Public Forum Law Week in Review: 7/31/08


Court: Ex-UC Livermore Lab Workers Lose
The Associated Press reports that the California Supreme Court has unanimously decided that two former Lawrence Livermore National Laboratory scientists are barred from suing over allegations they were fired for complaining about safety problems. The court cited the state's whistleblower law, which bars such complaints against the University of California as long as the school system seriously considers the grievance and makes a timely decision.

Open Government

Officials Resisting More Police Disclosure
The San Jose Mercury News reports that a San Jose open-government proposal to require broader release of police reports and other official records is facing stiff opposition from city administrators, who say the far-reaching recommendations would be costly and jeopardize crime fighting.

Columnist: Will Hard-Pressed Press Sue?
Contra Costa Times columnist Thomas Peele salutes the willingness of a Redding newspaper to pay for a lawsuit forcing the city to release public records.  That success also means the city will have to pay at least most of the paper’s attorney’s fees, but there’s always a risk that such litigation will not succeed and the paper will have to eat the fees.  With the newspaper industry in such dire financial straits, Peele wonders, will publishers continue to risk legal costs to keep public information public?

Irvine Will Put Citizens’ Privacy to a Vote
The Orange County Register reports that voters in November will weigh in on tighter restrictions on the city’s release of residents' personal information sent to City Hall, allowing officials to decide on a case-by-case basis whether to disclose information given to the city for a "limited specific purpose" and which the city has promised to keep confidential.

TV Station Audits Police Records Practices
Sacramento TV station KCRA Channel 3 reports that of a dozen area law enforcement agencies it audited recently to determine their compliance with the California Public Records Act, nine passed its tests and three failed.

Official: I Was Fired for Requesting Records
The Long Beach Press-Telegram reports that a member of the Cerritos Fine Arts and Historical Commission, relieved of his post by the City Council, says he plans to sue for infringing on his right to file a public records request.

Public Information

Public Records Disclosed Reveal . . .   
 . . . that, according to a report in the Los Angeles Daily News, even as city residents and employees are encouraged to curb their driving habits, many of the city's top elected officials are still driving SUVs or large sedans that get less than 25 miles per gallon and cost taxpayers thousands of dollars a year to keep on the road.

Free Speech

Recall Group Appeals Supermarket’s Ban
The Associated Press reports that backers of a movement to recall Suisun City Mayor Pete Sanchez and two council members have appealed a Solano County Superior Court ruling that restricts them from gathering signatures on recall petitions at the Raley's supermarket in the Heritage Mall.

Gospel Speaker Banned from Public Square
The Modesto Bee reports that after peaceably if loudly preaching almost every Saturday night for three years in a public plaza in downtown Modesto, a man was told by the city that he and his friends can no longer do so on Saturday nights, when the plaza is rented for $100 to a multiplex cinema theater located there; the ban has prompted a lawsuit.

ACLU Protests County’s Print Banishment reports that the ACLU of Sacramento called a proposed policy on the consent agenda for today’s meeting of the Sacramento County Board of Supervisors a "direct assault on the First Amendment of the United States and California Constitution" that would make County government buildings "No Free Speech Zones." The policy would, among other things, ban from County facilities any flyer, brochure or other printed materials not produced by the County.

Minutemen’s Sign Re-posted Near Border
The Los Angeles Times reports that an anti-illegal-immigration group's Adopt-a-Highway sign has been re-posted on Interstate 5 near the Border Patrol checkpoint in San Clemente after a federal judge ruled that it did not pose a danger to the public.

Animal Shelter Volunteer Files Lawsuit
The Union in Grass Valley reports that a volunteer at the Nevada County Animal Shelter has sued Sheriff Keith Royal and two of his officers in federal court for violation of her free speech rights, alleging she was terminated recently two days after she questioned one of the officers about "the propriety and legality of the planned euthanization of one of the kennel dogs.”  The complaint also alleges that volunteers were told “not to speak to the media or answer any questions from the media regarding shelter operations." 

