May 18, 2010
Taxation and Government Finance Committee
Land Use Committee
Legislative Committee
The following is for study only and has NOT been approved by the Taxation and Government Finance Committee, Legislative or Executive Committees or the Board of Directors.
Issue
Should state law be amended to require local governments to post agendas, etc. on their Web sites prior to any meeting?
Action
Optional.
Options
1. Sponsor legislation that would require local governments to post agendas, etc. on their websites and/or that eliminates the exemption provided to local governments from having to hold a separate meeting on new or increased fees prior to the hearing at which the fee is voted upon.
2. Support legislation that would require local governments to post agendas, etc. on their websites and/or that eliminates the exemption provided to local governments from having to hold a separate meeting on new or increased fees prior to the hearing at which the fee is voted upon.
3. Other.
4. Do Nothing.
Status/Summary
The Marin Association of REALTORS® approved a motion supporting amending state law to “require that those governed by the Brown Act post on their existing Web sites links to, or full and complete information about, upcoming meetings and public hearings. This information should include agendas, staff reports or other information that will be considered at those meetings, and must be clearly labeled and described.” If the locality has a Web site, it should be a relatively simple matter to post agendas and staff reports on the site. Such a requirement in state law would allow individuals interested in the actions of a particular local government to regularly check that locality’s Web site to get complete information about upcoming meetings. In addition or as an alternative, legislation could be introduced that eliminates the exemption provided to local governments from having to hold a separate public meeting at which testimony is taken prior to the hearing at which an increased or new fee is voted upon.
Discussion
Earlier this year, according to the Marin Association of REALTORS®, “the town of Tiburon did not disclose to the public that they were going to hold public hearings about a proposal to increase the fee for resale inspection reports from $150 to $250. We learned about the proposal only when a final vote was announced on the council’s next meeting agenda.” In response to inquiries from the association, “town staff claimed to have fulfilled Brown Act requirements by simply posting the hearing notice outside town hall and in the classified section of a local weekly newspaper.”
The association is concerned that the “Lack of full and complete advance public disclosure about the considerations of these proposals would help discourage or avoid public debate, dissuade public scrutiny and forestall the involvement of REALTORS® in the legislative process.” As a result, the association approved a motion that stated: “The Marin Association of REALTORS® supports amending the Brown Act to require that those governed by the Brown Act post on their existing Web sites links to, or full and complete information about, upcoming meetings and public hearings. This information should include agendas, staff reports or other information that will be considered at those meetings, and must be clearly labeled and described.”
Such a requirement in state law would allow individuals interested in the actions of a particular local government to regularly check that locality’s Web site to get complete information about upcoming meetings. In addition, as the association notes, “Thanks to search engines and key word alerts such as Google Alerts, Web sites are easy and effective ways for interested parties to learn about and follow the activities of local government bodies.”
C.A.R. has some recent experience with the issue of local governments not adequately providing information to the public regarding upcoming meetings. In October 2006, an issue briefing paper was considered by the Housing Opportunity Committee which stated that “Many local governments prepare staff reports concerning applications for development or variances to existing development…. Those reports, however, are not generally made available to an ‘applicant’ in advance of a hearing or meeting. Unquestionably, this places the ‘applicant’ at a competitive disadvantage …” In response, the Board of Directors approved a motion calling on C.A.R. to sponsor legislation requiring local governments to disclose staff analyses and recommendations concerning the development application prior to a public hearing on the application.
That legislation, Senate Bill 343, was introduced and signed into law in 2007. The measure requires that any writing (e.g., staff report) relating to a meeting agenda item distributed in the 72 hours prior the meeting also be made available for public inspection at the same time at which the writing is distributed to a majority of the members of the local body. SB 343 requires the local agency to designate a public location for inspection of the writing by the public. Interestingly, the bill states “The local agency also may post the writing on the local agency’s Internet Web site …” The recent motion by the Marin Association of REALTORS® envisions eliminating the discretion allowed local agencies with regard to posting staff reports and related materials – as well as agendas – on their Web site.
The Brown Act already requires local governments to post the agendas for upcoming meetings at least 72 hours prior to the meeting. Moreover, the Act provides that no action or discussion shall be taken on any item not on the posted agenda. There is no requirement that agendas – and, as noted above, writings – be posted on the local government’s Web site. However, if the locality has a Web site, it should be a relatively simple matter to post agendas and staff reports on the site. The Marin Association of REALTORS® is not proposing that all local governments be required to have a Web site but, instead, that if the locality has a Web site, that it be required to post agendas and staff reports on that Web site.
It should be noted that the Brown Act also requires that when a new or increased general tax or assessment is being considered that local agencies hold a public meeting at which public testimony is taken on the proposal. The meeting at which public testimony is taken must occur at least 7 days prior to the hearing at which proposed tax or assessment will be voted upon. In addition, the legislative body must provide at least 45 days notice of the hearing at which the new or increased general tax or assessment will be voted upon. As a result, since the Act requires that the notices of the meeting and hearing be provided in the same document, the public receives at least 38 days notice of the hearing at which public testimony will be taken on the new or increased general tax or assessment.
Unfortunately, fees are specifically exempted from the requirement for a separate public meeting at which testimony is taken prior to the public hearing at which a new or increased fee will be voted upon. Consequently, in addition or as an alternative to requiring that agendas and writings be posted on the locality’s Web site, legislation could be introduced that eliminates the exemption from the public meeting requirement that is provided to local governments when new or increased fees are being considered. Such a change would provide REALTORS® with at least 45 notice of the proposed fee increase, as well as with a separate meeting held 7 days before the hearing at which the new or increased fee is voted upon where REALTORS® could present their case on the fee proposal.
