Public Forum Law Week in Review: 6/30/08


Open Government

Columnist: California Lagging in Openness
Thomas Peele, writing in the Contra Costa Times, compares Florida’s and other states’ transparency leadership with the lack thereof in California, and the telling results.

Public Information

Ruling for Privilege Let Stand as Precedent
The California Supreme Court has declined the request of Californians Aware and several other organizations to either take up for review or depublish (remove from case law as citable authority) an opinion of the Court of Appeal concluding that Proposition 59, the open government constitutional amendment enacted by voters in November 2004, did not eliminate a common law privilege insulating legislators from inquiry into their thought processes.

Magistrate Limits Secrecy in Prison Cases
The Associated Press reports that a federal magistrate has rejected an attempt by the Schwarzenegger administration to keep certain documents secret as courts decide whether to cap California's prison population. In pretrial motions, the administration sought to prohibit public disclosure of certain documents, including records classified as sensitive communications or part of internal deliberations.

City to Pay Fees in Successful Records Suit
The Redding Record-Searchlight reports that a Shasta County Superior Court judge has ruled that Redding must pay it $36,288 in attorney fees resulting from its successful lawsuit for records of a city hall personnel investigation. Eight employees were accused either of conducting multiple affairs during work hours on city property from early 2006 through mid-August, or exchanging excessive amounts of sexually explicit e-mail on city computers during work hours. Four were forced to resign.

LA Water/Power Chief Reveals Consumption
The Los Angeles Times reports that after urging Los Angeles residents to conserve water and energy, it turns out that H. David Nahai, general manager of the Department of Water & Power, has a lot to learn about conservation and life as a public official.

Legislative Update As Reported by CNPA
The California Newspaper Publishers Association’s Legislative Bulletin reports the status of several of the bills the association is sponsoring:

  • SB 1019, the bill by Senator Gloria Romero (D-Los Angeles) to restore public access to disciplinary information from peace officers’ civil service appeals, might get the support of the chairman of the Assembly Public Safety Committee (where it failed passage,0,2271628.story last week) if it were confined to disclosure of those charges that were sustained on appeal.
  • SB 1696 by Senator Leland Yee (D-San Francisco) is headed to the Governor’s desk after passage in the Legislature. It would prohibit a state or local agency from agreeing to keep information confidential or disclosable unless permitted to release it by the other party to the agreement, and would expressly provide that any public agency’s contract to have consultant conduct a review, audit or report is subject to the same disclosure requirements as other public records.
  • AB 2379 by Assemblywoman Noreen Evans (D-Santa Rosa), is paused, awaiting amendment or other action on the Senate floor, in the Inactive File.  The bill would speed the process of challenging a court’s order unlawfully sealing court records, and is opposed by powerful business lobbies and their lawyers, who say they are concerned with disclosure of trade secrets and other proprietary information. The newspaper publishers hope to work out a compromise.

Meanwhile, AB 2917 and SB 997, opposed rather than sponsored by the publishers, have passed the Senate and Assembly Health Committees, respectively, with healthy margins.  Both would make secret the investigative findings supporting state discipline or certification penalties against emergency medical technicians.

Public Records Disclosed Reveal . . .   

  • that the City of Rialto has spent $26 million in its response to the discovery of perchlorate in the local water supply in 1997; about $17 million went to lawyers’ fees and costs in the attempt to find and sue the polluters, according to the Sun in San Bernardino.
  • that the Los Angeles mayor's office, as well as residents who called the city's 311 non-emergency number, have regularly waited anywhere from two weeks to two months for alleys to be cleaned of illegally dumped trash, reports the Los Angeles Times.
  • that a nurse at a state prison in Monterey County collected $198,000 in overtime last year—bringing her total pay to more than $310,000; the chief investment officer for the state's pension system earned $403,000 in bonuses—for a total paycheck of $945,000; and a CHP deputy chief  collected a lump-sum payout of $103,000, even though she retired almost two years ago and collected no regular pay last year, according to a San Francisco Chronicle analysis of state workers' pay.