Student Speech Defenders Fight for Fees
The Marin Independent Journal reports that the free speech case brought by a student journalist and Novato High School took six years and went all the way to the U.S. Supreme Court before the student won. But even that didn't end the dispute; the fight over legal fees, sought in the amount of $1.2 million, has now reached the California Court of Appeal.

Columnist: Climb Down and Get a Cause
“People are losing their homes and jobs in droves. The economy is falling apart. Thousands upon thousands of people are dying in the war in Iraq, writes MediaNew
s columnist Tammerlin Drummond. “But, heck, who cares about that when there are trees to save in Berkeley.”

Commission Nudged to Police ‘Robocalls’
Campaigns and reports that the California Public Utilities Commission is coming under fire from those who say it is not enforcing existing regulations on “robocalls”—automated political phone messages. It's the same story in a number of states that currently have laws on the books that restrict the practice: The laws are rarely enforced and actual penalties for violators are nearly non-existent.

Your Tax $ at Work, on W_ _d Suppression
Reasononline reports that earlier this year, when Mt. Shasta proprietor Vaune Dillman turned in his application to the federal Alcohol and Tobacco Tax and Trade Bureau (TTB) for approval of the label for a new beer he planned to start bottling, he included the design of the bottle caps. Shortly thereafter, the TTB advised him by fax that the slogan “Try legal Weed” was an impermissible “drug reference,” adding, “We do not believe that responsible industry members should want or would want to portray their products in any socially unacceptable manner.”

Kids Rebuked for Patriotic Song in Capitol
Capitol Resource Institute reports that students attending a youth leadership conference were reprimanded by capitol security on July 13 for singing “The Star Spangled Banner” and “God Bless America” in the state capitol rotunda. Officers of the Highway Patrol and the capitol sergeants-at-arms told the students that singing in the building was forbidden without a permit from the Joint Rules Committee.

College to Teacher: If Asked, Don’t Tell reports that an adjunct professor fired from San Jose City College for answering a student's in-class question about heredity and homosexual behavior has filed a federal lawsuit against the school.  June Sheldon’s answer in part mentioned that a particular scientist had found a correlation between maternal stress, maternal androgens, and male homosexual orientation at birth, but that his views were only one set of theories in the nature versus nurture debate. When another student complained, the school pursued the matter and ultimately fired Sheldon.

Free Press

Reporter Not Ordered to Name Source
The Los Angeles Times reports that a federal judge in Santa Ana has declined to order a reporter, who invoked his 5th Amendment protection against testifying, to reveal his source for information in a 2006 story on a grand jury probe into a conspiracy to send sensitive information to China. Earlier, as reported  in Steven Aftergood’s Secrecy News blog, the reporter explained to the court the importance of confidential government sources and their role in his work “related to the growing threat from the People’s Republic of China.”

Justice Demands Magazine’s Retraction
The Metropolitan News-Enterprise in Los Angeles reports that a justice of the California Court of Appeal has demanded that a national magazine retract an article asserting that he “turned to” the then-chief executive of Countrywide Financial Corp. for refinancing of his home and suggesting a relationship between the refinancing and a case before the court.

Columnist: Bank Crises Not Press’s Fault
Orange County Register columnist Jonathan Lansner writes that John Reich, the nation's top savings and loan regulator, missed the mark in a speech last week to a bankers’ convention in which he decried the media's purported role in fomenting financial turmoil that allegedly sank an S&L on his watch—IndyMac Bank of Pasadena—and has since haunted other bankers. Reich, he says, “seems troubled that some reporters want to ask experts what banks and S&Ls may be at risk, and then they have the audacity to then inform their audiences of those potential troubled institutions.”

