimed 30 minutes of staff time (at a $46.17 hourly rate) to prepare each item on the other agendas. For example, the city council’s December 13, 2005 hearing included 35 agenda items; the city claimed $808.
- Mesa Consolidated Water District. For 74 meetings in 2008-09, the district claimed $12,852. Over half of the meetings were billed at the 2008-09 flat rate ($155 per agenda). The district claimed 33 minutes of staff time (at a $75.21 hourly rate) for each item on the other agendas. The district’s hourly rate includes costs for the general manager.
In recent years, the LAO report said, the total claims have accumulated at the rate of more than $20 million per year, with about $63 million “due and payable” to noneducation agencies alone by 2012. Thus the recent state budget action simply eliminated any plan to pay this amount, which in turn means that the posting of meaningful agendas in compliance with the Brown Act cannot be enforced by court action because the mandate to comply has been switched off by operation of constitutional law.
The risks to meaningful agenda disclosures have probably been overstated. Similar mandate suspensions have been triggered at least twice before since 1986, with no reported exploitations by local agencies, because they knew the public would notice and react heatedly and probably also because the procedural routines have been so woven into how meetings are prepared and documented that bureaucratic inertia guarantees their continuity. Even though the law might not hold public officials accountable for no longer posting agendas or providing adequate descriptions of items on them, angry voters would hold them accountable, and political exposure has always been a far more powerful motivator of Brown Act compliance than legal exposure.
Permanent Solution in Limbo for Political Reasons
The real problem is that legislation to allow the people to end this cycle of dubious reimbursement claims and mandate suspensions every few years is stalled in the Assembly Appropriations Committee: 17 lawmakers with the power to let a bill die based on its purported cost to the state. Senator Leland Yee’s Senate Constitutional Amendment (SCA) 7 would place on the statwide ballot a simple constitutional requirement: “Each public body shall provide public notice of its meetings and shall publicly disclose any action taken.” If approved by the electorate, that rule would always be enforceable in court because the reimbursement law applies only mandates passed by the legislature—not constitutional amendments, which are enacted by the people. Also, of course, the rule could be changed or removed only by popular vote.
SCA 7, introduced in January 2011, got unanimous bipartisan passage in the Senate Judiciary Committee in April and in the Committee on Elections and Constitutional Amendments and the Appropriations Committee in May, and on the Senate Floor in June. In July, the bill passed the Assembly Committee on Governmental Organization on a 15-0 bipartisan vote. But when it reached the Assembly Appropriations Committee in August it was placed on the “suspense file” for bills that have an estimated cost impact on the state of $50,000 or more. The bill has languished in that file for nearly a year now. The chance to gain passage in time to place the measure on the November ballot will lapse soon and if not removed from the file at all, the bill will die at the end of the session.
The officially given reason for consigning SCA 7 to the suspense file, as stated in the Appropriations Committee analysis of last August, is the impact of “One-time General Fund costs in excess of $250,000 to include analysis and arguments for and against the measure in the voter pamphlet for the next statewide election.” In other words, processing costs to make the public aware of what is up for approval. This sounds a lot like the local agencies’ questionable claims for high costs to prepare agendas; but this time, the price tag is set at a cool quarter million or more.
The Appropriations Committee majority can remove SCA 7 from the suspense file, pass it and send it to the Assembly Floor. That’s exactly what the Senate Appropriations Committee did a year ago—operating under the same procedural rules as its Assembly counterpart. What’s locking the bill up is clearly not policy or even fiscal prudence, but politics—influence of some kind that is impossible to pinpoint but decisive so far nonetheless.
How Citizens Can Free SCA 7 for the People to Decide
The committee members and their contact information are below. Nine of them can free the bill to proceed. If they plead conformity with the rules, remind them about the Senate Appropriations action and ask, “When was the last time that a constitutional amendment bill with unanimous bipartisan support—giving the people the chance to vote on their fundamental rights—died in your suspense file?”
Felipe Fuentes, D-Los Angeles (Chair)
District Phone (818) 504-3911
Capitol Phone (916) 319-2039
Diane L. Harkey, R-Laguna Niguel (Vice Chair)
District Phone (949) 347-7301
Capitol Phone (916) 319-2073
Bob Blumenfield, D-Van Nuys
District Phone (818) 904-3840
Capitol Phone (916) 319-2040
Steven Bradford, D-Inglewood
District Phone (310) 412-6400
Capitol Phone (916) 319-2051
Charles M. Calderon, D-Whittier
District Phone (562) 692-5858
Capitol Phone (916) 319-2058
Nora Campos, D-San Jose
District Phone (408) 277-1220
Capitol Phone (916) 319-2023
Mike Davis, D-Los Angeles
District Phone (213) 744-2411
Capitol Phone (916) 319-2048
Tim Donnelly, R-Hesperia
District Phone (909) 625-1038
Capitol Phone (916) 319-2059
Mike Gatto, D-Burbank
District Phone (818) 558-3043
Capitol Phone (916) 319-2043
Isador Hall III, D-Los Angeles
District Phone (310) 223-1201
Capitol Phone (916) 319-2052
Jerry Hill, D-South San Francisco
District Phone (650) 349-1900
Capitol Phone (916) 319-2019
Ricardo Lara, D-South Gate
District Phone (562) 927-1200
Capitol Phone (916) 319-2050
Holly J. Mitchell, D-Los Angeles
District Phone (310) 342-1070
Capitol Phone (916) 319-2047
Jim Nielsen, R-Biggs
District Phone (530) 223-6200
Capitol Phone (916) 319-2002
Chris Norby, R-Fullerton
District Phone (714) 672-4734
Capitol Phone (916) 319-2072
Jose Solorio, D-Santa Ana
District Phone (714) 939-8469
Capitol Phone (916) 319-2069
Donald P. Wagner. R-Irvine
District Phone (949) 863-9337
Capitol Phone (916) 319-2070
Finally, you might also want to send the same “Free SCA 7” message to Assembly Speaker John Pérez as well. His directive to the Democrat Caucus would almost certainly prompt two thirds of the Appropriations Committee to send the bill to the floor, where it would probably once again win overwhelming bipartisan passage.
John A. Pérez, D-Los Angeles (Assembly Speaker)
District Phone (213) 620-4646
Capitol Phone (916) 319-2046