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New CFAC Officers
Installed (1/15/04)
CFAC gives Gov. Gray Davis its 2002 Black Hole Award (10/18/02)
Sunshine ordinance leaders and college journalist receive CFAC's Beacon Awards 10/18/02)
CFAC asks ABC to investigate officer's arrest (9/9/02)
Lawyers: Attend OpenGov02, receive up to 33 MCLE credits (9/9/02)
SCA 7 scheduled for second Senate hearing (6/10/02)
CFAC Joins ACLU and EPIC Seeking Limits on FBI (6/03/02)
Farr Award to Reporter who Personally went to Court (5/20/02)
Beacons to School Board Activist, Reporter, Newspaper (5/20/02)
Call for Presentations for OpenGov02 (5/6/02)
SCA 7's First Committee Hearing Delayed (4/22/02)
CFAC's McKee Taking District to Court (4/22/02)
Nominees Sought for Farr Open Government Award (4/1/02)
CFAC President Makes Brown Act Challenges (4/1/02)
Open Government Conference Slated for Oct. 17-19 (3/18/02)
CFAC demands Los Angeles Supervisors Cure and Correct Brown Act Violations (3/18/02)
CFAC President Lays Down Challenge to La Puente School Board (3/18/02)
CFAC Joins Support for Case Defending Criticism on Internet (3/4/02)
California Common Cause Supports Constitutional Sunshine Bill (2/18/02)
Agency Lobbyists Air Concerns about Sunshine Amendment (2/11/02)
Latest on SCA 7 The Constitutional Sunshine Amendment Bill (2/4/02)
CFAC to Question Closed Sessions of Ethics Commissions (2/4/02)
Burton Introduces CFAC “Sunshine” Constitutional Amendment (1/14/02)
User-Friendly Public Records Law Takes Effect (1/07/02)
2001 Releases
Burton to Carry CFAC’s Constitutional Sunshine Amendment (12/24/01)
CFAC Board Protests Ashcroft, White House Policies (12/24/01)
Civic Activist Elected as CFAC President (12/17/01)
CFAC Workshop Sponsored by Wide Array in Idyllwild (12/17/01)
CFAC Counsel Among Panelists on War Coverage (10/29/01)
Help CFAC Cite Good/Bad Open Government Examples (10/29/01)
Two Writers Show Why Belief is First in the First Amendment 10/22/01)
CFAC Signs on National Plea for Adequate Coverage Rules (10/15/01)
CFAC Urges Lawmakers to Go Slow on Anti-Terrorism Bill (9/17/01)
List: Web Sites for News, Ideas and Help for the Duration (9/17/01)
Pullen Named To CFAC Board (3/30/01)
CFAC Litigation Fund Named After Bergholz (3/23/01)
CFAC Opposes Bill Exempting Bids From Brown Act (3/23/01)
UPDATES & OTHER BRIEFS (10/8/01)
UPDATES & OTHER BRIEFS (9/24/01)
UPDATES & OTHER BRIEFS (3/23/01)
UPDATES & OTHER BRIEFS (3/9/01)
UPDATES & OTHER BRIEFS (2/23/01)
UPDATES & OTHER BRIEF (2/16/01)
UPDATES & OTHER BRIEFS (2/9/01)
UPDATES & OTHER BRIEFS (2/2/01)
Needed Asap: Your Experience In Requesting Records From The State (1/26/01)
Contributions To CFAC In Memory Of Richard Bergholz Top $1,400 (1/19/01)
Richard Bergholz, Legendary Reporter And Charter CFAC Director (1/5/01)
Updates & Other Briefs (1/5/01)
2000 Releases
UPDATES & OTHER BRIEFS (12/22/00)
UPDATES & OTHER BRIEFS (12/15/00)
UPDATES & OTHER BRIEFS (12/8/00)
Annual Assembly A 'Smashing Success," Says CFAC's Pollock (10/20/00)
Black Hole Awards Prompt Defensive Reactions From Officials (10/20/00)
First Amendment "Beacons" Honored At Conference (10/14/00)
Black Hole Awards Given For Blatant Disregard Of First Amendment (10/14/00)
State Supreme Court Chief Justice, Legendary Journalist at 1st Amendment Assembly (10/14/00)
Blues Brothers To Join Supreme Court Chief Justice At 1st Amendment Assembly (10/13/00)
Compliance Audit of the California Public Records Act (10/1/00)
Kent Pollock To Succeed Wendy Zlotlow As Executive Director (9/1/00)
1999 Releases
Judge Orders Release of "Un-American Activities" Committee Transcripts
Assembled CFAC Supporters Adopt Six Calls For Action
Editors Honor Former Reporter Who Faces Jail to Protect Source
Mission Viejo City Officials Harass Fellow Board Member:
Barry Duncan: Arrested, Elected & Now Suing
Rezendes:Court allows former reporter to maintain source's anonymity without penalty.
Editors Honor Former Reporter Who Faces Jail to Protect Source
1998 Releases
CFAC Announces New Executive Staff
Candidates' Positions on Open Government Sought
Legal Notebook Lets You Take the Law into Your Own Hands
Newspaper's Fight for Free Records Proves Costly
CFAC gives Gov. Gray Davis
its 2002 Black Hole Award
For persistent hostility to free speech and open government reform
The California First Amendment Coalition announced today that Governor Gray Davis is the recipient of the organization's 2002 Black Hole Award in recognition of his persistent hostility to free speech and the improvement of access to government meetings and records.
"Secrecy has permeated the Davis administration's actions on everything from the budget to his handling of the energy crisis, when the governor had to be forced by a court to obey the California Public Records Act," CFAC President Rich McKee said. "He has not been a friend to those who advocate for government openness. He is truly the prince of darkness when it comes to government transparency."
Through a series of vetoes, Governor Davis has routinely blocked legislation-including bills that passed the Legislature unanimously-that would have greatly improved compliance with open government laws and protected free speech.
In fact, when legislation might result in shedding more light on issues he would prefer remain without public scrutiny, Governor Davis has responded in a manner that makes it abundantly clear that he opposes and will veto any attempt to:
· Allow the attorney general to provide the public with a second opinion on the lawfulness of public information denials
· Allow any government attorney to seek enforcement of the law against a superior official who could not otherwise be prevented from engaging in corrupt activity
· Allow journalists the same access to the California prison system that was available to them for more than two decades without incident
Details of Davis' actions that earned him the 2002 Black Hole Award are included in a bill of particulars available on the Internet at ../blackhole.html.
Additionally, Davis' secrecy surrounding energy negotiations circumvented the public's right to know how its government is spending money and finding solutions to crisis. And his own office has been exempted from even the cursory examination his administration did to assess how well state government is complying with the California Public Records Act. (See ../blackhole.html)
In the past, CFAC has given its black hole award to such recipients as the cities of Vallejo, Claremont and Inglewood and the board of supervisors and district attorney of San Bernardino County.
The award will be presented at OpenGov02, CFAC's open government annual conference being held this weekend at San Jose State University. The Davis administration was asked to respond to the award's allegations, but declined, sending instead a form letter regretting that he could not attend and sending the governor's "best personal wishes for a successful conference."
CFAC asks ABC to
investigate photographer's arrest
CHICO (9/9/02) -- CFAC expressed outrage and publicly called
for an investigation into last week's arrest of a campus newspaper photographer and the
confiscation of his film by an agent working for the state Alcohol and Beverage Control
Agency.
Misha Osinovskiy, a student photographer for the CSU Chico Orion newspaper, was arrested for taking a photograph on the streets of Chico of an ABC agent writing a citation for urinating in public. His camera and film were confiscated, however they were later returned in undamaged condition.
"Facts reported by the media indicate an outrageous lack of professionalism and ignorance of basic civil rights by your agent," CFAC Executive Director Kent Pollock said in a letter to ABC Secretary Maria Contreras-Sweet and the agency's interim director, Manuel Espinoza. CFAC's letter requested an investigation into the agent's actions and an assurance that all field operatives understand the basic rights of photographers to take photos in public places.
Photographer Osinovskiy, a Russian immigrant, spent about three hours in jail after being handcuffed and arrested for obstructing a peace officer from doing his duty, which at the time was writing a misdemeanor citation to a student who allegedly urinated in the street. At first, the agent told Osinovskiy to stop photographing him because he was an undercover agent, Osinovskiy said. The agent later changed his story and said the photographer was blinding him and making it difficult to do his job.