Ex-Speaker’s Chronicle Column Faulted
SF Weekly reports that newsroom staff at the San Francisco Chronicle  are “sickened” by the newspaper’s decision to offer a regular Sunday column to longtime Assembly Speaker, ex-mayor and veteran lobbyist Willie Brown. For them, it says, “reading it became a game of Where's Waldo, in which players sought to find the greatest number of violations of the paper's ethical code.”

Videographer Claims Censoring Attempt
The Inland Valley Daily Bulletin in Ontario reports that a man who filmed a June 10 lecture by a Turkish diplomat at Claremont Graduate University now has a website criticizing the university, alleging it is trying to censor his film on the Internet.

No Charges Yet in Malibu ‘Paps’ Faceoff
The Los Angeles Times reports that a month after two June beach skirmishes between paparazzi and Malibu locals, despite video clips of the events seen worldwide on the Internet, the Los Angeles County Sheriff's Department has not charged anyone in the incidents, in part because many of the harassed ‘paps’ are unknown and unwilling to complain, says a department spokesman.

Another Student Paper Advisor Uprooted
The San Diego Union-Tribune reports that Fallbrook High School will not have a student newspaper in the coming school year, the apparent fallout of a move by administrators to remove the paper's adviser after he protested the censorship of an article and a student editorial.

Open Meetings

Quorum AWOL at Police Auditor Meeting
KMPH-TV, Fresno reports that Mayor Alan Autry's attempt to bring an independent police auditor (IPA) to Fresno was stymied when a meeting of the City Council set this week to decide on
whether to place the IPA position on the November ballot for voters failed to get a quorum when only three of the seven members showed up.

Paparazzi Ordinance Drafting Criticized
The Malibu Times reports that a freelance journalist and Malibu resident has accused the municipal leaders of having violated the Ralph M. Brown Act when by allowing a group of lawyers to work on drafting a paparazzi ordinance proposal behind closed doors; he told the Times he may sue.

D.A. Backs out of Brown Act Training Date
The Watsonville Register Pajaronian reports that an assistant district attorney’s concerns over a possible conflict of interest led him to withdraw from a Brown Act briefing session for the Pajaro Valley Unified School District’s board of trustees, who are already defending two lawsuits under the open meeting law.  The attorney representing the plaintiff in those cases called the conflict risk “illusory.”


Sunlight Foundation reports that at least 76 Congressional lawmakers have disclosed their fiscal
year 2009 earmark requests online; 46 more so far have foregone earmarks for
fiscal year 2009, while 10 (none in California so far) said they will not
disclose their earmark requests.

Californians listed as foregoing earmarks are Congressmen Campbell,
Nunes and Waxman; those who have disclosed them so far are Baca, Billbray,
Bono, Calvert, Eshoo, Honda, Hunter, Issa, McCarthy, McNerney, Tauscher and

No other members of the
California delegation, including the two senators, have been asked so far;
anyone can ask them, post the responses 
here to help complete the survey, and get links to the actual disclosures to date.

Agenda-related Records Rule Takes Effect

March 13, 2008 - Youngsville, LA Pic 3_thumb
As of the first of July, local public agencies
governed by the Brown Act must now see to it that any public record related to
a matter subject to discussion in open session that is made available to a
majority of the members of a legislative body less than 72 hours before a
regular meeting (i.e., after the agenda is posted) must at the same time make a
copy available for public inspection at a place listed on the meeting

SB 343 by Senator Gloria Negrete McLeod (D-San Bernardino)
also provides that “The local agency also
post the writing on the local agency's Internet Web
site in a position and manner that makes it clear that the writing relates to
an agenda item for an upcoming meeting” (emphasis added).
  Aside from the fact that this
provision, voluntary in any event, does not require the agency to specify which
agenda item the material refers to, two other points severely limit this bill’s
mandatory provisions: 

  1. although the mandate relates to a document distributed
    to the board only after the meeting agenda has been posted, there is no
    requirement that the agency separately announce the existence of the
    document(s) distributed to the body; and 
  2. even if someone were somehow to
    learn of the existence of the document(s), it is not clear whether the
    agenda-designated office or location must post the material for complete
    round-the-clock viewing in a public place even outside business hours, as is
    the requirement for the agenda itself.
    Many if not most agencies subject to the Brown Act post their agendas at
    the close of business on Friday, for a meeting Monday or Tuesday evening.