Free Speech

Court: Cops Violated Rights but Needn’t Pay
The Metropolitan News-Enterprise reports that a federal appellate court has ruled that a Grass Valley man’s proclamation—in block letters on his 1970 Volkswagen van—that he was a terrorist carrying a weapon of mass destruction was political hyperbole protected by the First Amendment. A three judge panel of the U.S. Ninth Circuit Court of Appeals concluded that police officers violated the driver’s constitutional rights by arresting him, impounding the van upon which he had painted the message, an forcing him to obliterate it. But the court declined to impose liability against the officers, holding that a reasonable officer could have concluded the message was not protected under existing precedent.

Fair Board Denies Public
Comment Right
The Orange County Register reports that the Orange County Fair Board may have violated state open meeting law when it denied the public the opportunity to comment before it approved a new policy on its directors’ entitlement to free tickets and other perks.

Free Press

Estrich: Paparazzi Beach Issue a Tricky One
Legal commentator Susan Estrich asks,“How do you tell the difference between the paparazzi who are chasing Matthew McConaughey and what most of us would think of as ‘legitimate photojournalists’ covering a politician's love shack on the beach?”

The Reporting That Justifies Press Freedom
Marisa Guthrie, writing in Broadcasting & Cable, explains why investigative journalism—on the air but elsewhere as well—is in a struggle to keep inquiring and exposing what the public needs to know when fewer are fewer are prepared to pay for it.

Open Meetings

Critic Faults City Attorney’s Surprise Firing
The Inland Valley Daily Bulletin in Ontario reports that Rialto City Council violated state law when it fired City Attorney Bob Owen during closed session of a January meeting, according to Richard McKee, President Emeritus of Californians Aware. The meeting's agenda said the council would evaluate the city attorney's performance, not that it would consider disciplining or terminating him.

Would-Be Congressman Denies Any Leak Link
The Lodi News-Sentinel reports that Republican congressional candidate Dean Andal denies that he played any part in San Joaquin Delta College trustees' alleged violation of open government laws.??A recent grand jury report charges trustees with leaking to developers closed-session information about a deal to build a satellite campus.

Open Courts

Closed Courtroom Prompts Recusal Motion

The Sacramento Bee reports that the continued arraignment of the suspected killer of a Yolo County Sheriff's deputy was derailed Friday by a surprise defense motion to prevent all Yolo County judges from hearing the case.  The motion alleges "judicial collusion" in the action by deputies who controlled courthouse security to lock the public, including the press and the suspect’s family, out of the June 18 arraignment, reserving access only to deputies and the slain officer’s surviving family.


Public Forum Law Week in Review: 6/20/08

Open Government

Vote on Sunshine Panel Member Surprises
The San Francisco Bay Guardian reports that the San Francisco Board of Supervisors, by a 9-1 vote appointed to a vacancy on the Sunshine Ordinance Task Force a favorite of the Board chairman with little open government experience or interest, instead of its own Rules Committee’s recommended candidate, “an attorney with experience using the Sunshine Ordinance and who other task force members had looked forward to working with.”

Board Twice Faulted for Sunshine Shortfalls
According to reports in the Tri-Valley Herald in Pleasanton and the Stockton Record, respectively, trustees of San Joaquin Delta College have been separately faulted for disregard of the open meeting laws by a grand jury report suggesting that a leak by one or more trustees to a favored developer concerning pending litigation issues discussed in closed session was a violation of the Brown Act, and a preliminary accreditation report by a team from the Western Association of Schools and Colleges. That document was said to include concern for ethics and open government lapses over the past seven years, including the recent extension of President Raul Rodriguez's contract though a series of illegal one-on-one meetings.  Rodriguez has refused to release the accreditation report.

Watchdog: Housing Process Rebuffs Public
An activist concerned with growth standards in Los Angeles laments, in CityWatchLA, the formidable barriers to effective citizen participation erected by city staff in its meetings, hearings and public records practices.

