Awareness Area: Government

City Sues for Records on PG&E Explosion Aftermath

How much in monetary penalties should Pacific Gas & Electric have to pay for its responsibility for the explosive gas pipeline leak that charred a residential area of San Bruno in 2010, killing six and injuring scores?  That issue is before an administrative law judge of the California Public Utilities Commission, and San Bruno thinks that the Commission’s top executive has been trying improperly to influence the judge’s decision.  The city filed repeated Public Records Act requests for telltale emails, but has been put off long and often enough that, as reported by Sam Singer in a Business Wire release for the city, it’s filed suit in San Francisco Superior Court to force the records’ disclosure.

Public Forum Law News Roundup 1/17/2014

FREE SPEECH CalAware-supported bill adds teeth to Brown Act protection for citizens’ right to comment at local government meetings OPEN GOVERNMENT CalAware-sponsored proposal would put charter amendment on San Diego’s June ballot requiring fact-based reasons for secrecy WHISTLEBLOWERS The Dreyfus Affair’s unsung whistleblower, whose fate set the pattern for leaks threatening a national security elite FREE PRESS Appeals court setting precedent for federal courts in California rules bloggers can’t be sued for libel without proof of fault OPEN MEETINGS Monterey Supervisors’ use of frequent “performance evaluation” closed sessions to direct policy moves will get D.A.’s scrutiny

Court: Juvenile Dependency Hearings Presumed Private

Michael Nash, presiding judge of the juvenile division of the Los Angeles Superior Court, erred legally when he issued a blanket order  opening dependency hearings to the press unless others involved in the case objected.  So concluded the Second District Court of Appeal in its tentative ruling made public today. As noted here, Judge Nash’s order went into effect almost two years ago.  But the Court of Appeal said that it turned state law on its head, creating a presumption of press access contrary to a provision of the Welfare and Institutions Code, which presumes closed dependency hearings unless a court makes an exception based on good cause shown and lack of harm to the child in the case. Today’s ruling, although formally labeled Tentative, is likely to be the last word on the issue unless the legislature were to amend the code, since the only party participating in further oral argument will be the juvenile appellant A. L., who began the litigation by objecting to a judge’s admission to his (or her) hearing of a Los Angeles Times reporter.  A.L. did not name the Times as a real party in interest to the case, disabling it from arguing the correctness of Judge Nash’s order.  The Court of Appeal did not foreclose judges from admitting reporters in future cases, but made it clear such exceptions to the rule would be extraordinary indeed. Consequently, the press must ultimately persuade the court that the balance of competing interests should be weighed in its favor – that is, there is no reasonable likelihood that access will be harmful to the child’s best interests. This does not mean the child or party opposing access has no burden to produce […]

What Is the TPP and Why Does Fast-Tracking It Worry So Many?

The Trans-Pacific Partnership is an international mega-trade agreement under development among the U.S. and a number of key nations of the Americas and Asia, negotiated entirely in secret and proposed to bypass close Congressional scrutiny in a “Fast Track” approach. Leaks of certain draft versions suggest that all party states would see their domestic law controlled by TPP commitments and constraints in such disparate areas (apart from trade regulation) as “food safety, internet freedom, medicine costs, financial regulation, and the environment,” as listed on Public Citizen’s opposition website. The site also notes that the terms have been worked out through “a secret trade negotiation that has included over 600 official corporate ‘trade advisors’ while hiding the text from Members of Congress, governors, state legislators, the press, civil society, and the public.”  TPP’s current status worries a Forbes contributor because even the Fast Track process may not lead to Congressional buy-in before 2015—an election year when play-it-safe political instincts will rule, while TPP’s threats to American public interests are spelled out by the Electronic Freedom Foundation, which provides a quick form for opposition statements to be sent to California’s Senators and Members of Congress.

High Court: Property Rights Decide Base Protester’s Fate

The niceties of real property law were the essentially exclusive focus of justices’ attention yesterday as the U. S. Supreme Court considered the lawfulness of an arrest of a protester near but outside the main gate of Vandenberg Air Force Base on the Pacific Coast Highway. The protester’s lawyer, UC Irvine Law School Dean and leading First Amendment scholar Erwin Chemerinsky, outlined the free speech issues in the case in a law journal Tuesday.  But, as noted by Court observer Lyle Denniston in SCOTUSblog, Chemerinsky’s arguments were given short shrift by the justices, who appeared far more interested in the intricacies of easement law, and appeared disposed to rule—at least for the majority—that although the Air Force as owner of the base virtually all the way to the beach, had given the State of California an easement for travel over Highway 1, it retained the right to control speech in that zone in the interests of national security. Cases such as this are examples of what Californians Aware means, in its mission statement, by its reference to “the trends to be overcome,” including “Eroding opportunity: Dwindling space or time for expected and protected speech.”

