Public Forum Law Week in Review: 12/17/07

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Open Government

Who Pays for His Travel        A secretive nonprofit funded by some of the state’s richest businessmen has spent more than $1.6 million for chartered jets, luxury hotels and private motorcades to ferry Governor Arnold Schwarzenegger and aides around Asia, Europe and Mexico in the name of promoting California trade, reports the Associated Press.  “The expenditures,” says the report, “—some dating back to Schwarzenegger’s first full year in office in 2004—haven’t been broken down until now because the nonprofit and the governor’s office decided to stop classifying the expenses as gifts to the governor. That move kept the bills off standard conflict-of-interest reports reviewed by journalists.”

How They Spent Their Day    The Sunlight Foundation has launched an online map display of how a handful of cooperating members of Congress who publish their schedules on the Internet spend at least part of their days in  meetings with selected constituents and others. So far the sole Californian cooperating is Rep. John Doolittle, (R-4th District, in the northeast corner of the state) who for example met on December 5 with the CEO of Blackwater USA.

Who Gets What Funding         The new USASpending.gov site, the product of a long Congressional struggle, allows users to search by (unclassified) contracts and grants, contractor names, congressional districts and lawmakers. The data can be easily downloaded and used. A "wiki" function gives users a chance to suggest changes and add information. Charts and rankings show to whom and where the bulk of federal dollars go.

Google Wants Gov        It soon may be easier to google your government. But Wikipedia-style collaboration and information-sharing by government officials and citizens probably will take some time. Those conclusions emerged from a Senate hearing last week in which efforts to make basic public information more accessible and searchable online got a boost from open-government advocates, Google and several senators on the Homeland Security Committee.

A New Chief in Town     Sacramento has just chosen a new police chief, Rick Braziel, who is committed, says City Manager Ray Kerridge, “to make the department more transparent and accountable.”  Just in time.

Free Speech? ?

?Curb Appeal Curbed?    The city of Napa has obtained a temporary restraining order against a frequent police critic who recently videotaped the homes of three officers for his public access TV show, releasing the addresses as well.

Costly Zero Tolerance    The Napa Valley Unified School District will have to pay at least $95,000 in lawyers’ fees under a settlement with five families who sued the school over its dress code, which among other things outlawed socks bearing an image of the Milne/Disney character Tigger.

Terrorism Support Ban Too Vague    The Ninth U.S. Circuit Court of Appeals has struck down portions of a federal law that prohibits providing material support or resources to a designated foreign terrorist organization, saying the law fails to specify what such conduct includes. A group of six organizations, including the Humanitarian Law Project headed by retired federal Administrative Law Judge Ralph Fertig of Los Angeles, challenged the law in 1998, complaining that their peaceful activities in support of the Kurdistan Workers Party, or PKK, and the Liberation Tigers of Tamil Eelam could be construed as providing material support under the act. The plaintiffs wanted to offer legal expertise and training to the groups on the topics of negotiation and how to utilize humanitarian and international law to their benefit. They also sought to advocate politically on behalf of Kurds in Turkey and Tamils in Sri Lanka.    The Ninth Circuit opinion in Humanitarian Law Project v. Mukasey noted that an ordinary person would not understand what was forbidden by the prohibitions on “training” and “service,” or by the prohibition on “expert advice and assistance” by way of “other specialized knowledge,” and also that the terms could still be read to include speech and advocacy protected by the First Amendment.

Whistleblowers?

Tales Out of School        Public education, no more a hospitable career for those reporting fraud, waste or abuse than any other, finds two more examples in recent reports:
    • The distinguished dean of the UC San Francisco Medical School, Dr. David A. Kessler, was told last Thursday to clean out his office before the weekend, after calling for an audit of the school’s finances after finding figures that didn’t add up; and
    • The State Department of Education, having lost a whistleblower retaliation lawsuit detailing particularly brutal and corrupt misconduct and resulting in a jury verdict of liability to the tune of $4.5 million, then after appeal having lost the retrial to the tune of $7.6 million, is now apparently going to appeal a second time and seek a third trial, having spent about $1.3 million on outside lawyers to date.  At stake is the reputation of former Superintendent of Public Instruction Delaine Eastin, which has suffered potentially severe damage in the litigation so far, and would have suffered more had the appellate opinion not been ordered unpublished and had the press paid the case more attention.

Open Meetings

Frail Friends    More than a century ago Lord Alfred Douglas, later to be linked with Oscar Wilde’s downfall, wrote of “the love that dare not speak its name.” Now the ethos has altered wildly, and cities are submitting briefs as friends of the court supporting the legal challenge to California’s ban on gay marriage.  But Sacramento’s city council wants it both ways—the lawyers stepping forward boldly to argue for the right in court, but only after their clients, the elected council members, have mulled the pros and cons of such a move in the protective cover of a closed session on “pending litigation.” But the Brown Act limits the use of that species of closed session to situations where open discussion could “prejudice the position of” the city in a lawsuit—not a risk when it’s not even a party.

