Swlogo OPEN GOVERNMENT — A year ago Californians Aware observed Sunshine Week by noting adverse court rulings had just cost it the chance to defend open government and free speech rights, and had cost its president, Richard McKee, a stunning financial loss for putting his own resources on the line in that struggle.  This Sunshine Week, which runs now through Saturday, sees CalAware—and McKee in particular—active in enforcing the transparency laws as never before.

In this space a year ago we remarked

Sunshine Week (March 15-21) is a
national celebration of open government, but here in California a court
decision has favored the suppression of dissent and cost a long-time
open government advocate $80,000.

than four years ago the people of California went to the polls and, by
an overwhelming 83 percent support for Proposition 59, passed a state
constitutional amendment guaranteeing the public fundamental access to
the meetings and records of their local and state government agencies.

month, however, despite those constitutional protections, California
courts finalized an order that a small public interest non-profit group
and its past president must pay nearly $86,000 for merely asking them
to protect the public’s right to hear the opinions expressed by its
local elected representatives.

A year later, public agencies and officials in California who have made a
practice of ignoring, dodging or defying the open government laws are now on
notice: Your chances of being taken to court have just increased.

Californians Aware (CalAware), a six-year-old nonpartisan
public interest organization, has just committed itself to a regular program of
litigation readiness to enforce open meeting laws like the Brown Act and the
Bagley-Keene Act and the California Public Records Act.

At its February 20 meeting, the CalAware board of directors
approved a policy and process to allow:

  • identification of potential violations of the transparency laws highlighted
    in news stories, blogs and direct alerts from citizens;
  • screening of potential cases to increase the likelihood of prevailing in court;
  • review of screened cases by a panel of consulting litigators willing to
    consider representing CalAware based on coverage of their costs; and
    , when appropriate,           
  • settlement with defendant agencies willing to correct their practices and cover
    CalAware’s attorney fees.

Newly elected CalAware President Dennis Winston, himself a
longtime Los Angeles area litigator in open government and free speech cases,
said some targeted practices would be chosen with an eye to making new case law
that could result in greater openness statewide.  But others might be selected to end a local practice that,
left unchallenged, could lead to wider violations of law, he said.

“It is so important for all of us to remember that the
government is our government.  Its
activities should be open and transparent to all citizens.  Equally important, public records
belong to the public.  They are, by
law, to be available to the public upon request unless there is some
substantial overriding reason the records should be kept away from their
owners.  CalAware is committed to
ensuring that these principles, enshrined in our Constitution and our civil
laws, are upheld, when necessary, in court.”

McKee, founding president of CalAware, has been
named Vice President/Open Government Compliance, reflecting his role in
representing the organization in challenging apparently unlawful open meeting
practices throughout the state. McKee’s 
demands for cure and correction of open meeting violations, sent to 24
public agencies throughout the state since last August, have resulted in 13
complete corrective responses, with four Brown Act lawsuits filed, of which one
has been settled. The remaining seven challenges are in progress, under
negotiation or under review.

In one case filed in January, CalAware and McKee are jointly
suing a standing committee of the Los Angeles Community College District to end
its recently discovered practice of holding closed meetings between
administration and labor groups to improve employees’ health benefits.

In another case last week, McKee is seeking a court order ending a habit of private lunches involving a majority of the Tulare County Board of Supervisors and the county executive officer, charged to their county credit cards as "business-related."

McKee said, "For far too long, elected and
appointed officials have been able to defy open meeting requirements and deny
requests for public records, knowing that the only remedy the public has is to
sue.  But because such a lawsuit
can be expensive and time-consuming, very few are ever filed, thus giving
protection to those public officials who may be eager to defraud the people of
their constitutional right to monitor and be involved in their government.  Our litigation program will attempt to
put a stop to such corrupt practices."

CalAware litigation will not be confined to open meeting law violations, said General Counsel Terry Francke. “We’re going to challenge unjustified withholding of
information by public agencies that have gotten used to simply saying ‘No’ to
public records requests.  We will
probably be paying special attention to the more frequently used pretexts for keeping the public in the dark."

Executive Director Emily Francke said that those suspecting
a Brown Act violation or denied access to a public record should e-mail their
experiences to action@calaware.org to
get them considered for possible litigation. She also asked those who have long
complained about the lack of “teeth” in the transparency laws to help sustain
the new effort by making a tax-deductible donation to the CalAware Legal Enforcement Fund.

"Two thirds of your contribution will support the court filing fees and other actual costs of taking cases to court.  The other third will assure that CalAware keeps its doors open and its attention focused on finding the cases that advance the fight," she said.  "Attorney fees will be paid, if at all, by the government agencies that the courts find in violation of the law."  

Contribution inquiries should be directed to action@calaware.org as well, she said.