Represent!

Politics, government and public life for Southern California

What is Prop 42 and why should it matter to voters?

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Proposition 42 is a constitutional amendment on the June 3 ballot that, if passed, would require local governments to comply with state public records and open meeting laws and force them to also bear the cost of compliance.

Prop 42 affects people who need routine public documents such as a vehicle accident report, code enforcement report or background information on a local government policy decision. It also affects political activists, researchers, business people, journalists and others who rely on public documents to better understand what's going on in their local governments.

The proposed constitutional amendment resulted from a dispute that erupted last summer when Governor Jerry Brown prepared to sign a bill  that would stop local government agencies from being required to follow key provisions of California’s Public Records Act.

California law requires local governments to respond to public requests for information within 10 days. For example, a citizen could ask to see contracts that a city awards an independent contractor. If the municipality is unable to meet such a request, or if they reject it, they have to explain why.

The state maintained the bill was a budget move, because it is required  to reimburse local governments for complying with some aspects of records requests. The Department of Finance estimated that exempting local governments from public records requirements could save the state tens of millions of dollars a year.

At the time, the First Amendment Coalition said the change would create opportunities for local authorities to cut off public access to information. And an attorney for the California Newspaper Publishers Association said it was naive to expect all local agencies and authorities would meet all records requests. 

Brown signed the bill but the backlash caused the legislature to rescind it and instead put the matter before voters as a constitutional amendment.

A no vote on Prop 42 means the state would continue to reimburse local governments for some of the costs of providing public records, an amount estimated by the Legislative Analyst Office at tens of millions of dollars a year.

The irony is that the state has not paid out any money since 2002, when a court ruled that California is responsible for such reimbursements. 

By making compliance part of the state constitution, local governments would not be able to deny requests for records. Prop 42 has been endorsed by both major political parties, several newspapers and government transparency organizations, including the First Amendment Coalition, which wrote the supporting argument in the state sample ballot.

Peter Scheer of the First Amendment Coalition says Prop 42 "removes the uncertainty that has been with us for a long time" about who pays the cost of complying with the state's transparency laws.

The League of California Cities and the California State Association of Counties separately say they have concerns that smaller cities and counties cannot afford the costs if they shift from state to local governments, but they are officially neutral on Prop 42.

The Green Party opposes Prop 42's shift of the cost of open meeting and public records compliance from the state to local governments. Its website says, "The state should continue to fund these services through progressive tax reform on the state level, and/or give local government more progressive tools to raise revenues."

How would Prop 42 affect state and local budgets?

That's not entirely clear.

Claims that local governments had filed for Public Records Act reimbursements going back to 2002 amount to about $9.7 million, according to a draft report of the Commission on State Mandates. That's part of the estimated $1.8 billion California owes to local governing bodies for state mandates, which Brown has increasingly sought to repeal. 

No claims have yet been paid, but are likely to be in the near future as the payment rules are devised by the Commission. Those costs are likely to amount to about $1.7 million in future years, the report said.

However, those old claims represent only 157 agencies, said LAO policy analyst Brian Uhler. If Prop 42 fails and more of the state's 7,500 public agencies file public records reimbursement claims, the state could be liable to pay far more.

The LAO's financial impact analysis of Prop 42, estimates the costs of reimbursing local governments for past compliance with the Public Records Act are unknown but are likely to be in the range of tens of millions of dollars annually.

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