Public Officials’ Right to Know    Two Irvine City Council members are questioning how a national search for a new chief executive at the Orange County Great Park last month yielded two top finalists with ties to City Hall, fueling an ongoing controversy over how leaders for the massive public works project are chosen.

Public Information

Secret Spending on Litigation    The Ventura County Star is seeking a court order to force the Oxnard Union High School District and its insurer to turn over information about how much they’re spending to fight a lawsuit filed by a former employee. Court records show that the agencies’ attorney fees through May were at least $340,000. Encino lawyer Dennis Walsh says his law firm’s invoices to the district  are exempt from California’s Public Records Act because they are "records pertaining to pending litigation."

FOIA Improvement Gains     The U.S. Senate unanimously approved legislation Friday that would strengthen the much beleaguered Freedom of Information Act. The passage of the bill, sponsored by Senators Patrick Leahy, D-Vt., and John Cornyn, R-Texas, was seen as a breakthrough by the open government community. As summarized by Rebecca Carr of Cox Newspapers, the OPEN Government Act would:
“• restore meaningful deadlines for agency action under FOIA;
“• impose real consequences on federal agencies for missing FOIA’s 20-day statutory deadline;
• clarify that FOIA applies to government records held by outside private contractors;
• establish a FOIA hotline service for all federal agencies; and
• create a FOIA Ombudsman to provide FOIA requestors and federal agencies with a meaningful alternative to costly litigation.”
An earlier attempt to overhaul the 41-year-old law has been stalled since August over disagreements between the House and Senate versions of the bill.  But could California Congressman Henry Waxman, sponsor of the House version, still scuttle the legislation?

Scholar Barred from Bar Data    A researcher who wants historical data on the background of applicants for the California bar exam to study the effects of affirmative action on law students was turned down last month when bar governors said they were obligated to protect the students’ privacy. The board of governors unanimously backed its Committee of Bar Examiners, which months ago rejected the request by UCLA law professor Richard Sander.

E-mail Preferred As Contact    In response to the position taken by the San Francisco City Attorney that private e-mail addresses must be redacted when releasing city records “because it would be disturbing for someone to receive a message at home,” sunshine advocate Kimo Crossman notes, “Nearly two-thirds (65 percent) of executives prefer to receive email over other forms of communication, up from 34 percent a decade ago, according to a study conducted by OfficeTeam, a staffing service catering to administrative professionals.”

Public Records Released Disclose . . .
• A Glendora school maintenance employee who in 2003 poured toxic herbicide down a city drain was paid more than $100,000 this month after she sued the district, arguing her firing was unfair.
• A $50,000 study by some of the state’s largest water agencies completed last summer estimates it would cost between $3.3 billion and $3.7 billion in 2006 dollars to build an unlined, 46-mile peripheral canal to divert water around the Sacramento-San Joaquin River Delta and deliver it to thirsty customers to the south.

Free Press

Coparazzi        Police on duty at traffic accident scenes have been known to get in the faces of news photographers or even seize their cameras, claiming to be protecting the privacy of the victims.  That fact makes this incident especially awkward.

Statewide News Stand     See every day’s front pages from many larger daily newspapers in California beginning with the fifth row down here.

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Public Forum Law Week in Review: 12/7/07

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(CalAware Weekly comprises this plus the previous three posts)??

Open Government

State of Denial    In September Governor Schwarzenegger vetoed AB 1393, which would have convened a one-year study into what kind and degree of information held by the state on public matters should be made readily available on the Internet.  With respect to this provision the veto message stated, “Such a task force and such additional statutory changes are also unnecessary.  My Administration’s commitment to the Public Records Act is unwavering and I am confident future Administrations will share this attitude.”  Now the Stockton Record notes a report from a Washington, D.C. think tank ranking states “on how well Internet users can access information about lobbying efforts, contracting and subsidies within their states. California ranks down with Louisiana and Mississippi.”  Lobbying information on line here is pretty good, but the contract award information requires the viewer to create a spreadsheet to make much sense of the data, and, says the Record,

It’s in the subsidy area where California fails, according to the report. No information about tax breaks such as those in enterprise zones or conservation easements—both widely used in San Joaquin County—is available on the Internet.

Mystery Travel Sponsors    The Sacramento Bee reports that an obscure nonprofit that funds the governor’s worldwide travels has abandoned – at least temporarily – its long-standing practice of hiding the identities of its donors.

Presidential Records    CalAware and dozens of national organizations have sent a letter asking Senate Majority Leader Harry Reid essentially to ignore the hold a single Republican Senator has placed on a bill to repeal President Bush’s executive order taking ex-presidents’ papers off the public record, and bring that bill to the Senate Floor.  So far no result, but meanwhile the White House has decided not to appeal a judge’s decision partly invalidating the executive order.

