Court: Meeting Law Open to Constitutional Attack

Tories-gagged OPEN MEETINGS/FREE SPEECH — A federal appellate court held Monday that the Texas Open Meetings law may infringe officials' free speech rights to communicate with one another privately, reports the Reporters Committee for Freedom of the Press.

In a relatively brief opinion, the U.S. Court of Appeals in New Orleans (5th Cir.) held that elected officials have First Amendment rights to speak to each other in private. As a result, open meetings laws that prohibit private speech between elected officials have to pass stringent constitutional muster, the court said.

The case centers on two city council members who were prosecuted for violating the law by privately e-mailing each other. Their alleged crime was “acting as a quorum in exchanging private emails discussing whether to call a council meeting to consider a public contract matter,” according to the court.

The district attorney eventually dropped the charges in the case, but the council members argued in federal court that the law violated their First Amendment rights.

The trial court found that as elected officials, the council members' speech was not protected by the First Amendment. The appellate court found otherwise.

“The Supreme Court’s decisions demonstrate that the First Amendment’s protection of elected officials’ speech is robust and no less strenuous than that afforded to the speech of citizens in general,” Judge James Dennis wrote for the three-judge panel.

The unanimous appellate court then sent the case back to the trial court for review. It said the trial court had not properly considered whether the statute was constitutional under the “strict scrutiny” standard, and that it should do so now.

That standard requires that, if it will interfere with protected speech, a regulation must be narrowly tailored to advance a substantial government interest. Few laws are upheld as constitutional under this test.

However, the court said that determination in this case must first be made by the federal trial court.

The Texas attorney general’s office was a defendant in the council members' lawsuit. A spokesman for the office said: “We are evaluating our options on further appeal,” and for now the law remains in effect. The court's ruling, if allowed to stand, could lead to challenges of open meetings laws in other states as well.

Maybe, but rules prohibiting officials (with some exceptions) from having secret discussions on public issues they are elected to decide are likely to withstand strict scrutiny, once it is noticed that the precedents the court here relies on are about restricting public speech—communicating openly to the community at large.  Californians who take an oath to uphold the law as a condition of taking office on a local board or council make a commitment to abide by the Brown Act, which regulates the time, place and manner of their communications with one another, but makes no topic off-limits for their comments to one another or to the community. 

The Brown Act is moreover undergirded by a state constitutional provision that places, on the same plane of gravity as speech, petition, assembly or privacy, the right of "access to information concerning the conduct of the people's business," dictating that "therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny."

In any event, it's not clear from the few factual specifics in the opinion precisely what got these officials indicted, but it could be a tempest in a teapot. The plaintiffs were two of the four council members—a quorum—that were involved in the e-mail discussion; the other two, says this report, were given immunity for testifying against their colleagues before the grand jury. But if all the four were up to in their e-mail was discussing whether to put something on the agenda for a public meeting, one strains to see the big deal. Doing this is a lawful process in California when deciding whether to call a special meeting—one held at a different time or place from the routine meeting calendar.  The Brown Act says this decision can be made by either the presiding officer or a majority of the body. 

Government Code Section 54956. A special meeting may be called at any time by the presiding officer of the legislative body of a local agency, or by a majority of the members of the legislative body, by delivering written notice to each member of the legislative body and to each local newspaper of general circulation and radio or television station requesting notice in writing.

Obviously a majority's discussion whether to call a special meeting not only needn't (see emphasized language) but couldn't be confined to an open meeting, because that would lead to an infinite regress: special meetings called to decide whether to call special meetings called to decide . . . The notion that elected officials could be indicted for this use of e-mail shows how zealously transparency-minded Texas prosecutors and grand juries can be—and maybe how shortsighted is their legislature for setting this kind of trap in the first place.

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Pit Stop for Bill to Block Public Records Requests

OPEN GOVERNMENT — Stung by a unanimous stream of criticism from the state's top three
press an
d constitutional rights organizations, lawyers for the state
Attorney General's office said they have sidelined a bill aimed at
addressing abusers of the California Public Records Act while they give the issue further study, reports BAPolitix.com.

