Petition: Free the Brown Act from Budget Suspense

CalAware has just created an online petition with Change.org, directed to key officials of the California Assembly: “Free the Brown Act from Budget Suspense!” We hope we can collect hundreds if not thousands of signatures as soon as possible, and we could really use your help.

To read and sign the CalAware petition, click here. It’ll just take a minute!

Once you’re done, please ask your friends and others on any personal discussion lists or social media sites you maintain to sign the petition as well, and to pass the word on to their circles. You can keep tabs on how the signatures mount up and what people are saying about the petition by checking the page now and then at the above link.

Let’s get the Assembly’s attention and let them know we’re keeping score. Use your First Amendment right of petition—that’s what it’s there for.  And at this point only a petition like this will allow the people to vote to free the Brown Act from the budget mess.

 

Brown Act Suspended? No, But Committee Thwarting Reform

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

Email             assemblymember.fuentes@assembly.ca.gov

Diane L. Harkey, R-Laguna Niguel (Vice Chair)

District Phone (949) 347-7301

Capitol Phone (916) 319-2073

Email             assemblymember.harkey@assembly.ca.gov

Bob Blumenfield, D-Van Nuys

District Phone (818) 904-3840

Capitol Phone             (916) 319-2040

Email             assemblymember.blumenfield@assembly.ca.gov

Steven Bradford, D-Inglewood

District Phone (310) 412-6400

Capitol Phone             (916) 319-2051

Email             assemblymember.bradford@assembly.ca.gov

Charles M. Calderon, D-Whittier

District Phone (562) 692-5858

Capitol Phone             (916) 319-2058

Email             assemblymember.calderon@assembly.ca.gov

Nora Campos, D-San Jose

District Phone (408) 277-1220

Capitol Phone             (916) 319-2023

Email             assemblymember.campos@assembly.ca.gov

Mike Davis, D-Los Angeles

District Phone (213) 744-2411

Capitol Phone             (916) 319-2048

Email             assemblymember.davis@assembly.ca.gov

Tim Donnelly, R-Hesperia

District Phone (909) 625-1038

Capitol Phone             (916) 319-2059

Email             assemblymember.donnelly@assembly.ca.gov

Mike Gatto, D-Burbank

District Phone (818) 558-3043

Capitol Phone             (916) 319-2043

Email             assemblymember.gatto@assembly.ca.gov

Isador Hall III, D-Los Angeles

District Phone (310) 223-1201

Capitol Phone             (916) 319-2052

Email             assemblymember.hall@assembly.ca.gov

Jerry Hill, D-South San Francisco

District Phone (650) 349-1900

Capitol Phone             (916) 319-2019

Email             assemblymember.hill@assembly.ca.gov

Ricardo Lara, D-South Gate

District Phone (562) 927-1200

Capitol Phone             (916) 319-2050

Email             assemblymember.lara@assembly.ca.gov

Holly J. Mitchell, D-Los Angeles

District Phone (310) 342-1070

Capitol Phone             (916) 319-2047

Email             assemblymember.mitchell@assembly.ca.gov

Jim Nielsen, R-Biggs

District Phone (530) 223-6200

Capitol Phone             (916) 319-2002

Email             assemblymember.nielsen@assembly.ca.gov

Chris Norby, R-Fullerton

District Phone (714) 672-4734

Capitol Phone             (916) 319-2072

Email             assemblymember.norby@assembly.ca.gov

Jose Solorio, D-Santa Ana

District Phone (714) 939-8469

Capitol Phone             (916) 319-2069

Email             assemblymember.solorio@assembly.ca.gov

Donald P. Wagner. R-Irvine

District Phone (949) 863-9337

Capitol Phone             (916) 319-2070

Email             assemblymember.wagner@assembly.ca.gov

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

Email             speaker.perez@assembly.ca.gov

This and That of Recent Interest

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 StallsAB 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

Journalists Get to Watch Idaho's Lethal Needlework

Our constitutional standards dictate that when the state punishes crime by killing the criminal, the act must be humane—not “cruel or unusual.”  Those states moving to lethal injection as a less brutal method of execution than, say, electrocution or gassing are thus left with only two real bases for legal challenge in this context. Do the injected chemicals themselves cause avoidable physiological torment once in the system, or does the search for an optimum blood vessel to inject involve needlessly hurtful trial and error?

The latter issue can be monitored by those the state permits to witness executions only if it is not hidden from them, but shrouding these preliminaries from observation has continued to be a practice in the State of Idaho until now, when journalists have convinced the U.S. Court of Appeals for the Ninth Circuit that a decision it reached in a case involving a San Quentin injection in the 1990s should set the standard for an impending execution in Boise: let the whole process be watched by those who with the right to watch it at all. Rebecca Boone reports the result for the Associated Press.

Most interesting detail: “They used a blood pressure cuff to enlarge the veins in his elbows, starting with the right, then the left. They cleaned his arms repeatedly with alcohol wipes to prevent infection — in case the execution was called off at the last minute.”

Kids in State's Child Welfare System Die in Shadows

California has lost ground in the ranking of states whose juvenile court and child welfare systems operate in transparency, and the result is a persistence in the deaths of children while wards of the counties, says a newly released study, “State Secrecy and Child Deaths in the U.S.”  The resulting C+ grade—down from an A- in the first such survey and compared with Nevada’s current A+—is documented in the excerpt below, which shows the number of points possible for each item, preceded by the number of points actually achieved.  The full report provides more context. Continue reading

A Sunshine Week Inspiration for the Rest of Us

The late I.F. Stone was a legend among fellow journalists, who gave him high praise for keeping a close eye on official Washington, D.C. But his admirer’s did not follow his example, which did not depend on a fierce competition for “access” to “informed sources” but rather a quiet, patient and tedious-seeming technique: He simply read publicly available government documents that few if any others did and reported what he discovered in his newsletter.

As this year’s Sunshine Week stirs proclamations and manifestos stressing the need for open government, it’s easy to forget that transparency assumes a citizenry that cares enough to scrutinize that which is made available. But how often do we encounter such persistent, painstaking watchdogs, with steady attention to open information rather than a clamor for details concerning a particular controversy, after which keen interest in public issues fades?  And how reassuring, even inspiring it is when we do come across the few who seem to pay close and constant attention to what public records show—and who share what they find interesting with the rest of us, not for pay but out of a sincere sense of public service? Consider this remarkable citizen profiled by Sena Christian in the Roseville Press Tribune (photo by Philip Wood). Continue reading

California Gets a D-minus in Online Transparency

Probably most people who think about “government transparency” as desirable would say that at a minimum what should be open, measurable and easy to understand is where the government gets its money and how it spends it. A study just released of how state governments across the nation use the Internet for this purpose shows California, home to Silicon Valley, failing its citizens’ expectations in this regard rather miserably. Here’s how the California Public Interest Research Group puts it. Continue reading