Copyright 2005, San Jose Mercury-News

Embrace of Proposition 59, even if tepid, reshapes politics

By Peter Scheer

(San Jose Mercury-News 3/13/05) -- Two months ago, Gov. Arnold Schwarzenegger, after voter approval of Proposition 59, the ``sunshine'' initiative, made public his calendar of appointments and meetings for his first year in office. It's not too soon to assess the impact of that surprise decision.

The governor's action reversed a longtime policy of gubernatorial secrecy that had been blessed by the California Supreme Court in a 1991 decision, Times Mirror vs. Superior Court. That much-criticized decision held that the governor's calendar could be kept secret to protect the chief executive's ``deliberative process.''

Other officials

In the weeks after Schwarzenegger's release of his calendar, media organizations requested and received the appointments calendars of every California elected official holding statewide office:

Attorney General Bill Lockyer, Treasurer Phil Angelides, Controller Steve Westly, Insurance Commissioner John Garamendi, Lt. Gov. Cruz Bustamante, Superintendent of Public Instruction Jack O'Connell and State Board of Equalization members Betty Yee, Bill Leonard, Claude Parrish and John Chiang.

Even Secretary of State Kevin Shelley, though preoccupied with other matters, made public his calendar as one of his last official acts before leaving office.

This unprecedented drawing of drapes on government decision-making derives from Proposition 59. Although it says nothing explicitly about the Times Mirror decision or the ``deliberative process'' privilege, Proposition 59's broad, open-government mandate, coupled with Schwarzenegger's release of his calendar, has irreversibly changed political expectations.

The new norm of calendar disclosure is analogous to the ritual release by candidates for national and statewide office of their income tax returns. This practice, once the rare exception, is now the rule of contemporary politics -- a legally voluntary but politically required act of self-disclosure.

One cannot imagine a serious candidate for president or governor declining, on grounds of confidentiality, to disclose his tax returns. Similarly, California's next governor will have no choice about disclosing his (or her) appointments calendar. The next governor will have to release it, whatever the courts may say about the Times Mirror case, or face the voters' wrath.

Although Schwarzenegger deserves credit for tossing aside the discredited policy of previous governors, his embrace of Proposition 59 has, regrettably, been less than enthusiastic, his view of its legal meaning ambiguous at best.

Recently, his office denied a public-records request filed by the California First Amendment Coalition (and a similar request filed by the Mercury News) for the appointments calendars of the governor's top aides, Chief of Staff Patricia Clarey and Senior Adviser Bonnie Reiss, for a one-week period in September when Schwarzenegger was deciding which bills to sign and which to veto.

The stated reason for withholding these records: the deliberative-process privilege.

Mixed signal

This backpedaling from the clarity of Schwarzenegger's earlier endorsement of Proposition 59 and the release of his own appointments calendar has sent a mixed signal to officials further down the political food chain.

A Tulare County supervisor and the CEO of a public hospital in San Diego, for example, are among the lower-level and local officials who, in recent weeks, have declined to disclose their calendars, claiming the deliberative-process privilege.

For such officials, asserting a need for secrecy, in the face of the opposite action by the governor and all 11 statewide constitutional officers, is the height of hubris and political stupidity. Voters will reasonably infer that these secrecy-obsessed local politicos are either dimwits or have something to hide.

And at the end of the day, that new political reality -- an intolerance by voters for officials' grandiose claims of special privilege -- may be Proposition 59's true legacy.