The bill, AB 520, was authored by Assemblywoman Wilmer Amina Carter
(D-Rialto) and had been officially sponsored by Attorney General Jerry
Brown. If enacted as written, the legislation would allow governmental
institutions and agencies to seek out court orders against individuals
whom they have deemed to be abusing or harassing the given institution
or agency through improper or "vexatious" records act requests.
The legislation was scheduled to be heard by the Assembly's Judiciary Committee on Tuesday.

Officials with the California Newspaper Publishers Association, the California First Amendment Coalition and Californians Aware
all filed protests against the proposed law, saying it would have a
chilling effect on the legal rights of Californians to monitor the
operations of local and statewide government. Those same officials
added that if a court finds the requester has made a request for “an
improper purpose,” it could limit or eliminate an agency’'s duty to
respond to requests in the future.

Deputy Attorney General Marc Le Forestier,
supervisor of the office's legislative affairs unit, said AB 520 has
been re-classified as a "two-year" cycle bill. Under that designation
the bill be kept in a legislative "holding" area and not acted upon.
The Attorney General's office and Carter, however, have until the end
of the year to decide whether to revive the legislation for
consideration in 2010 or let it die outright.

*****
Le Forestier said previously that examples
of Record Act abuse does exists. He said in one case a man filed a
records act request that ended up with the agency involved making
copies of 20,000 documents. When the agency was ready to release the
documents the man never showed up to pick them up. Another case of
seeming abuse involved a person who made 174 separate requests of one
agency over the course of a year. He declined to name the requestors or
the agencies involved, citing attorney-client confidentiality.

Terry Francke, general counsel of CalAware, applauded the decision by the Attorney General's office and Carter.

"(We believe) that it was a wise second thought by the sponsor and the author," Francke said.

The Attorney General may find it hard to convince lawmakers of the need for the bill by referring to a survey of state agencies that can't be shared with them or the public.

Mayor: Stand Down or "We have an officer"

OPEN MEETINGS — The Santa Cruz County District Attorney’s Office won’t file charges
against Scotts Valley Mayor Randy Johnson for having ruled a citizen speaker out of order and referring to the presence of a police officer at the April 15 council meeting, reports Press-Banner.com.

Fervent Target opponent Paul Bach, who heads the Responsible Local
Development political action committee, filed a complaint under the
Ralph M. Brown Act after Johnson stopped him from talking about
campaign finance by mentioning the presence of a police officer.

“It appears that Mr. Bach believed that his right to speak at the
meeting was cut off due to the content of what he was speaking on,”
Assistant District Attorney Kelly Walker said Tuesday, April 28. “The
city’s explanation was that he did not follow procedure.”

Bach had spoken for five minutes during public comment time about a
proposed Target development and requested that Johnson and Councilman
Dene Bustichi recuse themselves from all Target-related discussion and
voting. “He had a chance to talk about that until he was blue in the face,” Johnson said.

Later in the meeting, under an agenda item discussing Target landowner
Title Two Investment Corp., Bach continued talking about a potential
conflict of interest between a campaign contributor to Bustichi and the
Target project.

The council requires speakers to keep their comments to items on the agenda after the general public comment time.

After Bach and Bustichi interrupted each other several times, Johnson answered Bach:
“Believe me, we’re not going there, and if you wish to proceed we have an officer that can handle that.”

State Drops Its Stimulus for S&M Video Production

Images-37 PUBLIC INFORMATION/FREE PRESS — Nationally the question last week seemed to be which is worse: torturing or releasing records confirming it was done.  In San Francisco the question seems to be which is worse: a government subsidy for a torture porn producer, or publicizing the record confirming it was given.  But both disclosures' critics abhor the T-word.

As noted on Reason.com, Matt Smith of the SF Weekly recently reported that
California's Employment Training Panel (ETP)  was providing state-subsidized training to employees
of Cybernet Entertainment LLC.  The subsidy is from the California
Employment Training Panel (ETP), "an agency set up to make state
businesses more competitive with foreign and out-of-state ones by
paying contractors who train in-state workers. Cybernet's business, says Reason, is "high-quality, fetish porn videos."