The agent reported that Osinovskiy had taken five photographs from a distance as close as two feet away, causing him difficulty in doing his job. When the confiscated film was developed, however, it showed that only two photographs had been taken and that the closest shot was taken from across the bed of a pickup truck with the agent on the other side.
"Even if the published reports of your agent's claims are accurate, which is in dispute, your agency clearly should drop the charges against Osinovskiy, apologize to him and hope no further litigation follows," Pollock wrote. "Will you please remind your staff and agents that the First Amendment to the U.S. Constitution absolutely prohibits the arrest of a photojournalist under the conditions described by your agent. And that confiscation of film is illegal under virtually all circumstances."
Lawyers: Attend OpenGov02,
receive up to 33 MCLE credits
SAN JOSE (9/9/02) -- The California Bar Association has
granted 33 hours of "Mandatory Continuing Education Credits" for attorneys
attending OpenGov02, the
conference for people passionate about government transparency scheduled for Oct. 17-19 at
San Jose State University.
There's still time for CFAC members to receive a significant discount by registering for OpenGov02 before Sept. 15 for $40, which is a 20 percent discount off full conference registration.
OpenGov02 features a program filled with expert advice and shared experiences from attorneys, journalists, civic activists and government officials who will explore open government issues in California and beyond.
Attorneys attending OpenGov02 will qualify for up to 33 hours of MCLE credits for a fee of $20 per credit.
Keynote speakers include Chief Justice Ronald George of the California Supreme Court, Los Angeles Times Editor John Carroll and California Voter Foundation President Kim Alexander. There are more than 50 experts on open government law in California that will share their knowledge with conference participants.
Registration for OpenGov02 is available online or by phone, FAX or mail. Call CFAC at (916) 974-8888 for details. All CFAC members should receive a full conference brochure in the mail this week.
"This is going to be an amazing conference with experts from throughout the state doing presentations to help participants understand open government laws and how to use them to scrutinize and participate in government," said CFAC President Rich McKee. "OpenGov02 is truly a unique conference."
The Constitutional Sunshine Amendment, SCA 7, is scheduled for its second Senate committee hearing before the Senate Constitutional Amendments Committee on June 20, one week before the general deadline for the bill to pass the legislature in order to be placed on the November ballot.
The June 27 deadline for measures to pass the Legislature en route to November's general election can be extended by the legislature, according to Tom Newton, the California Newspaper Publishers Association's general counsel.
Meanwhile, negotiations continue with a wide array of mostly government representatives over the amendment's language, which last month was passed out of the Government Organization by a solid 8-0 vote.
"Once again we need CFAC members to write letters and make telephone calls to their legislative representatives and members of the Senate Constitution Amendment Committee," said CFAC President Richard McKee. "It is imperative that we let these legislators know about the widespread grassroots support for the measure."
The committee is chaired by Sen. Ray Haynes, and Sen. Debra Bowen is vice chair. Other members of the standing committee include Sen. Tom McClintock, Sen. Jack O'Connell and Sen. Byron Sher.
The bill needs to pass both the Assembly and Senate by a two-thirds vote in order to go directly onto the ballot. It would not need the signature of Gov. Gray Davis, who has routinely vetoed legislation to expand Californians' rights to open government and access to public records.
CFAC Joins ACLU and EPIC Seeking Limits on FBI
The California First Amendment Coalition signed on a letter to Congress urging hearings and limitations to the Bush administration's proposal to loosen the guidelines that restrict the surveillance of religious and political organizations in the United States.
"This proposal raises matters of Constitutional authority that requires immediate Congressional attention. We do not believe that the Attorney General has the legal authority to pursue domestic spying," the letter to congressional leaders states. "We urge you to conduct oversite hearings on this proposal."
As of today, the letter has been signed by CFAC and representatives of 19 other organizations, including Electronic Privacy Information Center, American Civil Liberties Union, Asian American Legal Defense and Education Fund, Arab American Institute, American-Arab Anti-Discrimination Committee (ADC), Association of American Physicians & Surgeons, Center for Democracy and Technology, Center for Digital Democracy, Center for National Security Studies, Christian Defense Coalition, Council on American-Islamic Relations, Electronic Frontier Foundation, Federation of American Scientists, Friends Committee on National Legislation, The Independent Institute, The Multiracial Activist and Privacy Rights Clearinghouse.
"We are particularly concerned about elements of the guidelines that appear to give the FBI the authority to search through electronic databases without satisfying any legal standard or requiring any judicial review," the letter states. "Such an approach to police authority in the United States is directly contrary to the First and Fourth Amendment and the system of checks and balances established by our form of government."
For a complete text of the letter, click HERE.
Farr Award to Reporter who Personally went to Court
A Sacramento Bee reporter who personally went to court to obtain otherwise confidential juvenile records then wrote a series of articles that helped improve her community's child protection system is the 2001 Bill Farr Award recipient.
Mareva Brown will receive the prestigious award, given by the California First Amendment Coalition and the California Society of Newspaper Editors to an individual who has performed exemplary work in the field of open government.
The award is given in honor of former Los Angeles Herald Examiner Reporter Bill Farr, who went to jail in 1971 after citing the shield law and refusing to reveal sources of a leak in the infamous Charles Manson Case.
Brown's four part series, "Broken Lives," documented the plight of children caught in the child protection system after being neglected, abused or molested in Sacramento, where one in 56 children are in foster care-the highest county rate in the state.
The power of her series came from the details of cases previously hidden by confidentiality statutes. Brown went to court herself and argued that the value to the public of releasing the files far outweighed the need to keep the information secret. She agreed not to disclose the identities of the children, and the court agreed to release the information and grant her access to otherwise closed court proceedings.
As a result, she was able to bring readers the tragic stories of dysfunctional families caught in a dysfunctional system-stories of youngsters torn between families, of a young girl bounced from foster home to foster home, of a baby dead in its mother's drug-soaked womb.
Reaction to the series was overwhelming and swift. A state assemblyman distributed the series to every lawmaker in an effort to bolster his attempts at reform; the local grand jury requested Sacramento County to reconsider its child protection policies; and several judges throughout the state have cited the series in their attempts to lift confidentiality requirements in dependency court.
"Brown's writing came to life through her detailed reporting on a system generally veiled in secrecy," said one of the contest judges. "First she fought hard to obtain information during several court appearances, then she spent two years documenting the system's effect on these youngsters with 'broken lives.' The resulting stories were stunning and sad, but they led to systemic changes that have no doubt already saved lives."
The award was presented to Brown Friday at the annual CSNE convention in Anaheim.
Last year, the award was presented to The Stockton Record for a series of articles documenting the lack of compliance with the California Public Records Act. In 2000, the award went to Tim Crews, publisher of the Sacramento Valley Mirror who served time in jail for refusing to identify the source of information in news stories about a California Highway patrolman who stole a confiscated weapon. Crews said at the time that if he named the sources it would "make a complete mockery" of a state law that gives reporters the right to shield confidential sources.
Brown is a senior writer for The Sacramento Bee. She joined the staff in 1992 as a police reporter and has covered several beats since then.
Beacons to School Board Activist, Reporter, Newspaper
The California First Amendment Coalition honored two individuals and a newspaper with CFAC Beacon Awards for outstanding work in the field of keeping government open to the public.
Beacon Awards, presented last week during the annual convention of California newspaper editors, went to retired Bonita Unified School District Board Member Bob Olander; Claremont Courier reporter Gary Scott, and his newspaper.
The awards are given annually to individuals or organizations whose work results in greater government openness.
Olander was honored as an outstanding advocate of open government and the public's right to know. He retired in December after two terms on the Board of the Bonita Unified School District, an agency plagued with administrative and financial problems, personality conflicts among Board members, and almost constant allegations of illegal secrecy.
Throughout his tenure, Olander was continually hounded and ridiculed by fellow trustees and district administrators for his stance aggressively defending the people's right to be involved in the decision-making of its local government.
Olander's crusade began in earnest in the summer of 1996, after a Sunday closed session where then-superintendent Ron Raya was placed on a paid leave of absence. Shortly, Olander began to pressure the Board majority to release information on the reasons for the discipline.
