One week after Californians Aware and the online investigative news site Voice of OC filed suit against Orange County for release of a politically controversial letter, the county on Friday released a redacted version to local media generally. But, as noted in the report by Voice of OC Editor Norberto Santana, the release will probably not halt the Public Records Act lawsuit.
Should a deputy sheriff be barred by his boss from writing letters to the editor of the local paper with his strong and unorthodox views on criminal justice? That’s the question raised in a new First Amendment lawsuit filed in federal court in San Francisco, reports Amy Gittelsohn for the Trinity Journal. The plaintiff, for example, is critical of the war on drugs and thinks jury nullification has its merits.
Excessive secrecy is the cause for a lawsuit filed last Wednesday by the Los Angeles Times and Californians Aware, asking the superior court to declare null and void the May decision of the Los Angeles Memorial Coliseum Commission to approve a long-term lease of the historic sports facility to the University of Southern California. The commissioners’ meetings to discuss and develop all aspects of the deal, from last fall until just before the final approval session, were entirely behind closed doors. The Times and CalAware argue that most of the deal points—beyond the price to be paid and how payment would be made—are issues that should have been discussed openly, and they ask the court to order the process to be voided as unlawful, and to be open to the public if attempted again. The Times repeatedly called attention to the secrecy since last year, and CalAware warned about the Brown Act issue in March of this year. The lawsuit, including a copy of the court petition, is reported here.
There’s been a growing alarm in recent days about a rumored suspension of the Brown Act, with both citizens and public officials not sure what to think about what may be left of the open meeting law for local councils, boards and commissions. The good news is that the worst of the anxieties result from a hugely exaggerated understanding of what has happened and what the result might be. The bad news is that the path to a permanent end to such crises is vulnerable to the same species of dubious economy trigger that caused the crises in the first place. And an Assembly committee is using that trigger to make sure that the public gets no chance to end such situations.
You can change that situation if you act now, but only if you act now.
Background: The Revolt Against Unfunded Mandates
It is an ancient and accurate complaint that sovereign law mills like the Congress and the California Legislature freely impose on others rules (and their attendant costs) from which they exempt themselves. In California and elsewhere this inequity—some would say iniquity—burdens not only individuals and groups in the private sector but subordinate government agencies like cities, counties and special districts. Reacting to this phenomenon, the state constitution was amended in the post Prop 13 era to provide that whatever new burdens the legislature placed on local government from thence forward, the legislature must appropriate funds to pay for. There would be no new or higher level of local government activity mandated by Sacramento that Sacramento was unwilling or unable to reimburse the locals for—no “unfunded state mandates,” as the phrase went. No state subsidy? The mandate simply switched off; no one, including the courts, could force the locals to sustain the program or service.
The idea was and is fair, rational and appealing as a good government proposition in the abstract. But in some cases, the unanticipated consequences left most people baffled if not appalled. One of the prime examples was the effect on the Brown Act. After several “test claims” for reimbursement were approved by the Commission on State Mandates, cities, counties, school districts and special districts found that they could get a windfall of cash for doing something they had always done: preparing and posting meeting agendas for their governing and other bodies as mandated by Brown Act amendments passed in 1986—but as, in fact, routinely done anyway since time immemorial to satisfy practical and political expectations. Almost all other cost-triggering requirements in the Brown Act predate passage of the constitutional reimbursement requirement, but the 1986 amendments came thereafter, making even the modest bureaucratic tasks of preparing and posting agendas with a “brief general description” of items to be addressed, adequately spelled out in 20 or fewer words, a basis for demanding a state subsidy, on the theory that this requirement constituted a “new or higher level of service” justifying claims for reimbursement. All that was required was adequate paperwork to document the local agency’s costs.
Reimbursement Abuses, Enormous State Payables
The result was a temptation for local officials to err on the side of the creative in claiming costs for reimbursement. A 2011 report to lawmakers by the Legislative Analyst’s Office (LAO) cited as examples of claims by local noneducation agencies:
- County of Santa Barbara. For 384 meetings in 2005-06, the county claimed $78,044. The county claimed the “flat rate” (then $134 per agenda) for most of the meetings. For 41 meetings with lengthy agendas, the county claimed 30 minutes of staff time (at a $44.60 hourly rate) for each item on the agenda.