According to another report, Cybernet insists

it is a legitimate tax-paying operation that should receive the same treatment from the state as any other business.
“We
are a legal business in the state of California,” said Daniel Riedel,
Kink.com’s Chief Operating Officer. “ We follow all of the state of
California laws.“

For three years Kink.com's employees have
benefited from the state-funded training program, which provided money
to allow its employees to take classes at a nearby organization, the
Bay Area Video Coalition (BAVC).

“BAVC was giving us training for
post-production skills,”said Riedel. He says the program allowed his
employees “to learn more about using tools like Final Cut Pro, Adobe
Photoshop — tools of the trade that anyone would use in any production
environment.”

Riedel says his employees were learning how to edit, shoot video, work with lighting and more. But
after the San Francisco Weekly newspaper made inquiries to the state
panel that oversees the funding, that training came to an abrupt halt.

In
a letter to BAVC, the employment training panel said it has a
long-standing policy that the adult entertainment industry is the
lowest possible funding priority, and that it was not aware that
Kink.com—under its legal business name Cybernet Entertainment—was
an adult web business. The state program is funded through California
business taxes.

The funding cutoff led to some interesting disagreement among attorneys as to whether this amounted to censorship forbidden by the First Amendment, Smith learned.

Peter Scheer, executive director of the California First Amendment
Coalition, says the government might be straying into a legal gray
area. "I think a fair reading of Supreme Court decisions in this area
would support the view that government can't deny all funding to
companies while allowing it to others, because the discrimination is
based on the expressive content that the companies produce," he said.

Ashutosh Bhagwat, professor of constitutional law at UC Hastings
College of the Law, was less certain. "The true answer is: The law in
this area is a mess," he said. "The government has some discretion in
choosing what speech it wants to fund, but not always. There's a
potential constitutional issue there."

Calvin Massey, also a Hastings professor of constitutional law, says
that's wrong: Constitutionally speaking, the government may refuse
training for pornographers if it so pleases. "My reaction is that
there's nothing unconstitutional about refusing to provide governmental
subsidies in the pornography industry," he said. "They're still
permitted to engage in that expression. They just don't get a
governmental subsidy. The government is free to make choices about how
it spends its money. Simply because it chooses not to subsidize
expression, or training for expression, doesn't mean [government
officials have] done anything that's not within their rights."

Indeed, in 1998's National Endowment for the Arts v. Finley,
the U.S. Supreme Court ruled that Congress enjoys wide latitude when
setting spending priorities that may affect certain forms of
expression. And in 1990's Rust v. Sullivan, the Supreme Court
ruled that the First Amendment was not violated by a U.S. regulation
that said family planning clinics could receive federal money as long
as they didn't discuss abortion. "The court said, 'The government is
free to subsidize speech it likes, and free to refuse to subsidize
speech with which it disagrees,'" Massey said.

More remarkable was the protest reaction reported by SF Weekly shortly thereafter, and what it was about.

Interestingly,
commenters didn't object to any stated opinion in the Matt Smith
opinion column. Rather, a running theme was that this piece of news—and one would have to seriously misunderstand journalism to think
government-sponsored S&M porn isn't capital-N news—should have
been suppressed to further the cause of free expression.


This
is a pretty perverse posture for members of a porn industry wont to
hide behind the First Amendment. But I'm told perverse postures are
standard fare at Kink.com's Old Armory headquarters.

More
enticing still, a commenter masked by the riotous moniker "Free Speech"
announced that torture-porn aficionados and their fellow travelers will
launch an actual pro-government-secrecy protest movement this weekend,
putting up posters, organizing a boycott, and demanding an apology from
SF Weekly for publishing information about the state porn subsidy.


Meanwhile, some of the more obvious questions remain unanswered.  Perhaps the most obvious: Why does porn video production need a state subsidy; is the market dwindling?