Not long after this, the Board commissioned an audit into possible financial irregularities. When the report was finished, it was presented to the Board in a closed session. Recognizing the possible political fallout, the Board majority moved to "sanitize" the report by suggesting changes to be made before its release to the public, which they scheduled to be months later. But when Olander took the audit home, claiming it was a disclosable public record, the majority went ballistic, holding unnoticed, secret meetings with the interim-superintendent and making conference calls to Olander demanding the audit be returned. Olander held firm and, after he displayed the document to the public at an open meeting, the audit was released, blemishes and all.
And from that point on, Olander was made to "pay" by a Board majority out to punish him at every meeting.
In the summer of 1997, Olander filed for reelection, only to announce a few weeks later he was withdrawing from the school board race. He accused fellow board members and the superintendent of conducting business under a veil of secrecy, which he would no longer continue to condone. By that time, however, it was too late to remove Olander's name from the ballot. Yet, despite the fact that Olander did not campaign or seek support, voters proved they liked his stance, because he was easily reelected, and agreed to stay in office.
Without Olander's willingness to step forward to protect the people's right to know, even in the face of cruel treatment and extraordinary political pressure, administrators and Board members would have been able to hide the District's dirty laundry and the public would never have known the gross negligence and illegal activities of its elected and appointed officials.
CFAC also awarded Beacon Awards to Claremont Courier reporter Gary Scott and his newspaper for a body of work that has uncovered the secret dealings of local government in eastern Los Angeles County.
In late 1998, Scott discovered a secret settlement reached by the California Joint Powers Insurance Authority representing the City of Claremont in a federal civil rights case.
For six months, Scott's diligent pursuit of the truth revealed that the city had secretly paid for what amounted to fabrications by the police.
As a direct result of Scott's reporting, the insurance authority fired its attorney from any more Claremont cases. His stories further revealed that the City Council had been secretly briefed about the settlement and that city officials had lied when they said they had never seen a copy of the settlement.
Last September, Scott again sought to uncover the dealings of local government-this time by the board of the Three Valleys Municipal Water District in east Los Angeles County.
Despite the district's effort to hide the facts, Scott uncovered sexual harassment allegations that were leveled against the water district's general manager by three women, including his own executive assistant.
The story, however, did not end there. After three public records lawsuits, the district was forced to release more than 600 pages of records documenting mismanagement, lax safety procedures, employee dissension, violations of employee privacy and poor oversight by the water district board.
Finally, Scott was the first reporter to discover and report on a secret, serial meeting of four Claremont City Council members in the evaluation of planning commission candidates.
Accepting the award, Scott gave most of the credit to his newspaper's publisher, Martin Weinberger, who is a longtime CFAC supporter and a member of CFAC's board of directors. "You can't do this kind of work without the support of your newspaper and it's publisher," Scott said. "I'd like to thank my newspaper for giving me the opportunity to pursue these stories."
Call for Presentations for OpenGov02
The California First Amendment Coalition (CFAC) invites you to submit a proposal to make a presentation at OpenGov02, a convergence of journalists, attorneys, civic activists and government leaders exploring current open government issues in California and beyond. We are looking for enlightening, thought-provoking presentations and discussions about the law and practical experiences with access to government meetings and information.
OpenGov02, the conference for people passionate about government transparency, will be held Oct. 17-19 at San Jose State University. Selected presenters will receive free conference registration and recognition in the conference program and marketing materials. You will share your knowledge and experiences with conference participants and will be expected to participate in question-and-answer sessions at the end of your presentations.
There will be three types of presentations at the conference:
-- Roundtable Discussions
One-hour sessions that provide an opportunity for an intimate discussion for up to 15 participants on key topics.-- Concurrent Sessions
Two-hour presentations featuring individuals or a panel of experts discussing a single topic.-- Symposiums
Three-hour intensive, in-depth workshops covering specialized areas of open government law or journalism practices.You can find a list of suggested topics at ../opengov02/presentations.html.
They fall into six topic groupings:
-- Access to Government
-- Civil Liberties
-- Access to Law Enforcement and the Courts
-- How to Demand and Improve Government Transparency
-- On Campus: Press Freedoms and Press AccessConfirmed keynote speakers at OpenGov02 include Chief Justice of California Ronald George, Los Angeles Times Executive Editor
John Carroll, and California Voter Foundation President Kim Alexander. There will also be a series of debates during the conference, including one between CFAC General Counsel Terry Francke and Palo Alto City Attorney Ariel Callone, who is also chair of the legal committee of the California League of Municipalities.For more information about the conference, or to register, go to ../opengov02/opengov02.html.
SCA 7's First Committee Hearing Delayed (4/22/02)
The first hearing for Senate Constitutional Amendment 7 (SCA 7), originally set for tomorrow, April 23 in the Senate Governmental Organization Committee, has been postponed to a date not yet announced.
Although the measure's principal author, Senate President pro Tempore John Burton (D-San Francisco) did not give a reason for the delay, his staff apparently wants to resolve several concerns from those seeking certain amendments and to deal with objections from others at being included.
The League of California Cities, the California State Association of Counties and various peace officer organizations are known to be seeking amendments to avoid what they see as undesirable effects of the law, which would declare a constitutional right of citizens to attend and be heard in meetings of government bodies and to inspect and obtain copies of public records.
In addition, although it has taken no public stand yet on the issue, the entire judicial branch apparently wants to be excluded from the reach of SCA 7. Under other laws, court proceedings and records are already presumed to be accessible to the public. But SCA 7 would mandate access to a variety of other judicial branch bodies and their records, including the Judicial Council, the Commission on Judicial Appointments, the Commission on Judicial Performance and the State Bar Board of Governors.
Many of these groups' meetings are in fact already public, but not as a matter of state constitutional law. SCA 7 would also for the first time presume access to a bodies providing local judicial administration, including superior court governing bodies, and to records of the state court system's central housekeeping agency, the San Francisco-based Administrative Office of the Courts.
CFAC's McKee Taking District to Court (4/22/02)
A school board's use of a closed session to discuss "potential" litigation that might be triggered by another agency's policy is among the practices challenged in a Brown Act lawsuit by Richard McKee.
On Friday, April 19 McKee and his attorney, Dennis Winston, were scheduled to appear in Orange County Superior Court to ask Judge Jonathan Cannon to order the Orange Unified School District to correct those practices, rescind an action taken and tape record its closed sessions for three years.
At the last minute Cannon recused himself for as yet undisclosed reasons and the matter was taken off calendar for reassignment.
The lawsuit concerns what McKee challenges as an inaccurate and misleading agenda listing for a real property closed session, and several prematurely held closed sessions dealing with "potential" litigation on facts and circumstances that had not yet developed.
The agenda for the August 27, 2001 closed session of the board described it as dealing with "Barham Ranch," an undeveloped 526-acre plot owned by the district that bordered on a county park. The other negotiating party was listed as Orange County. This left the impression, McKee says, that the district was bargaining to sell all or part of the ranch to the county.
But the real topic of the closed session, as the superintendent announced immediately thereafter, was quite the opposite: to discuss the district's request for an easement across the county parkland, securing continuing access to the Barham acreage responsive to the county's plan to place deed restrictions on its parkland.
The difference, McKee explains in a declaration, is in the signals sent to the citizens concerned. The apparent sale of all or part of the ranch to the county suggested that it would remain undeveloped, as a county park extension. But the real plan to secure an access easement through the park to the ranch showed the district keeping its options open for development of the acreage.
This closed session had been preceded by "potential litigation" closed sessions at three meetings in June and July whose topics were described on the agenda as "County of Orange Ordinance Adding Use Restrictions on County Regional Harbors, Beaches and Park Land."
McKee says this "potential" litigation rationale contingent on some future action by another party is not what the Brown Act means by the "existing facts and circumstances" required to justify a closed litigation consultation.
"In considering the potential passage of an ordinance conditioning the grant of easements upon voter approval in an election, the County did not threaten litigation against (the district); and (the district) was not faced with the imminent passage of restrictions on County land because the measure had not yet been taken up by the County, much less considered, or passed.," McKee states in a declaration.
