First Amendment and open government news

Vol. 15, No. 8, March 28, 2005

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FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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San Francisco Chronicle:
Far from tied down in the Capitol,
Governor spends much of his time outside Sacramento, according to calendars.

Los Angeles Times:
Gov.'s travel spurs tussle over power.
A lawmaker's bill would allow Schwarzenegger to retain control when out of state, restricting the authority of the lieutenant governor.

Los Angeles Times:
Following Gov.'s lead, all statewide elected officials release calendars.

Bloomberg News:
Univ. of California Pushes legislation to clarify disclosure required about venture capital investments. Effort follows CFAC law suit against CALPERS.

Legal Times:
Spy Game: Corporations increasingly use FOIA to obtain sensitive, proprietary information about their competitors. Phenomenon spawns "reverse-FOIA" litigation.

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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, Brooke Beros, Isela Castaneda, James Chadwick, Ed Davis, Katherine Keating, Joshua Koltun , Diana Ng Fung, and Danielle Van Wert at the national law firm of DLA Piper Rudnick Gray Cary, CFAC's general counsel.

Have a legal issue? Submit your question here.

"Amended" Agenda for Public Meeting

Q: Recently, I attended a local school board meeting in which an "Amended" Agenda was made available for the public after the regular agenda had already been published. This "amended" agenda was made available less than 72 hours before the meeting. Is this procedure OK?

A: California Government Code section 54954.2(a) requires the legislative body of the local agency to post an agenda at least 72 hours before a regular meeting. There is no exception to the 72-hour notice requirement for amended agendas. So, the posting of the "amended" agenda you describe below is most likely a violation of the Brown Act.

However, if the agenda was amended to include an item that falls within section 54954.2(b), then posting an amended agenda to include that item probably would not be deemed a violation of the Brown Act. From the information you have provided, that does not appear to be the case here, but it is possible. For your information, the language of Section 54954.2(b) is provided below:

(b) Notwithstanding subdivision (a), the legislative body may take action on items of business not appearing on the posted agenda under any of the conditions stated below. Prior to discussing any item pursuant to this subdivision, the legislative body shall publicly identify the item.

(1) Upon a determination by a majority vote of the legislative body that an emergency situation exists, as defined in Section 54956.5.

(2) Upon a determination by a two-thirds vote of the members of the legislative body present at the meeting, or, if less than two-thirds of the members are present, a unanimous vote of those members present, that there is a need to take immediate action and that the need for action came to the attention of the local agency subsequent to the agenda being posted
as specified in subdivision (a).

(3) The item was posted pursuant to subdivision (a) for a prior meeting of the legislative body occurring not more than five calendar days prior to the date action is taken on the item, and at the prior meeting the item was continued to the meeting at which action is being taken.

Time allotted for speaking at public meeting

Q: Since the State take-over of the Oakland Public Schools, the State Administrator, Randolph Ward, has maintained the following rule for public comment. At a regular State Administrator and/or School Board Meeting, a member of the public is restricted to three minutes of public speech on all agenda and non-agenda items. Is this rule a violation of the Brown Act?

A: Time limits on public comment are not a violation of the Brown Act. A legislative body's chief control over the scope of public comment is the use of time limits. The law does not state what those limits are, simply that they must be "reasonable...to ensure that the intent" of accommodating public comment "is carried out." The Attorney General has concluded that five minutes per speaker may be "reasonable" under the circumstances (75 Ops. Cal. Atty. Gen. 89 (1992)), but many if not most agencies appear to keep the per speaker limit to three minutes - per agenda item.

More important that the exact time permitted is that the time limits be administered neutrally and evenhandedly. Clearly giving more time to citizens on one side of a controversial topic than those on the other, for example, is not "reasonable." On the other hand, although the staff or
other main proponents of an agenda item will commonly take considerable time in presenting the proposal, there is no requirement that citizens be given "equal time" for rebuttal.

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MORE FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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Wall Street Journal:
In War on Terror, U.S. Tries
To Make Public Data Secret;
The Almanac Under Wraps?

San Diego Union-Tribune:
Most San Diego officials release appointments calendars. One City Council member, a holdout, bows to records request. Mayor Murphy considers releasing his.

San Francisco Chronicle:
Legal status of bloggers debated
Journalists' shield claimed in response to Apple's lawsuit

The Recorder:
UC Davis Prof suing CIA for access to 30-year-old intelligence
briefings given to LBJ

Associated Press:
Calif justices void jury award, holding that defendants'
anti-SLAPP defense must be finally decided before trial can proceed.

Court decision:
Superintendent's performance goals are exempt from disclosure, 4th District says

Sacramento Bee:
State-supported museum to focus on women in California history. Some question exemption from open records laws.

San Jose Mercury-News:
Judge denies bid to open hearings
In juvenile foster care proceedings.

Marin Independent Journal:
Judge rejects First Amendment
suit by high school newspaper editor.

Court decision:
Court affirms use of anti-SLAPP statute by defendant who
posted defamatory comments about plaintiffs, who were candidates
for local public office.

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CFAC IN THE NEWS
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CNET.com:
Cheers, jeers for ruling on Apple bloggers

Vacaville Reporter:
Opening up government
Prop. 59 is changing way officials do our business

Long Beach Press-Telegram:
Public access is shadowy territory
Despite Proposition 59, government
agencies remain tough nuts to crack.

San Jose Mercury-News:
Judge denies bid to open hearings
In juvenile foster care proceedings.

Sacramento Bee:
State-supported museum to focus on women in California history. Some question exemption from open records laws.

San Jose Mercury-News:
Embrace of Proposition 59, even if tepid, reshapes politics

Sacramento Bee:
Sunshine and shadow
State must operate in the open to
maintain its accountability

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EDITORIAL
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San Diego Union Tribune
See the light: Open government is core
of democratic values

San Francisco Chronicle:
The question is not whether bloggers are journalists, it's which bloggers are journalists.

Vacaville Reporter:
Opening up government
Prop. 59 is changing way officials do our business

Sacramento Bee:
Sunshine and shadow
State must operate in the open to maintain its accountability

The Recorder:
When reporters can't invoke the 1st Amendment to refuse a subpoena, they should consider "taking the 5th."

San Jose Mercury-News:
Embrace of Proposition 59, even if tepid, reshapes politics

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