By Peter Scheer
Proposition 42, on the ballot for California’s June 3 election, will amend the Constitution to assure that local governments are legally bound to observe open-government requirements. If you prefer transparency to secrecy in your city government, local school board or county government, then the choice is clear: You should vote yes on Prop. 42.
Prop. 42 solves a problem that has repeatedly undercut enforcement of California’s open meetings law (the Brown Act) and open records law (the Public Records Act). Because these laws are “mandated” by the Legislature, the state must reimburse local governments for their costs. Although the costs are small (more on that below), local governments and the state inevitably disagree on the amount of reimbursement, and those disagreements, in turn, provide legal cover for local governments to suspend their compliance with parts or all the Brown Act and Public Records Act.
Prop. 42 solves this problem once and for all by converting the existing legislative mandate (which has to be reimbursed by the state) into a constitutional mandate (which does not). Prop. 42, in other words, unequivocally reallocates these costs to local governments.
Will these costs be a burden for local governments? No. How much can it cost, after all, for a city council to post on its website the agendas of forthcoming council meetings? Or to help citizens describe the records they are looking for? Until now, local governments, able to send all their invoices to Sacramento, have had an incentive to overstate these costs — which explains the lofty cost estimates that some have ascribed to Prop. 42. In fact, Prop. 42, by placing responsibility for costs on the same government entities that incur them, should cause overall costs of open-government compliance to go down, not up.
Prop. 42 is about ending the fiscal tug-of-war between the state and local governments over who pays the (relatively modest) costs of complying with open-government laws. While in principle those costs could be definitively allocated to the state rather than local governments, in practice that would not work.
Why not? Because, even if the state’s obligation to pay was unequivocal and imbedded in the Constitution, there would still arise disputes over the accuracy of the amounts that local governments bill the state. And those disputes would give local governments a legal excuse to suspend compliance with the Public Records Act and Brown Act.
Finally, the legislative analyst has speculated that, in a post-Prop. 42 world, overall open-government costs could rise because the state, unconstrained by its current obligation to reimburse local governments, could create costly new open-government programs and requirements, thereby increasing costs for local government. Not so. This theory overlooks the fact that the Public Records Act applies to state agencies as well as to local governments. That means the state, under Prop. 42, would share local governments’ incentive to hold down costs.
Prop. 42 in no way alters the requirements of open-government laws; it simply removes an excuse for local governments to opt out of those requirements. It’s high time that We, the People, make clear that we want all levels of government, local and statewide, to operate with maximum transparency so that we can hold public officials accountable and make democracy work.
— Peter Scheer is executive director of the First Amendment Coalition.