CFAC President Makes Brown Act Challenges (4/1/02)
Rich McKee, president of the California First Amendment Coalition, wants correction of alleged meeting law violations in a city and a school district.In Upland, where the city owns a 70 percent interest in the San Antonio Water Company, the city council has appointed all members of the company board, including delegating two council members as voting directors. Those facts, says McKee, make the water company board's meetings subject to the Ralph M. Brown Act under one of the alternative definitions of "legislative body" in Government Code Section 54952 (c) (2).
But McKee charged in a March 25 demand of cure and correction that the water board fails to comply with the act's requirements for posted meeting agendas, allowance for public comment, and conference call meetings, for example. And at its March 21 meetings, McKee said, the board "expelled members of the public for no other reason than they were not shareholders" in the water company, and "then took formal action to install new board members as dictated by the city."
McKee's demand is that the board, "at a properly agendized, open public meeting, rescind all the board's actions of March 21, and create new bylaws which comply with the Brown Act."
A homeowners' group is frustrated because a representative of its interests was not appointed to the board. For the full background see the Los Angeles Times story on the controversy at (LA Times Story). Meanwhile McKee has also sent a second demand for cure and correction challenging another action by the board of the Bassett Unified School District in La Puente.
The first (see FLASH of March 18, "CFAC President Lays Down Challenge to La Puente School Board"), dealt with a teacher's concern over the presence of a potentially dangerous student, which led to two closed board sessions in which the board considered disciplining the teacher without permitting her to have an open hearing of the charges. That cure and correct letter, which must be answered satisfactorily within 30 days or face possible litigation, was filed March 18.
Another challenge letter sent March 25 concerns notices given to several probationary teachers on March 13, but dated March 15, announcing their "Non-Reelection/Non-Reeployment" for the coming school year. "
In fact," said McKee in his letter, "the Board of Education took no such action 'not to reelect/reemploy' these teachers, nor could that potential action have been anticipated from any item on the agenda for March 14." He adds, "I am informed and believe that no (Brown Act required) report was given at the March 14 Board meeting of such an action having been taken in closed session."
Mckee called the March 13 notification of an action never taken by the board "an intentional fraud perpetrated upon these probationary teachers and upon the people of the State of California by Bassett Unified." In addition, "by the Board's failure to take a lawful action not to reelect these probationary teachers (by the state-imposed March 15 deadline), they are deemed to have been reelected for next school year," he said.
Nominees Sought for Farr Open Government Award(4/1/02)
The California First Amendment Coalition is currently soliciting nominees for the annual Bill Farr Award, given each year to an individual who has performed exemplary work in the arena of open government. The award is given in honor of former Los Angeles Herald Examiner Reporter Bill Farr, who went to jail in 1971 after citing the shield law and refusing to reveal sources of a leak in the infamous Charles Manson Case.
Qualifications for the award are exemplary accomplishment, service or other contributions to "the people's right to know" in California. The winner will be an individual whose actions deserve public honor and emulation. Areas vital in the struggle for open government are access to public meetings, public records and courts; defense of citizens' right to speak; defense of journalists' rights; and defense of the right to "blow the whistle" and alert the public to matters of common concern.
Last year, the award was presented to The Stockton Record for a series of articles documenting the lack of compliance with the California Public Records Act. In 2000, the award went to Tim Crews, publisher of the Sacramento Valley Mirror who served time in jail for refusing to identify the source of information in news stories about a California Highway patrolman who stole a confiscated weapon. Crews said at the time that if he named the sources it would "make a complete mockery" of a state law that gives reporters the right to shield confidential sources.
The Farr Award is presented annually at the spring conference of the California Society of Newspaper Editors, which this year is set for May 17 at the Disney Paradise Pier hotel in Anaheim. Please send nominations, supported by letters, newspaper clippings or other documentation sufficient to explain the nature of the performance, service or activity to be saluted, its context and its consequences. Address nominations to: CFAC/Farr Award, 2701 Cottage Way, Suite 12, Sacramento, CA 95825. Deadline for nominations is Monday, April 12.
Open Government Conference Slated for Oct. 17-19 (3/18/02)
Mark your calendars and save the dates of Oct. 17-19 to attend OpenGov02, the California First Amendment Coalition’s seventh annual open government assembly.
This year’s conference will be at San Jose State University and promises to be the best ever, featuring keynote speeches by the state’s highest ranking justice, the editor of the largest newspaper in California and the founder of an organization nationally acclaimed for bringing voter information to the internet.
“We are looking forward to a tremendous conference filled with valuable training and insight into open government issues,” said CFAC President Richard McKee. “You won’t want to miss this convergence of open government advocates from all walks of life exploring the legal and practical aspects of open government law.”
The conference will include roundtable discussions, concurrent sessions, symposiums and a series of debates between open government advocates and government officials with more moderate views of how transparent government should be.
OpenGov02 registration is $50 for CFAC members with a $10 discount if you register before Aug. 15, 2002. Further information and online registration is available at http://www.CFAC.org
Confirmed as keynote speakers are Chief Justice of California Ronald George, Los Angeles Times Executive Editor John Carroll and California Voter Foundation founder and president Kim Alexander.
OpenGov02 conference chairs are James Chadwick, an attorney with Gray Cary Ware & Freidenrich who has handled numerous efforts to enforce open government law, and Mort Levine, a retired Bay Area newspaper publisher who has long been an advocate for government transparency. San Jose Mercury Executive Editor David Yarnold is the OpenGov02 fundraising chair.
In order to put together a program with the best speakers with widely diverse viewpoints, CFAC has issued a “Call for Presentations” requesting proposals by attorneys, journalists, civic activists and public officials who want to share their expertise with participants. A list of suggested presentation topics is available on the Web at OpenGov02 Call for Presentations
The suggested presentation topics fall into five categories: Access to government; Civil liberties; Access to Law Enforcement and the Courts; How to Demand and Improve Government Transparency; and On Campus: Press Freedoms and Press Access.
Presenters will receive free conference registration and recognition in the program and marketing materials. Presentation proposals will be selected by a CFAC committee based on content, clarity and completeness of proposal; presenter's expertise and knowledge; relevance to conference theme; and agreement to provide digital version of presentation, if applicable, for OpenGov02 conference Web archive.
Deadline for proposals, which should be made on the official presentation proposal form, available on the Web or via FAX or mail, is June 1, 2002.
CFAC demands Los Angeles Supervisors Cure and Correct Brown Act Violations (3/18/02)
CFAC President Richard McKee today sent a cure and correct request to the Los Angeles County Board of Supervisors urging them to acknowledge and remedy their violations of the Brown Act when they took secret action at a closed session to thwart a ballot initiative.
As reported last week’s FLASH, a March 7 Los Angeles Times story disclosed that the board used a closed session in December to direct County Counsel Lloyd Pellman to block what it viewed as a costly and unconstitutional union-backed initiative by declining to provide it with a title and summary for signature-gathering.
When Pellman warned three of the five supervisors by phone the next day that this move might embroil the county as a whole in a civil rights lawsuit, they backed off support for the stratagem.
The Service Employees International Union local that proposed the initiative‹to increase to about $11 per hour the pay of home care health aides‹called on District Attorney Steve Cooley to investigate whether the closed session and the next day’s phone polling had run afoul of the Ralph M. Brown Act’s open meeting requirements and if so, whether individual supervisors involved should be prosecuted for a criminal violation.
CFAC President McKee’s letter to the board pointed out several practices he contends violate the Brown Act:
-- persistent failure to specify on meeting agendas which labor unions were involved in negotiations for which closed sessions on bargaining were scheduled;
-- persistent failure to specify on meeting agendas which employee positions were to be the subject of closed session performance evaluations, with “department head” being the standing rubric instead;
-- adoption of a basis for closed sessions not authorized under the Brown Act, namely “Confidential report of the Children’s Services Inspector General concerning child death.”
McKee’s demand is that the board abandon these practices and formally commit not to resume them.
Meanwhile, Board Chairman Zev Yaroslavsky has placed on tomorrow’s (March 19) agenda a motion to schedule for the March 26 meeting what his press aide calls “a full and open debate and discussion on the LA County Board of Supervisors' compliance with California's open-meeting and public-records laws.”
