Awareness Area: Government

Bill to Bring Sunshine to Local Agency Contracting

A bill soon to be considered in a final hearing in the Assembly Appropriations Committee would mean that local agencies that have enacted COIN ordinances (to provide more transparency to its bargaining with employee unions) would be required to enact similar sunshine provisions for its  negotiations with private goods or services contractors. COIN-adopting agencies so far include the City of Costa Mesa the cities of Fullerton and Beverly Hills, Orange County and the East Bay Municipal Utility District. Costa Mesa, the first to adopt a COIN ordinance, did so out of concern for unfunded public employee pension obligations. The “Labor Strikes Back” parity provisions in SB 331 by Senator Tony Mendoza (D-Montebello), dubbed The “Civic Reporting Openness in Negotiations Efficiency Act,” or CRONEY, would apply to the negotiation of any contracts with private persons or entities worth at least $50,000 as well as any series of contracts with a cumulative worth of that amount within the fiscal year of a city, county, city and county, or special district. For those agencies it would apply to contracts for services in the areas of accounting, financing, hardware and software maintenance, healthcare, human resources, human services, information technology, telecommunications, janitorial maintenance, legal services, lobbying, marketing, office equipment maintenance, passenger vehicle maintenance, property leasing, public relations, public safety, social services, transportation, or waste removal. The applicable contract negotiations would be governed by the following rules, in the language of the bill. The city, county, city and county, or special district shall designate an unbiased independent auditor to review the cost of any proposed contract. The independent auditor shall prepare a report on the cost of the contract and provide the report to all parties and make it available to […]

CalAware Lawsuit Threat Leads to More Disclosure

A Brown Act lawsuit threat by Californians Aware against the City of Manhattan Beach, although withdrawn based on new information from City Attorney Quinn Barrow, has led to a policy of more complete disclosures on meeting agendas about what facts and circumstances have prompted the need for a closed session consultation with counsel on potential litigation. On June 15 CalAware warned the city council it would sue unless the city remedied its failure to specify what situation triggered a closed litigation session on March 17. Barrow responded that an oral statement to a fellow worker by an employee in December credibly signaled a possible lawsuit alleging the employee was passed over for a merit raise due to unlawful discrimination. That possibility led city staff to negotiate for the employee’s departure with a satisfactory severance package. This bargaining ended at the March 17 meeting, when the closed session on potential litigation was followed by an announcement that the city and the employee had reached an agreement under which the employee would resign and be paid six months’ salary, benefits, unused vacation time and retirement contributions totaling about $115,000. The existence of the litigation threat was not mentioned on the March 17 meeting agenda, and was revealed to Kelly Aviles, CalAware’s Vice President for Open Government Compliance and chief litigator, only after she filed the litigation warning. In a message to Aviles sent Tuesday, Barrow said, “the Council will have a closed session tomorrow on the following items: 1. PUBLIC EMPLOYEE ANNUAL PERFORMANCE EVALUATION (Government Code Section 54957) Title: City Manager 2. CONFERENCE WITH LEGAL COUNSEL–ANTICIPATED LITIGATION Government Code Sections 54956.9(d)(2) and 54956.9(d)(4) On June 16, 2015, the State Water Board adopted a final order resolving the […]

CalAware Sues L.A. Supervisors for Serial Action

Californians Aware today filed a lawsuit seeking a court declaration that the Los Angeles Board of Supervisors violated the Brown Act last August when its members privately and serially signed letters to the Legislature and the Governor opposing a bill intended to strengthen . . . the Brown Act. The petition in Californians Aware v. Los Angeles County Board of Supervisors also seeks a court order prohibiting the Board  from using a series of communications, either directly or through intermediaries, to discuss, deliberate, and take action on specific legislation, outside of a noticed and public meeting. CalAware went to court, according to General Counsel Terry Francke, only when the Board rejected its demand to publicly renounce the practice of discussing or acting on legislative issues outside of open and public meetings. County Counsel Mark Saladino takes the position that the personal signature gathering, accomplished by walking the staff-drafted letter opposing the bill from one Supervisor’s office to another, was a mere formality.  The Board’s opposition, he says, was already approved in two previous ways. First, it acted by its December 2013 adoption of a general policy platform for the 2014 legislative session which authorized staff to oppose any legislation creating an undue burden or cost on county operations, but which mentioned neither the Brown Act nor any legislation concerning it. Second, it acted by receiving with no objection a succession of memos to the Board from the executive and lobbying staff, tracking the progress of AB 194 and indicating an intention to oppose it “unless otherwise directed.”  The memos were never discussed at open meetings of the Board, which never saw any mention of AB 194 on their agendas either; instead, the  memos were posted […]

