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The bill was introduced in response to an unpublished opinion of the Fifth District Court of Appeal (McKee v. Tulare County Board of Supervisors) holding that past actions or practices of a local legislative body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

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

Latest Media Access to Prisons Bill Nears Finish

While the U.S. Supreme Court decided in 1974 that  journalists had no First Amendment right to schedule personal media interviews with prison inmates, for the next two decades the actual policy of the California Department of Corrections was to honor media requests for interviews with willing prisoners.  But in 1996, after reports about inhumane conditions at Pelican Bay made the Wilson Administration uncomfortable, the department used “emergency” regulations to cut off the customary access, and over the years since then six bills passed by the legislature to restore it have been vetoed by Governors Davis and Schwarzenegger.

The latest effort, AB 1270 by Assemblyman Tom Ammiano (D-San Francisco), has passed the Assembly and on Tuesday cleared the Senate’s policy hurdle, the Public Safety Committee, on a 4-2 vote.  It now goes to the Senate Appropriations Committee for cost impact vetting, and if passed there it would go to its last vote on the Senate floor.

A report by a clearly partial organization (the press did not cover the hearing) nonethless conveys how the support base for media access to prisons has grown far beyond mere media urging. The main questions remaining: Will Governor Brown provide the seventh disingenuous veto message in the series?  And if he signes the bill, how many reporters do the shrinking newspapers have left to take advantage of the restored right to interview?

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.”

The Difference between Leaks and Whistleblowing

A whistleblower is an insider who wants to right a wrong and usually tries going up the chain of command to do it before going public, which is often the only option when his or her career suffers. A leaker is an insider who wants to get political attention to a situation—to generate either praise or criticism for a policy or practice—by using a reporter as a publicity outlet, almost always without career risk. Justice often depends on whistleblowers; politics often depends on leaks. We should not forget these distinctions, says David Sirota in Salon.

Lawsuit Challenges Officials' Use of Private Email

Can public officials use their private email accounts to conduct public business without having them scrutinized by those requesting to see them under the California Public Records Act?  That’s the issue raised in a lawsuit just filed in Placer County Superior Court by a citizen curious about  which groups have been having what influence on Auburn city council members on such issues as the recently failed ballot proposal to convert to charter city status.  Sara Seyddin reports for the Auburn Journal.