Thursday, July 18, 2002
C.A. Rules State May Have to Pay for Local Boards’ Agenda Posting
By ROBERT GREENE, Staff Writer
The state may have to reimburse school advisory boards for the added cost of complying with tougher open meeting requirements, a state appeals court ruled yesterday.
The Third District Court of Appeal ruled that a change in public meeting laws, boosting the advance posting requirement for agendas from 24 hours before meeting time to 72, is a “higher level of service” under the complex web of state mandate legislation. Those laws were set up to assure that local governments are not stuck facing new state requirements without being given the money to fund the mandates.
But the court stopped short of upholding the Commission on State Mandates’ ruling that the requirements do impose a reimbursable state mandate. Instead, the court instructed the commission to consider whether the advisory boards, although part of an optional program, are virtually mandatory because the schools in question have no reasonable alternative to implementing them.
Although the ruling directly affects only Santa Clara County and school districts in Kern and San Diego Counties, it could have implications for a host of community based advisory boards that were set up as part of legislation establishing programs around the state.
Advisory boards came into being in the 1960s when Congress required that new federal funding programs for neighborhoods include input from community members on how to spend the money. Since then, states have added their own advisory board requirements on new funding programs.
But state law also requires that government meetings be open to the public, that agendas be posted and that the public be given an opportunity to comment.
The Ralph M. Brown Open Meetings Law applies specific requirements to sessions of city and county governments, local school districts, water boards and numerous other local agencies. Courts have found the Brown Act to apply to business improvement district advisory boards and private corporations set up by public agencies, among others.
In Los Angeles, the city attorney has advised the Department of Neighborhood Empowerment that the Brown Act applies to neighborhood councils.
The nine designated school site councils and advisory committees at issue in the Third District case came into being under statutes enacted in the 1970s and 1980s to implement a variety of programs, including migrant education, American Indian education, and general program coordination.
The councils and committees may or may not originally have been subject to the Brown Act, but they were specifically exempted by a state Education Code section that also implemented a greater 72-hour agenda notice posting requirement and required an opportunity for the public to speak. The Brown Act now also requires 72 hours notice
The Commission on State Mandates ruled that the requirement amounted to a reimbursable state mandate for the cost of preparing and posting meeting agendas.
The Sacramento Superior Court agreed. The court also ruled that a reimbursable state mandate is not created only when the council or committee subject to open meeting laws is required by law.
On appeal, the state argued that school districts do not have to participate in the programs or accept the money offered, so that as a matter of law any reasonable open meeting requirement imposed by the state is not a reimbursable state mandate.
In an opinion by Justice Rodney Davis, the Third District said the reasoning was imperfect.
“While the State’s position looks strong on the surface, there are cracks in the foundation,” Davis said.
In cases construing state compliance with federal unfunded mandates, Davis said, courts have looked to whether participation is practically compelled even if it is not legally required.
“The State’s narrow view of state mandate ignores the realities of how contemporary multilevel governments carry out much of their business,” Davis said.
The commission must consider whether the county and two school districts have a reasonable alternative or true choice not to participate in the educational programs, he said.
The case is Department of Finance v. Commission on State Mandates, C037645.
Copyright 2002, Metropolitan News Company