Free Speech

CalTrans Freezes Highway Sponsor Program
The North County Times reports that the California Department of Transportation has suspended its Adopt-A-Highway cleanup program at a time when the San Diego Minutemen, a controversial, anti-illegal-immigration group from North County, is waging a public battle over its right to participate.

Recall Signature Gathering Blocked at Store
The LA Chronicle website reports that the Raleys grocery market chain has obtained a 30-day temporary restraining order prohibiting signature gathering  near the entrances of its Suisun City store by a group seeking recall of the mayor and two city council members.

Open Meetings

Council Renounces E-Messaging while Meeting
The Santa Rosa Press-Democrat reports that City Council members are shutting themselves off from the text and e-mail worlds while they’re together officially, having adopted a ban on sending, receiving and reading electronically produced messages during their weekly meetings.

Brown Act Reform Bill Headed to Governor
SB 1732, a measure designed to restrain local government bodies’ maneuvers to reach decisions outside of public meetings, is poised to go to Governor Schwarzenegger’s desk after overwhelming, bipartisan approval in both the Senate  and Assembly. As explained by a committee consultant, the bill forbids a majority of the members of a city council, board of supervisors or other local legislative body from using a series of communications of any kind, directly or through intermediaries, to discuss, deliberate or take action  on any item of business that Brown requires to be dealt with in public.  But it allows agency staff to brief members in “separate conversations or communications” on any matter so long as the members do not use these contacts to violate that ban by interacting with one another using staff as intermediaries.

Paper Balloting Raises Brown Act Issue
The Monterey County Herald reports that directors of the Monterey Peninsula Airport District trimmed the list of applicants for a vacant board seat to three people by individually reviewing the eight applications and submitting each director’s top three picks to the board secretary, who used those rankings to select the finalists. The process was lawful so long as the records showing each director’s picks were open to the public, said one attorney.

Public Information

LA Water Agency CEO Won’t Tell His Usage
The LAist website reports that David Nahai, CEO and general manager of the Los Angeles Department of Water and Power, is both urging the public to conserve water and power and refusing to release his own home’s usage records to a journalist he accuses of harassing him.

Editorial: Police Union Wrongly Attacks Bill
An editorial in the Los Angeles Times criticizes a radio public relations campaign by the Los Angeles Police Protective League attacking a recently amended bill by Senator Gloria Romero. SB 1019 would allow local government agencies employing or reviewing the conduct of peace officers to resume the open hearing and public records practices concerning alleged officer misconduct that they used prior to a state supreme court decision two years ago forbidding such openness. The recent amendment confines the bill to a department “operating under a federal consent decree on the basis of police misconduct as of January 1, 2008,” which uniquely refers to LAPD.

Public Records Disclosed Reveal . . .
a pattern of what appears to be extravagant spending by Oakland Mayor Ron Dellums at taxpayer expense, “even as he suggests
shutting down City Hall for a dozen days and raising taxes,” according to KTVU-TV.
that at least 14 employees in the San Diego County Clerk's Office raised religious objections to performing gay wedding ceremonies but were told by their boss they couldn't pick and choose between marriage applicants, according to the San Diego Union-Tribune.

Open Courts

Deputies Lock Press and Public out of Court
The Sacramento Bee reports and calls for investigation of the action by Yolo County Sheriff’s deputies in locking the press and most of the public out of  the courthouse for the arraignment of a man suspected of murdering Deputy Tony Diaz on Father's Day. The slain man's family and dozens of sheriff's deputies were allowed into the courtroom through side entrances while the media and the accused man’s family were excluded

Public Forum Law Week in Review: 6/16/08

Open Government

Obama, McCain Introduce Spending Transparency Bill
The Secrecy News blog reports that Senators Barack Obama, John McCain and two others have introduced legislation to provide several valuable advances to promote openness and access regarding federal contracting information, including several key upgrades to federal data processing: collecting a broader range of data about contract details, combining citizen access and government-based oversight, monitoring compliance with regulatory protections, and making a number of technical improvements.

