Awareness Area: Government

Charter school transparency bill faces likely veto

A bill that would place charter schools under the same transparency rules as their public counterparts faces a likely veto. AB 709 by Assembly Member Mike Gipson (D-Gardena) would put charter schools (except those on tribal reservations) under either the Brown Act or the Bagley-Keene Open Meeting Act—depending on whether their sponsors were local or state entities—as well as the California Public Records Act and state laws barring conflicts of interests in government and requiring the filing of public statements of economic interests by the board members and key employees. The need for such sunshine regulation, at least in some states, is suggested by an August 21 report on John Oliver’s “Last Week Tonight” program. The bill got a final vote of approval Wednesday (August 24) and is now headed for the Governor’s desk. It may well die there as did a similar measure last year, because Governor Brown, as mayor of Oakland, founded two charter schools there and, according to columnist Dan Walters, has “placed $20 million in ‘startup funds’ for new charters in his 2016-17 budget.”

Israel boycott bill likely to disappoint backers

It often appears that Sacramento lawmakers who swarm to pass bills infringing free speech and press rights do so with a tin ear to the First Amendment because they trust that the courts can and will iron out any such deficiencies—and meanwhile they don’t want to frustrate what they see as popular demand, particularly from generous sources of campaign contributions. Such seems to be the case with AB 2844, at this writing just one vote (and a sure thing at that) away from the Governor’s desk. The bill provides that A person that . . . proposes to enter into or renew a contract with a state agency . . . in the amount of one hundred thousand dollars ($100,000) or more shall certify, under penalty of perjury, at the time the bid or proposal is submitted or the contract is renewed, all of the following: (a) That they are in compliance with the Unruh Civil Rights Act. (b) That they are in compliance with the California Fair Employment and Housing Act. (c) That any policy that they have against any sovereign nation or peoples recognized by the government of the United States, including, but not limited to, the nation and people of Israel, is not used to discriminate in violation of the Unruh Civil Rights Act or the California Fair Employment and Housing Act. In other words, at the time of a contract award or renewal valued at $100,000 or more, a person seeking the state’s business must swear that any politically motivated boycott against the State of Israel (among others) that they’re a party to does not violate California laws barring discrimination against people seeking housing, employment or other economic relationships. The bill thus admittedly […]

More sunshine due on local government executive pay

Governor Brown yesterday (August 22) signed into law, effective January 1, an amendment to the Ralph M. Brown Act requiring local government bodies, prior to voting in open session to approve new pay or benefit levels for their agency’s executives, to “orally report a summary of (the) recommendation” for the increase. Senator Patricia Bates (R-Laguna Hills) won approval for her SB 1436, which had no opposition, by votes of 37-0 in the Senate and 77-0 in the Assembly. The bill is the latest in a series of transparency reforms prompted by the pay scandal in the City of Bell. The most recent previous safeguard was to prohibit compensation approvals for “local agency executives” at special meetings, which allow action upon only 24 hours public notice, and confine such action to regular meetings, whose agendas must be posted 72 hours in advance. The “public agency executive” category is defined to include those who are not covered by a collective bargaining agreement and who are either the CEO, deputy CEO or assistant CEO of the agency, or a department head, or who work under an employment contract. Bates said her bill was needed to combat at least some agencies’ tendencies to duck timely public awareness of executive compensation proposals. Transparency in local government decisionmaking, particularly when it comes to executive compensation, is a valuable safeguard against improper behavior and helps ensure that taxpayer and ratepayer dollars are effectively spent. Local agency executives, such as agency CEOs and city managers, are offered fringe benefits including health care coverage and pensions in amounts that can have a significant long-term impact on the budget and that deserve particular scrutiny by the public. SB 1436 encourages the active discussion of the […]

L.A. Supervisors to openly OK their lobbying letters

The Los Angeles County Board of Supervisors has quietly abandoned the practice of secretly signing all members’ names to letters sent to the Legislature and/or Governor expressing support or opposition to particular legislation. As can be seen in items 11 and 22 on the agenda for tomorrow’s (August 23) meeting, any lobbying letters signed by at least a majority of the Board will henceforth be described on the agenda and approved by public vote. The new policy results from a lawsuit filed May 8 of last year by Kelly Aviles, Californians Aware’s Vice President for Open Government  Compliance, alleging a violation of the Brown Act when all five Supervisors (the majority of whom have since departed from the Board) affixed their signature to letters sent to Sacramento opposing AB 194, a bill that would have improved protection for citizens’ ability to address local government bodies at their meetings. The petition in Californians Aware v. Los Angeles County Board of Supervisors also sought 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. Then County Counsel Mark Saladino took 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, had already been approved in two previous ways. First, he said, it adopted a December 2013 a general policy […]

Recording legislators in action—or in revolt

The sit-in demonstration by House Democrats this past week, attempting to force a vote on a relatively modest gun measure (denying sales to those on the federal no-fly list) became visible and audible to the world, thanks to several members’ video-capable smartphones and internet posting software—despite Speaker Paul Ryan’s ordered shutdown of live C-SPAN coverage. As noted in a Sacramento Bee editorial, technology, and especially social media applications and impulses, have thus ended Congressional leaders’ traditional blackout power over how much the public is allowed to see and hear of what its representatives say and do. Turning the video cameras off at certain key points or restricting what they are permitted to focus on—by order of the leadership—is likewise not unknown in the California Legislature. That fact has led the authors of the initiative ballot measure called the California Legislature Transparency Act to propose amending the state constitution to give spectators in any open committee or house proceeding the right to make and share, as widely and as soon as they please, their own video and/or audio recordings of anything they can see or hear. The Act’s language, expected momentarily to be placed on the November ballot, includes the following provision: The proceedings of each house and the committees thereof shall be open and public. The right to attend open and public proceedings includes the right of any person to record by audio or video means any and all parts of he proceedings and to broadcast or otherwise transmit them; provided that the Legislature may adopt reasonable rules . . .regulating the placement and use of the equipment for recording or broadcasting the proceedings for the sole purpose of minimizing disruption of the proceedings. Any […]

