Legal Issue: Open Government

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

Judicial Council Cool to Open Meetings Proposal

The California Judicial Council, governing body of the state court system, has shown itself reluctant to adopt a proposed rule that would open meetings of its standing and other advisory committees—where most court policy development takes place—to public phone monitoring or attendance.  The Council was asked by the Legislature to report progress toward such a rule on January 1. The Legislative Analyst’s Office encouraged the Council to take the initiative when Governor Brown this fall vetoed a budget rider that would have required open advisory meetings. But, as reported by Maria Dinzeo for Courthouse News Service and lamented by the Alliance of California Judges, the Council was cool toward the recommended access rules outlined in the when it met last Thursday in San Francisco.  Californians Aware commented on the first draft of the proposed rules in November but expressed encouragement that they were even being considered.

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.

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.

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 […]

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