Adding to the confusion is the fact
that the Brown Act does not now require, and never has required, posting of
agenda-related documents distributed to the body
on or before
the 72-hour mark, even if directly referenced in the

Bottom line: documents
distributed to the body early may or may not be referenced on the posted
agenda; those distributed after that agenda posting may be required to be open
to review somewhere, but the agency need not alert the public that they are

Agencies with the habit
of acting transparently will no doubt do the right thing in this case and let
the public know where it can view the late-distributed documents in the run-up
to the meeting.
  But some will no
doubt rely on the gaps in SB 343 and catch the public by surprise with records
in the body’s hands that no one in the community knew were available to
  Or they may simply avoid
the bill’s coverage altogether by using special meetings for those matters
where they believe late-arriving
documents will be convenient. 

The California Association of Realtors,
principal sponsor of the bill, will presumably be keeping an eye on how it is
complied with.

As reported in the Berkeley Daily Planet, no city official will disclose which members of the Berkeley City Council supported or opposed the possible appeal of what may be the city’s most controversial court loss this year.  The council met in closed session for more than two hours last Thursday to consider its options, and afterward all that Mayor Tom Bates would say was that it would have taken five votes of approval for the city to appeal a recent judge’s decision allowing UC Berkeley, contrary to the city’s policy, to remove dozens of trees next to its Memorial Stadium to make room for a planned athletic training center.  And there weren’t five votes, he said.  Beyond that neither he nor anyone else would clarify who if anyone favored appeal, who opposed it or whether anyone even made a motion on the matter. 

Upon a challenge to the Council by former mayor Shirley Dean—who is hoping to regain the office from Bates in the November election—to be more forthcoming, no member would comment and the city attorney said that the Council did not decide either for or against appeal.

The Brown Act states that "Approval given to its legal counsel to . . . seek or refrain from seeking appellate review or relief" constitutes one kind of "action taken in closed session" that must be reported, together with the "vote or abstention of every member present."  Moreover the Act states:

As used in this chapter, "action taken" means a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.

(Emphases added) It seems evident that the Legislature wanted every “collective decision” reported, even if “negative,” once there is a “motion” or “proposal.” The Council’s position, apparently based on the city attorney’s advice, is that this evident accountability thrust can be dodged simply by avoiding a vote.  Avoiding a vote, according to this rationale, excuses the Council from even explaining who if anyone favored appeal, who argued against and who simply kept silent.

That this is not consistent with the Brown Act is suggested by three points. 

First, when inaction on a clear governmental option has great consequences, the decision-maker(s) solely vested with authority to act cannot avoid accountability by claiming not to have made a decision.  A governor or a court declining to intervene in the execution of a prisoner can hardly insist that no decision was made.  Members of a Sacramento legislative committee refusing to give a bill even a courtesy motion cannot plausibly insist they are not responsible for the measure’s death. Recently it was revealed that the White House, presented last December with an e-mail from the Environmental Protection Agency with a proposed regulation of greenhouse gases as pollutants, avoided engaging with the matter by returning the e-mail unopened.  Not even the President’s staunchest partisans would deny that, whatever the legal viability of this maneuver, it could not be defended in the political sphere as neutral. The choice to take no action is not action, but it is a decision.

Second, the very purpose of the Brown Act has always been, as its preamble first declared 55 years ago, political accountability: “The people insist on remaining informed so that they may retain control over the instruments they have created.”  A self-imposed vow of silence about how members dealt with a matter of heated public controversy mocks this legislative intent, especially when disclosure would have no prejudicial effect on the city’s position in a litigated matter.  What it would do is allow constituents who want to see an appeal—the city still has about two months to file such a notice with the court—to know which anti-appeal members of the Council need to be converted.  Such an exposure of litigation decisions to popular persuasion or pressure is typically repugnant to the attorneys in charge, of course, but the Brown Act does not authorize the total blackout on lawsuit-related communications to and from the public that the attorneys would find most convenient.  And even if it did, there remains the First Amendment right to petition.

