Public Forum Law Week in Review: 6/30/08

Open Government

Columnist: California Lagging in Openness
Thomas Peele, writing in the Contra Costa Times, compares Florida’s and other states’ transparency leadership with the lack thereof in California, and the telling results.

Public Information

Ruling for Privilege Let Stand as Precedent
The California Supreme Court has declined the request of Californians Aware and several other organizations to either take up for review or depublish (remove from case law as citable authority) an opinion of the Court of Appeal concluding that Proposition 59, the open government constitutional amendment enacted by voters in November 2004, did not eliminate a common law privilege insulating legislators from inquiry into their thought processes.

Magistrate Limits Secrecy in Prison Cases
The Associated Press reports that a federal magistrate has rejected an attempt by the Schwarzenegger administration to keep certain documents secret as courts decide whether to cap California's prison population. In pretrial motions, the administration sought to prohibit public disclosure of certain documents, including records classified as sensitive communications or part of internal deliberations.

City to Pay Fees in Successful Records Suit
The Redding Record-Searchlight reports that a Shasta County Superior Court judge has ruled that Redding must pay it $36,288 in attorney fees resulting from its successful lawsuit for records of a city hall personnel investigation. Eight employees were accused either of conducting multiple affairs during work hours on city property from early 2006 through mid-August, or exchanging excessive amounts of sexually explicit e-mail on city computers during work hours. Four were forced to resign.

LA Water/Power Chief Reveals Consumption
The Los Angeles Times reports that after urging Los Angeles residents to conserve water and energy, it turns out that H. David Nahai, general manager of the Department of Water & Power, has a lot to learn about conservation and life as a public official.

Legislative Update As Reported by CNPA
The California Newspaper Publishers Association’s Legislative Bulletin reports the status of several of the bills the association is sponsoring:

  • SB 1019, the bill by Senator Gloria Romero (D-Los Angeles) to restore public access to disciplinary information from peace officers’ civil service appeals, might get the support of the chairman of the Assembly Public Safety Committee (where it failed passage http://www.latimes.com/news/la-me-lapd25-2008jun25,0,2271628.story last week) if it were confined to disclosure of those charges that were sustained on appeal.
  • SB 1696 by Senator Leland Yee (D-San Francisco) is headed to the Governor’s desk after passage in the Legislature. It would prohibit a state or local agency from agreeing to keep information confidential or disclosable unless permitted to release it by the other party to the agreement, and would expressly provide that any public agency’s contract to have consultant conduct a review, audit or report is subject to the same disclosure requirements as other public records.
  • AB 2379 by Assemblywoman Noreen Evans (D-Santa Rosa), is paused, awaiting amendment or other action on the Senate floor, in the Inactive File.  The bill would speed the process of challenging a court’s order unlawfully sealing court records, and is opposed by powerful business lobbies and their lawyers, who say they are concerned with disclosure of trade secrets and other proprietary information. The newspaper publishers hope to work out a compromise.

Meanwhile, AB 2917 and SB 997, opposed rather than sponsored by the publishers, have passed the Senate and Assembly Health Committees, respectively, with healthy margins.  Both would make secret the investigative findings supporting state discipline or certification penalties against emergency medical technicians.

Public Records Disclosed Reveal . . .   

  • that the City of Rialto has spent $26 million in its response to the discovery of perchlorate in the local water supply in 1997; about $17 million went to lawyers’ fees and costs in the attempt to find and sue the polluters, according to the Sun in San Bernardino.
  • that the Los Angeles mayor's office, as well as residents who called the city's 311 non-emergency number, have regularly waited anywhere from two weeks to two months for alleys to be cleaned of illegally dumped trash, reports the Los Angeles Times.
  • that a nurse at a state prison in Monterey County collected $198,000 in overtime last year—bringing her total pay to more than $310,000; the chief investment officer for the state's pension system earned $403,000 in bonuses—for a total paycheck of $945,000; and a CHP deputy chief  collected a lump-sum payout of $103,000, even though she retired almost two years ago and collected no regular pay last year, according to a San Francisco Chronicle analysis of state workers' pay.

Free Speech

Court: Cops Violated Rights but Needn’t Pay
The Metropolitan News-Enterprise reports that a federal appellate court has ruled that a Grass Valley man’s proclamation—in block letters on his 1970 Volkswagen van—that he was a terrorist carrying a weapon of mass destruction was political hyperbole protected by the First Amendment. A three judge panel of the U.S. Ninth Circuit Court of Appeals concluded that police officers violated the driver’s constitutional rights by arresting him, impounding the van upon which he had painted the message, an forcing him to obliterate it. But the court declined to impose liability against the officers, holding that a reasonable officer could have concluded the message was not protected under existing precedent.

Fair Board Denies Public
Comment Right
The Orange County Register reports that the Orange County Fair Board may have violated state open meeting law when it denied the public the opportunity to comment before it approved a new policy on its directors’ entitlement to free tickets and other perks.

Free Press

Estrich: Paparazzi Beach Issue a Tricky One
Legal commentator Susan Estrich asks,“How do you tell the difference between the paparazzi who are chasing Matthew McConaughey and what most of us would think of as ‘legitimate photojournalists’ covering a politician's love shack on the beach?”

The Reporting That Justifies Press Freedom
Marisa Guthrie, writing in Broadcasting & Cable, explains why investigative journalism—on the air but elsewhere as well—is in a struggle to keep inquiring and exposing what the public needs to know when fewer are fewer are prepared to pay for it.

Open Meetings

Critic Faults City Attorney’s Surprise Firing
The Inland Valley Daily Bulletin in Ontario reports that Rialto City Council violated state law when it fired City Attorney Bob Owen during closed session of a January meeting, according to Richard McKee, President Emeritus of Californians Aware. The meeting's agenda said the council would evaluate the city attorney's performance, not that it would consider disciplining or terminating him.

Would-Be Congressman Denies Any Leak Link
The Lodi News-Sentinel reports that Republican congressional candidate Dean Andal denies that he played any part in San Joaquin Delta College trustees' alleged violation of open government laws.??A recent grand jury report charges trustees with leaking to developers closed-session information about a deal to build a satellite campus.

Open Courts

Closed Courtroom Prompts Recusal Motion

The Sacramento Bee reports that the continued arraignment of the suspected killer of a Yolo County Sheriff's deputy was derailed Friday by a surprise defense motion to prevent all Yolo County judges from hearing the case.  The motion alleges "judicial collusion" in the action by deputies who controlled courthouse security to lock the public, including the press and the suspect’s family, out of the June 18 arraignment, reserving access only to deputies and the slain officer’s surviving family.