Awareness Area: Government

Governor vetoes military surplus transparency

Governor Edmund G. Brown Jr. has vetoed AB 36 by Assembly Member Nora Campos (D-San Jose), which would have required local agency governing bodies with authority over law enforcement agencies to approve in an open session acquisition of federal surplus military equipment.  The veto message reads in part: Transparency is important between law enforcement agencies and the communities they serve, but it must be tempered by security considerations before revealing law enforcement equipment shortages in a public hearing.  This bill fails to strike the proper balance. Moreover the bill is unnecessary, as President Obama’s Executive Order 13688 will implement a similar requirement for governing bodies to grant approval of surplus military equipment. The particular requirement Brown refers to states that, as one of many criteria to be fulfilled as part of the application process, law enforcement agencies must provide “evidence of civilian governing body’s review and approval or concurrence of the (law enforcement agency’s) acquisition of the requested . . . equipment.”  Such a review and approval or concurrence could be accomplished, under the Brown Act, only at an open and public meeting.  The Executive Order thus fails to strike what the Governor believes to be “the proper balance” between transparency and “security considerations” much more clearly than AB 36. Campos briefly amended her bill at the last moment to allow local bodies to discuss their departments’ application for equipment in closed session—and keep the shopping list secret—but then quickly withdrew that provision when CalAware, the California Newspaper Publishers Association and at least two major newspapers attacked it.  It may be that another consideration in the about-face was that satisfying Executive Order 13688’s application process would have been next to impossible given the secrecy authorized […]

Public records show how government really works

By Tim Crews Reprinted with permission, The Sacramento Bee   “No, you can’t see it.” That refrain is what people unaccustomed to using the California Public Records Act are likely to get from most city, county and state government officials. That’s a shame, because there was a time when officials were more or less open about the people’s files. Al Calonico, a former city manager of Orland in Glenn County, told me 26 years ago, “These are the files. Just put everything back where you found it.” The only thing segregated and locked was one drawer of personnel files. That would be inconceivable today. The Public Records Act helps the average citizen and journalist – I count myself as both – discover how government really works. However, sometimes it takes patience, prodding and a willingness to go to court. I have used the act to find how much public money is being spent on political campaigns, including school district spending on bond issues, which is against the law. Fragments of documents from the Glenn County Office of Education led us at The Valley Mirror to believe that public money was used for Willows Unified School District election matters, a violation of law. We asked for a year’s worth of their emails. They refused. They withheld. They stalled. We sued. A local judge ruled for the school district. On appeal, we prevailed. Writing for a unanimous three-justice panel of the 3rd District Court of Appeal in Sacramento, Justice Andrea Hoch said the appellate record “shows Crews’ request was based on his decision to engage in a journalistic investigation of whether (former Willows Unified School District Superintendent Steve) Olmos or the district misused public property.” The appeals […]

A.G.’s New “Open Justice” Site Helpful, But Only a Start

By Kelly Davis, Guest Contributor Since the early ’90s, the California Department of Justice has allowed public access to data it receives on all deaths that occur in law enforcement custody — jails, prisons, state hospitals — during the process of arrest or later in confinement. This disclosure is required by state law, the result of Assemblyman John Burton’s AB 2302, which he carried in 1993 after an unusual spike in inmate deaths. The intent of the bill, as a 1993 Los Angeles Times article put it, was to require that “reports explaining the circumstances of the deaths of state prison inmates … be made available for public review.” But the transparency and opportunity for public scrutiny Burton envisioned never happened. While state agencies do report all deaths in custody to the DOJ — I know because I’ve worked with these data to report on inmate deaths in San Diego — that information’s not readily accessible to the public. You have to file a California Public Records Act request, and there’s been only one report, published a decade ago, analyzing the data. But that changed last week. On Sept. 2, state Attorney General Kamala Harris rolled out the DOJ’s new Open Justice website, which breaks down three data sets — arrest rates, deaths in custody, and law enforcement officers killed or assaulted — into user-friendly charts and graphs. There’s a lot to like about Open Justice, starting with its mission statement, which describes the website as “a transparency initiative… so we can understand how we are doing, hold ourselves accountable, and improve public policy to make California safer.” A lot of what the data show isn’t new or surprising: most inmates die from natural causes […]

