CACEO October 2014

Important Information on Prop 42

Oy, What a Headache!

Brown Act and California Public Records Act legislation that will follow the passage of this year’s Proposition 42 will require the involvement of all clerks and all counties – and aspirin won’t help.

The passage of Prop 42 in June’s election sent a clear message – or SHOULD have sent a clear message – to everyone in local government that a new era in legislation amending the Ralph M. Brown Act and the California Public Records Act (CPRA) has arrived.

Clerks will recall that Prop 42 amended the California Constitution to require local government agencies to comply with those two bodies of law (like we don’t already!) and to eliminate the requirement that the state reimburse local government agencies for compliance with the two acts. The latter provision is the one that is key and was the sole motivation behind the measure, despite claims by its supporters that they were motivated by the desire to foster transparency in local government decision making.

The day-to-day impact of Prop 42 on clerks will be small. The only immediate direct effect on clerks is that they will no longer be able to file claims for state reimbursement for compliance with the two acts.

However, the far-reaching, lasting, and most troubling effect on clerks and everyone else in local government, is that the Legislature now can pass bills amending the two acts untroubled by the legislation’s burdensome costs to local government. (And boy are they ever untroubled by it.)

Heretofore, under the state’s constitution, when the Legislature enacted legislation that created a new local program or required a higher level of service of local government agencies, the Legislature was obligated to either make a direct subvention to cover the local government costs associated with the legislation or to provide reimbursement to the locals through the state mandate claims process. Such bills were flagged as “fiscal” and, therefore, were required to be reviewed by the Appropriations Committee of each house of the Legislature. With the passage of Prop 42, that financial obligation went away with respect to legislation amending the Brown Act and the CPRA.

Although a number of bills amending the Brown Act and CPRA were passed by the Legislature over the years despite the cost implications to the state budget because of the mandate reimbursement requirements, most such bills died in the Appropriations Committee of the first house. Those that survived were usually amended into a form that local governments, including Clerks of the Board, could live with. In that process, the “fiscal” flag was crucial in ensuring that the members of the Legislature and the proponents of these bills would work with clerks and other local government associations to make the legislation less burdensome and, in many cases, less ridiculous. That will no longer be the case, due to Prop 42.

A good example of the Prop 42’s effects is this year’s AB 194 (Campos) that would amend the Brown Act. This bill might be viewed as the first “shot across the bow” in the coming ongoing battle over Brown Act and CPRA legislation in the post-Prop 42 era.

AB 194 started life in 2013. As introduced, it would have subjected the chairperson of a legislative body that violated the public comment section the Brown Act to criminal prosecution as a misdemeanor. Although the author of the bill was willing to negotiate amendments to the bill in response to local government opposition, many of the amendments that replaced the misdemeanor language were as bad as, or worse than, the bill as introduced.

Nevertheless, largely because the bill was not required to go to the Appropriations Committees for a fiscal impact review, the bill sailed through the Legislature and, as of this writing, awaits signature by the Governor. The bill that was presented to the Governor would make it extremely difficult for the chairperson of a legislative body to conduct an orderly meeting and would make it very difficult for the clerk to prepare an accurate and complete record of the proceeding, especially with regard to all public comment at the meetings. Not only would it place in the hands of members of the public the authority to determine when they will be permitted to speak on an agenda item, the bill might be interpreted by a court to mean that any and all members of the public present at a meeting must be allowed to speak TWICE on any and all items on the agenda if they so choose.

Naturally, CACEO and, unfortunately, a very few allies, are lobbying the Governor hard to veto the bill.

The lesson to be learned from our experience with AB 194 is one we anticipated when Prop 42 was pending: Local government agencies and associations like CACEO will have a VERY hard time negotiating with legislators and supporters of Brown Act and CRPA legislation to make the bills acceptable to local governments and clerks. My belief is that we will have virtually no chance of killing such legislation.

What does this mean for clerks? They (you) will need to involve yourself and your county in efforts to make these bills workable. You will need consistently to persuade your board of supervisors and/or chief administrative/executive officer to actively oppose such legislation, to actively work in seeking amendments to the bills, and to actively make sure that affected state associations, such as CSAC, RCRC, and UCC, do likewise.

The effect of Proposition 42 is one you cannot afford to ignore.


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