First Amendment and open government news
Vol. 15, No. 2, January 17, 2005
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COMMENTARY
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Public employee unions: the new "bad guys" in government access fights?
By Peter Scheer
(CFAC 1/16/05) -- Public employee unions, once steadfast supporters of open government, lately have been showing up on the wrong side of public access fights. And they're not just siding with the bad guys -- hese fights, they are the bad guys.
Take, for example, the Sacramento Bee's recent efforts to obtain city
records concerning the suspension of firefighters for misdeeds such as
drinking on duty, using fire engines as personal transport for trips to
pick-up bars and an adult book store (to get a porn star's signature),
and joy-riding with girl friends in official vehicles.
Before the city of Sacramento could comply with the newspaper's public
records request, Local 522 of the firefighters union filed suit against
the city, requesting an injunction to block disclosure of disciplinary
records involving the firefighters. At the end of December, Sacramento
Superior Court Judge Thomas M. Cecil denied the injunction request, rejecting
the union's argument that releasing the records would violate the firefighters'
privacy rights.
In another recent case the city of Oakland, yielding to pressure from public employee unions representing police officers, departed from its past practice and policy of many years and denied a public records request for the pay of employees making more than $100,000 per year. Because of the union pressure, the Contra Costa Times was forced to take the city to court to enforce the records request. The court agreed with the Times, ordering release of the salary information.
One the salary data became public, it was obvious why the union had worked so hard to keep it under wraps: The records showed that 34% of police and firefighters receive above $100,000 a year, due to mainly excessive overtime.
Unions have no legitimate business injecting themselves into other parties' public records requests. Agencies are supposed to decide requests under the Public Records Act on their merits -- do the records qualify for an exemption from disclosure or not? -- not on the basis of lobbying pressure from an outsider or a threat of litigation. Such interference should be grounds for reversing an agency's denial of a record request.
This isn't to say that unions have no forum to complain about a public records request affecting its members. Unions, like other outsiders, can always sue an agency, after its release of records, for damages caused by disclosure of information that they contend is confidential, privileged, proprietary or whatever. But unions, like other outsiders, should not be allowed to preempt an agency's release of records.
Unfortunately, unions currently have little disincentive to using the courts preemptively -- to try to enjoin agencies from releasing requested records that the unions want to keep secret. In considering such suits, unions see little downside, since they can litigate relatively inexpensively (using in-house lawyers), and a big upside, because they may win (and, indeed, they have won in some cases.)
Here's a suggestion:
Next time a public employee union sues unsuccessfully to enjoin an agency from releasing records under the Public Records Act, the union should be ordered to pay the attorney's fees of both the agency and the requester. That will at least cause unions to think twice before rushing off to court for another preliminary injunction to stop an agency from complying with a request for records.
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FREE PRESS
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CFAC board member commits $40,000 to save student newspapers in Oakland
(CFAC 1/17/05) -- California First Amendment Coalition board member Rowland "Reb" Rebele and his wife Pat recently donated $40,000 to sustain Oakland's high school newspapers.
Rebele, who also owns the Paradise Post, committed the funds after reading a Dec. 2 commentary in the San Francisco Chronicle by Burt Dragin, who is a student newspaper adviser at Laney College, a community college in Oakland.
The commentary highlighted the fiscal crisis for student newspapers after Randolph Ward, a state official who was appointed to pull the Oakland school district out of debt, said in the Oakland Tribune that there were no funds for printing of school newspapers.
Dragin noted the positive achievements of budding, diligent reporters.
"The Berkeley High School Jacket staff, for example, investigated the death of a local teenager and discovered she had been transported from India for exploitation by a real-estate mogul," said Dragin. "A trial and conviction resulted. There are untold examples of high school reporters eschewing the homecoming-queen story and pursuing matters of importance."
The Rebeles expect the newspapers to use the relief to cover production and printing expenses, but they want the newspapers to use the opportunity to formulate a long term plan.
"This money will literally keep these newspapers alive for one to two years while their advisors and staffs contemporaneously seek permanent funding -- either through school budgets, ad sales, fund raising events, grants from others like myself, etc," Rebele said. "The grant my wife and I are making stipulates that the newspapers must develop a plan for self-sustainability during the first six months, then put it into practice so that by the time the grant runs out, they will be self sufficient."