Garamendi Faults Closed Toll Road Meetings with Feds    
The Earth Times reports that Lieutenant Governor John Garamendi, citing serious concerns about the "extreme secrecy" surrounding the Orange Count
y area’s Transportation Corridor Agency (TCA) nonpublic meetings with a federal interagency committee, has sent a strongly worded letter to Jane Luxton, general counsel at the Department of Commerce's National Oceanic and Atmospheric Administration requesting a more open, public process.

Comment: Stealth in Pay Bargaining Leads to Giveaways

Writing in the Contra Costa Times, Dan Borenstein says the secrecy surrounding approval of government employee contracts needs to end, as San Pablo city officials recently demonstrated when they quietly slipped last-minute changes into a pension sweetener for the city's police officers.

Council Trio Forces Sunshine Ordinance onto Agenda
The Gilroy Dispatch reports that three of the seven members of the Gilroy City Council have instructed the city clerk to schedule a special meeting July 9 to address one of the trio’s proposed open government ordinance. It has been eight months since he submitted it for review, and the three said they have grown restless with the mayor’s slow pace.

State Department Cancels Secrecy Watchdog’s Access

Steven Aftergood, nationally known monitor of federal (and particularly national security) secrecy practices with the Federation of American Scientists’ Project on Government Secrecy, reports that his blog/newsletter has been removed from the distribution list for the U.S. State Department history publication "Foreign Relations of the United States" (FRUS) “after we reported on errors in several FRUS volumes on March 24 and 26, 2008.”

County Staff Gets CalAware Open Government Briefing
The Chico Enterprise Record reports that Californians Aware’s Terry Francke recently addressed a crowd of more than 70 city, county, and school employees and officials in Glenn County assembled for a three-hour presentation, at the invitation of a county supervisors, on the "top 10 points to remember" about access to local government meetings under the Ralph M. Brown Act and rules of the California Public Records Act.

Free Speech

Nazi Salute Case Heads Back to Court of Appeals
Two constitutional law professors explain the factors involved in deciding if a gadfly had the right to extend a mocking  but fleeting Nazi salute to a mayor at a Santa Cruz City Council meeting. The federal District Court in San Jose first ruled in favor of the city and dismissed the gadfly’s case. Then the U.S. Court of Appeals for the Ninth Circuit heard the case, and sent it back to the district court for trial. The judge dismissed the case again, and now the Ninth Circuit is preparing to hear it a second time.

State High Court Asked to Rule on Airport Status reports that the California Supreme Court has been asked by a federal appeals court to determine whether, for free speech purposes, an airport is a "public forum" under the state constitution.

Fresno Mayor Defends Criticism of Settlement     
The Fresno Bee reports that, called into court by a federal judge, Mayor Alan Autry defended comments he had made the previous week about a tentative settlement in a class-action lawsuit involving the city's homeless—comments which seemed to blame the judge.

Minutemen Seek to Regain Border Area Road Sign    
The San Diego Union-Tribune reports that the San Diego Minutemen have asked a federal judge to allow the group to reclaim a piece of Interstate 5 as its assigned spot in Caltrans' Adopt-A-Highway litter cleanup program and to restore the state road sign with the group's name.

Abortion Foes Headed to Court against City of Cypress
The Orange County Register reports that a lawsuit by an anti-abortion group over campus protest arrests at Cypress College seems headed for trial, after the Cypress City Council made no decision to settle; the issue involves the college's use of designated "free-speech zones" and whether non-student demonstrators are required to stay within their boundaries.

Gag Order Issued in Molester Relocation Case 
The Monterey County Herald reports that a judge has sternly chastised South County residents who "have been intimidating or possibly threatening" a neighbor who has since withdrawn his offer to rent his Bradley home to sexually violent predator James Lamb. The judge also issued an order prohibiting any court officer, public employee or state contractor from discussing the search for Lamb's future residence.

