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 […]
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 […]
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 […]
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 […]
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 […]
The Department of Corrections has punished a retired parole officer for reporting that parole-violating sex offenders can’t be kept in jail, reports CNN. Thirty-year veteran Susan Kane last November told a CBS affiliate television station that the San Joaquin County Jail was being forced to release parole violators, including sex offenders, after only a few days’ stay behind bars because of overcrowding resulting from the “Realignment” transfer of state prisoners to county facilities. Now the Department of Corrections has in effect fined her $3,000 for not clearing her statement with supervisors, although she expressly gave her opinions as a concerned citizen and not a public official.
Californians Aware has sued the City of Salinas for access to a planning calendar used by the city clerk to keep the city council apprised of items set for addition to coming meeting agendas. The action, filed in Monterey County Superior Court last Thursday, follows a local resident’s four-month effort, begun last October 15, to persuade City Clerk Patricia Barajas to allow inspection of the list of reports, discussion and action items awaiting assignment to future council agendas. An example of how the document is used is shown in video excerpts from the November 19, 2013 and January 7, 2014 meetings in which a council member thanks Ms. Barajas for providing the council with “a calendar of upcoming agenda items, reports and so forth,” and a “2014 calendar . . . for future agenda items.” Deputy City Attorney Anais Aquino informed the resident on February 18 that “The entire document is a draft, exempted from disclosure.” When CalAware repeated the resident’s request, Ms. Aquino replied that “the document you seek, a list of unscheduled future agenda items, . . . is privileged and will not be disclosed pursuant to Government Code 6254(a) as a preliminary draft, note or memoranda.” Case law limits that exemption to records not retained in the ordinary course of business, reflecting the author’s “recommendatory opinion” rather than factual information, and then only if the public interest in withholding the document outweighs the public interest in disclosure.
The Freedom of Information Act, authored by Sacramento’s own Congressman John E. Moss, (left) was signed by President Lyndon Johnson on July 4, 1966. It took more than a decade to get the legislation to LBJ’s desk, and it originated from Congress’s own frustation at being denied Executive Branch information. By the time it came to be signed, the nation was in a state of war far more literal and agonizing than any GWOT today, and the President had domestic ambitions—the War on Poverty and the Civil Rights Act—at least as controversial and hard-fought as today’s Affordable Care Act. But the momentum that Congressman Moss had quietly built, with the awakening support of the press, left FOIA as, in the words of another great legislative leader of the day, “an idea whose time had come.” Jelani Cobb in this week’s New Yorker blog reminds us of that unlikely—and at the time little celebrated—gift of the strife-torn Sixties.
UPDATE Monterey County District Attorney Dean Flippo has suspended his office’s investigation into whether the Board of Supervisors violated the Brown Act in using some 53 closed sessions last year for the announced purpose of evaluating the performance of the five top county executives, but suspected by some observers as being used to provide operational directions that should have been conveyed in open session. Jeff Mitchell reports for the Salinas Californian.
Busy as we are, it can be hard to pause and appreciate just how profoundly the Bill of Rights landscape and even the structural tension of our government has changed in the last dozen years or so. Here’s one summing-up that’s worth letting sink in. “Almost 13 years after the 9/11 attacks, it remains ‘wartime,’”writes investigative journalist Peter Van Buren. For the war on terror, the driver, excuse, and raison d’être for the tattering of the Bill of Rights, there is no end in sight. Recently retired NSA head Keith Alexander is typical of key figures in the national security state when he claims that despite, well, everything, the country is at greater risk today than ever before. These days, wartime is forever, which means that a government working ever more in secret has ever more latitude to decide which rights in which form applied in what manner are still inalienable.