Awareness Area: Government

Air Marshal Whistleblower Case Goes to High Court

Robert MacLean of Ladera Ranch in Orange County was fired from his Air Marshal job with the Transportation Security Agency in 2003 for disclosing to the press that the TSA planned to discontinue assigning marshals to overnight flights from Las Vegas to save money, despite an airline hijack alert which prompted higher security concerns at the time. He appealed his firing as illegal under the Whistleblower Protection Act, and while the trial court ruled against him, the U.S. Court of Appeals for the Federal Circuit unanimously agreed he had a case, despite the government’s argument that such a precedent would encourage leaks that could threaten lives. But it has been a hard road for MacLean, as Teri Sforza reports for the Orange County Register. His case finally goes before the U.S. Supreme Court next month and, reports Jacob Gershman for the Wall Street Journal, lawmakers in both Houses of Congress and both parties are saying the viability of the WPA is at stake if the Court rules that the government can fire its employees for revealing anything that it pronounces—before or after the whistle is blown—as “sensitive” national security information.   

Major National Media Smear One of Their Own

A fact-based movie thriller to be released soon, “Kill the Messenger,” tells the story of Gary Webb, the investigative journalist whom the CIA found it easy to discredit when his series in the San Jose Mercury News, “Dark Alliance,” threatened an explosive national security scandal. The series accused the CIA of looking the other way when Nicaraguan Contras, its Reagan era clients, used the profits of crack cocaine smuggling that flooded the streets of Los Angeles to support their guerrilla war against the Sandinistas. It was easy to discredit Webb, a Pulitzer Prize-winning journalist, because the country’s leading newspapers were receptive to CIA denials at the time. And they were receptive to those denials because they could not believe they had been beaten to such a major exposé by a second-tier newspaper, but even more because a reputation for responsibility in the eyes of the intelligence “community” had become more precious to them than the credibility and integrity of a fearless reporter. They didn’t just disagree with him; they destroyed his career, and he committed suicide. Georg Hodel remembers.

CalAware Sues College Board under Brown Act

As noted by Jason Song in his report for the Los Angeles Times, Californians Aware filed suit Thursday against the board of the Pasadena Area Community College District, seeking a court-ordered reversal of a recent board-approved $400,000 severance award to its retiring superintendent, Dr. Mark Rocha. CalAware argues in its petition that the approval was hatched in two closed sessions labeled as dealing with “anticipated litigation” without explaining what litigation was anticipated, or why, or who the potential plaintiff was. The board’s attorney calls the $400,000 a “settlement and release of claims,” without revealing what the claims were. CalAware argues the closed sessions were about compensation beyond the amount Dr. Rocha was entitled to under his contract, and that the closed session agendas were misleadingly worded to avoid public awareness of the planned award.

Governor Vetoes Protections for Citizen Speech

Governor Edmund G. Brown Jr. today vetoed a bill that would have ended officials’ power to frustrate citizens’ efforts to address local councils, boards, commissions and advisory bodies.  In his veto message, the Governor misstated both the nature of the bill and its impact on meetings under the Brown Act: “This bill adds certain procedures to the Brown Act, which at best will enlongate but in no way enhance the quality of debate at the local level.” But AB 194 by Assembly Member Nora Campos (D-San Jose) added no procedures to the law.  Instead, it prohibited certain all-too-frequent practices by local bodies such as: using up the allotted time for disfavored citizen speakers by interrupting and challenging their comments, forcing citizens to voice their comments on agenda items at the beginning of meetings before the body has heard staff’s presentation of  those items, forbidding citizens from criticizing the actions of staff officials, or treating speakers with more or less accommodation depending on what they have to say. Likewise, nothing in the bill would have “elongated” the meetings, since it left intact the Brown Act rule that local bodies retain full authority to determine the time limits for individual speakers or for comment on particular topics.  That distortion echoes the objection of the principal opponent of the bill, the Los Angeles County Board of Supervisors, who wrote a personally signed letter voicing that argument when it looked like the bill might reach the Governor. Interestingly, the Board’s meeting minutes for the last year contain no reference to a discussion of or decision to oppose the bill, suggesting that it was reached outside an open and public meeting.  But the Board and the Governor showed a common […]