Audit Sting May Have Triggered Censorship Try

Images-36 PUBLIC INFORMATION/FREE PRESS — A recent audit of 18 Sacramento area public education institutions organized by Californians Aware (CalAware) shows serious ignorance of citizens' rights to public information—and may have prompted an attempt to censor the student journalists who conducted it.

On March 24, 11 journalism students from Sacramento State University on the staff of the student newspaper, The State Hornet, walked into the main offices of 14 school districts and charter schools, the Sacramento County Superintendent of Schools, the Los Rios Community College District, Sacramento State and the University of California, Davis.

They asked for copies of the statements of financial interest (Form 700s) filed by key elected and staff officers, which are required to be made public—no questions asked—within two days of the request, pursuant to the Political Reform Act of 1974. They also mailed letters to the institutions with a list of requests to see other public records as required by the California Public Records Act.

The resulting audit scoring deducted points not only for failing to produce the records at all or within the laws' deadlines, but for requiring the auditors to disclose their full names, affiliations, or purpose for asking, or to fill out a written form. Auditors also rated the agencies for the courtesy and helpfulness of the employees receiving the in-person request for the Form 700s—even if they were unaware of their legal obligations.

    Lowest score :     Legal Compliance 20   (F)           Customer Service   90 (A-)
    Highest score :    Legal Compliance 100 (A+)         Customer Service 100 (A+)
    Average score :   Legal Compliance 68   (C)           Customer Service   91 (A-)

But after
The State Hornet published its audit summary yesterday, News Editor
Chloe Daley was called into the office of Associate Vice President for
Public Affairs Gloria Moraga, where, Daley has told CalAware, Moraga
questioned her closely about the purpose of the audit, suggesting that
the number of records sought placed an unreasonable burden on the
campus and was journalistically irresponsible.

Late yesterday the following e-mail message was sent to student auditor Mitchell
Wilson, who had requested records from the Elk Grove Unified School
District, by an attorney with the district's law firm.

— On Wed, 4/22/09, Sloan R. Simmons <SSimmons@lozanosmith.com> wrote:

From: Sloan R. Simmons <SSimmons@lozanosmith.com>
Subject: Public Records Act Request to Elk Grove Unified School District (1336/01)
To: "'Mitchellw19@sbcglobal.net'" <Mitchellw19@sbcglobal.net>
Date: Wednesday, April 22, 2009, 4:31 PM

Dear Mitchell:

Consistent with my voice message from this afternoon, we
have been informed that Mr. Gonzales has requested that all
students withdrawal their Public Records Act requests
submitted in relation to a course at Sacramento State
University and that the article relating to information
sought in such requests has already been published in the
Sac State Hornet newspaper.  It is our understanding that
your records requests is pursuant to this activity and
course work.

As soon as possible, please confirm to me via telephone or
in response to this message whether you are withdrawing your
Public Records Act request so that I can direct District
staff to cease efforts relating to responding to your
request.

Sincerely,

LOZANO SMITH
A T T O R N E Y S  A T   L A W
Partnering For Excellence In Education and Government

Sloan R.  Simmons
Attorney
One Capitol Mall, Suite 640  | Sacramento, CA 95814
Phone:  916-329-7433 | Fax: 916-329-9050

The records sought in the audit were selected, and the student auditors trained, by CalAware, a Carmichael-based nonprofit group supporting open government which in the past four years has provided similar leadership in Public Records Act compliance audits of Fresno area agencies, 31 selected state agencies, and more than 200 state and local law enforcement agencies.

CalAware Executive Director Emily Francke commented:

We're grateful for the indispensable help of The State Hornet reporters and editors, and share their disappointment that the public contact employees at so many audited agencies were either unaware of or misinformed about the public's right to view and copy their officials' disclosures of financial interests, required by the Political Reform Act since 1974.
    Most of these public servants displayed, as indicated in the high scores for customer service, commendable courtesy and positive attitudes in dealing with the requests for these records. So they deserve far better training in what to do with such requests, and in particular how to ensure that they are referred to officials informed sufficiently to make a prompt and correct response.
    As for those supposedly informed school, college and university officials, and their lawyers—too many also seem to need an update on the California Public Records Act and the related case law and constitutional amendments that affect requests for information about employee discipline or expulsion data. These areas are not nearly as out of bounds for public inquiry as they appear to think.

