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CACEO April 2015

Clerk of the Board and PRAs

The Clerk of the Board Legislative Committee is currently reviewing AB 169 by Assemblymember Brian Maienschein of San Diego, which would amend the California Public Records Act.

The bill would require a local public agency, except a school district, that posts a public record on the Web to post the record in an “open file format” that meets the following requirements:

  • It is retrievable, downloadable, indexable, and electronically searchable by commonly used Internet search applications;
  • It is platform independent and machine readable.
  • It is available to the public free of charge and without any restriction that would impede the reuse or redistribution of the public record; and
  • It retains the data definitions and structure present when the data was compiled, if applicable.

The bill currently is awaiting hearing in the Assembly Local Government Committee.

The legislative committee is closely examining the bill’s requirements and is considering whether to take a position on the bill. Committee member René LaRoche of Mariposa County has raised the question of whether the bill needs to be amended to only apply to records posted on-line as of the effective date of the bill or some other reasonable date certain by which time counties can comply with its provisions. René points out that some counties, including Mariposa, currently post records that may not be searchable (e.g., some scanned records).

 
CACEO January 2015

CACEO Secretary of State Transition Committee

Thursday, December 11, 2014
5:00 p.m. to 6:00 p.m.
2014 CRAC & CACEO New Law Workshop and Seminar
Hyatt Regency, Sacramento, Trinity Meeting Room (mezzanine level)

Minutes

Meeting was called to order by Neal Kelley at 5:10 p.m.

All committee members were in attendance (Neal Kelley, Orange County; Dean Logan, Los Angeles County; Sue Ranochak, Mendocino County; Joe Holland, Santa Barbara County; Cathy Darling Allen, Shasta County; Rebecca Martinez, Madera County; Mark Lunn, Ventura County; Bill Rousseau, Sonoma County; Jennifer Vise, Tehama County). Also in attendance was James

Schwab from Secretary-Elect Alex Padilla’s team.

Bill Rousseau opened by stating that he was looking forward to having an open dialog with the incoming Secretary of State; James Schwab stated it was his desire, as well as Secretary-Elect Padilla, to remain open; he will continue this theme throughout his term.

James informed the committee that Bill Mabie will be serving as Secretary-Elect Padilla’s Chief of Staff; James will be based in Sacramento and Bill will be based in Los Angeles.

Neal Kelley asked James how he would like the committee to communicate with the office; James suggested a brief memorandum to the Secretary of State outlining the committee’s goals and objectives; policy concerns; recommendations; etc.

Neal asked committee members to state their main concerns and offer suggestions on what the committee should focus on as a part of the transition.

Dean Logan noted that legislation would be critical to track and communicate; James offered that engagement on the policy side should be communicated earlier in the process.

Neal offered that the committee should engage on many of the themes discussed during the campaign (such as VoteCal; Cal-Access; voter engagement and election technology (and the possibility of a Bond Act to fund election equipment).

Bill stated that voting engagement will be key to turn out and suggested the committee offer suggestions on how the Secretary of State could engage statewide with voters.

The committee agreed that it would form a list of policy issues and interpreations made by the Secretary of State since 2006. It was agreed that members of the committee would track theses issues using CCROVs from 2006 to present. This would be used to form the committee’s memo to the Secretary of State. Research on this project was divided up between committee members as follows:

2006 and 2007 (Neal)
2008 – 2010 (Dean))
2012 (Bill)
2011 (Sue Ranochak)
2013 (Mark Lunn)

The committee agreed to conduct its next meeting in January 2015 followed by a meeting with Secretary-Elect Padilla sometime in February 2015.

 

Committee members:

  • Neal Kelley, Orange County
  • Dean Logan, Los Angeles County
  • Sue Ranocheck, Mendocino County
  • Joe Holland, Santa Barbara County
  • Cathy Darling Allen, Shasta County
  • Rebecca Martinez, Madera County
  • Mark Lunn, Ventura County
  • Bill Rousseau, Sonoma County
  • Jennifer Vise, Tehama County

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View PDF version of minutes.

 
CACEO January 2015

2014 CRAC & CACEO New Law Workshop and Seminar Photos

 

 

 
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.

9/17/14

 
CACEO November 2014

State Board of Equalization Poised to Approve Amendments to Rule 308.6 Based on CACEO-Sponsored 2009 Legislation

On September 29, 2014, the State Board of Equalization issued a Letter to Assessors (LTA) and to clerks and other interested parties, that the staff again proposes to amend Property Tax Rule 308.6, Application for Equalization by Member, Alternate Member, or Hearing Officer to incorporate past legislation, including AB 824 (Chapter 477 of 2009), which was sponsored by CACEO. That legislation gave the clerk of the assessment appeals board discretion to have an AAB in another county sit as a special alternate board to hear an appeal filed by an AAB member, assessment hearing officer, employee of the clerk’s office, certain members of the staff of the county counsel in lieu of the cumbersome process of convening a special alternate board appointed by the presiding judge. The new draft rule is fully in keeping with the legislation sponsored by clerks. But it wasn’t always so.

The BOE first initiated an interested parties process to amend the rule in 2012-13, but drafted it in a way that was unacceptable to clerks. That rule, in its first draft, would have required a formal agreement between the two counties. The county counsel of one county even suggested that there be a formal agreement signed by the boards of supervisors of the involved counties. Ultimately in early 2013, the BOE staff submitted a proposed rule for BOE adoption that would have required the approval of the receiving assessment appeals board.

None of these drafts and suggestions was at all in keeping with the CACEO-sponsored legislation, which gave the clerk full discretion to use another county’s sitting assessment appeals board. What the clerks envisioned when they sponsored AB 824 in 2009 was that the two clerks involved would come to an agreement and the AAB members of the “receiving county” would travel to the “referring county” and be compensated for their time and mileage. Simple, straightforward, and economical.

When the proposed rule came before the BOE in 2013, CACEO filed a letter objecting saying that the intent of the legislation was to let the clerks involved determine how these applications should be handled, pointing out that the proposed rule was inconsistent with the plain language of the statute and wholly inconsistent with the intent of the 2009 legislation. The draft rule was pulled from the BOE’s agenda and the project was put on hold.

Fast forward to September 2014. The BOE staff again announced their intention to launch the proposed changes to Rule 308.6, this time with language stating that applications may only be referred to a county if that county’s AAB, or the clerk at the direction of the AAB, has consented to accept the referral. This was also unacceptable to CACEO’s BOE Rules Work Group. An AAB has no authority whatsoever to make administrative decisions. Moreover, a rule giving AABs that kind of authority could very well have provided justification for making AABs subject to the Brown Act. Hard experience in the Legislature over that very issue has made clerks very wary of any such notion.

The BOE’s Legal Division had concerns that a receiving county might be saddled with large, unanticipated costs from a large influx of appeals from a referring county. However, when we explained how this process really works, and how rare these appeals are, their fears seemed to be allayed.

We appreciate the cooperative work of Sherrie Kinkle at the BOE and the Legal Division staff in resolving the issue. CACEO’s BOE Rules Work Group plans to respond to the LTA supporting the latest draft. However, we will actively participate in the interested parties process and will attend the BOE meeting at which the amended rule will be considered. Just to make sure . . .

 
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