Free Press   

Who Leaked?     Brent Wilkes, the defense contractor convicted of bribing former San Diego Congressman Randy “Duke” Cunningham, was denied a fair trial because of a prejudicial leak from the grand jury revealing that he was likely to be indicted.  That’s the theory of Wilkes’ imaginative defense lawyer, Mark Geragos, who’s asked a federal judge to subpoena the journalists who printed the indictment prediction, to find out who leaked it to them.  The judge at first rejected the request but then was said to be reconsidering. If the judge were to issue the subpoenas, the journalists in question could be in the same kind of bind as two reporters for the San Francisco Chronicle, who nearly went to jail for refusing to name their source for information from a federal grand jury looking into the BALCO sports steroids allegations. The only thing that saved them was their source’s voluntary identification as such early this year. Subpoenas issued in the Wilkes case could also rekindle support for a federal shield law for journalists; that legislation has passed the House and is pending in the Senate but has raised at least some objections from journalists on principle and others as more trouble than it’s worth.

Backing Out of Court    A union local at the Los Angeles Department of Water and Power has dropped a lawsuit against the Daily News and agreed to pay the newspaper’s attorney fees.  The suit, asserting personal privacy interests, attempted to force the paper to remove from its website the salaries, identified by name and position, of more than 8,000 DWP workers.  The suit was dismissed on an anti-SLAPP motion that noted in part that public employees’ compensation is presumed to be a matter of public record.

Public Records

Prices Slashed 
  Los Gatos is the latest in a succession of cities whose police departments have greatly reduced the fees they charge victims and others needing copies of crime or accident reports for insurance purposes.  No one seems to deny that what prompts these cutbacks is CalAware’s most recent audit of law enforcement public information practices, which exposed a goodly number of departments charging many times the direct cost of  copying for these and other frequently requested documents (tape recordings and photos), apparently on the suggestion of consultants recommending that they maximize their revenue.

School District Sued     The Willows-based Sacramento Valley Mirror, published by CalAware board member Tim Crews, is suing the Chico Unified School District for records concerning the demotion of a controversial junior high school principal several years ago.

Hot Topic    Newspaper editors: Want to start a frenzy of online comments to a news story?  Write about the paper’s efforts to get e-mails and other records concerning a scandal in which so far one clerical employee has been fired, another forced to resign and four others disciplined after an internal investigation into extramarital affairs at city hall. See the many but mixed reactions.

D.A. Opposing Disclosure    Santa Clara County’s District Attorney is siding with the San Jose Police Department in rejecting a proposed sunshine ordinance provision that would allow limited public access to the investigative files of closed criminal cases.  The argument seems to be that a D.A. is a state official charged with enforcing statewide laws, and how she does so (including the use of police investigations) would be hampered by greater public scrutiny, and thus local policy-makers like city councils cannot direct their police departments to be more open.

Cops Cry Foul    CalAware’s recent audit on Public Records Act compliance and customer service was unfair to the San Jose Police Department, a spokesperson told a city committee, in part because the department never received its written request.  CalAware scored the department with a D for legal compliance and a B for customer service in the second visit in October, up from a combined F a year ago.  The auditor’s detailed report shows several problems with how he was treated.

Records Released Reveal . . .?
A newspaper, to its pique, finding that the Mayor’s month-old calendar fails to list his visit to its editorial offices; the U.C. sywstem hierarchy all abuzz about how to manage public impressions of President Robert Dynes’ resignation, and how to justify continuing his pay for a terminal year of greatly reduced responsibilities; and a board member of the California’s stem cell research support agency improperly lobbying the agency staff to give a grant to a scientist at his own La Jolla research institute.

Open Meetings?

Punt to the A.G.
   Is the extension of a $1.75 million loan to a merchant by a redevelopment agency a matter that should be approved in a closed session ostensibly concerning real property negotiations?  That issue will now be referred to the California Attorney General for an opinion,  by agreement of the Covina Redevelopment Agency and the Los Angeles District Attorney’s office, which had taken the RDA to court on the matter but dismissed the action recently.

What’s So Special?    An Encinitas City Council member has ended her boycott of closed sessions but continues to protest the council’s practice of treating those on pending litigation as special meetings, although held routinely an hour or so before the weekly regular meetings, thus cutting the notice period from 72 to 24 hours. That maneuver is apparently for the convenience of the contract city attorney, who is not full-time.

Bait and Switch?    A Bakersfield couple may sue the Kern High School District for introducing and adopting a novel proposal at a meeting when members of the public had come expecting to argue for or against a different proposal.  Both proposals involved hanging a poster with the words “In God we trust” in every classroom.