Senate Resistance to Sunshine Clashes with Public Poll

A Sacramento judge tentatively ruled last week that the state Senate must provide the press and public with copies of the appointment calendars and travel schedules of two former state senators now under indictment on charges of public corruption. The ruling rejected arguments by the Senate’s lawyers that the records were exempt from disclosure under the Legislative Open Records Act (LORA). That transparency law is far shorter and more general than its counterpart governing access to executive branch and local government files, the California Public Records Act (CPRA). LORA comprises only 11 exemptions: • “Preliminary drafts, notes, or legislative memoranda”“Records pertaining to pending litigation” • “Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy” • “(T)he names and phone numbers of senders and recipients of telephone and telegraph communications” • “(T)he name and location of recipients of automotive fuel or lubricants expenditures” • “(Records) in the custody of or maintained by the Legislative Counsel” • “In the custody of or maintained by the majority and minority caucuses and majority and minority consultants of each house” • “Correspondence of and to individual Members of the Legislature and their staff” • “Records the disclosure of which is exempted or prohibited pursuant to provisions of federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege” • “Communications from private citizens to the Legislature” • “Records of complaints to or investigations conducted by, or records of security procedures” Despite the arguments of the Senate’s lawyer on Friday in reacting to the tentative ruling, there is no provision stated or implied in these exemptions for scheduling disclosures that might be used to compromise lawmakers’ safety.  […]

CalAware Sues for Asset Forfeiture Records

Californians Aware has filed suit against the City of Baldwin Park for failing to provide access to records showing how it justifies claims for “equitable shares” of cash and property seized by the federal government in its civil asset forfeiture program. The city has one of more than a dozen smaller police departments in Los Angeles County that have been supplementing  or even supplanting their operating budgets with their take of spoils confiscated in federal drug crime investigations. To justify their share, local law enforcement departments must submit detailed applications to the federal Department of Justice showing how they assisted a federal investigation. Copies of the “DAG-17″ application forms are, under federal regulations, required to be on file with the departments submitting them. But as discovered by CalAware and the author of the recently released report from the Los Angeles-based Drug Policy Alliance—critical of abuses of the “equitable sharing” program—most of the cities surveyed did not produce the records, either denying that they had them, referring requests to the Department of Justice, claiming that they were exempt from disclosure under the California Public Records Act (CPRA) as records of a law enforcement investigation, or simply failing to respond at all to the CPRA requests. In commenting on the suit, CalAware General Counsel Terry Francke said, “Civil asset forfeiture is itself not well known to most people but highly controversial among those who do, except the local police agencies that profit from it.  The practice was vividly illustrated recently by satirical journalist John Oliver on an episode of his HBO show, ‘Last Week Tonight,’ which also looked at what local police departments do with their shares of the confiscated cash and property. “The Drug Policy Alliance’s […]

Judge Voids College President’s $400K Severance

A Los Angeles Superior Court Judge yesterday ruled, in a case brought by Californians Aware against the Pasadena Community College (PCC) district board, that the board violated the Brown Act last year when it failed to spell out what “existing facts and circumstances” created a “significant exposure to litigation” against the district to warrant a closed session with counsel.  The unprecedented penalty: an order declaring null and void the board’s $400,000 plus severance payment to the college’s outgoing President/Superintendent, Dr. Mark Rocha. The Brown Act’s normally required disclosure of who has created a litigation threat against against the local agency—and why— in order to warrant a closed door consultation with legal counsel can be disregarded if the body asserts that those facts and circumstances are not yet known to the potential plaintiff, i.e. that revealing them might tip the potential plaintiff off that he, she or it has an actionable grievance.  The PCC’s legal counsel took this route in refusing to identify the threatening facts and circumstances justifying two closed sessions August—falsely, as it turns out, since the potential plaintiff, Dr. Rocha, already knew those facts and circumstances, having created them by quietly threatening to sue for defamation based on some unflattering remarks allegedly made by one of the trustees. The legal counsel’s refusal to disclose that much—that Rocha had threatened to sue on those grounds—was an indisputable Brown Act violation, Judge Joanne O’Donnell concluded in the tentative ruling prompting her order nullifying the board’s decision to pay Rocha more than $400,000 to settle his defamation claim, and directing the board and Rocha to correct that violation and report back to the court.  The board’s choice is to either appeal the judge’s decision or re-do […]

Water Consumption’s No Longer a Private Matter

As of today, with Governor Brown’s emergency water consumption restrictions, the Legislature can no longer justify a law that keeps secret how much water is used by whom. In 1997, the Legislature quietly passed, with no opposition, an amendment to the California Public Records Act making secret the information held by local public utility districts showing how much water or energy is being used by customers, both residential and commercial. SB 448, sponsored by the City of Palo Alto, was initially explained as a means of protecting the privacy of individuals—specifically their contact information such as home addresses and phone numbers contained in utility billing records.  Such specifics on the public record could be used by criminals to track their targets to their homes, as in the case of Rebecca Schaeffer, who was murdered by a stalker in 1989 using then open DMV information, said Sher. But by the time the bill reached final approval, a second rationale was offered by the League of California Cities, representing municipal utility districts.  As remarked in a committee consultant’s analysis of SB 448, the League’s industrial “parity” argument noted that investor-owned utility companies (e.g., Pacific Gas and Electric, Southern California Edison) are not subject to the disclosure requirements of the Public Records Act. Consequently,  investor-owned utilities are able to carefully protect the confidentiality of proprietary business and customer information.  In order to remain viable and competitive, therefore, municipal utilities must be able to offer the same degree of confidentiality protection as investor-owned utilities, the League argues. In other words, protection for business interests as well as for personal privacy dictated that utility customers’ water and energy consumption, documented in local government records, be kept secret, with some narrow exceptions: if […]

