Will Brown Act budget cuts mean loss of open meetings?

Has the Brown Act open-meeting law been suspended?  There have been cuts to the state budget that stop  reimbursements to local governments to cover the costs of  posting agendas, which is  mandated by the Brown Act.  Those portions of the Brown Act are not currently enforceable, though local governments would be foolish not to continue to provide notice. In any case, Gov. Brown’s tax-raising ballot initiative, if enacted, would constitutionalize the Brown Act’s notice requirement, which would remove any doubt about its validity and enforceability.

Will the current budget cuts affect transparency and public access, and if so, in what way?  Here’s an overview that should help make sense of what’s happening with the open meeting law.

First, the California Newspaper Publisher’s Association provides a good explanation of how and why the Brown Act became a target for budget cuts:

Buried deep in the Budget signed [June 27]  by the Governor is a small provision that suspends the reimbursable state mandate that requires local governmental bodies under the Brown Act to post a descriptive meeting agenda 72 hours before a regular meeting and stick to it.

Pursuant to the state constitution, whenever the legislature creates a law that requires local agencies to perform a new task or duty (a state-mandated local program), the state is generally required to reimburse the local agency for the cost of the new task or duty.  An independent entity called the Commission on State Mandates both determines whether a new duty creates a reimbursable mandate and the value of the mandate.  Many years ago, the Brown Act’s requirement that agencies post a descriptive agenda was found to be a reimbursable state mandate.  The annual cost to the state is roughly $20 million.   via CNPA Legislative Bulletin

Today,  SFGate ran a story that cites a different and much higher dollar amount for the state’s potential savings, “$96 million in 2012-13.”   How did they arrive at that figure?

…the Open Meeting Act, is one of 56 mandates that have been suspended in the current budget. And while this is the first year the open meeting mandate is formally suspended, there have been almost no reimbursements to local governments since 2005. That’s where the $96 million comes from; it’s the accumulation of “mandated” reimbursements that still are owed.

By saying it won’t pick up the tab for local government to spread the word, the state appears to have removed the legal obligation of local governments to publicize the details of future meetings.  (SFGate)

While no mandate may mean no obligation to comply, the current amount of unpaid reimbursements does not seem to have caused many of those  local governments to suspend posting agendas in the past. The reason is that compliance really does not impose costs. Local governments already have to give agendas to their own elected officials. Posting that same agenda on the internet creates no additional, incremental cost.

After the recent cut,  reporters around the state have polled  local officials’ on the cuts which echo the response reporter Jenny Espino of the Record Searchlight in Redding received from a Shasta city attorney that he would not advise any of those bodies to change their practices.

“The Brown Act is a minimum anyway,” he said. “There’s nothing that precludes them from doing more.”

Not than any local official would likely confess to a reporter plans to leave the public in the dark.  However, there are some government agencies that do not receive as much scrutiny as others, a concern voiced by  CNPA General Counsel Jim Ewert in the SFGate article:

“There are watchdogs who will keep an eye on urban agencies. My fear is that cash-strapped agencies in more remote areas” might not publicize agendas in advance when controversial issues are scheduled for a vote.

The current consensus seems to be that while the budget cuts will likely have little impact on the public’s  access to government meetings, the situation definitely argues for increased vigilance to make sure officials remain accountable and their actions transparent.

And, as the CNPA Legistlative Bulletin reports, there does appear to be the potential of a permanent fix to the problem on the horizon:

Governor Brown’s proposed tax increase appearing on the November ballot contains language that would address the mandate problem. Specifically, The Schools and Local Public Safety Protection Act of 2012 would amend the California Constitution to declare that any state requirement that a local agency comply with the Brown Act “shall not be a reimbursable mandate.”

If voters approve the Governor’s tax increase, the amendment to the Constitution would put an end to the nearly annual suspension of the agenda posting requirement whenever a budget crisis occurs.

Stayed tuned to FAC for updates on this important issue. — Deborah Fruin

One Comment

  • I was deep into this issue in the early 90’s with the city and county of San Bernardino.(and surrounding cities) Probably one of the most corrupt areas in the state. I don’t think public entities should have gotten any money in the first place for simply doing the right thing. And knowing politicians like I do I really have to wonder what this will mean in the future.The Golden Rule is “You just can’t trust politicians”. Remember-Hate your government/Love your country.

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