Reimbursementof expenses prior to June 30, 2013 may still be possible
By William J. Priest and Parissh Knox, Best Best & Krieger LLP.
California voters recently approved Proposition 42, a state constitutional amendment eliminating the requirement that the state reimburse costs incurred by local public agencies to comply with the Brown Act and Public Records Act.
For most agencies in our state, Prop. 42 has little, if any, effect. However, as with any new law, all public agencies should double check their policies and procedures and make any appropriate and needed changes. This is true for all local agencies affected by Prop, 42, including cities, counties, and school and community college districts, as well as park, fire, water and other special districts.
For many years, the California Constitution has required meetings and documents of local public agencies to be open to public scrutiny. Two laws have historically implemented this rule: The Ralph M. Brown Act, passed in 1953, and the California Public Records Act, passed in 1968. Over the years, the Legislature has modified these acts. Some changes increased local agency responsibilities and costs. Under the state Constitution, the state must generally pay local agencies for their costs when it increases their responsibilities.
Over the last decade, questions arose about whether local agencies must comply with certain parts of these acts without cost reimbursement from the state. In the case of the Brown Act, this concerned posting of meeting agendas and reporting closed session actions in open session. With respect to the Public Records Act, this concerned, among other things, assisting members of the public seeking records and informing individuals whether the records can be provided.
This issue came to a head in June 2012 when the state Legislature, facing serious budget shortfalls, suspended these requirements to eliminate the need to reimburse local agencies. The Legislative Analyst’s Office estimated that the move would save the state tens of millions of dollars each year by shifting the costs to other agencies. This sparked a debate among local agencies about what to do. Most decided to continue complying with both acts regardless of the suspension (many never sought reimbursement in the first place since their added costs were nominal). But, some agencies decided not to comply with the acts to save on costs.
In November 2012, the voters approved Proposition 30, which purported to eliminate the reimbursement requirement for Brown Act compliance. However, questions were raised about its legal effectiveness, and it didn’t address Public Records Act compliance.
Prop. 42 has now conclusively resolved this debate. It adds to the state constitution the express requirement that local agencies follow both the Brown Act and Public Records Act. More importantly, it eliminates the state’s obligation to reimburse local agencies for their costs in complying with these acts, including future amendments to these acts that are intended to improve public access to meetings and information.
Though opposition to Prop. 42 was small, opponents raised the possibility of future amendments to the Brown and/or Public Records acts adding further strain to local agency budgets. Currently, though, no such amendments are in the works and, generally, amendments are minor, making clarifications in the law.
Local agencies that already have policies in place to comply with the Brown and Public Records acts, including timely assistance and response to the public, communication systems, as well as an effective routing/circulation system and document archive, will need to take little or no action as a result of Prop. 42 passing. For example, a policy update memo to staff may be sufficient.
For local agencies that chose not to comply with the Brown and Public Records acts in cases where it would strain their budgets without state reimbursement, action is now needed. If your agency does not have the policies in place to comply with the Brown and Public Records acts, you should begin to draft and implement such policies.
For costs incurred after June 3, 2014, Prop. 42’s effective date, state reimbursement for complying with the Brown Act and Public Records act is no longer available. With respect to costs incurred during this last fiscal year (FY 2013-14), it is uncertain whether there will be state reimbursement. For Public Records Act compliance costs incurred between fiscal year 2001-02 (July 1, 2001) and fiscal year 2012-13 (June 30, 2013), the Office of the State Controller has established a claim reimbursement procedure. For more information, see http://www.sco.ca.gov/Files-ARD-Local/Instructions/la_1213_cpra353.pdf However, there are conditions: (i) claims are limited to specified activities, (ii) a separate claim must be filed for each fiscal year, (iii) each claim must be for more than $1,000, (iv) all claims must be filed by Feb. 28, 2015 and (v) all claims filed now (anything after Feb. 28, 2014) are subject to a late penalty of 10 percent.
William J. “Jim” Priest is of counsel in the Municipal Law practice group of Best Best & Krieger LLP in the firm’s Ontario office. As part of his general municipal practice, he frequently advises clients on issues regarding the Brown Act, the Public Records Act and similar laws. Priest currently serves as assistant city attorney for the City of Covina.He can be reached at firstname.lastname@example.org.
Parissh Knox is an associate with Best Best & Krieger, based in the firm’s Los Angeles office. He regularly advises elected officials, public agencies and community-based organizations on the Brown Act, Political Reform Act, Fair Housing Act, public contracting, election law, and complex zoning and land use law. He can be reached at email@example.com.