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.

The problem began when a majority
of the Orange Unified School District (OUSD) Board didn’t like one of
its members’ criticism of its decision supporting the superintendent’s
transfer of a high school principal to a nonexistent position,
“principal on special assignment,” at a continuation school. The
dissident member said the board should have fired the principal after
the many complaints received from parents about his performance—instead
of transferring him to a school already having achievement problems.

superintendent edited the dissenter’s comments out of the DVD the
district distributes to local cable TV stations for airing. Then, in
violation of its own bylaws, the board censured the member for his
negative comments, warning him not to repeat the offense. The Board
majority saw its chance to issue a public rebuke to a dissident thorn
in their side, who favored the use of long diatribes during meetings to
pronounce the Board majority and school administration corrupt.

McKee, then president of Californians Aware (CalAware), had earlier
warned the board that such an action violated the Brown Act’s
prohibition against discouraging the expression of one or more of its
members. After the censure action, McKee and CalAware petitioned the
court for an order overturning the censure and for a declaration that
the editing of the recording of the meeting was unlawful.  It sought no
money damages or other remedies, and was filed by a trial lawyer on the
CalAware board who took the case pro bono publico—waiving any fees if
the action was unsuccessful.

Orange Unified filed an anti-SLAPP
motion, claiming that McKee and CalAware were trying to stifle the
district’s right to free speech.  Such a motion asks dismissal of any
lawsuit that attempts to chill the valid exercise of free speech in
matters of public interest. If the court grants the motion, not only is
the case against the speaker tossed out of court, but the plaintiff
seeking to stop the speech must pay the speaker’s attorney fees.

trial judge liked—and promptly granted—the district’s anti-SLAPP
motion, saying the OUSD Board was right to censure the minority
member’s criticism, calling it “boorish,” and concluded that the
alteration of the meeting tape to remove the critical comments was
protected, because it represented the right of the district to control
its own speech.

Confident that the ruling would be overturned
under Proposition 59, the Brown Act and the First Amendment, McKee and
CalAware appealed, pleading that the public had a right to hear all the
comments made by its elected representatives at an open meeting.  But
the Fourth Appellate District sitting in Santa Ana agreed with the
trial court that the district’s speech rights trumped the dissident
trustee’s, ruling that McKee and CalAware were responsible for OUSD’s
attorney fees.  Then, after the California Supreme Court denied review,
reality set in.  

Despite the fact that the Brown Act itself
protects plaintiffs suing to enforce open government from such a fee
order unless the action is judged “clearly frivolous and totally
lacking in merit” (a finding not made by either of these courts), McKee
and CalAware are on the hook.  

But CalAware is a five-year-old
nonprofit with very limited assets.  It has already contributed all the
cash it could raise, $6,000. Thus McKee, whose wages have already been
garnished by OUSD, and who has had a lien placed upon his home by the
district, is left to scramble to come up with the remaining $80,000. 
He’s already paid $59,000 of it through a second trust deed on his
home, depleted his savings, and is now taking another $16,000 from a
tax shelter annuity.  How he will come up with the remainder is

None of this was supposed to happen. The California
Constitution requires that any law, like the Brown Act, which furthers
the people’s right of access to information concerning the conduct of
the people’s business, “shall be broadly construed if it furthers the
people's right of access, and narrowly construed if it limits the right
of access.”  

In this case the courts gutted the Brown Act of the
protections that were there to secure the people’s right to hear the
concerns expressed by their local elected representatives, as well as
their statements of support.

Here, despite the California
Constitution and the Brown Act, the courts have granted public agencies
the right to punish expressions of concern made by their own officers
to the public they serve, and to censor any information from its
publications that the agency doesn’t want the people to see or hear. 
These are rights usually associated with an authoritarian regime, not a
democratic republic.

So now it’s back to the drawing board,
trying to formulate a legislative remedy for the loss of a fundamental
right voided by the courts.

Meanwhile McKee, a chemistry
professor of 34 years who, as a non-lawyer, has successfully prosecuted
14 other Brown Act and Public Records Act cases to protect the public’s
right to open government, is wondering what happened to his retirement
savings—and not just because of the economy. 

help Rich McKee stop the hemorrhage of his life savings to answer this
liability and to help CalAware build its resources to fight for open
government in the future, send a tax-deductible charitable gift check
marked “Legal Defense Fund” to Californians Aware, 2218 Homewood Way,
Carmichael, CA 95608, or contact General Counsel Terry Francke by e-mail or phone — (916) 487-7000.