Awareness Area: Politics

His Reporting Made the Case for the Brown Act

Michael Harris, age 92, died in Chevy Chase, MD on Thursday, but his career was Californian through and through. Equally with Assemblyman Ralph M. Brown and Bud Carpenter of the League of California Cities, he’s to be credited with getting the state legislature to enact the nation’s first omnibus local government open meeting law. He wrote its lead, so to speak, as well—the work of an afternoon, we’re told, with Carpenter sitting across the table, drafting the legal specifics. For Carpenter and the League, the main problem to be solved was not that there was no law requiring open meetings of local government bodies; it was that there were too many, each written to govern specific types of agencies—cities, counties, school and special district boards of various jurisdictions. How could a citizen keep track of all the variously shaded requirements? Harris described that patchwork at the opening of his 10-part series in the San Francisco Chronicle, “Your Secret Government.” But the series also went on to describe how the few generally worded rules that were in place were too routinely evaded by circumlocution or just simply ignored, because there was no uniform remedy and no serious consequence for violation. The series, written when Harris was a young veteran of World War II with only two years on the Chronicle’s reporting staff, still makes fascinating reading, since it shows an era so blithely indifferent to transparency principles that have come to win at least lip service as fundamentals of today’s politics. It also shows what the scene would be like today without the criminal penalty that so many have pooh-poohed as toothless.

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 […]

UPDATE — Monterey D.A. Suspends Brown Act Investigation

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.

Online Training Session: How to Research What Congress Is up to

An appetite for either sausage or the law is said not to recommend watching how it is made, but close attention to what Congress is doing will be the topic of a training session next Tuesday presented by the Sunlight Foundation, which states: Open Congress is a free, open source tool that allows you to explore the workings of Congress from searching for legislation, identifying popular bills, browsing voting records to finding and connecting with your lawmaker. The project, originally launched by the Participatory Politics Foundation, is now a project of Sunlight Foundation. Join us to learn more about how to optimize OpenCongress for your use, from creating issue specific widgets, comparing voting records between two lawmakers (“head to head” function), setting email alerts for federal bills and creating a user account. Register for the 10 a.m. Pacific Time online session here.

California Newsroom Law: Ebook Edition Impresses the Pros

Veteran journalists and j-law teachers are praising the new ebook edition for iPad, Kindle and smartphone—available in paperback as well—of the indispensable guide to newsroom law in California. The CalAware Guide to Journalism Law in California, 2nd Edition, has just been revised to discuss cases decided and legislation passed since 2007 plus new entries devoted to: • recent limits on closed sessions and remedies to correct violations of the Brown Act; • getting records of courthouse administration (not just cases); • online access to court case records; • texting and other uses of e-devices in the courtroom; • libel and copyright cautions for using material from the Internet; • covert audio and video recording for “sting” journalism; • the latest escalations of anti-paparazzi penalties; • warranted searches of journalists’ phone and e-records; • warrantless searches of journalists’ smartphones, laptops and tablets; • covering volatile protest demonstrations; and • California and constitutional law protecting college as well as high school journalists. Features A 360-page indexed paperback pocket edition will be available in mid-November on Amazon at $24.95. Meanwhile the $19.99 ebook edition (at or in the iTunes store) links every mention of a case or code section to the full text online, as well as the leading Internet resources for using the federal Freedom of Information Act.  And like any other ebook, the format allows for contextual word searching, bookmarking and highlighting.  Both editions also include recommended protests or statements to be used in the field when journalists’ rights of access or independence are threatened. Reviewers’ Reactions “More often than not, requests for public information are met with a quick ‘No.’ The CalAware Guide to Journalism Law in California provides a powerful remedy by arming its readers with explanations of the […]

Headlines in Public Forum Law, October 11 2013

OPEN MEETINGS Judge agrees with LA Times, CalAware: Coliseum Commission repeatedly violated open meeting law PUBLIC RECORDS CalAware, Orange County online news center ask high court relief from county’s invited gag order OPEN GOVERNMENT California’s high court justices cool to State Bar’s claim that its records are closed to public Governor signs bill allowing online filing, display of officials’ statements of economic interests Report: White House, deaf to routine info requests, shows singular zeal to detect, deter leakers FREE PRESS Without a First Amendment, British press freedom depends on journalistic feistiness like this OPEN COURTS Bar panel: Free from video monitoring, judges’ courtroom misbehavior happens off the record FREE SPEECH Modesto Junior College sued for barring student vet from handing out copies of the Constitution Anaheim high school apologizes for barring student from wearing NRA T-shirt depicting hunter Court asked to reconsider: Do words that offer advice, counseling lose presumed freedom of speech?  

