Petition for Release of Brown Act Rescue Bill Passes 300

More than 300 signatures have been added to Californians Aware’s petition launched last Thursday urging the state Assembly to allow voters to stop suspensions of Brown Act rules for budgetary reasons.  SCA 7 by Senator Leland Yee (D-San Francisco) would place on the next statewide ballot for voter approval an addition to the state constitution of the suspended requirements—posting of meaningful meeting agendas and disclosure of closed session actions, guaranteeing they could be no longer switched off to save money.

But SCA 7 has been sidelined in its final committee—Assembly Appropriations—since last summer, and it will die there unless acted on in the next month or so. CalAware’s onlne petition urges Assembly Speaker John Perez to order the bill voted out of committee and sent to the Assembly floor for final passage.

In updates on the petition page, CalAware:

• explains how local agencies could seriously exploit the mandate suspension despite continuing to post agendas (as many have publicly pledged to do),
• urges the public to report such “Brown Act Backsliders,” and
• shows how to find out which local agencies are contributing to the budgetary overload by submitting high cost claims for posting agendas and complying with other Brown Act mandates.

L.A. Times, CalAware Sue to Void Coliseum Lease

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.

Open Meetings Bill Offers Cease and Desist Solution

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:

To ______________________:

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.

TIMELINE

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

CalAware's Founding Executive Leaves for Nursing Career

Californians Aware Executive Director Emily Francke has resigned her post to pursue a nursing degree at Columbia University. “She put her career interest in medicine on hold eight years ago to launch and administer CalAware, and the time to move on after giving it such a fine start has arrived,” said Terry Francke, her father and the organization’s general counsel. A number of the administrative and support functions she provided will for the time being be supplied as contract services or by volunteer members of the nonprofit, he said.

He added, “I know that CalAware members and directors are saddened as I am by the departure  of such a capable person, but are also very happy that she will be doing something she has long wished for.

“Under her direction, CalAware has grown from a mere idea to a potent force in preserving and enhancing the rights of Californians to have an open and transparent government, a freely enquiring press, and a citizenry free to exchange facts and opinions without hesitation or hazard.

Emily has been  solely  responsible for CalAware’s excellent web site (http://calaware.org), its successful seminar and webinar series, and the impact of its audits of government compliance with public information laws.”

CalAware’s officers and directors—those most familiar with Francke’s work—added their best wishes as well.

“Emily, there are no words that could adequately express all our appreciation for the work you have done, the joy you have brought and the support you have provided to CalAware and (especially) to Terry. Thank you for your commitment and for your contributions to CalAware all these years. We will not be the same without you (and we will hold you responsible for that). Good luck in New York (and upon your return).”
– Dennis Winston, CalAware President and public interest litigator, Los Angeles

“It has been said that no one is irreplaceable, and as a rule, that is true. But there is always an exception to the rule and that exception is Emily Francke.  Her dedication to CalAware,  passion for open government, and ability to make everything work under all circumstances is immeasurable. We will miss her, but our loss will be the nursing profession’s gain.”
– Donna Frye, CalAware Vice-President and former member of the San Diego City Council (2001 – 2010)

“As CalAware faced voices of censorship, obstructionism and darkness all about, nurse anesthetist-to-be Emily Francke kept us all breathing and the organization alive and functioning. Her good spirits applied to all, including us old ink-stained wretches. Emily always had the right instincts, the right skills and the drive to help members as well as  protect and nurture the organization.”
– Tim Crews, CalAware Secretary-Treasurer and editor and publisher of the twice weekly Sacramento Valley Mirror

“Emily has been the backbone of Californians Aware since its inception. CalAware’s accomplishments would not have been possible without her.  While someone might follow in her footsteps, they could never fill her shoes.”
– Kelly Aviles, CalAware Vice-President for Open Government Compliance and attorney specializing governmental transparency, LaVerne

“Emily has been integral to helping pass some of the strongest open government laws in the country.   While her departure from CalAware is a loss to all Californians, I am certain she will return to play an equally important role in our state by helping those in medical need.”
– Adam Keigwin, CalAware Director and Chief of Staff for California Senator Leland Yee (San Francisco)

“What a long strange trip it’s been and we are fortunate to have had Emily along for the ride.  Her tenacity and ‘can do’ attitude made a real difference, no matter what the challenge. From audits of government agencies to monitoring the laws and the lawmakers who would destroy transparency for the sake of security or their own vested interests; Emily has been was a force for good.  CalAware and by extension, the people of California, owe her a debt of gratitude.”