Joel Bellman, in a March 15 e-mail to a wide variety of press and citizen watchdogs, including several CFAC board members, encouraged them to support the motion and attend the sunshine session, stating:
“Zev's intention is to air out, as fully as we can, questions, concerns, and explanations about the Board's policies in re: closed session calendars, discussions, actions and reporting; record-keeping and agenda publication; and the issues surrounding meetings of board deputies which are not currently covered by the Brown Act. County officials will make presentations to explain their policies and procedures, and interested members of the public are invited to sign up to testify as well. Out of this, we hope, will eventually emerge strengthened County sunshine policies that will help improve the quality of County policymaking and restore a measure of public confidence in County government.”
The controversy gives added impetus to a proposal drafted by representatives of the Los Angeles Press Club and others for a board-adopted Sunshine Ordinance, in which supervisors would commit themselves and the county to more open practices than strictly required by the Brown Act or the California Public Records Act.
Press Club Board Members Karen Ocamb and Ana Garcia wrote Yaroslavsky that several sunshine proponents would attend the March 26 forum, but not all would comment.
“We represent a number of members who cannot speak. Many journalists are forbidden by their employers from taking a position on an issue, even if it's simply to relay their own experience rather than an opinion. Additionally, we are aware of some non-profit directors who will not speak for fear of a backlash from County directors who decide their funding. However, we have collected letters from parties in both these instances which we would like to submit as evidence.”
On the other hand, wrote Ocamb and Garcia, the time was ripe for a radical change in the direction of openness:
“As one of our veteran political journalists put it, when bad practices become institutionalized, they become the norm. For too long journalists and citizen activists have suspected secret meetings and violations of the Brown Act and have put up with insufferable bureaucratic delays and denials over public records requests. It's just the way things are, everyone says. But it's not the way things are supposed to be.”
CFAC President Lays Down Challenge to La Puente School Board(3/18/02)
A teacher’s concern over the presence of a potentially dangerous student led to two closed board sessions in which the board considered disciplining the teacher in violation of her rights, says CFAC President Richard McKee.
McKee has today filed a demand for cure and correction of two alleged violations of the Ralph M. Brown Act by the board of the Bassett Unified School District in La Puente.
McKee notes that the board held a closed session on February 28 concerning Jeannie Samuels, a teacher and president of the Bassett Teachers Association. Despite his warning at the time, the board’s closed session addressed what the agenda described as “Access to records by a person without written parental consent or under judicial order pursuant to Education Code 49076,” but gave Samuels no advance written notice of the session. On March 14 the board held another closed session of which Samuels was given advance notice. But the message was that she could be heard in public on the matter, but the board would not discuss it openly.
The move against Samuels, McKee says, was prompted by her earlier approach to Superintendent Robert Nero to express concern that a student found with a knife had been suspended for only two days and allowed to return to campus rather than, as state law permits, being expelled. When Nero demanded to know how Samuels had learned as much, she faxed him a report on the matter that, she insists, she acquired without violating pupil privacy law.
As McKee cautioned the board before the first closed session, the Ralph M. Brown Act, governing open meetings by local boards and councils, requires that local agency employees be given at least 24 hours written advance notice of any closed session in which specific complaints or charges about them are to be discussed. Failing such notice, any resulting disciplinary action taken against them is declared in Government Code Section 54957 to be “null and void.”
The purpose of the notice is to give the accused employee the right to request a public hearing.
Mckee again appeared before the board at the March 14 meeting, warned trustees that Samuels was entitled to hear the complaints and the board’s discussion in public, but to no avail. The school board’s attorney refused to read Section 54957 to trustees as McKee requested.
At the first meeting, Superintendent Nero said the written notice was not required because the closed session was not concerning discipline but rather a “performance evaluation.” But by the second meeting, said Samuels in her letter to the board, Nero was clearly charging her with a violation of law and suggesting possible discipline.
McKee’s letter dated today (March 18) demands that the board within 30 days hold an “open, agendized discussion of (the charges against Samuels) and shall reveal all of the discussion had in those illegal closed sessions and shall act to void any action(s) taken therein.”
CFAC Joins Support for Case Defending Criticism on Internet (3/4/02)
The California First Amendment Coalition has joined a friend of the court brief in a case about criticism of corporations on the Web.
CFAC joined the Electronic Frontier Foundation (EFF) and the First Amendment Project in filing a brief February 27 with the California Court of Appeal for the Fourth District in Hollis-Eden v. Wells, a case in which the San Diego Superior Court ruled that the speech of an on-line critic, Michael Wells, was not protected because, as a corporate shareholder, he had a "pecuniary" interest in the publicly-traded company.
As described by EFF,
“After Hollis-Eden Pharmaceuticals sued Wells and over 50 other defendants who posted criticisms of the company on a Yahoo! message board, Wells requested dismissal of the case under California's Strategic Lawsuits Against Public Participation (SLAPP) statute. The lower court denied Wells's request for dismissal under the statute, which allows the target of an intimidation lawsuit to quickly and inexpensively halt such lawsuits.
The amicus curiae brief states:
"It simply cannot be the case that the First Amendment or California's SLAPP statute protect only those who speak about issues in which they have no personal financial interest. To the contrary, it is often precisely this interest that motivates citizens to join public debates. The protection of these debates is the heart of the statute's goal of encouraging 'continued participation in matters of public significance.'"
See the brief at Hollis-Eden Amicus
California Common Cause Supports Constitutional Sunshine Bill (2/18/02)
The state’s most general-purpose public interest group has joined those supporting a bill to put fundamental access rights on the ballot. California Common Cause Executive Director Jim Knox sent a letter Friday, Feb. 15, to Sen. John Burton expressing support for the Constitutional Sunshine Amendment Bill, SCA 7.Common Cause joins the California League of Women Voters, San Francisco Board of Supervisors, San Diego Democratic Central Committee, California Chicano News Media Association and Los Angeles Press Club as organizations expressing early support for the legislation.
The Common Cause support letter to Sen. Burton states:
“California Common Cause is pleased to support your SCA 7 which would place a measure on the November 2002 ballot to establish the fundamental right of public access to government and the process of policy-making while maintaining the individual’s right to privacy
“Although California Common Cause has been a long-standing supporter for laws such as the Ralph M. Brown Act and the California Public Records Act, it has become evident that invisible government persists. Therefore we stand behind your effort to eradicate closed meetings and the “grayness” surrounding the justification for withholding information.
“Please let us know what we can do to support your work to pass SCA 7 in the Legislature and at the polls. Thank you for your leadership on this important issue.”
For up-to-date information about SCA 7 go to ../sca7.html
Agency Lobbyists Air Concerns about Sunshine Amendment (2/11/02)
Lobbyists for two key local agency organizations met with sponsors of SCA 7 last week for preliminary questions on the sunshine measure. .Senate Constitutional Amendment (SCA) 7 would place on November’s ballot a proposed addition to the California Constitution making access to state and local agency meetings and records a fundamental right, with exceptions limited in scope and required to be carefully justified in application. .
Full information on the measure is at ../sca7.html
On February 5 representatives of the League of California Cities and the County Supervisors Association of California (CSAC) met with the California First Amendment Coalition (CFAC) and the California Newspaper Publishers Association (CNPA), sponsors of the bill co-authored by Senators John Burton (D-San Francisco) and Bruce McPherson (R-Santa Cruz). .
During the meeting, Sen. Burton’s staff aide, Rodger Burton, said legislators were receiving lots of inquiries about SCA 7, mostly from lobbyists representing law enforcement and other government entities. This makes it all the more important for open government supporters to let their legislators hear from them in support of the constitution Sunshine Amendment. .
Among the misunderstandings and concerns expressed by the city and county lobbyists in the Feb. 5 meeting were contentions that SCA 7 would: .
--End personal privacy for all public employees. RESPONSE: The language of SCA 7 would expose only information relating “to the qualifications or fitness of a person for any elective or appointive office in government.” That focus on officers would probably be interpreted to exclude jobholders who are not officers, but even if applied to line employees, it would go no further than current case law, which concludes that public employees in general have no right under any privacy law, including the state constitutional provision, to information about confirmed instances of substantial misconduct, or discipline resulting from them. As for the law that now protects peace officers from any disclosure of misconduct (short of crimes) or discipline, it could be expected that its extraordinary secrecy would be defended in the name of one or both of SCA 7’s permitted exemptions in the interest of public safety or the effective administration of justice. .