Court: Nurses Had Right to Wear Union Buttons   
The Spokane Spokesman-Review reports that, in a decision setting precedent for medical facilities in California as well, a federal appeals court has overturned a private hospital’s ban on staff nurses’ wearing of buttons stating “RNs Demand Safe Staffing." The decision was based on federal labor law, not the First Amendment.

CSU Teacher Allowed to Modify Her Loyalty Oath
The Los
Angeles Times
reports that a Cal State Fullerton lecturer who lost her job because she objected to signing a loyalty oath has been reappointed to teach next fall in an agreement worked out between the university and a national civil rights group.


Blogger: CHP Settlement Leaves Much in the Dark
San Diego Union-Tribune blogger Chris Reed says the recent almost $1 million settlement with a former CHP official, who said he was punitively hounded for reporting pension spiking abuses and challenging former Commissioner Dwight Helmick for the patrol’s top post, leaves unanswered questions about the politicizing of the agency and its leadership, a situation that he says “reeks” and calls for outside investigation—but not by Attorney General Jerry Brown.

Free Press

Reporter Subpoenaed in Grand Jury Leak Probe
The Washington Post reports that a Washington Times reporter has been subpoenaed to testify in a Santa Ana federal court about his sources for a 2006 article on a Chinese spying case in which he allegedly disclosed secret grand jury information.

Commentator: Shield Law Looks Bad for Business
Carter Wood, writing in Forbes, says many in the corporate world are seriously troubled by the potential damage from an overly broad federal media shield. But a reader response points out that one of his key points about the Apple case is factually inaccurate.

Moyers, Rather See Decline in News Coverage reports that Bill Moyers and Dan Rather told the Media Reform conference in Minneapolis recently that news coverage has deteriorated, and blamed it in part on decades of media consolidation that threatens American democracy.
Ken Starr Helping Lawmakers Curb Paparazzi reports that the man whose investigation of President Clinton provided reams of tabloid fodder is now working to help crack down on photographers working for the very publications his efforts once filled.

Bill Protecting Student Paper Advisors Advances reports that on a unanimous 10-0 vote, the Assembly Judiciary Committee has approved legislation to protect high school and college teachers and other employees from retaliation by administrators as a result of student speech, which most often happens when a journalism advisor or professor is disciplined for content in a student newspaper.

Student Paper Reaches Deal after Confiscation Flap
The Student Press Law Center reports that student editors at Eureka High School will not be permitted to reprint the April issue of the Redwood Bark—which the principal ordered removed from the racks three days after it was published — but they will be included in the reformation of school publication policies.

Student Paper Stays Alive after Flag-burning Flap
The Associated Press reports that officials at Shasta High School have reversed their decision to shut down a school newspaper that published a front-page photo of a student burning an American flag.

Judge Refuses to Reinstate Santa Barbara Journalists
The Associated Press reports that a federal judge has denied a request by the National Labor Relations Board to reinstate eight workers fired from the Santa Barbara News-Press, concluding that to do so would prevent the paper from exercising what it's asserting as its First Amendment right to combat union efforts to limit its exercise of editorial discretion.

Open Meetings

Editorial: Time for a Berkeley Sunshine Ordinance
Berkeley Daily Planet Editor Becky O’Malley comments on why city officials can be shy about more open government, and how citizen reformers are pushing for just that.

Comment: Public Panelists Need to Know the Rules

A commentator on notes what he calls a cautionary tale involving the Central San Pedro Neighborhood Council that should be a lesson to others whose board members don’t think that rules matter. Too many neophytes come to the neighborhood council table, he says, “believing they can all get along, work together, and obtain positive results. So, why worry about the rules?”

Complaint: Public Left Out of City Attorney Hire
An editorial in the Half Moon Bay Review takes issue with the city’s treatment of the hiring of a contract city attorney as a confidential “personnel” matter.