Third, speaking of constitutional considerations, the Brown Act language requiring disclosure of closed session decisions is, under Proposition 59 of 2004 (amending Article I of the California Constitution), one of those statutes that “shall be broadly construed if it furthers the people's right of access” to the meetings of public bodies such as city councils. The Brown Act provision on closed session action reporting does not make the disclosure obligation dependent on whether there was a formal vote or not, or on the form used to present a proposal for action, or whether the result was a positive or negative decision. In the light of Proposition 59, should the Brown Act language be understood to allow a local body to keep silent—and thus insulate members from either personal accountability or informed persuasion—about who made what motion(s), who provided a second and who, instead of voting No, deprived the proposal of oxygen by simply refusing to vote?

This contrived secrecy may help those who don't want their positions known, but it needn't hinder those who do.

The Brown Act forbids members of local bodies from taking it upon themselves to reveal publicly the specifics of just who said what in closed session, assuming that the discussion was lawfully confidential in the first place.  But no law prevents a member from telling the public his or her position on a matter discussed in closed session, so long as that disclosure does not reveal what the member learned from being present in the discussion.  Any member of the Berkeley City Council, that is, is free to say something like, "I'll let the others speak for themselves, but here's how I'd like to see the appeal issue resolved—and here's why."

As the U.S. Supreme Court has said, "The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance."  Wood v. Georgia, 370 U.S. 375 (1960).

Public Forum Law Week in Review: 7/7/08


Open Government

Bills to Reduce Over-classification Approved
UPI reports that the U.S. House Homeland Security Committee has unanimously passed two bills authored by California Congresswoman Jane Harman (D-Venice) that would reduce excessive security classifications by the Department of Homeland Security.

Study: No Great FOIA Progress in 2 Years
A just completed study
by the Coalition of Journalists for Open Government shows that federal
departments and agencies made little progress in responding to Freedom
of Information Act requests, despite a two-year-old presidential
directive to improve service. The report, “An Opportunity Lost,” says
agencies cut staff and FOIA spending in 2007 and as a result failed to
take advantage of a sharp fall-off in FOIA requests to make significant
reductions in the backlog of unprocessed requests

Public Information

Governor Signs Bill on Access to Contracts
State Senator Leland Yee (D-San Francisco) reports that Governor Arnold Schwarzenegger last week signed into law Yee’s bill, SB 1696, to allow greater public access to government contracts as well as audits and reviews of public agencies.

Judge to Unseal Records in Facebook Case
CNET reports that the public will be allowed a peek at some of what was said two weeks ago during a settlement hearing in the long-running legal dispute between ConnectU and Facebook.

Biofuels Study Suppressed for Bush’s Sake?
The United Kingdom’s newspaper The Guardian reports it has a copy of a World Bank report concluding that biofuels have forced global food prices up by 75 percent—far more than previously estimated.  The report has been kept confidential, the paper says, to avoid embarrassing President Bush, who has linked higher food prices to higher demand from India and China. The World Bank study states, "Rapid income growth in developing countries has not led to large increases in global grain consumption and was not a major factor responsible for the large price increases."

Paper Presents Freedom of Information Site
The United Kingdom’s newspaper The Guardian devotes a page of its website to the English and Scottish Freedom of Information Acts, with both explanations of how the laws work, guides to using them, and a list of the paper’s own stories about open government issues, or made possible with information from government files obtained under the laws.

School District Short on Special Ed Facts
The Morgan Hill Times reports that school district officials gave few answers to the many questions asked of them via a special education-related California Public Records Act Request filed by a district parent and trustee, saying they just don't have the documents handy.

