San Jose Mercury News

11/6/03

Commentary

Court hedges on public's right to know

By Scott Herhold

For the sake of argument, suppose that you, like me, have a family with several kids. Suppose your spouse doles out their allowances. And suppose that you get curious one day and ask what they're paid.

The kids object, saying revealing the amount will invade their privacy. They threaten to sue your spouse. Sadly, he or she informs you that you're entitled only to anonymous yearly summaries.

In rough form, that's what happened in the case of the Palo Alto Daily News (legal name: Priceless LLC) and the San Jose Mercury News (which joined the Daily News in the case) vs. a set of unions that wanted to block the disclosure of employee salaries in five Peninsula cities.

And if you're not ready to hit the roof, you don't really care very much about how your tax money is spent.

The Daily News, a sometimes scrappy paper that is given away free, initially asked 10 cities for the payroll records of their employees last February. Some complied. But Teamsters Union Local 856 and the American Federation of State, County and Municipal Employees stepped in to block disclosure in five cities: Atherton, Belmont, Foster City, San Carlos and Burlingame.

Court decision

San Mateo County Superior Court Judge Rosemary Pfeiffer ruled last spring that the cities would have to turn over salaries without names attached. The newspapers appealed and last week, a state appellate court came down on the union side, saying the employees' right to privacy took precedence.

I'll get to the legal arguments in a minute. But what's dumbfounding about the court's decision is that it's talking about our money.

``Trial courts historically have found that there is tremendous public interest in salary information,'' says Jim Ewert, an attorney for the California Newspaper Publishers Association. ``Certainly, how much they pay with taxpayer dollars to a specific employee is fundamental.''

All of us can sympathize with employees who don't want their salaries published. But when you work for a public agency, you make trade-offs. Usually, you get job security, a better pension and less onerous work conditions. One downside is that you're paid with public money.

Ultimately, taxpayers are your employers. And they have a basic interest in knowing what they're getting for their money. This is as fundamental as the Boston Tea Party. If there's no taxation without representation, there's no delegation without explicit knowledge.

Obviously, the courts didn't agree. The appellate court said the salaries were part of personnel files, historically shielded from disclosure. It said the California Public Records Act provision that ``employee contracts'' are public referred literally to those with contracts -- top bosses.

Confronted with legal agility like this, Mr. Bumble in Dickens' ``Oliver Twist'' said it more eloquently than I could. ``If the law supposes that,'' he said in his semi-grammatical way, ``the law is a ass.''

Tough to verify

I know there is an argument that the interests of taxpayers are served by an anonymous list of salaries. Some cities have organized it by job title, listing all administrative assistants together, for example.

But I learned a long time ago that you can't tell what's on a page simply by looking at the four corners. A question of overtime abuse is tough to verify without the name of the employee. It's hard to even know whether employees are paid fairly department by department.

You don't have to believe in newspapers to realize what's at stake. The point of a public records act is to ensure people enough information to govern themselves -- in the eloquent words of the Brown Act, ``that people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.''

Last week's appellate decision drove a stake through that thought.