Recommendation: Weak Yes
Although it is difficult to locate, the impetus for this Proposition appears to stem from the fiscal cut-backs that occurred in 2013. During the initial State Budget, the Governor and legislature cut the payments made to local governments to cover expenses associated with Open Meeting laws by suspending the requirements that local governments comply, or at a minimum, local governments took that position. (see http://www.mercurynews.com/opinion/ci_25367980/mercury-news-editorial-proposition-42-improves-access-public). What is even more deeply buried is the reason that suspending the payments could mean that the local governments would not need to comply with the open meeting laws – after all, the state has a long history of “unfunded mandates”; laws that obligate local governments to do or refrain from doing acts that require expenditure of resources without providing those local governments any payment. (For an analysis of California’s unfunded mandates see http://wpsa.research.pdx.edu/meet/2012/settle.pdf).
Undaunted, we set our Polito-researchers to the task. It turns out that California is a strange state (we know, tell you something you don’t know). California’s voluminous and oft-modified (thank you propositions) Constitution actually has a provision that prohibits unfunded mandates. It is found in the California Constitution, article XIII B, section 6, subdivision (a) (see – http://www.boe.ca.gov/lawguides/property/current/ptlg/ccp/art-XIII-B-all.html#6). Of course, over the years, the legislature has still found ways to avoid payments. In particular, one Polito-friendly contact we spoke with who deals with information requests on behalf of local schools told us that while expenses for such requests are carefully tracked (to enable reimbursement by the state), they haven’t actually seen a reimbursement from the state in years. For a discussion of the history and treatment of unfunded mandates in light of Article 13b of the state constitution see the 2011 case of California School Boards Assoc. v. Brown. (http://caselaw.findlaw.com/ca-court-of-appeal/1557120.html).
So, while we were unable to find authority for the proposition that the State’s failure to fund reimbursements for “open meeting” laws would necessarily relieve local governments from the obligation to comply (assuming the State used some of the clever tactics employed in the past), there is a realistic fear that such an argument could succeed.
Separately from the fear that “Open Meeting” laws could be undermined in this way we also agree with the proponents’ underlying premise: That “Open Meeting” laws should be considered core principles of good government and therefore part of a local government’s obligations to fund its own functions.
Moreover, responsibility for paying half of the “Open Meeting” laws – those incurred under the Brown Act” was already transferred to local governments by initiative in 2012. So, it seems sensible to give the same treatment to the other half of these important laws.
Finally, we are also mindful of the unproven “whispers” that local governments routinely “pad” their reimbursement requests and that transferring the cost obligations to those local governments will create an incentive for efficiency.
In short, while it is hard for us to get excited about foisting more expenses onto local governments, at the end of the day this expense seem properly placed at the local level. Interestingly, even local governments are not really opposing this measure. We found only one reference to an opponent (which we could not independently verify) to Prop 42, no editorial boards opposing the Proposition, and no funds expended against the Proposition.