--Apply to state legislators and their activity. RESPONSE: The State Constitution already mandates open meetings in the legislature, with some exceptions, and in the case of any conflict would almost certainly be viewed as trumping SCA 7. As for legislative records, the Legislative Open Records Act has exemptions, but most of them could be interpreted as relating to privacy and other interests cited in SCA 7. .
--Automatically void current statutes. RESPONSE: SCA 7 would affect current law only by a process of piecemeal court challenges. Lawmakers would be free to amend or repeal statutes in conformity with the policy stated in the constitutional amendment, but would not be forced to do so. .
--Lead to extensive litigation. RESPONSE: Litigation is the natural and necessary process by which the constitutional validity of any statute or practice is tested, but there is little reason to believe that the result of SCA 7 would be to heighten the frequency of anti-secrecy litigation. .
Asked what had happened to motivate the push for a constitutional sunshine amendment at this time, the CFAC and CNPA representatives at the meeting said no one incident was crucial, but rather that the past two decades had seen increasing loopholes from disclosure requirements, stemming more from court decisions than legislation. Also the fact that reform legislation approved in the Assembly and Senate but frustrated by a succession of governor’s vetoes causes the organizations to attempt to let the people speak at the ballot box. Meanwhile, they said, the lack of any requirement to justify secrecy in practical, specific terms leaves too many local agencies free to simply cite a statute when questioned on closure of a meeting or a file. .
Latest on SCA 7 The Constitutional Sunshine Amendment Bill (2/04/02)
(Stay current daily at ../sca7.html)SF Board of Supervisors Endorses SCA 7.....Voting unanimously, the San Francisco Board of supervisors endorsed SCA 7 Feb. 1, saying the board "is committed to the public’s right to information and is dedicated to improving the flow of information between government agencies and the public." (View the full text of the board's resolution at SF Board Resolution)
CFAC Files Support Letters.....The California First Amendment Coalition (CFAC) has formally notified the legislative authors and the relevant Senate Committees of its support for SCA 7, which would place a proposed amendment to the California Constitution on the November ballot creating a constitutional right to open government for Californians. Letters sent to Senators John Burton (D-San Francisco) and Bruce McPherson (R-Santa Cruz) as well as four Assembly co-authors last week state: “It is time to add to the basic civil liberties of Californians the right to transparent governmental processes, open to public observation and comment. It is time for the California Constitution itself to insist that state and local agencies keep official secrecy to a minimum and explain in understandable terms why closed meetings and records are essential to avoid harm to a serious public or private interest when that is really the case.”
Cities, Counties to Detail Objections.....Lobbyists and lawyers for the League of California Cities and the California State Association of Counties will meet tomorrow with CFAC and representatives of the California Newspaper Publishers Association (CNPA) to discuss the local agencies’ objections and reservations concerning SCA 7. The League has reportedly taken an “Oppose Unless Amended” position on the bill, but its precise menu for desired amendments has not been disclosed. According to League Executive Director Chris McKenzie, one concern is “security,” although the bill expressly authorizes the legislature to enact exemptions from public access to meetings and records that would jeopardize public safety.
Newspapers Begin to Lay on the Ink.....As of today, editorials supporting SCA 7 have appeared in the Santa Cruz Sentinel, Contra Costa Times (Walnut Creek), the San Diego Union-Tribune, the Claremont Courier, the Orange County Register and also Editor & Publisher magazine. Sacramento Bee columnist Margie Lundstrom comments, however, that the press doesn’t own this issue: “It's tempting to view this as a narrow, self-serving issue raised by the whiny media, but that's deceptive. Journalists may bellyache the loudest over secret reports and closed meetings, and they've got a nice platform from which to do so. But the true foot soldiers are those California citizens -- often labeled as kooks or gadflies -- who probe their local water districts, scrutinize their city councils, and fight to hold their schools accountable.” In its profile of CFAC President Rich McKee in the current issue, the Sacramento News & Review quotes co-author Senator John Burton as commenting, “If you’re doing the public’s business, and representing the public, and the public pays your salary, they have the right to know what the hell is going on.”(see McKee Profile )
CFAC Questions Closed Ethics Sessions
(2/4/02)
When city ethics commissions meet to decide whether to prosecute, they close the doors. But is the secrecy lawful?
No, says Terry Francke, general counsel of the California First Amendment Coalition. In a message to the executive director of the San Diego Ethics Commission last week, Francke challenged the body’s announced proposal to conduct probable cause hearings in secret.
A probable cause hearing is called to consider the investigative results and recommendations of the executive director, who also serves as chief prosecutor concerning violations of the city’s law governing financial interest disclosures, conflicts or interest and the like on the part of elected and key staff officials, other members of city boards and commissions, lobbyists and candidates for city offices.
If the hearing establishes probable cause to believe that the governed party violated ethical rules, the commission would then vote to have the matter tried, with a final determination of guilt resulting in a fine and, usually, serious political damage. For that reason, the pressure is on the accused to, in effect, plea bargain, stipulating to liability and paying the fine.
The pressure is possible at that point because neither the San Diego commission in its announced policies, nor the ethics commissions in Los Angeles and San Francisco in practice, conduct the probable cause hearings publicly, but if the matter goes to a trial-like hearing, it will be public.
A January 29 story in the San Diego Daily Transcript reported that the city council had adopted rules governing investigations and enforcement by the new commission, where penalties could involve fines of up to $5,000.
“The city's new ethics commission will conduct its investigations in secret,” said the story, “releasing summaries of the cases after they are closed or holding rare public hearings when they are absolutely necessary.
“The procedures are designed to protect the reputations of innocent people against false accusations. But, in so doing, they provide only a few brief opportunities for the public to participate in the process or learn about officials who violate ethics laws.”
Francke queried the commission’s executive director, Charles Walker, about the issue, and Walker replied that “the authority to close the commission meetings is derived from Govt. Code Sec 54956.9 which allows closed sessions to discuss pending litigation. This has been broadly defined to include administrative proceedings such as votes to issue subpoenas and decisions to proceed with Probable Cause hearings which are conducted in closed session to protect the privacy of the Respondent.”
Francke told Walker,
“I would agree that to the extent the city is a party to proceedings enforcing ethical rules -- the prosecutor, that is -- it is entitled to assert 54956.9 as a basis for closed session discussions with its legal counsel regarding the prosecution of these actions.
“But as for probable cause hearings, are you referring to a closed session in which the commission "votes to issue subpoenas and deci(des) to proceed with Probable Cause hearings" or a closed session to conduct the probable cause hearing itself? If the latter, the Brown Act simply doesn't authorize a closed session to protect the privacy of adverse parties -- other than (in this case) city employees. As the Attorney General's office has pointed out in its official guide, The Brown Act’ (1994),
“Under the Brown Act, closed sessions must be expressly authorized by explicit statutory provisions. Prior to the enactment of section 54962, the courts and this office had recognized impliedly authorized justifications for closed sessions However, that legislation made it clear that closed sessions cannot be conducted unless they are expressly authorized by statute: “The law evinces a strong bias in favor of open meetings, and court decisions and opinions of this office have buttressed that legislative intent The fact that material may be sensitive, embarrassing or controversial does not justify application of a closed session unless it is authorized by some specific exception Rather, in many circumstances these characteristics may be further evidence of the need for public scrutiny and participation in discussing such matters.’”
“Furthermore, to the extent that an accused or his or her counsel is present in the probable cause hearing, that fact would preclude application of the 54956.9 closed session, which cannot be held to interact with adverse parties. Again, in the words of the Attorney General's guide,
“Since the purpose of the pending litigation exception is to protect confidential attorney-client communications, our opinion in 62 Ops.Cal.Atty.Gen. 150 (1979) continues to be applicable insofar as it concluded that nonconfidential communications between an attorney and his or her client are not protected. In that opinion, two boards which were adversaries in a lawsuit, along with their counsel, sought to meet in closed session for purposes of negotiating a settlement to that lawsuit. Thus, it was the negotiations, rather than confidential communications between the lawyer and the client, which the bodies sought to protect. Accordingly, we concluded that a closed session was not appropriate for these negotiations.’”
“Finally, a probable cause hearing before an administrative body is the analogue of a preliminary hearing in the criminal justice system, which cannot be closed to the public absent specific findings, typically to the effect that public proceedings would tend to prejudice the accused's prospects for a fair trial before an impartial jury. (Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1, 54 U.S.L.W. 4869):
“Since a qualified First Amendment right of access attaches to preliminary hearings in California the proceedings cannot be closed unless specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest If the interest asserted is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights.’”