Rebele said that he suspects the funds to be distributed as early as this spring, but that some schools may not be able to receive them until the fall.
Steve O'Donoghue, director of the High School Newspaper Support Program based in San Francisco will manage the funds.
O'Donoghue also played a vital role in planning CFAC's 2004 assembly. --EB
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ACCESS TO MEETINGS
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Ventura County
Star:
Backpay for Brown Act violation? Failure to follow rules means fired
school superintendant was never legally terminated. Ergo, she entitled
to packpay (plus attorney's fees).
The
Press-Enterprise:
County gad fly given one month in jail for third strike of disrupting
supervisors' public meetings.
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organization dedicated to enhancing rights to freedom of speech and open
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ACCESS TO COURTS
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Washington
Post:
Stop the presses: Media-phobic Justice Scalia OKs C-SPAN camera at law
school talk
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CFAC HOTLINE Q & A
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The Hotline is CFAC's online legal information service. Questions from reporters, government officials, civic activists and the occasional crackpot are answered by media law specialists Roger Myers, Katherine Keating, and Joshua Koltun at the national law firm of DLA Piper Rudnick Gray Cary, CFAC's general counsel.
Special Water District
Q: I am a resident in a special water district. I have tried for years
to get water but have been told there was a moratorium due to a drought.
When I and several other residents began to investigate the board, we
were labeled trouble makers and harassed at the meetings. Several meeting
have been held in closed session. We feel we have uncovered misconduct
by management and misuse of public funds by board directors who have tried
to cover-up the activities. At the next scheduled meeting in Feb., the
sheriff has been asked to arrest us for inciting a riot if we attempt
to speak pursuant to the Brown Act, and address violation of sec. 30000
of the water code under which they operate. Any Hope?
A: In general, the law is meant to balance the right to speak freely against the need of government agencies to conduct their business. A legislative body can take action against "disruptive" speech, but it can't prevent critical speech merely by labeling it disruptive. Although the Brown Act provides for the opportunity for members of the public to comment on "items of interest to the public," the Act also allows a legislative body to "adopt reasonable regulations . . . including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker." Cal. Govt. Code Section 54954.3(a)-(b).
A public meeting of a legislative body is considered to be a limited public forum for First Amendment purposes. Generally speaking, restrictions on speech in a limited public forum must be reasonable, must be viewpoint-neutral, and must preserve the purposes of that limited forum. In the context of city council meetings, the Ninth Circuit has explained that "[a] speaker may disrupt a Council meeting by speaking too long, by being unduly repetitious, or by extended discussion of irrelevancies. The meeting is disrupted because the Council is prevented from accomplishing its business in a reasonably efficient manner. Indeed, such conduct may interfere with the rights of other speakers." White v. City of Norwalk, 900 F.2d 1421, 1426 (9th Cir. 1990).
A California court recently upheld a verdict of willfully disturbing a public meeting against an individual who was arrested after dumping bags of garbage on the floor of a school board meeting in order to illustrate points he was making about trash-related issues. McMahon v. Albany Unified School District, 104 Cal.App.4th 1275 (Ct. App. 2003).
A crucial point in both of these cases is that it was not the content of the speaker's expression that made the behavior disruptive. In other words, a legislative body cannot label a speaker's expression as disruptive merely because the body disagrees with what the speaker is saying. In fact, the Brown Act specifically provides that "[t]he legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body." Cal. Govt. Code Section 54954.3(c).
Another point to consider is that generally restrictions on speech that has not yet taken place are exceptionally hard to justify. Although we cannot advise you as to your specific situation, arresting someone before he speaks because his speech might be considered disruptive if it happens seems extremely problematic from a First Amendment perspective.
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STORIES USING CPRA, FOIA RECORDS
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Associated
Press:
Newly released FOIA documents show FBI Keeping files on all Pre-9/11 air
travelers
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ACCESS TO RECORDS
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Monterey
County Herald:
Monterey ordered to pay $110,000 in attorney's fees in public records
case.
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CFAC IN THE NEWS
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Record
Searchlight:
Adequacy of meeting notice at issue in dispute over hiring of fire chief
If you have suggestions for items to be included in CFAC's weekly Flash,
please e-mail them to Peter Scheer