District Hospital Keeps Kaiser Deal Secrets
The San Diego Union-Tribune reports that most of the important details of a 2004 contract between the Palomar Pomerado Health District and Kaiser Permanente, including the amount of money involved, are secret because, district officials say, the contract is not subject to public disclosure.

Free Speech

Court: Abortion Display Lawful Near School
The Metropolitan News-Enterprise in Los Angeles reports that the U.S. Court of Appeals for the Ninth Circuit has ruled that pro-life advocates had a constitutional right to drive a truck displaying enlarged, graphic photographs of early-term aborted fetuses around the perimeter of a public middle school in Rancho Palos Verdes.

Minutemen Win Temporary Roadside Spot
Sonoran reports that in what the San Diego Minutemen call a total victory, a federal judge has granted them a preliminary injunction requiring Caltrans to reinstate their permit to participate in its Adopt-a-Highway Program segment along I-5, and reinstall its courtesy signs, during the pendency of a lawsuit to determine whether the anti-illegal immigration group has a First Amendment right to take part in the program near the border.

Court Order Bars Recall Petitioning at Store reports that Solano County judge Paul Beeman last week granted a preliminary injunction to Raley's, Inc. that allows the supermarket chain to ban petitioning by "Save Our Suisun," the group circulating petitions to recall three members of the city council, not only in its store, but also on the sidewalk in front and on the sides of its store in the Heritage Shopping Center in Suisun.


Warning: Bill Provides Tools for Police State
Wired magazine reports that Mark Klein, the retired AT&T engineer who stepped forward with the technical documents at the heart of the anti-wiretapping case against AT&T, is furious at the Senate's apparent intention to put an end to that lawsuit and more than 30 others with its approval of the FISA Amendments bill tomorrow. And a decision last week by the judge in one of the cases undermines one of the key rationales for telephone company immunity, reports the Electronic Frontier Foundation.

Wikileaks: Just Starting to Blow Whistles
Wired magazine reports that, after 18 months of publishing government, industry and military secrets that have sparked international scandals, led to takedown threats and briefly gotten the site banned in the United States, co-founder Julian Assange says Wikileaks is just getting started changing the world.

Open Meetings

Governor Signs New Ban on Serial Meetings
The Legislative Bulletin of the California Newspaper Publishers Association reports that Governor Schwaarzenegger last week signed SB 1732, a bill intended to revitalize the Brown Act’s prohibition against serial meetings. The signature concludes a year-and-a-half effort by Senate Majority Leader Gloria Romero (D-Los Angeles) and CNPA to overturn what the Bulletin calls “a bad appellate court decision that gave members of local bodies the green light to freely discuss the public’s business with each other outside a noticed, open and public meeting so long as no agreement was reached.”

Grand Jury Faults Building Deal Secrecy
The Woodland Daily Democrat reports that repeated viol
ations of the Brown Act involved in the negotiations to buy a former Blue Shield building for a new central office are among the complaints against the Woodland Joint Unified School District and its board of trustees in the Yolo County Grand Jury's final report, released last week; also reported—the district’s informal reply to the report, and the newspaper’s own editorial view.

Letter Seeking Resignation Questioned
The San Gabriel Valley Tribune reports that some Baldwin Park school board members have accused the city council of overstepping its bounds with a letter calling for trustee Sergio Corona's resignation.  But how the letter was approved is also an issue.

Open Courts

Court Denies Motion to Recuse Yolo Judges
The Sacramento Bee reports that, in the latest development stemming from the exclusion of the press and public from the arraignment of Marco Antonio Topete on a capital murder charge, Judge David Rosenberg denied a defense motion last week to exclude all the judges in Yolo Superior Court from presiding over the case. Topete's lawyer had sought to exclude the judges because the man Topete is accused of killing June 15—Yolo County sheriff's Deputy Jose Antonio Diaz—had worked as a bailiff in Woodland.