“Since an administrative hearing is a non-jury occasion there would be no risk of an unfair trial created by open probable cause proceedings. And to repeat, constitutional principles aside, the governing statute simply does not permit closed sessions to protect persons other than employees of the agency in question.”
The question is of more than isolated importance, Francke says, because the policies of ethics commissions in Los Angeles and San Francisco call for closing probable cause hearings as well.
“I'm not unsympathetic to the reputational issue, but preliminary hearings in criminal cases are presumed to be open, and while the defendant formally enjoys the presumption of innocence, in that setting publicity can sometimes create a real threat of a biased jury panel ‹ not a risk here.
“Moreover, when the central issue is governmental integrity I think there's a good argument for erring on the side of transparency. And after all, a probable cause hearing doesn't air raw accusations; it presents the executive director's (prosecutor's) professional conclusions, based on an official investigation, that not just suspicion but evidence exists to believe a covered official has violated the ethics norms.
“If open courts, even at pretrial stages, foster public confidence in a justice system free of bias, unfairness and corruption, why should ethics adjudication, which directly intervenes in political practices and culture, be treated as if it were a private process at the stage of a probable cause determination?”
Francke will write a letter to the commissions asking them to reconsider the closure policy, and depending on the reaction, CFAC may take further steps.
Burton Introduces CFAC “Sunshine” Amendment (1/14/02)
Senate President pro Tem John Burton has launched a CFAC-sponsored bill to let California voters make open government a fundamental right. SCA 7, introduced Thursday, January 7, would if passed by both houses of the legislature by June 27, go on the ballot for voter approval on November 5. To succeed it would need majority approval from the electorate. The bill can be tracked online at: (SCA 7)The bill has a principal co-author in Senator Bruce McPherson (R-Santa Cruz), and in the Assembly lists as co-authors Fred Keeley (D-Monterey), Christine Kehoe (D-San Diego), Bill Leonard (R-San Bernardino), Lou Papan (D-San Mateo) and Kevin Shelley (D-San Francisco).
Senator Burton (D-San Francisco) agreed to carry SCA 7 at the request of the California First Amendment Coalition (CFAC) and the California Newspaper Publishers Association (CNPA). CNPA, which has represented California daily and weekly newspapers for more than a century, remarks in its current membership bulletin that “SCA 7 represents, perhaps, the most important public policy battle ever waged by CNPA and CFAC.”
CFAC Executive Director Kent Pollock agreed, and said it was a special challenge for CFAC. ”This bill has to pick up a very strong momentum of support starting right now and sustain it for almost a year. And yet given our nonprofit status, there’s only so much in terms of resources that CFAC can expend on the effort. That’s why we are asking our members to get involved. We need them to send at least a brief letter of support to Senator Burton and if possible, get associates or organizations that champion open government to do the same.”
General Counsel Terry Francke added that while e-mail is the quickest way to spread the word, “an old-fashioned letter in your own words has no substitute in expressing support to Senator Burton, and through him, to the legislature as a whole.” Sending a copy to one’s own lawmakers in the Senate and Assembly, Francke said, “provides maximum impact with minimum effort.
Letters are best addressed to:
Senator John Burton, State Capitol Room 205, Sacramento, CA 95814
OR
(Your Senator or Assembly Member), State Capitol, P.O. Box 942849, Sacramento, CA 94249-0001
As an early and extraordinarily swift endorsement, the board of directors of the League of Women Voters of California unanimously resolved to support the measure at its Saturday, January 12 meeting in Sacramento.
If passed in June and approved in November, SCA 7 would raise open government principles to the status in the state constitution now enjoyed by such rights as free speech, free press and personal privacy.
As configured in the draft prepared by CFAC, the new language would supplement Article I, Section 3, which currently states the rights of the people “to instruct their representatives, petition government for the redress of grievances, and assemble freely to consult for the common good.”
The added language would set forth:
-- A general presumption of open access: “Except as provided pursuant to this Constitution, the people have a right to attend, observe, and be heard in the meetings of elected and appointed public bodies, and to inspect and copy records made or received in connection with the official business of any public body, agency, officer, or employee, or anyone acting on their behalf.”
-- A special regard for the privacy of ordinary citizens; the legislature would retain the authority “to provide by statute for the protection of information about private individuals submitted to or obtained by any public body, agency, officer, or employee, or anyone acting on their behalf, except to the extent that the information relates to the qualifications or fitness of a person for any elective or appointive office in government.”
-- A designation of a few areas where restricted access can serve vital public interests; the legislature would be authorized to create “other limitations on the right of public access to governmental information,” but “only as necessary to protect public safety or private property, to ensure the fair and effective administration of justice, or to provide for the preservation of public funds and resources.”
-- A mandatory process for justifying restrictions case by case; when it comes to actually denying access based on one of the authorized interests, the denial would have to be “based on particularized findings demonstrating a substantial probability of serious harm to the public interest that the denial will avert, and that this harm cannot otherwise be averted by reasonable alternatives, and shall be no broader in scope or longer in duration than necessary to avert the identified harm.”
User Friendly Public Records Law Take Effect (1/02/02)
From now on, state and local government agencies in California are required to assist citizens seeking public information.As of January 1, a new provision of the California Public Records Act (CPRA) tells public agencies to assist document requesters in making focused and effective requests, to describe how and where responsive information is kept-in computer storage or otherwise-and to provide suggestions where possible to overcome barriers to access.
Government Code Section 6253.1 was added to the public records law by Assemblyman Lou Papan (D-Millbrae) in AB 1014, signed by Governor Gray Davis last September.
"The Public Records Act guarantees that most government documents are available for review but until now carried little protection for citizens attempting to obtain documents from reluctant or uninformed sources," said Papan. "This new law will allow the public to access what is rightfully theirs to inspect."
Papan carried the bill in response to an audit of public agency responsiveness conducted by the California First Amendment Coalition (CFAC) and the Society of Professional Journalists. As Papan’s office noted, “those agencies initially deny 77 percent of all requests for information for which there is no obvious barrier to prevent disclosure.”
“If this works like typical new legislation, many if not most public officials won’t be aware of it for some time,” said Kent Pollock, executive director of the California First Amendment Coalition (CFAC). “We strongly suggest that citizens and journalists who make a written request citing the CPRA also refer to the new law or even enclose a copy to emphasize the more supportive level of service they are entitled to.”
According to CFAC General Counsel Terry Francke, the new provisions could be especially helpful where:
-- Citizens don’t know specifically what records contain the information they are seeking. The CPRA itself does not require agencies to provide an explanatory summary or list that does not already exist. But AB 1014 requires agencies to help requesters “identify records and information that are responsive to the request or to the purpose of the request, if stated.” Accordingly, if the gist of what is being sought is apparent, the agency should spell out which records are likely to contain the information sought.
-- The records are not maintained in a paper format, but can be either printed out or produced in an electronic copy for inspection or copying, if that would be satisfactory to the requester.
-- The information sought, while not kept in the files of the agency receiving the request, is known to exist in some other agency’s files, to which the requester can be referred.
-- Much of the information can be displayed or produced if the requester is willing to have certain segments, confidential by law, deleted before release. -- There’s some other “smart” way to get the information sooner, cheaper or more completely than by using a CPRA request.
“I think the key change involved is one of attitude,” said Francke. “If instead of taking the position of ‘I can’t help you because you didn’t ask the right question, or I won’t help you because I can say no to what you asked for in the way you asked for it,’ the government official uses a little friendliness and imagination to see if there’s any way to satisfy the requester, then AB 1014 will be successful.
“There are a lot of public servants who already take this approach, and we hear too little about them,” Francke said. “They won’t have any problem with the new rules. Let’s hope the others get the word and follow the new law.”
Francke added that public information requesters should also do their part by providing as much information as possible to help those with the records determine what will be satisfactory.
“The law doesn’t require requesters to state why they want the information, but doing so can make a big difference in some cases,” Francke said. “Unless there’s a very good reason for being discreet about your purpose, being candid will give you more leverage under AB 1014.”
Government Code Section 6253.1 states:
“(a) When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public to make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:
(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.