How Filner’s Transparency Token Came to Call Him out (UPDATED)

Former San Diego Councilwoman Donna Frye soon quit her post as Mayor Bob Filner’s Open Government Director, then led demands that he go Upon winning election as San Diego’s mayor last November, Bob Filner announced he would appoint former City Council Member Donna Frye to a new post: Director of Open Government.  She was the logical choice, if anyone, to fill that role given her leadership on the council for greater transparency and public involvement—walking out of closed sessions, for example, to protest their use for discussions that should have been public. By the end of February Frye was also coincidentally elected as President of Californians Aware, of which she was a charter member of its board of directors. But she had also come to realize that her city position had absolutely no power to make its government more open. On the contrary, decisions on what and how much information would be released to requesters under the California Public Records Act were carefully walled off from her; a staff strategy session on which information would be withheld was conducted behind her back. Before long she resigned, offering as a figleaf  to spare Filner embarrassment the public explanation that she wanted to spend more time in her CalAware role.  She gave the mayor that consideration because she had worked so hard to get him elected and was convinced he was still a great plus for progressive leadership of the city, after many years of Republican mayors.  She had heard rumors about his behavior toward women, but so had many people, and they were no more than rumors. Then, no longer at city hall, she began to hear more.  The full story of how she and two […]

One Line News in Public Forum Law: 9/13/2013

OPEN GOVERNMENT CalAware’s proposed Plan B to save the Brown Act and the Public Records Act to go before the voters Sunlight’s new list has 32 pointers for local/state governments on “proactive disclosure” policies FREE PRESS Judge denies deputies’ bid to gag the L. A. Times from publishing leaked background screenings Governor gets bill requiring 5 day notice to journalists before subpoenas of their phone, email records Federal shield bill moving to the Senate would protect sources of a wider variety of journalists OPEN MEETINGS L.A. Council may allow citizens to address its meetings remotely, avoid hassles of trip downtown FREE SPEECH Federal judges cool to arguments that new sex offender online data tracking preserves free speech PUBLIC INFORMATION Campaign finance watchdog: Just how helpful will the improved Cal-ACCESS online database be? WHISTLEBLOWERS Court: Government attorneys’ ethical duties don’t strip them of law’s whistleblower protections Secret spy court judge: Snowden leak led to “considerable public interest”; more openness needed      

Court: Lawsuit to Obtain Emails Not “Frivolous”

A veteran but financially struggling small-town newspaper publisher facing a trial court order to pay a school district more than $56,000 in attorney fees was spared that fate today by a three-judge panel of the Third District, California Court of Appeal. The court held that while Sacramento Valley Mirror publisher Tim Crews’ lawsuit for emails held by the Willows Unified School District lacked legal merit, it was not “frivolous”—neither intended to harass nor such an obvious loser that no reasonable lawyer would have taken the case.  Accordingly, the trial court had erred in finding Crews liable to pay the district’s attorney fees. Instead, the district will be required to pay Crews’ costs for appealing the matter. Crews filed suit for emails to either confirm or refute a source’s allegation that the district superintendent had used public resources to affect the election of a county schools superintendent. The decision’s lasting effect is to encourage energetic and tenacious litigation to enforce disclosure of government records in California without fear of having an unsuccessful suit labeled as “frivolous” as the basis for paying the government’s attorney fees. Supporting Crews before the Court of Appeal were two amicus curiae briefs: one representing a wide variety of journalism organizations and newspapers, and the other representing Californians Aware, of which Crews has since  been elected as Vice President; State Senator Leland Yee (D-San Francisco); and former Assemblyman William Bagley, the author of the California Public Records Act. The facts and rationale for the decision in Crews v. Willows Unified School District are here.  Background by Jim Newton of the Los Angeles Times is here.

Open Government Back Home and under the Dome

Some notes on two pending legislative measures that would amend the Brown Act and its prescription for transparency in local government agency meetings, plus a third that would add sunshine to how the Legislature itself does its business. When the Minutes Don’t Reveal Whodunnit Some may be surprised to learn that the Brown Act does not require local councils, boards and commissions to create minutes of their meetings; it simply provides that minutes of closed sessions may be kept, but if they are, they are not public records.  And of course there are strong legal, business, practical and political reasons for the maintenance of minutes: to confirm the adoption of ordinances, bylaws and other rules and regulations; to verify approval of contracts and other agreements; and in general to manifest everything done or even considered by the body collectively and officially—and when. Accordingly, the taking, approval and preservation of minutes is an essentially universal practice even in the absence of a legal mandate.  But just how much detail is included varies widely, from the diligent virtual transcript of all that is said, and by whom, to the minimalist action summary that reports only issues reaching a vote, with little or no elaboration beyond a mere label. Even sketchier are those agencies—the Association of Bay Area Governments, for example— that disclose the vote tally, but not who voted which way. Accordingly Senator Leland Yee has introduced SB 751, requiring that local bodies “publicly report any action taken and report the individual vote or abstention of every member present.”  The initial version of the bill put this requirement in Government Code provisions outside the Brown Act and applied them only to the highly specialized local bodies where […]