Public Information

AG: Names of Cops in Lethal Events Normally Public  
Attorney General Edmund G. Brown Jr.’s office has concluded in a published opinion that in response to a request made under the California Public Records Act for the names of peace officers involved in a critical incident, such as one in which lethal force was used, a law enforcement agency must disclose those names unless, on the facts of the particular case, the public interest served by not disclosing the names clearly outweighs the public interest served by disclosing the names.  The opinion conflicts with the policy of the Riverside County Sheriff’s Department, according to a report in the Press-Enterprise.

Case on Councilwoman’s E-mails Is Heard
The Tracy Press reports that its attorneys and those for the City of Tracy have presented oral argument to the California Court of Appeal on the question of public access to a councilwoman’s e-mails
exchanged with officials at the Lawrence Livermore National Laboratory when it was exploring the possibility of locating a bio-lab near the city.  Focus of the hearing: When the paper dropped the councilwoman as a party after the trial court ruled against it, did it torpedo its own case?

UC Witholding Facts on Its Animal Research   
The Sacramento Bee reports that the University of California has begun withholding public records that detail how animal research is done and what scientists hope to learn, saying when people know such things, it leads to crime.  But the California Newspaper Publishers Association reports that AB 2296, UC-sponsored legislation with a similar purpose, has been whittled down to simply prohibiting posting the name and address of a UC animal researcher on the Internet with the intent to "incite a third person to cause imminent great bodily harm to the person identified in the posting."

AG: Agency Networks Can Show Officials’ Data
Attorney General Edmund G. Brown Jr.’s office has concluded in a published opinion that if a county maintains a comprehensive database of property-related information that may incidentally contain the home addresses and telephone numbers of persons who are elected or appointed public officials, but who are not identifiable as such from the data, the law does not require the county to obtain permission from those officials before transmitting the database over a limited-access network, such as an “intranet,” “extranet,” or “virtual private network.” The law in question prohibits state or local agencies from “post(ing) the home address or telephone number of any elected or appointed official on the Internet without first obtaining the written permission of that individual.”

School District Won’t Release Employee’s Pay

The Gilroy Dispatch reports that San Benito High School District Superintendent Stan Rose has declined to release the pay status of a food service attendant who says she gave two recently convicted killers money to buy the handgun used to kill their victim.

City May Stop Keeping Certain Records
The Victorville Daily Press reports that juicy e-mails and old financial documents may not stick around city hall quite as long as they used to, as officials look to change their public records policy.

Secrecy Surrounds Most of Juvenile System
The Long Beach Press-Telegram reports that the laws restricting access to case information—even statistics with minors’ identities removed—keeps the juvenile court system largely protected from any examination by the press.

San Francisco Court Records Still on Paper
Thomas Peele, writing in the Contra Costa Times, reports that “Criminal court records in San Francisco are indexed for the public in a dozen or so binders containing thousands of pages printed on a dot-matrix system. The books resemble something out of the late 1970s and conjure up images of a mainframe computer bigger than a small house.”

Public Records Disclosed Reveal . . .
    • some of the factors that contributed to the suicide, in the Humboldt County Jail, of a young Hoopa tribal member with an IQ of 67; the records were obtained by college student journalists after they found that almost no one with information on the event was willing to talk to them, according to the North Coast Journal in Arcata.
    • that animals get sick, suffer and are put to death in needless numbers because of bad management at the Kern County animal shelter, according to a university study on the pound obtained by a humane treatment activist.
    • that a powerful Japanese gang boss who received a liver transplant at the UCLA Medical Center donated $100,000 to the hospital shortly after the surgery, according to the Los Angeles Times.

Open Courts

Public Allowed to Observe Juvenile Court Case
The Hollister Free Lance reports that after inappropriately ordering the public out of accused murderer Emilio Roman's juvenile court proceedings May 30, visiting Judge Alan Hedegard has released details of the hearing and San Benito Superior Court officials will allow the public into future proceedings in the case.