OPEN MEETINGS -- In reaction to the looming prospect of a budget-driven suspension of the mandate to prepare and post agendas for local government meetings governed by the Brown Act, the California Newspaper Publishers Association (CNPA) is asking the leader of the State Senate to head a measure to place on the statewide ballot an amendment to Proposition 59 of 2004 to make information about those meetings public as a matter of constitutional law, thereby removing local agencies' right to bill the state with associated paperwork costs.
As reported in CNPA's membership bulletin,
CNPA has formally asked the Senate President pro Tem to introduce a Senate Constitutional Amendment to permanently ensure compliance with the agenda posting requirement of the Brown Act. Prompting CNPA’s request is a proposal by the governor and legislature to suspend 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. The Senate Budget Subcommittee #4 with jurisdiction over general government recently informally decided to suspend the agenda posting requirement and adopted a Legislative Analyst Office (LAO) plan (yet to be drafted) that would make agenda posting a non-reimbursable “best practice.”
Here is CNPA’s letter:June 16, 2010
Honorable Darrell Steinberg
President pro Tem
California State Senate
State Capitol Room 205
RE: Proposed Senate Constitutional Amendment
Dear Senator Steinberg:
The leadership of the California Newspaper Publishers Association decided last Friday to formally ask you to introduce or cause to be introduced a Senate Constitutional Amendment that will guarantee, once and for all, the public’s right under the Ralph M. Brown Act to reasonable notice of meetings. As you know, Gov. Schwarzenegger’s May Revise, the Senate Budget Subcommittee #4 and the Legislative Analysts Office have all endorsed a proposal to make the Brown Act’s agenda posting requirement optional for local agencies. The proposal would also make optional the requirement to report out closed session actions. Even though we have argued for years that these fundamentally important Brown Act provisions create no real costs that should be reimbursable by the state, the Commission on State Mandates has found these statutes require state reimbursement to local agencies at a cost of about $20 million annually.
Since the agenda posting law was authored by then-Assemblyman Lloyd Connelly in 1986 (Ch. 641), it has been repeatedly threatened by incredibly large claims for reimbursement, on the one hand, and suspension of the law through the state budget process during tight fiscal times, on the other. During the 1991 budget crisis, faced with a $14.5 billion deficit, the legislature and Gov. Pete Wilson actually did suspend the agenda posting section for one year. After a public outcry, the agenda requirement was reinstated by urgency legislation. Since then, the legislature has considered suspending the Brown Act on several occasions.
After Prop 59 – the Constitutional Sunshine Amendment -- was approved in 2004, the legislature, frustrated with the continued impact of the Brown Act on the general fund and with CNPA’s endorsement, amended the agenda posting law as follows:
“This section is necessary to implement and reasonably within the scope of paragraph (1) of Subdivision (b) of Section 3 of Article I of the California Constitution.”
That section of the Constitution says:
“(b)(1) The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”
Thereafter, the Commission on State Mandates reconsidered the open meeting claim and found that, following the amendment to the Constitution, the Act did not create a reimbursable local program. Unfortunately, in 2007, a court reinstated the mandate on technical grounds, again subjecting the Brown Act to a new threat of suspension in this year’s budget.
CNPA asserts the Brown Act’s agenda requirement is as important to the open and public functioning of local bodies as the Daily File is for the functioning of the legislature. Suspending the Brown Act during times of fiscal crisis places the public’s Constitutional right to open and public government at risk.
The main function of the agenda-posting requirement is to prevent surprise action (See, Carlson v. Paradise Unified School District (1971) 18 Cal.App.3d 196). It was surprise action -- a “coded” agenda item that turned out to be a secret council pay raise, adopted without discussion -- that prompted the legislature in 1986 to enact the agenda requirements. The central requirement of the Brown Act that meetings be open to the public means nothing if the public does not have adequate notice of the time, place and subjects of discussion at the meeting. This right to know before “it” happens must be enforceable.
Although Assemblyman Connelly, the legislature and CNPA fought long and hard to eliminate or at least reduce the high level of reimbursement adopted by the Commission on State Mandates (See, for example, Government Code Section 54954.4), the fact is that unless the legislature approves an SCA for the ballot, one of two outcomes appear certain: either the legislature will agree to continue to pay the bogus local agency claims putting continued stress on other funding choices; or, more likely, it will kill the mandate by suspending the Brown Act, making it both optional to local agencies and unenforceable by the public.
Nearly eighty three percent of the voters approved Prop 59 – the Constitutional Sunshine Amendment. CNPA believes these same voters would again support a modest change in the Constitution to add the concept of reasonable notice of meetings. This simple change, approved by the people, would, once and for all, make the existing Brown Act provisions not subject to state reimbursement.
On behalf of the nearly 850 daily, weekly and student newspaper members of the CNPA and the millions of Californians who depend on the meeting notices required by the Brown Act, we look forward to working with you to protect and secure into the future the public’s fundamental interest in open and public government.
Thomas W. Newton
CNPA General Counsel