Democrats pursue “transparency lite” strategy

Nervous that voters in November might pass a widely endorsed ballot measure to end eleventh hour surprise legislation in Sacramento, the Democrat majorities in the Senate and Assembly are working on a tamer competing measure they hope will get more votes. Were it to get the most votes, the citizen initiative-launched California Legislature Transparency Act (CLTA) would not only put a three-day reaction pause (the same as in the Brown Act’s rule for local government agency action) between a proposal’s committee-approved form and its floor vote in either the full Assembly or Senate. It would also:  require all legislative hearings and floor sessions to be video-recorded, made promptly accessible on the internet, and archived for 20 years; and  give any citizen spectators in these sessions the right to make their own videos of whatever they can see or hear, and share or publish them as they please, the same as in the Brown Act. Moreover, the CLTA would become part of the state constitution, and as such could only be amended or repealed by a vote of the people. Four reform bills seeking the 72-hour delay before a vote in either house have been introduced in the last four years—three by Republicans and one by the author of the current Democrat transparency measure. Not one was even assigned to a committee, much less given a hearing. In reaction to the Democrats’ recent rush to adopt their own ballot measure, editorials in the Orange County Register, the Los Angeles Daily News and the San Francisco Chronicle are crying foul.

Federal FOIA Improvement Act goes to the President

The U.S. Senate yesterday sent to the President, who is widely expected to sign it into law, S. 337, the Freedom of Information Act (FOIA) Improvement Act of 2016, after years of slow progress and setbacks in Congress. The bipartisan bill governing public access to federal agency records reflects the work of sponsoring Senator John Cornyn (R-Texas) and Senator Patrick Leahy (D-Vermont), as well as Reps. Daryl Issa (R-California) and Elijah Cummings (D-Maryland). The bill amends the Freedom of Information Act (FOIA) to, as described by CONGRESS.GOV, require federal agencies to make their disclosable records and documents available for public inspection in an electronic format; require agencies to proactively make available for inspection in an electronic format records that have been requested three or more times (frequently requested records) prohibit an agency from charging a fee for providing records if the agency misses a deadline for complying with an FOIA request unless unusual circumstances apply and more than 5,000 pages are necessary to respond to the request prohibit an agency from withholding information requested under FOIA unless the agency reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or disclosure is prohibited by law (presumption of openness); limit the FOIA exemption for agency communications (deliberative process privilege) to allow the disclosure of agency records created 25 years or more before the date of a FOIA request; require the Office of Government Information Services (OGIS) to offer mediation services to resolve disputes between agencies and FOIA requesters; expand the authority and duties of the Chief FOIA Officer of each agency to require officers to serve as the primary agency liaison with OGIS and the Office of Information Policy; establish a Chief FOIA […]

How private email could neuter the Brown Act

If the California Supreme Court should decide that government officials’ private emails about public business cannot be reached by Public Records Act requests, the Brown Act requirements for open and public local government decision-making could be fatally undermined as well. The court has had before it for more than a year a decision by the Sixth District Court of Appeal holding that officials’ private emails are not public records, even if they clearly are used to conduct public business, since they are not “prepared, owned, used, or retained” by a public agency. The Sixth District mentioned only in passing the 2004 amendment to the California Constitution declaring that “the writings of public officials and agencies shall be open to public scrutiny,” instead stressing the privacy interests of officials that would be infringed by “a requirement that the government search individuals’ personal computers and other devices for information potentially responsive to [CPRA] requests.” If the Supreme Court were to agree, or otherwise to rule that officials’ private email accounts by definition are not repositories of accessible public records, communications among majorities of local councils, boards and commissions could stay in the private sector as well, escaping Brown Act enforcement. An example can be found in the June 8 final report of the Fresno County Grand Jury concerning citizen complaints of Brown Act violations and other troubling behavior by a three-member majority of the governing board of the Selma Unified School District. That trio, who without explanation and over a strong public protest, voted to fire a popular superintendent early last year, were subsequently recalled. But meanwhile the grand jury’s pursuit of the Brown Act allegations was stymied. As its report notes, The Grand Jury’s request to […]

Huge loan to agency manager in closed session

The governing board of one of California’s largest public agencies wholesaling water to local authorities gave a principal manager a $1.4 million low interest loan in a closed session, the Associated Press reports, despite the Brown Act’s requirement that the compensation of non-union “unrepresented” employees must be approved by final action in open session. According to the AP story by Ellen Knickmeyer, the 2007 loan by the Fresno-based Westlands Water District has never been repaid, its principal and interest have now grown to $1.57 million and the recipient, then Chief Deputy General Manager Jason Peltier, has moved on to head the San Luis & Delta-Mendota Water Authority in Los Banos, without mentioning the loan in his state-mandated financial interest disclosures until recently. The board never announced the loan at the time, or even discussed it publicly. Chief Operating Officer Dan Pope told the AP that it never went on the public record because the board approved it in closed session. The Brown Act provides, in Government Code section 54957.6 (a): Notwithstanding any other provision of law, a legislative body of a local agency may hold closed sessions with the local agency’s designated representatives regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees . . . Closed sessions held pursuant to this section shall not include final action on the proposed compensation of one or more unrepresented employees.  

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 […]