Sunshine Week Takeaway Tools from CalAware

As Sunshine Week 2015 winds up, Californians Aware offers two publications for use year round in working for governmental transparency. The free resource is a 50-page CalAware Guide, Community Watchdog: An Investigative Checklist, providing basic explanations of the Brown Act, the California Public Records Act and the judicial branch’s law providing access to information on how the courts are run, with insights and suggestions going beyond the basics as well.  And coming to Amazon.com in April is the fully updated second edition of The CalAware Guide to Open Meetings in California, first published in 2006. A foreword to the Community Watchdog guide observes: Sunshine laws like the Brown Act and the California Public Records Act (CPRA) are in themselves no guarantee of preventing the kind of bureaucratic organized crime that former elected and appointed leaders of the City of Bell were prosecuted for. Those crimes were said to have involved such practices as misappropriation of public funds by city council members paying themselves for momentary meetings of do-nothing boards created just to justify that pay and, on the part of the city manager and his assistant, falsifying certain contract documents and hiding others to conceal extraordinarily high rates of pay for themselves and the police chief. If officials are prepared to resort to outright lies, conspiracy and fraud to advance schemes they know the public would never accept, the open government laws may not stop them. But these and other transparency laws will make corruption much harder to commit and sustain, if reporters and citizen watchdogs understand and use them confidently and consistently. This is what was not happening in Bell—until the Los Angeles Times stumbled on to some rumors and odd gaps in information […]

Your Nominations Sought for FOI “Foilies”

It rhymes with “doilies” and it means a chance to recognize the most remarkable—but not in a good way—reactions or practices by government agencies in response to requests for information under the Freedom of Information Act or state laws like the California Public Records Act.  Here’s the invitation from the San Francisco-based Electronic Frontier Foundation, sponsor of the competition, written by Dave Maas, a San Diego investigative reporter. Got an Outrageous Public Records Story? Send Your Nominations for “The Foilies” Fighting for government records is sometimes like: … a game of Battleship, but where you have to go to court to force your opponent to tell you whether you even grazed his aircraft carrier. … finding yourself at the doors of the Forty Thieves’ cave, except that you have to rap out “Open Sesame” in Morse code with your forehead just to get a peek at the treasure. … ordering a book from an online store, then having to wait 10-30 days just to hear back that the store can neither confirm nor deny whether your item is in stock. … running the hurdles at the Olympics, but with Droid Kafka and his bureaucrobot army laying down new stretches of barricades every time you think you’re about to cross the finish line. For every over-the-top simile we can think up to describe the struggle for transparency, we can name an even more ridiculous, real-world attempt by government officials to withhold records that rightly belong to the public. And yet, EFF and accountability advocates everywhere keep pushing back, because sometimes you win and it makes a difference in the world. This year, EFF is setting out to recognize the most outrageous responses to Freedom of Information […]

Court: Ambitious public records demand not “frivolous”

The California Court of Appeal for the First District has concluded that an attorney’s overly “aggressive” demands for public records, including a proposal to search officials’ private computers for documents dealing with city business, may have been needlessly burdensome on the City of Sebastopol, but was not completely lacking in merit or intended to harass, and was therefore not “frivolous” litigation that justified ordering the attorney and his client to pay the city  its attorney’s fees spent resisting the litigation. The court’s decision in Bertoli v. City of Sebastopol echoes the rationale of the Third District Court of Appeal in Crews v. Willows Unified School District, a 2013 case concluding that while a newspaper editor’s filing a Public Records Act suit for a large number of school district records while the district was working to comply with his request may have been overly hasty and improvident, the litigation was not utterly without merit or filed with intent to harass—and therefore not “frivolous” to a degree warranting an order to the editor to pay the district’s attorney’s fees. Julia Ann Bertoli is a young woman who was crippled and brain-damaged by a car that struck her in a crosswalk at a busy intersection on the main street of Sebastopol—also a state highway route—in 2009.  Her lawyer, David Rouda, hoped that public records would show that city officials had known about the street’s dangerous condition near the accident site and had done little or nothing to mitigate it. Despite thousands of paper records provided him in response to his original requests, he came to believe that several key officials had electronic records relevant to his case on their private computers.  He offered to pay for a neutral […]