|Budget Issue:||Seek New Decision on Open Meeting Act Mandate|
|Program:||Commission on State Mandates|
|Finding or Recommendation:||Direct the administration to file a request with the Commission on State Mandates to adopt a new decision on the Open Meeting Act mandate in light of the passage of Proposition 30.|
In 1953, the Legislature enacted the Brown Act, declaring, "all meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body." Because the Brown Act preceded the 1975 operative date of mandate law, its requirements are not a state-reimbursable mandate. However, the Commission on State Mandates (CSM) has found that certain post-1975 procedural amendments to the Brown Act are a reimbursable state mandate. These amendments require local agencies to (1) prepare and post agendas 72 hours before a hearing (Chapter 641, Statutes of 1986 [AB 2674, Connelly]) and (2) follow certain noticing and reporting procedures for items considered in closed session (Chapter 1137, Statutes of 1993 [SB 36, Kopp]). These amendments, collectively, are referred to as the “Open Meeting Act” mandate. While this mandate applies to all local governments, state laws and funding practices regarding mandates on schools and community college districts differ somewhat. This analysis addresses the Open Meeting Act only as it relates to cities, counties, and special districts.
Open Meeting Act Mandate Currently Suspended. In general, when the CSM determines that a state law creates a reimbursable mandate, the State Constitution requires the Legislature to (1) provide funding in the budget to pay all unpaid prior year local government costs for the mandate, (2) suspend operation of the mandate, or (3) repeal the law. The Open Meeting Act mandate has been suspended since 2011-12. Additionally, the Legislature adopted language as part of the 2012-13 budget package—Chapter 32, Statutes of 2012 (SB 1006, Committee on Budget and Fiscal Review)—stating the Legislature’s intent to suspend the Open Meeting Act mandate in 2013-14 and 2014-15. When a mandate is suspended, local government implementation of its requirements is optional.
Proposition 30 Exempted Open Meeting Act From Mandate Requirements. In November 2012, voters approved Proposition 30 which, among other things, included language intended to prospectively exempt all provisions of the Open Meeting Act statutes from being considered a state-reimbursable mandate. Proposition 30, however, did not explicitly set aside the CSM decision on the Open Meeting Act mandate. State law defines a process by which local governments and state agencies—generally the Department of Finance (DOF)—may request the CSM to issue a new mandate decision based on subsequent changes in law or other factors. Since Proposition 30 passed, no such requests have been filed with the CSM.
The Governor’s budget proposes to suspend the Open Meeting Act mandate in 2013-14. Suspending this mandate would not affect city, county, and special district obligations to comply with the provisions of Open Meeting Act that were adopted prior to 1975, but would make their compliance with provisions related to posting and preparation of agendas and closed session procedures optional in 2013-14.
Proposition 30 Likely Does Not Eliminate Constitution’s Mandate Funding Requirements. Although a request for a new CSM decision on the Open Meeting Act mandate could have been filed with the CSM immediately following the approval of Proposition 30 in November 2012, the DOF has yet to do so. In the absence of a new CSM decision, the Legislature’s requirement to fund, suspend, or repeal in the Open Meeting Act mandate in 2013-14 is not clear. Specifically, although Proposition 30 states that the Open Meeting Act mandate statutes “shall not be a reimbursable mandate,” it does not explicitly (1) set aside the CSM ruling on the Open Meeting Act or (2) modify the constitutional requirement that the Legislature generally fund, suspend, or repeal laws determined to be a reimbursable mandate by the CSM. As a result, it is not clear that Proposition 30, per se, excludes the Open Meeting Act mandate from the constitution’s mandate funding provisions. Prior actions taken by the Legislature that assumed that certain laws were not state-reimbursable mandates, contrary to standing CSM decisions, have been reversed by the courts. Therefore, in order to avoid the risk of litigation, we suggest the Legislature fund, suspend, or repeal the Open Meeting Act mandate in 2013-14.
Suspension Consistent With 2012-13 Budget Package. The Governor’s proposal to suspend the Open Meeting Act mandate is consistent with the Legislature’s stated intent to suspend in the mandate through 2014-15. Suspending the Open Meeting Act mandate would allow the state to defer payment of prior year local government reimbursements—totaling about $100 million for noneducation local governments—to future years. However, continuing the suspension of the Open Meeting Act mandate would make its requirements optional for local governments in 2013-14.
Recommend Pursuing a New CSM Decision. Regardless of how the Legislature decides to handle the Open Meeting Act mandate in 2013-14, we recommend the Legislature direct DOF to file a request for a new CSM decision on the Open Meeting Act mandate as soon as possible.