Look up Your City, County Finances Online

Where does your city’s and county’s money come from, and where does it go? State Controller John Chiang helps you find out quickly and anonymously with his new financial transparency website. Quickly, because it could take days or even weeks to assemble the data using California Public Records Act requests. Anonymously, because no one in the city or county you are concerned with will know you’re checking up. And that’s not all. According to the press release announcing ByTheNumbers.sco.ca.gov, Later this fall, the Controller will introduce major upgrades to the website that will not only include additional tools and features based on user feedback over the coming months, but will also provide data for each of California’s approximately 130 pension systems. The pension data will include: assets and liabilities; additions to plan assets, such as employer and employee contributions; deductions to plan assets, such as benefit payments and administrative expenses; statistics on the number of active, inactive and retired members; net return on investments and actuarial funding. In addition to ByTheNumbers.sco.ca.gov, the Controller invites users to visit PublicPay.ca.gov, which includes pay information for public employees, as well as TrackProp30.ca.gov, which helps taxpayers track every dollar raised by Proposition 30 for public schools.

AB 194: Protecting Citizen Speech at Public Meetings

The California Senate is poised, as early as this coming Monday, to vote on a bill that would end abuses and denials of citizens’ right to be heard at local government meetings. AB 194 by Assembly Member Nora Campos (D-San Jose) leaves councils, boards and commissions their Brown Act discretion to adopt and enforce reasonable regulations such as time limits and procedures for public comment on agenda items. But it prohibits the following practices used by too many local bodies to frustrate informed and timely comment: • Barring criticism of how the body’s officers or employees do their jobs. As the law now stands, general complaints about the agency must be permitted, but some agencies have taken the position that the performance of agency staff, including chief executives, is off limits for public criticism. This view has been rejected by two federal courts upholding the First Amendment, and needs to be foreclosed in the Brown Act itself. • Denying citizens the chance to comment on an agenda item during its presentation if they have not earlier signed up to do so. This practice can arise in one or both of two ways: forcing people to speak their peace on an agenda item at the beginning of the meeting, before its presentation by staff makes its need, cost and impact apparent; and refusing to allow comment by those who have not filled out a “speaker card” at the beginning of the meeting. This barrier actually gives cautious watchdogs the motivation to sign up to address every agenda item, in case the staff presentation raises an unforeseen issue. • Denying, limiting or burdening public comment based on disapproval of the speaker’s viewpoint. Viewpoint discrimination has been repeatedly […]

Ontario Faces Suit over Speech Restrictions

The City of Ontario is being told it must repeal recently adopted restrictions on citizen speech at city council meetings or face a lawsuit to have them invalidated. Cory Briggs, attorney for the civic watchdog Inland Oversight Committee, warned the city today that a July 15 resolution on “City Council Rules of Conduct” transgressed public speech guarantees in both the the Brown Act and the state and federal constitutions. Briggs stated in his  notice of intent to sue: In particular, the Resolution states that “[m]embers of the public attending City Council meetings shall observe the same rules of order and decorum applicable to the City Council.” Meanwhile, the rules applicable to the City Council provide, for example, that “Council Members [and thus members of the public] shall never express concerns about the performance of a City employee in public, to the employee directly, or to the employee’s manager.” The Resolution goes on to prohibit Council Members and thus members of the public from “attempt[ing] to influence City staff” on a variety of items concerning the public’s business. These are the very issues that the public’s constitutional and statutory rights allow them to address government on. The rules of conduct during City Council meetings also impermissibly interfere with other legal rights of the public. For instance, elsewhere the rules mandate that “Council Members . . . [and thus members of the public] refrain at all times from rude or derogatory remarks, reflections as to integrity, abusive comments, and statements as to motives and personalities.” Apart from being extremely vague, questions about a City official’s oremployee’s integrity are certainly open to public comment and criticism, as are issues related to motives and personalities when they relate to […]