- City of Vista. For 109 meetings in 2005-06, the city claimed $20,174. The city claimed the flat rate for 90 shorter agendas. The city claimed 30 minutes of staff time (at a $46.17 hourly rate) to prepare each item on the other agendas. For example, the city council’s December 13, 2005 hearing included 35 agenda items; the city claimed $808.
- Mesa Consolidated Water District. For 74 meetings in 2008-09, the district claimed $12,852. Over half of the meetings were billed at the 2008-09 flat rate ($155 per agenda). The district claimed 33 minutes of staff time (at a $75.21 hourly rate) for each item on the other agendas. The district’s hourly rate includes costs for the general manager.
In recent years, the LAO report said, the total claims have accumulated at the rate of more than $20 million per year, with about $63 million “due and payable” to noneducation agencies alone by 2012. Thus the recent state budget action simply eliminated any plan to pay this amount, which in turn means that the posting of meaningful agendas in compliance with the Brown Act cannot be enforced by court action because the mandate to comply has been switched off by operation of constitutional law.
The risks to meaningful agenda disclosures have probably been overstated. Similar mandate suspensions have been triggered at least twice before since 1986, with no reported exploitations by local agencies, because they knew the public would notice and react heatedly and probably also because the procedural routines have been so woven into how meetings are prepared and documented that bureaucratic inertia guarantees their continuity. Even though the law might not hold public officials accountable for no longer posting agendas or providing adequate descriptions of items on them, angry voters would hold them accountable, and political exposure has always been a far more powerful motivator of Brown Act compliance than legal exposure.
Permanent Solution in Limbo for Political Reasons
The real problem is that legislation to allow the people to end this cycle of dubious reimbursement claims and mandate suspensions every few years is stalled in the Assembly Appropriations Committee: 17 lawmakers with the power to let a bill die based on its purported cost to the state. Senator Leland Yee’s Senate Constitutional Amendment (SCA) 7 would place on the statwide ballot a simple constitutional requirement: “Each public body shall provide public notice of its meetings and shall publicly disclose any action taken.” If approved by the electorate, that rule would always be enforceable in court because the reimbursement law applies only mandates passed by the legislature—not constitutional amendments, which are enacted by the people. Also, of course, the rule could be changed or removed only by popular vote.
SCA 7, introduced in January 2011, got unanimous bipartisan passage in the Senate Judiciary Committee in April and in the Committee on Elections and Constitutional Amendments and the Appropriations Committee in May, and on the Senate Floor in June. In July, the bill passed the Assembly Committee on Governmental Organization on a 15-0 bipartisan vote. But when it reached the Assembly Appropriations Committee in August it was placed on the “suspense file” for bills that have an estimated cost impact on the state of $50,000 or more. The bill has languished in that file for nearly a year now. The chance to gain passage in time to place the measure on the November ballot will lapse soon and if not removed from the file at all, the bill will die at the end of the session.
The officially given reason for consigning SCA 7 to the suspense file, as stated in the Appropriations Committee analysis of last August, is the impact of “One-time General Fund costs in excess of $250,000 to include analysis and arguments for and against the measure in the voter pamphlet for the next statewide election.” In other words, processing costs to make the public aware of what is up for approval. This sounds a lot like the local agencies’ questionable claims for high costs to prepare agendas; but this time, the price tag is set at a cool quarter million or more.
The Appropriations Committee majority can remove SCA 7 from the suspense file, pass it and send it to the Assembly Floor. That’s exactly what the Senate Appropriations Committee did a year ago—operating under the same procedural rules as its Assembly counterpart. What’s locking the bill up is clearly not policy or even fiscal prudence, but politics—influence of some kind that is impossible to pinpoint but decisive so far nonetheless.
How Citizens Can Free SCA 7 for the People to Decide
The committee members and their contact information are below. Nine of them can free the bill to proceed. If they plead conformity with the rules, remind them about the Senate Appropriations action and ask, “When was the last time that a constitutional amendment bill with unanimous bipartisan support—giving the people the chance to vote on their fundamental rights—died in your suspense file?”