»     Records Requested, and Why
»     Individual Agency Scores and Grades
»     Comment on Overall Audit Results
»     Request Samples

Mortgage Loan Regulation Bill Has Some Secrecy

Images-35 PUBLIC INFORMATION — Real estate reporters and other watchdogs take note: a bill moving through the Legislature on the regulation of mortgage loan originators calls for two kinds of report that would be exempt from disclosure under the California Public Records Act (CPRA).

SB 36 by Senator Ronald Calderon (D-Montebello) responds to last year's new federal law, the SAFE Mortgage Licensing Act, which is designed to enhance consumer protection and reduce
fraud by encouraging states to establish minimum standards for the
licensing and registration of state-licensed mortgage loan originators.  If a state has not adopted a regulation mechanism meeting SAFE Act standards by July 30 of this year, HUD is authorized to step in and enforce its own regulations. 

SB 36 would exempt broker-initiated activity reports from disclosure.

Business and Professions Code Section 10166.07.
        (a) A real estate broker who acts pursuant to Section 10131.1 or subdivision (d) or (e) of Section 10131, and who makes, arranges, or services one or more loans in a calendar year that are secured by real property containing one to four residential units, shall annually file a business activities report, within 90 days after the end of the broker's fiscal year or within any additional time as the commissioner may allow for filing for good cause. The report shall contain within its scope all of the following information for the fiscal year, relative to the business activities of the broker and those of any other brokers and real estate salespersons acting under that broker's supervision:
        (1) Name and license number of the supervising broker and names and license numbers of the real estate brokers and salespersons under that broker's supervision. The report shall include brokers and salespersons who were under the supervising broker's supervision for all or part of the year.
        (2) A list of the real estate-related activities in which the supervising broker and the brokers and salespersons under his or her supervision engaged during the prior year. This listing shall identify all of the following:
                (A) Activities relating to mortgages, including arranging, making, or servicing.
                (B) Other activities performed under the real estate broker's or salesperson's license.
                (C) Activities performed under related licenses, including, but not limited to, a license to engage as a finance lender or a finance broker under the California Finance Lenders Law (Division 9 (commencing with Section 22000) of the Financial Code), or a license to engage as a residential mortgage lender or residential mortgage loan servicer under the California Residential Mortgage Lending Act (Division 20 (commencing with Section 50000) of the Financial Code).
        (3) A list of the forms of media used by the broker and those under his or her supervision to advertise to the public, including print, radio, television, the Internet, or other means.
      (4) For fixed rate loans made, brokered, or serviced, all of the following:
          (A) The total number, aggregate principal amount, lowest interest rate, highest interest rate, and a list of the institutional lenders of record. If the loan was funded by any lender other than an institutional lender, the broker shall categorize the loan as privately funded.
         (B) The total number and aggregate principal amount of covered loans, as defined in Section 4970 of the Financial Code.
         (C) The total number and aggregate principal amount of loans for which Department of Real Estate form RE Form 885 or an equivalent is required.
     (5) For adjustable rate loans made, brokered, or serviced, all of the following:
         (A) The total number, aggregate principal amount, lowest beginning interest rate, highest beginning interest rate, highest margin, and a list of the institutional lenders of record. If the loan was funded by any lender other than an institutional lender, the broker shall categorize the loan as privately funded.
         (B) The total number and aggregate principal amount of covered loans, as defined in Section 4970 of the Financial Code.
         (C) The total number and aggregate principal amount of loans for which Department of Real Estate form RE Form 885 or an equivalent is
required.

