Orange County Register

11/2/03

How we're kept in the dark
The Top 10 ways that local government officials abuse state openness laws

By Richard McKee

The Pasadena City College chemistry professor is president of the California First Amendment Coalition.

After the founding fathers created the Bill of Rights, Congress created a framework of laws to further define and protect our freedoms. Among these were a wide range of anti-secrecy laws, meant to ensure public access to information about how the government does its business.

Congress recognized that a "government of the people, by the people and for the people" only survives when access to information remains unfettered.

Fifty years ago, the California Legislature responded to reports of growing secrecy in state government by creating an open-meeting law known as the Ralph M. Brown Act (later followed by the Public Records Act) to ensure a public right of access to governmental records. In doing so, the Legislature made obvious its intention to protect the sovereignty and control of the people over the agencies created to serve them.

Yet despite this history and the elaborate guarantees of openness these laws provided, governmental secrecy at the local level continues to run rampant in what amounts to an all-out assault on our civil rights.

To give a sense of just how broad this assault, consider one man's Top 10 categories of illegal secrecy employed today by California's local agencies:

10. Hiding how public money is spent.Some agencies refuse to identify the people or organizations they spend public money to entertain, saying secrecy is justified because, if others knew what businesses were being courted to perform certain government tasks, it might create a competition that would cost the taxpayers money. In reality, every insider knows the firms in question - just not the public, which picks up the tab.

9. Violating free-speech rights at meetings.Many councils and boards have rules restraining members of the public from openly complaining at meetings about the performance of an agency employee. In fact, any agency attempt to stop public criticism of its workers violates the First Amendment.

8. Budgeting in secret.Some agencies use labor negotiation closed sessions as an opportunity for secret budget discussions. In fact, the law strictly forbids such extended budget discussions in secret.

7. Using private corporations to hide unpopular decisions.Here's an example: A city bought a majority interest in a private water company and, by virtue of its majority ownership, appointed all the water board's directors. This board then used its closed meetings to set higher rates for water purchased by the city, and claimed its records justifying the increase were private. The city then justified raising the water rates charged to its residents, funneling some of that increase into the city's general fund. Legal? No - the water company is a publicly owned utility, required to hold open meetings and to honor requests for copies of its records.

6. Approving contract buyouts in secret.Many agency boards use closed sessions identified as "performance evaluation" meetings to negotiate and execute settlement agreements with managers those boards want to be rid of. The law never allows such a contract involving public funds to be approved in secret.

5. Refusing to release information on public employee pay.Until a court ordered the actual payroll records released, a county - first by lying and then by refusing public records requests - hid $1.2 million in extra yearly pay it was giving to its managers. By law, this is public record.

4. Adding surprise items to meeting agendas.Some officials try to sneak things past the public by waiting until a meeting begins to add something of controversy to the agenda. Recent examples include: voting to appoint a new council member rather than hold a special election; voiding part of a contentious construction contract; and approving a $1 million street improvement plan. The law is clear: Items of business may never be added to posted special meeting agendas, and additions to regular meetings are OK only if immediate action is required and the item wasn't previously known to the agency.

3. Hiding land deals in illegal closed sessions.To avoid a heated confrontation, one agency claimed to be negotiating to sell one parcel, while in closed session it was actually trying to buy another. In another case, a city wanted to broker a deal between two private parties on land the city didn't own by using an illegal closed session to discuss adding $400,000 in public funds to encourage the deal. When a closed session on real estate is held, the agenda is required to specifically identify the land under negotiation, and the agency must own or be seeking to buy or lease that land. Even then, the only topics that can be discussed legally are price and terms of payment.

2. Using closed sessions ostensibly about litigation to discuss other issues.A county board's agenda indicated the supervisors were thinking about filing a lawsuit. The board was actually using the secret session to discuss and vote upon ordering its county counsel to withhold a qualified initiative from an upcoming ballot. To legally hold closed sessions on litigation, specific facts and circumstances must exist before secrecy is even allowed. Even then, board members are only to talk with the agency's attorney on litigation strategy.

1. Increasing staff salaries in closed sessions.This is the most common category of illegal secrecy. Closed-session evaluations of senior managers are proper. But far too often, elected officials use this secrecy to decide on pay raises and added benefits. No salary increase for any manager can be voted on until it's been properly agendized for an open meeting and the public has an opportunity to comment.

As long as this list may seem, there are still more ways that local governments keep the public in dark. Despite the fact that courts have warned that "democracies die behind closed doors" and governmental "openness enhances the perception of integrity and fairness," this summer there were reports about how government workers now take classes that teach them how to escape public scrutiny.

It may be a natural tendency of government officials to hold meetings in secret to avoid criticism and proceed informally, but it is a deeply unfortunate one. A durable democracy depends upon open proceedings, the free flow of information and vigorous press scrutiny.