– J.W. August, Director and President Emeritus of CalAware, and managing editor for 10News with KGTV, San Diego

“The contribution that Emily Francke has made to open government in California cannot be overstated.  Her attention to the necessary details of running an effective and vigilant watchdog group like CalAware has kept all of us in line and respectful of our common commitment and our differing perspectives. Emily now goes on to fulfill her professional goals knowing we will all miss her but wish her every success.”
– Julie Hayward Biggs, CalAware Director, and partner, Burke, Williams & Sorenson LLP

“Emily’s passion and commitment to open government and truth-telling is inspiring. I have found her simply dazzling to watch. Our loss will be a great gain to all those patients and practitioners who encounter her in her next professional life. Good luck, Emily! And please come home some day to California.”
– Marjie Lundstrom, CalAware Director and Pulitzer Prize-winning journalist at the Sacramento Bee

“Terry passed along his zeal and enthusiasm to Emily, much to our benefit.  Now her dream to become a medical professional means deferred years of further training, but she will breeze through that. We wish her every future success.”
– Dale Smith, CalAware Director and public relations consultant, Auburn

Why (Male) Doctors May Prescribe . . . Tort Reform

A Sacramento area hospital employee has just won a colossal damages award against her former employer for years of sexual harassment and humiliation—by doctors—but also for being fired when she blew the whistle to the human resources department. Her attorney explains.

Fort Ord Reuse Authority Sued for $ Records

How is $99.3 million in public funds being spent by private contrators to clean up the former Fort Ord for “re-use” by removing munitions and other explosives from the base? The Fort Ord Reuse Authority, a public agency, is saying it doesn’t know and doesn’t have the right to find out. A nonprofit group, Keep Fort Ord Wild, isn’t accepting that for an answer and has taken its public records request to court. Virginia Hennessey explains in the Monterey County Herald.

118 FOIA Cases Here; One Concerns Assassinations

A website based at Syracuse University shows 118 active Freedom of Information Act cases filed in the federal courts in California since October 1, 2009. The display shows seven cases filed  in Sacramento, eight in San Jose, nine in San Diego, 10 in Fresno, 21 in Los Angeles, 22 in Oakland, and 41 in San Francisco.

Court: Those Affected Can Sue to Block Forbidden Disclosures

Persons who believe that a public agency is about to release to the public information about them that the law requires to be kept confidential may sue to block the agency from doing so, the California Court of Appeal has ruled. But such a legal challenge was not able to bar a school district from releasing information to a parent the results of an investigation into charges of sexual harassment of a pupil by a teacher, the court concluded. Kenneth Ofgang reports for the Metropolitan News-Enterprise.

High Court: Wear Your Heart on Your Sleeve—But Not Here

You can wear the F-word on your back in your local courthouse’s corridors, the U.S. Supreme Court says, but in its own hushed lobby you can’t wear the words “Occupy Everywhere,” as a hapless visitor recently discovered.  Andrew F. Sellars reports for the Citizen Media Law Project.

"Bell" Tolls for Hard-to-Reach Meeting Agendas, Pay Talks

Thanks to the City of Bell kleptocracy scandal, local government bodies subject to the Brown Act must now post their agendas on the agency’s website, if there is one, unless they are advisory committees with no members who also sit on the governing body of the agency, and none of their members are compensated for attendance. The posting has the same advance timing as in the non-digital world: 72 hours out for regular meetings and 24 for special meetings. Also under AB 1344, effective January 1, special meetings may no longer be used for discussion or action on the compensation, including benefits, of the agency’s unrepresented (non-union) managerial talent, including both the chief executive and department heads.