Council's E-messaging During Meetings Tamed?

OPEN GOVERNMENT — "Elected
officials and lobbyists still can be seen tapping out messages on their
iPhones and BlackBerrys during San Jose City Council meetings," reports John Woolfolk for the San Jose Mercury News. "But
apparently they aren't secretly messaging each other about pending
decisions — something they had acknowledged was once a regular
occurrence — since the council earlier this year agreed to disclose such
communications in a policy that government watchdogs hailed as among
the most progressive in the state."

During a contentious meeting
last month on a redevelopment land sale, several observers noticed
council members and lobbyists busily messaging on their smartphones. Yet
a Mercury News request for personal e-mail, text and other communiqués
to and from council members about the matter produced none from
lobbyists.

The disclosure policy concerning personal electronic
records is an honor system: The city attorney must simply ask council
members to turn over relevant records; private cell phones or phone logs
cannot be seized. Council members indicate lobbyists don't text
them much anymore. And absent evidence to the contrary, Mayor Chuck
Reed, who called for the tougher disclosure policy, called that "a good
thing."

Reed led the council in January to expand its
open-government policies after a Mercury News report found what appeared
to be a common practice of lobbyists communicating with council members
by text or e-mail during meetings. Public speakers, meanwhile, were limited to two minutes each at the microphone.

In one particular case, the then-head of the South
Bay AFL-CIO Labor Council drafted a note suggesting how a council member
should vote — then sent it to the wrong councilman. Council members
later acknowledged regularly receiving such messages from a variety of
advocates during meetings.

Before the council policy change, San
Jose had followed most other cities in treating messages kept on
officials' personal computers or cell phones as off limits to records
requests, even if they concerned public business. Officials cited
practical and privacy concerns about retrieving them. Courts have
yet to definitively overrule that practice, but government watchdogs
argue it creates a gaping loophole in public records laws.

The
newspaper's request for the records, made in the wake of the April 20
hearing on a sale of two city-owned parking lots downtown, was the first
test of the San Jose council's policy.During that meeting, labor
advocates and their allies on the council urged a delay in the sale and
sought wage guarantees for future construction projects on the
property. After several hours of debate, the sale ultimately was
approved.

Only two electronic messages were provided under the
Mercury News request: one from a neighborhood activist to all the
council members raising questions about the deal, and a question from
Councilwoman Nora Campos' chief of staff to the city's redevelopment
director about the timing of a letter from another developer who urged
delay.

Tim Steele, who was representing buyer Sobrato Interests at
the meeting, and Labor Council chief of staff Ben Field said they
weren't texting or e-mailing council members about the matter that
evening. Field — whom reporters and several others in the chamber
observed busily texting during the discussion — would not say via a
spokesman whom he was messaging.Councilman Pierluigi Oliverio
said he sent only a brief note on his BlackBerry to his chief of staff
remarking how long the meeting was going, but it was deleted before the
records request came in later in the day.

Councilman Ash Kalra
said he was messaging back and forth with his staff about unrelated
upcoming agenda items, something he does frequently because "it's the
one time of the week when they have me captive and I can get stuff
done."

Scott Knies, executive director of the San Jose Downtown
Association — who urged approval of the sale at the meeting — noted that
the perception of furious texting between lobbyists and council members
may have been driven by a power outage at City Hall that disabled city
computers during the hearing.

But Kalra added that messages from
lobbyists or other interested parties generally have dried up since the
council adopted its policy."Even people saying hello,
everything's kind of stopped," Kalra said.