Copyright 2004, North County Times

Prop. 59 to pry open government

(North County Times 12/18/04) -- Look for local government in Southwest Riverside County and across the state to become more open, gradually, now that voters have overwhelmingly endorsed giving Californians a constitutional right to scrutinize meetings and writings of public officials, legal experts say.

That right was imparted to Californians last month when more than 83 percent of voters statewide cast ballots in favor of Proposition 59, which amended the state constitution. Of the 16 initiatives on the crowded Nov. 2 ballot, only a measure to limit Sacramento's ability to seize local revenues in times of fiscal crisis garnered more support.

In adopting the measure, California joined several other states ---- among them Florida, Louisiana, Montana and New Hampshire ---- in elevating the priority of open government to the constitutional level.

"I think it's very healthy to have that in the constitution," said Peter Keane, dean of the Golden Gate University Law School in San Francisco. "There's no reason why the public's business should be done in secret, except when there is litigation involved. Whenever you have government doing its work in the dark, you pull away from democracy, and that is not a healthy thing."

California already has state laws that set out rules for city councils, county boards of supervisors, water district boards and an assortment of other agencies to follow when conducting meetings and deciding whether to let the public review its records. Generally, public bodies are supposed to meet in the open, except to talk about lawsuits they are engaged in, negotiations for property they intend to buy and personnel matters, such as disciplinary action.

Proponents of open meeting laws say it's important to keep records and meetings open so that the public can participate in the process. In addition, proponents say, office holders are more accountable when their decisions are able to be scrutinized.

But the California First Amendment Coalition, which sponsored the measure, said state laws have not prevented widespread secrecy in government. And, more importantly, court decisions have eroded laws by tacking on exceptions to the open meetings rule.

For example, the coalition said, the state Supreme Court created a "deliberative process privilege" doctrine that allowed agencies to withhold information about how decisions were reached and who influenced them. Historically, California's governors have used this exception, for example, to keep people in the dark about the names and qualifications of people being considered for key appointments.

But already change is occurring on that front, said Peter Scheer, executive director for the coalition in San Francisco. Gov. Arnold Schwarzenegger has announced his intention to set a new precedent by releasing records containing details about the people he is considering for appointments.

"Now granted, he hasn't produced them yet," Scheer said. "But we'll take him at his word that he intends to do so."

Scheer said he is hopeful that other public officials across the state will follow Schwarzenegger's lead, and announce other plans to reverse policies that have been keeping the public in the dark about certain government matters.

Besides persuading some officials to set a pattern of more open governing, the initiative has opened the door for groups such as the coalition to launch legal challenges against existing or new state laws that go against the grain of Prop. 59, Scheer said.

"Previously you couldn't have brought such a lawsuit," he said. "It just would have been thrown out on grounds that the Legislature doesn't have to explain itself."

But, now that there is a clear expectation of openness, laws could be declared unconstitutional, Scheer said.

"It prevents the Legislature from making changes unilaterally," said John Harper, Murrieta's city attorney.

He said the coalition also is reviewing recent court decisions to determine which should be challenged. Scheer said the group aims to overturn some judges' opinions that have added "gray areas" to the original list of three things ---- litigation, negotiations and personnel matters ---- that were grounds for closing meetings. One of those gray areas, he said, enabled some agencies to withhold information about key employees' salaries and benefits.

"If it's one of those gray areas, Prop. 59 creates the opportunity to say, 'Hey, you can't withhold that.' Maybe you could before Nov. 2, but not anymore," Scheer said.

Besides writing openness into the constitution, Prop. 59 puts the burden on public agencies to prove that there is a legitimate reason for keeping a record private, he said. And agencies cannot simply refuse to provide records ---- they are required under the constitutional amendment to explain why they are withholding a particular document from someone requesting materials.

As a result, Harper said, "I would expect that the courts are going to look more closely than they have in the past at agencies' efforts to close records."

In Southwest Riverside County, officials for Temecula, Murrieta and Lake Elsinore suggested that the constitutional amendment won't have a significant effect on their operations because they already endeavor to keep records and meetings open, in line with existing laws.

"It really hasn't changed the way we do business," said Temecula City Clerk Susan Jones.

Harper's assessment was similar, in Murrieta's case.

"Most things are public information now, and we don't try to hide behind potential exceptions," he said.

As for Lake Elsinore, several years ago the city was dogged by a reputation for carrying out business in secret, spokesman Mark Dennis said. But Dennis said that under the administration of outgoing City Manager Dick Watenpaugh, the city has been working to create a transparent government.

Overall, local officials maintain they are already complying with existing open meeting laws and that Prop. 59 will have a much greater impact on the operations of state government.

An initiative promoter is not so sure about that.

James Chadwick, a Palo Alto attorney who wrote the ballot argument supporting the proposition, said, "This thing has every bit of impact on local government as it does on state government. I think initially, local government is going to be very resistant. They are going to pretend that nothing's changed."

By Dave Downey