Update: Campos Restores Transparency of Military Hardware Buys

UPDATE: THE CALIFORNIA NEWSPAPER PUBLISHERS ASSOCIATION REPORTS: “After media pressure by the Sacramento Bee and Los Angeles Times, CalAware’s blog post, and our lobbying efforts in the Assembly today, Assemblywoman Campos’s office has agreed to resend the bill to the Senate for amendments to completely remove any reference to a closed session in the bill. AB 36 will now require that acquisition of military equipment must be discussed/voted on in open session.” ORIGINAL POST: Assembly Member Nora Campos (D-San Jose) has at the last minute, and without a single public hearing, amended her AB 36 to allow city councils to deliberate in closed session on whether to pass, modify or abandon a proposed ordinance on purchase of military equipment for their police departments. The bill was originally introduced to ensure that decisions on purchase of military surplus weapons and other tactical gear would be made only by local government bodies at open meetings subject to the Brown Act.  The measure was partly in reaction to deployment of military equipment to quell restive crowds in Ferguson, Missouri last summer, and partly prompted by the public outcry of citizens questioning the Davis Police Department’s purchase of an MRAP armored truck. The department reacted by agreeing to dispose of the vehicle. August 24 author’s amendments to AB 36 have effectively neutered it not only by exempting county boards of supervisors and any other local bodies where the law enforcement agency reports directly to an elected officer, but by allowing city councils to retire into closed session to deliberate about adopting an ordinance authorizing police purchases of military hardware, with the approved shopping list kept secret. The amendment reads: A legislative body of a local agency may hold a […]

Court: Mayor Can’t Bar Gadfly’s Use of City’s Videos

As noted Friday by Jon Healey in his Los Angeles Times blog post, a U.S. District Court judge has ruled that Inglewood Mayor James T. Butts, Jr. had no power to claim copyright protection over city-created video records of its council meetings, and even if he had that authority, gadfly Joseph Teixeira’s  use of selected clips from the video to make public safety points on Youtube would be protected as a fair use of the material. Teixeira was defended by Davis Wright Tremaine attorneys Thomas Burke and Dan Laidman.  Laidman is a member of the board of directors of Californians Aware and was alerted to the problem by CalAware. A Times editorial in June predicted the case’s outcome and its rationale. Inglewood resident Joseph Teixeira is a pointed critic of Mayor James T. Butts Jr., having posted several videos to YouTube over the years that accuse the mayor of lying to constituents and being a lousy public servant. In other words, he’s the sort of irritant that elected officials around the state have to put up with on a daily basis. But the city of Inglewood responded in a novel and disturbing way: It sued Teixeira for copyright infringement because he used snippets of the city’s official videos of council meetings to support his criticisms. A federal judge should throw out the city’s lawsuit and send its leaders to a remedial class on the 1st Amendment. There’s something fundamentally outrageous about using tax dollars to sue a taxpayer over the use of a public record that taxpayers paid to create. The city’s position is legally questionable too: According to a California appeals court ruling in 2009, the state Public Records Act allows local governments to […]

L.A.’s D.A. Faults the Supervisors for Surprise Action

As reported by Abby Sewell on Wednesday in her Los Angeles Times blog post, the Los Angeles district attorney has asked the Board of Supervisors to revisit its August 11 vote approving an ambitious jail construction program to create two new facilities because, in violation of the Brown Act, that move was not included in the meeting’s posted agenda. A Times editorial two days after the meeting addressed the episode with undisguised sarcasm. Why does the Los Angeles County Board of Supervisors even bother with agendas? Why post them, why even write them up, if the supervisors are simply going to ignore them and barge ahead with non-agendized business, approving costly and controversial projects such as new jail construction without public notice — without sufficient notice even to one another — and without serious analysis of the consequences? Why bother? Except, of course, for the fact that notifying the public is their moral and fiscal obligation as elected representatives who are entrusted with power over billions of dollars and life-altering policy decisions. And except, by the way, for the fact that state law requires them to post agendas that give timely public notice of the questions before them and the actions they may take, well in advance of their meetings. New jails were not on the board’s Tuesday agenda, but the supervisors nevertheless adopted a plan to spend more than $1 billion to build two of them. Will they be the right size? Who knows. The county will apparently get a jail with 3,885 beds, not because anyone decided that the size makes sense but because it’s halfway between proposals for a larger one and a smaller one, both of which also materialized during the […]

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.  […]