Comment: CalAware Letter Helps Spare Coastal Commission Staff “Micromanagement”

by Warner Chabot This November, the California Coastal Commission listened to advice from Californians Aware and backed down on a controversial proposal to micromanage their senior staff.  The twelve-member commission, appointed by state administration and legislative leaders, acts as a land use “planning commission” for the coastal zone of California. In the interest of “accountability” and “transparency,” the commission has been debating how their Executive Director should produce metrics and performance updates to demonstrate progress on implementing the Commission’s recently adopted Strategic Plan.  The question was the level of detail (metrics) to require for these updates. The problem, in the eyes of many past Commissioners and NGO leaders, was that some commissioners were seeking a level of metrics that would constitute excessive micromanagement of staff.    The Commission took an hour of public testimony before deliberating for another hour on the subject. The public testimony was unanimous in its praise of the staff’s professionalism and transparency and in expressing a concern that the commission should not attempt to micromanage the staff.  They commissioners concluded by adopting the recommendation of their Executive Director for a “dashboard” reporting system that would be used in his monthly reports. Among the materials presented to the Commission was a letter from Californians Aware, which praised the Commission staff’s accountability and transparency based on several audits over a multi-year period. Outcome:  Unanimous vote to approve the “dashboard” system proposed by the Executive Director to report on Strategic Plan progress.  The Commission reaffirmed their respect for staff independence and professionalism.   They rejected an option to require an excessive level of time-consuming monitoring and reporting that would have diverted staff from its core work. For More information:  This issue generated major interest among past […]

Two Californians, Then Insiders, Disagree on Warren Commission

Was the Warren Commission’s conclusion—that President John F. Kennedy was slain by a single shot by a single assassin who was Lee Harvey Oswald—the correct one?  Richard M. Mosk, now a justice of the California Court of Appeal and then a junior investigator for the Commission, says yes.  M. Wesley Swearingen, now a Temecula retiree and then an FBI agent with sources knowledgeable about both Fidel Castro’s Cuba and the Mob, says no.  He says he was kept from joining the assassination inquiry by his boss, Mark Felt, who would before his death identify himself as Woodward and Bernstein’s Deep Throat.

Brown Act Citizen Speech Rights: What’s Your Experience?

Should the Brown Act be amended to give greater protection to citizens addressing a local board or council?  If so, what are the problems or abuses that need correction?  CalAware has been asked by a state legislator for concrete examples of citizens’ experiences that could and should be addressed by the Brown Act.  Please send your contribution (with video evidence, if any) to, preferably in the next 30 days.

Translucent Public Employee Labor Bargaining: One Approach

Costa Mesa Mayor pro Tem Steve Mensinger is doing a bit of bragging these days—and he’s entitled—about a quietly revolutionary process of informed public involvement in city employee labor negotiations that the city council passed a little over a year ago. Secrecy provisions in the Brown Act allow local agencies (other than public education boards) to negotiate, deliberate and decide labor agreements entirely behind closed doors, deferring public exposure of what the unions have won until the pay and benefit packages are locked in.  Efforts by the California Newspaper Publishers Association and others to amend the Act to shed some daylight on what’s on the table have—thanks largely to the League of California Cities—gone nowhere in the Legislature.  The result is one undeniable factor in the retirement burden in local government remarked on yesterday (and repeatedly in the past) by Sacramento Bee columnist Dan Walters. But so far, disclosing the progress of negotiations and how much is at stake isn’t actually precluded by state law, and in what probably had to originate in Orange County, Mr. Mensinger’s COIN (Civic Openness in Negotiations) ordinance gives the public as a whole a say, if not the last word, in how much the city can afford.  Key elements, in his words: “The premise behind COIN is simple: Inform the public of the annual cost of the current labor contract and provide a fiscal impact analysis of each new proposal. “The city must hire an independent negotiator (in Costa Mesa, prior councils had an executive-level public employee handle the negotiations). “Each council member must disclose any communications about the negotiations with representatives of the employee association. “Before any vote, the labor contract must be discussed in at least two […]

Comment Sought on Proposed Opening of Courts’ Advisory Meetings

The California Judicial Council, governing body of the state’s judicial branch, today issued for comment a draft of proposed rules that would for the first time open meetings of its standing committees and other advisory bodies to public attendance.  The Council, whose own meetings are already presumed open, sees today’s release as the first of two stages to solicit comments from various “stakeholders,” including the press, with a greater than average interest in the operation of the state court system.  Closed sessions would be authorized for significantly more topics than permitted in the Brown Act—the open meeting law for local government bodies—but that is true also of the Bagley-Keene Act, which applies to a wide variety of the state’s executive branch regulatory bodies, which have specialized jurisdictions calling for types of confidential discussion not encountered in local government.  The principal task of court-watchers in filing comments is likely to be arguing for far greater precision in narrowing such language as “personnel” discussion as a basis for excluding the public.  Comments for this round are sought by next Wednesday, November 20 at 5 p.m., and may be emailed or submitted online.