Felipe Fuentes, D-Los Angeles (Chair)
District Phone (818) 504-3911
Capitol Phone (916) 319-2039
Diane L. Harkey, R-Laguna Niguel (Vice Chair)
District Phone (949) 347-7301
Capitol Phone (916) 319-2073
Bob Blumenfield, D-Van Nuys
District Phone (818) 904-3840
Capitol Phone (916) 319-2040
Steven Bradford, D-Inglewood
District Phone (310) 412-6400
Capitol Phone (916) 319-2051
Charles M. Calderon, D-Whittier
District Phone (562) 692-5858
Capitol Phone (916) 319-2058
Nora Campos, D-San Jose
District Phone (408) 277-1220
Capitol Phone (916) 319-2023
Mike Davis, D-Los Angeles
District Phone (213) 744-2411
Capitol Phone (916) 319-2048
Tim Donnelly, R-Hesperia
District Phone (909) 625-1038
Capitol Phone (916) 319-2059
Mike Gatto, D-Burbank
District Phone (818) 558-3043
Capitol Phone (916) 319-2043
Isador Hall III, D-Los Angeles
District Phone (310) 223-1201
Capitol Phone (916) 319-2052
Jerry Hill, D-South San Francisco
District Phone (650) 349-1900
Capitol Phone (916) 319-2019
Ricardo Lara, D-South Gate
District Phone (562) 927-1200
Capitol Phone (916) 319-2050
Holly J. Mitchell, D-Los Angeles
District Phone (310) 342-1070
Capitol Phone (916) 319-2047
Jim Nielsen, R-Biggs
District Phone (530) 223-6200
Capitol Phone (916) 319-2002
Chris Norby, R-Fullerton
District Phone (714) 672-4734
Capitol Phone (916) 319-2072
Jose Solorio, D-Santa Ana
District Phone (714) 939-8469
Capitol Phone (916) 319-2069
Donald P. Wagner. R-Irvine
District Phone (949) 863-9337
Capitol Phone (916) 319-2070
Finally, you might also want to send the same “Free SCA 7” message to Assembly Speaker John Pérez as well. His directive to the Democrat Caucus would almost certainly prompt two thirds of the Appropriations Committee to send the bill to the floor, where it would probably once again win overwhelming bipartisan passage.
John A. Pérez, D-Los Angeles (Assembly Speaker)
District Phone (213) 620-4646
Capitol Phone (916) 319-2046
SB 1003 by Senator Leland Yee (D-San Francisco) offers a way for local government bodies to avoid litigation by pledging to abandon meeting-related practices that prompt accusations of Brown Act violations–without conceding that they are unlawful. It also gives citizens the opportunity to demand and achieve such changes without having to file a lawsuit.
The bill was introduced in response to an unpublished opinion of the Fifth District Court of Appeal (McKee v. Tulare County Board of Supervisors) holding that past actions or practices of a local legislative body that were not persisting into the present could not be the basis for mandatory, injunctive or declaratory relief under Government Code Section 54960.
As introduced, the bill would have simply added the word “past” to the section, to allow such remedies “to determine the applicability of this chapter to past actions or threatened future action of the legislative body.” That would have brought the Brown Act in conformity with the Bagley-Keene Open Meeting Law, which already takes this approach.
But the League of California Cities and an array of other local government lobbies typically active on Brown Act measures argued that such a change would expose them to an unreasonably open-ended period of liability. They negotiated a more limited but also more complicated alternative with the co-sponsors of the bill, the California Newspaper Publishers Association (a party to the unsuccessful Fifth District action) and Californians Aware (whose founding president, the late Richard McKee, was the original plaintiff in the Fifth District action).
The resulting bill now awaits action on the Assembly floor after passage in the Senate and withdrawal of opposition by the local government lobbies involved in the negotiations. It provides dual actions “to determine the applicability” of the Brown Act: one with respect to “ongoing actions or threatened future action” by the body (essentially the existing approach), and the other concerning one or more past actions, where “action” means not only the “action taken” susceptible to a nullification lawsuit under Section 54960.1 but any practice suspected of violating any provision of the Act.
Cease and Desist Letter and Response
Under the latter novel procedure, the district attorney or anyone else would be authorized to send the body a “cease and desist” letter specifying an act or omission occurring on or after January 1, 2013 believed to violate one or more requirements of the Brown Act and demanding that the body commit not to repeat it. That letter could be sent at any time within nine months of the alleged violation.
On receipt of the cease and desist letter the body would have 30 days to respond with the following “unconditional commitment” as set forth in the statute:
The name of legislative body] has received your cease and desist letter dated [date] alleging that the following described past action of the legislative body violates the Ralph M. Brown Act:
[Describe alleged past action, as set forth in the cease and desist letter]
In order to avoid unnecessary litigation and without admitting any violation of the Ralph M. Brown Act, the [name of legislative body] hereby unconditionally commits that it will cease, desist from, and not repeat the challenged past action as described above.