     (6) For all loans made, brokered, or serviced, the total number and aggregate principal amount of loans funded by institutional lenders, and the total number and aggregate principal amount of loans funded by private lenders.
     (7) For all loans made, brokered, or serviced, the total number and aggregate principal amount of loans that included a prepayment penalty, the minimum prepayment penalty length, the maximum prepayment penalty length, and the number of loans with prepayment
penalties whose length exceeded the length of time before the borrower's loan payment amount could increase.
     (8) For all loans brokered, the total compensation received by the broker, including yield spread premiums, commissions, and rebates, but excluding compensation used to pay fees for third-party services on behalf of the borrower.
     (9) For all mortgage loans made or brokered, the total number of loans for which a mortgage loan disclosure statement was provided in a language other than English, and the number of forms provided per language other than English.
    (10) For all mortgage loans serviced, the total amount of funds advanced to be applied toward a payment to protect the security of the note being serviced.

SB 36 would also exempt certain examination or audit reports from disclosure.

Business and Professions Code Section 10166.11.
      (a) A real estate broker who acts pursuant to Section 10131.1 or subdivision (d) or (e) of Section 10131 and who makes, arranges, or services loans secured by real property containing one to four residential units, shall keep documents and records that will properly enable the commissioner to determine whether the residential mortgage brokerage, servicing, and lending functions performed by the broker comply with this division and with all applicable rules and orders made by the commissioner. These documents shall include, at a minimum, the documents described in Section 10148. Upon request of the commissioner, a real estate broker shall file an authorization for disclosure to the commissioner of financial records of his or her licensed business pursuant to Section 7473 of the Government Code.
    (b) Notwithstanding subdivision (a) of Section 10148, the business documents and records of real estate brokers described in subdivision (a) and real estate salespersons acting under those brokers are subject to inspection and examination or audit by the
commissioner, at his or her discretion, after reasonable notice. That real estate broker or salesperson shall, upon request by the commissioner and within the time period specified in that request, allow the commissioner, or his or her authorized representative, to
inspect and copy any business documents and records. The commissioner may suspend or revoke the license of the broker or salesperson if he or she fails to produce documents or records within the time period specified in the request.



He Wants Brown Act Rules in the Capitol

OPEN MEETINGS — A Republican Assemblyman has introduced M_bg a bill to apply the Brown Act's meeting agenda posting rules to the Legislature.  But ACA 8 is a constitutional amendment measure, and he'll need most of the Democrat majorities in both houses (two two thirds votes) to get it on the ballot.  The bill now sits in the Assembly Rules Committee, where it has yet to be further assigned.

The state constitution's open Legislature rules now say that meetings of each house and committee must be open to the public, except when held to consider specified matters, including employment and personnel, security, advice from legal counsel, and caucus matters. They also state that that no bill may be passed unless read by title on three days in each house, but the house may suspend thiis rule by a two thirds roll call vote.  Finally, they prohibit a bill from being passed until, with amendments, it has been printed and distributed to the members.

ACA 8 would further require a house or committee. at least 72 hours before a regularly scheduled meeting, to post an agenda containing a brief general description of each item to be considered, including items to be considered in closed session. The measure would also:

  • generally prohibit consideration of any matter not included in the agenda; require public disclosure of a writing provided to members of a house or a committee in connection with the consideration of agenda items unless the writing is exempt from the mandatory disclosure requirements imposed by statute;
  • require each agenda for a regular committee meeting to provide an opportunity for members of the public to directly address the committee on an item of interest to the public, before or during the committee's consideration of the item, that is within the subject matter jurisdiction of the committee; provide for the calling of a special or emergency meeting of the house or a committee upon specified notice to its members and the media; and
  • prohibit the passage of a bill in either house until the bill with amendments has been printed
  • and distributed to the members of the house at least 24 hours beforethe vote in that house on passage of the bill.

Author Kevin Jeffries (R-Lake Elsinore), a veteran member of several local agency boards and commissions, says what local officials have been grumbling for as long as the Brown Act has been around: that the Legislature imposes on local government several transparency standards that lawmakers in Sacramento have been unwilling to meet themselves. His newsletter says the provisions of ACA 8 would, among other things, "stop the current situation in which the general public and even
legislators are kept in the dark about details of legislation until the
last possible moment."