Suicide Facts Are Matters of Public Record

Was the Marin County Sheriff’s spokesman following the law in releasing most of the factual details about Robin Williams’ death in a press conference last week? Was he acting appropriately in doing so? Why is it important for the public to get as many of the facts as possible? Here is how that spokesman, Lt. Keith Boyd, explained his disclosures when asked by a reporter. The Sheriff’s Office understands how the release of the kind of information you heard yesterday may be viewed as disturbing by some, and as unnecessary by others, but under California law, all that information is considered “public information” and we are precluded from denying access to it.  These kinds of cases, whether they garner national attention or not, are very difficult for everyone involved.  Frankly, it would have been our personal preference to withhold a lot of what we disclosed to the press yesterday, but the California Public Records Act does not give us that kind of latitude . . . To date, we have received a staggering number of formal Public Act requests (for the 911 dispatch recordings) and we are required by law to make those disclosures within 10-days.  While we continue working with our County Counsel’s Office to determine if there might be an exemption in the Public Records Act that would allow us to withhold those tapes, my past experience has been that there is not and we will once again have to do what the law requires us to do. The obligation to release 911 dispatch tapes has not been addressed by a court so far, but the law on coroner’s reports is clearer. In California all information held by state or local government agencies […]

Fight to Get Names of Police Shooters Not Over

Although the California Supreme Court ruled recently in Long Beach Peace Officers Association v. City of Long Beach that the names of police and other peace officers who fire their weapons on duty are presumed to be matters of public record, newspapers and others are meeting abiding resistance to disclosing them. To take two examples, the resistance may come from the officers’ employers, as with the City of Salinas, which contends that there have been specific threats against the officers—evidence of which the high court said may justify withholding of shooters’ names—or from the officers’ unions, as with the Palm Springs Police Officers’ Association, which contends that the high court’s ruling does not apply to a request by the Palm Springs Desert Sun at all. That newspaper, as reported by staff writers Colin Atagi and Brett Kelman, asked Palm Springs for the names of its officers who discharged their weapons from January 1, 2009 to the present, a list which might show multiple incidents involving a particular officer still on the force. The city said it was willing to disclose the names, but the POA yesterday obtained a temporary restraining order and is seeking a permanent injunction to block release by the city, arguing several points, including that the Long Beach decision applied only to officers currently under investigation, not to past incidents; that release of shooters’ names must be bargained with the union as a working condition; and that the officers were crime victims (or else they would not have fired their weapons). Meanwhile in Salinas, the Desert Sun’s sister Gannett newspaper, the Salinas Californian, was among those who have been rebuffed by the city in their requests for the names of officers involved […]

Watchdog Citizen Arrests Park District Board

An entire seven-member park district board was put under citizen’s arrest for refusing to let the public speak at a meeting—and the sheriff said the arrest had been made responsibly and would be pursued with an investigation and report to the attorney general.   The arrest took place in Clark County in downstate Illinois on May 12,  after a warning by the arresting citizen was disregarded by the board’s attorney, reportedly the daughter of the board president. The event, which occurred when the board at a special meeting refused to allow public comment on the status of the executive director  and other issues by some 30 assembled citizens after a two-hours-plus closed session, is reported here, video recorded here and applauded here. In California as in Illinois, a local government body member can be prosecuted for a misdemeanor violation of the open meeting law.  The Brown Act makes the prosecutor’s burden of proof quite difficult, however. Government Code Section 54959 provides: Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this chapter, is guilty of a misdemeanor. The requirements for making a citizen’s arrest in California are set forth in some detail in an article provided by the Alameda County District Attorney’s office. Apparently this enforcement procedure has never been used in connection with a perceived Brown Act violation, but there are frequently enough layman’s misunderstandings of what the Brown Act requires and prohibits that making a citizen’s arrest in such circumstances should […]