The [name of legislative body] may rescind this commitment only by a majority vote of its membership taken in open session at a regular meeting and noticed on its posted agenda as “Rescission of Brown Act Commitment.” You will be provided with written notice, sent by any means or media you provide in response to this message, to whatever address or addresses you specify, of any intention to consider rescinding this commitment at least 30 days before any such regular meeting. In the event that this commitment is rescinded, you will have the right to commence legal action pursuant to subdivision (a) of Section 54960 of the Government Code. That notice will be delivered to you by the same means as this commitment, or may be mailed to an address that you have designated in writing.
Very truly yours,
[Chairperson or acting chairperson of the legislative body]
If the body within 30 days of receiving the cease and desist letter provided such a response, approved at an open session of a regular or special meeting as a separate item not part of the consent agenda, an action under Section 54960 would be barred.
If the body did not respond to this effect within 30 days of the challenge, the challenger would have 60 days to file the Section 54960 action. If the body provided an unconditional commitment after the 30-day period expired and the challenger had already filed the action, the action would be dismissed with prejudice, but the challenger would be entitled to attorney fees and costs incurred in the litigation to date if the court concluded that the filing of the action caused the body to make the unconditional commitment.
Formal Withdrawal of Unconditional Commitment
The body could rescind its commitment if it did so formally and conspicuously, at an open session of a regular or special meeting, as a separate item not part of the consent agenda, after at least 30 days written notice to the challenger—and to the district attorney—of its intention to do so.
The rescission would entitle the district attorney or anyone else—not just the original challenger—to consider the alleged violation to be impending and to file an action to “prevent(. . .) a violation or threatened future violation.”
Breach of Unconditional Commitment
If the body reneged on an unconditional commitment by repeating a practice it had pledged not to, that event would be an independent violation of the Brown Act, with potential civil and even criminal consequences, regardless of the validity of the practice under the Brown Act otherwise; that validity would not even be an issue in any civil or criminal action.
Date X Legislative body acts or omits to act in a certain manner.
X+9 monthsLast day for challenger to submit cease and desist letter.
X+9 months + 30 days Last day for body to respond with commitment to cease.
X+9 months+ 30 days
+ 60 days Last day for challenger to file action in court.
Shortest possible duration of process to filing of action: X+1day approx. (challenge letter)+2 days approx. (rejection of challenge letter approved in special meeting) +1 day approx. (action filed)
Total: Less than a week
Longest possible duration: X+9 months (challenge letter)+30 days (rejection of challenge letter approved in special meeting) + 60 days (action filed)
Total: One year
Workshop for Journalists on Getting and Using Public Records — David Cuillier, national Freedom of Information trainer for the Society of Professional Journalists, will conduct a workshop for reporters and other news and opinion writers on Tuesday, June 26, at the KQED offices in San Francisco. Admission is free for SPJ members and $10 for non-members. More
Bill to Make Secret Property Records of Criminal Justice Officials Stalls — AB 2299 by Assemblyman Mike Feuer (D-Los Angeles) failed to get even a motion in the Senate Committee on Governance and Finance Wednesday, despite a platoon of law enforcement lobbyists on hand to register their support. The committee consultant’s analysis of the bill gives a good sense of what it sought to do and why it stalled.
Ambitious Sunshine Ordinance on the November Ballot in Dixon — Residents of this small (18,000 plus) Solano County city will have the chance to go well beyond the Brown Act and Public Records Act in mandating open and accessible government for their community. For example, one rule would provide that the taxpayer would no longer pay the attorneys fees of those winning lawsuits brought to enforce the sunshine laws. That obligation would fall on the city attorney if his or her advice led to the violation, or the city official(s) who got good advice from the city attorney but disregarded it. More
Disclosing Classified Information Usually Doesn’t Break the Law — “It ain’t so much what we don’t know that gets us into trouble. It’s what we know that just ain’t so.” Variously attributed to Mark Twain, Will Rogers and perhaps others, this observation applies to political and legal facts everybody knows that, awkwardly, don’t square with reality. National secrecy-watcher Steven Aftergood points out, for example, that disclosing classified information may get a government employee fired, but it’s usually not a crime for either the employee or those who pass the information on. More