(2) Describe the information technology and physical location in which the records exist.
(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.
“(b) The requirements of paragraph (1) of subdivision (a) shall be deemed to have been satisfied if the public agency is unable to identify the requested information after making a reasonable effort to elicit additional clarifying information from the requester that will help identify the record or records.
“(c) The requirements of subdivision (a) are in addition to any action required of a public agency by Section 6253.
“(d) This section shall not apply to a request for public records if any of the following applies:
(1) The public agency makes available the requested records pursuant to Section 6253.
(2) The public agency determines that the request should be denied and bases that determination solely on an exemption listed in Section 6254.
(3) The public agency makes available an index of its records.”
Burton to Carry CFAC’s Constitutional Amendment (12/24/01)
Voters could add open government as a state constitutional right if CFAC and Sacramento’s most powerful lawmaker have their way.Senate President pro Tem John Burton (D-San Francisco) has agreed to act as principal author of a Senate Constitutional Amendment aimed at giving the state’s voters the chance, on next November’s ballot, to add open government rights to the California Constitution.
The amendment would have to pass both houses of the legislature by a two thirds margin, but would not require the governor’s approval. Once on the ballot, it would likewise need two thirds voter approval to become law.
Burton and former Senator Quentin Kopp co-authored the 1994 revisions to the Brown Act affecting open meetings of local government. The Associated Press last week quoted him as remarking, "I think the burden should be on the agencies to explain why they keep this stuff secret.''
That is the essence of the draft amendment provided to Burton by attorneys for the California First Amendment Coalition and the California Newspaper Publishers Association. CFAC’s Board of Directors, meeting in San Francisco December 12, agreed to ask the senator to carry the legislation, which had been in draft form for more than two years awaiting a willing and effective author.
As noted by CFAC President Richard McKee, periodic audits and anecdotal experience suggest that too often requests to agencies for information felt to be sensitive get, in effect, a “no.”
"That's often a knee-jerk response you get from an agency the first time you request something,'' McKee told AP. "If you show them you have knowledge of the law, they become a little more careful. But they know the only way you can get at them is to sue.''
The proposed amendment addresses access to government meetings as well as records, limits the policy reasons for which secrecy can be authorized, and requires agencies to provide clear and plausible reasons for closing meetings and withholding records-and also to keep the denial of access to a minimum.
The language submitted to Burton for reduction to bill form proposes an amendment to Article I, Section 3, which currently simply states, “The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.” That provision would become paragraph (a), to be supplemented by the following:
“(b) (1) Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. Public agencies and officers exist to aid in the conduct of the people's business, and their actions and deliberations should be open to public scrutiny. Therefore, except as provided pursuant to this constitution, the people have a right to attend, observe, and be heard in the meetings of elected and appointed public bodies, and to inspect and copy records made or received in connection with the official business of any public body, agency, officer, or employee, or anyone acting on their behalf.
“(2) Privacy also being a fundamental right of the citizens of this state, nothing in this section shall be construed to limit the ability of the legislature to provide for the protection of information about private individuals submitted to or obtained by any public body, agency, officer, or employee, or anyone acting on their behalf, except to the extent the information relates to the qualifications or fitness of a person for any elective or appointive office in the government.
“(3) The legislature may enact other limitations on the right of public access to governmental information only as necessary to protect public safety or private property, to ensure the fair and effective administration of justice, or to provide for the preservation of public funds and resources. Any application of such limiting statutes by any public body, agency, officer, or employee, or anyone acting on their behalf, to deny rights specified in paragraph (1), shall be based on particularized findings demonstrating a substantial probability of serious harm to the public interest that the denial will avert, and that such harm cannot otherwise be averted by reasonable alternatives, and shall be no broader in scope or longer in duration than necessary to avert the identified harm.”
CFAC Board Protests Ashcroft, White House Public Information Policies (12/24/01)
Accusing U.S. Attorney General John Ashcroft of fostering “an environment that is hostile to open government,” the California First Amendment Coalition board of directors has unanimously adopted a resolution asking the attorney general to keep government “open and accessible” despite the war on terrorism.The resolution, passed at the organization’s quarterly board meeting, charges Ashcroft with violating the founding Constitutional principles “that ensure free and open dissent, due process of law, and government by and for the people.”
The resolution calls upon Congress and the White House to “vigilantly defend and protect these principles, particularly in times of national crisis and uncertainty such as this.”
“Our board and many of our members have been increasingly concerned about the way basic Constitutional rights have been ignored in the pursuit of terrorism,” said CFAC Executive Director Kent Pollock. “The board’s discussion revealed sensitivity to the national crisis, but the board felt duty-bound to speak out against obvious violations of civil rights that have served this nation well since its inception.”
The resolution will be sent to Ashcroft, the White House and key members of Congress for their consideration.
Here’s the resolution:
WHEREAS the United States of America was founded on principles that ensure free and open dissent, due process of law, and government by and for the people; and
WHEREAS it is the duty of officials in Congress and the White House to vigilantly defend and protect these principles, particularly in times of national crisis and uncertainty such as this; and
WHEREAS rather than upholding these values, United States Attorney General John Ashcroft has violated these founding ideals by seeking to deny information, suppress debate and limit certain civil liberties; and
WHEREAS Attorney General Ashcroft and the White House have fostered an environment that is hostile to open government by adopting a policy of vigorously opposing requests of all kinds made under the Freedom of Information Act even when the disclosure of information will cause no harm whatsoever, by announcing the prerogative of an executive veto over legal and proper requests made under the Presidential Records Act of 1978, and by steadfastly refusing to share certain information pertaining to national security with Congress; and
WHEREAS Attorney General Ashcroft sought to stifle dissent and muzzle critics by testifying on Dec. 7 before the Senate Judiciary Committee that those who believe that liberties have been eroded in the post-Sept. 11 environment and dare to call public attention to their concerns "only aid terrorists" and "erode our national unity and diminish our resolve;" and such incendiary statements miscast dissenters of White House policy as being disloyal or unpatriotic;
WHEREAS Attorney General Ashcroft has assisted in implementing an administration policy of trying non-citizens accused of committing terrorist acts or abetting terrorists in secret military tribunals, thereby preventing public scrutiny of the propriety and fairness of such proceedings; and
WHEREAS Attorney General Ashcroft has adopted and enforced a policy of holding hundreds of foreign nationals for unspecified lengths of time while refusing to release their identities to the public or show just cause for these detentions; and
NOW THEREFORE BE IT RESOLVED that the Board of Directors of the California First Amendment Coalition calls upon Attorney General Ashcroft to release the names and show justification for the detention of all those being held on suspicion of terrorist activity; to refrain from further actions that would deny citizens and immigrants alike the access to fair and open public trials; to show good faith in abiding by the laws designed to ensure that government remains open and accessible to the public even in times of national crisis; and to embrace the idea that speculative criticism of government is a natural response of a concerned citizenry and that actions and statements by government leaders with the intent to foster secrecy and raise suspicions about the loyalty of individual citizens who are merely exercising their freedom to speak, to question and to disagree, do not serve or honor the hard-fought ideals and freedoms that set this nation apart.
CFAC Idyllwild Workshop Sponsored by Wide Array (12/17/01)
A series of community-based open government workshops by CFAC General Counsel Terry Francke continues in Idyllwild next month at an event sponsored by a wide array of civic and government organizations.The public is invited to the free, three-hour Idyllwild workshop to be held Jan. 17 at the Idyllwild Town Hall beginning at 8:30 a.m.
About 75 participants are expected in Idyllwild, many of them elected and appointed public officials. Stories and ads in the Idyllwild Town Crier have announced the event, which is sponsored by the newspaper, Fern Valley Water District, Idyllwild Fire Protection District, Pine Cove Water District, Lake Hemet Municipal Water District, the League of Women Voters of Southwest Riverside County, John Holt of Hill Municipal Advisory Council, Bob Sargent of County Service Area 36 Advisory Committee, and the Idyllwild Chamber of Commerce.
“We think public education is an effective way to counter government tendencies toward secrecy,” Francke said. “We are trying to build up a public expectation of openness in government that mirrors or exceeds what’s required by law.”
Francke’s workshop, ‘Open Government: It’s the Law!’ demystifies California’s open government laws and answers every-day questions about everything from agenda posting to requirements of closed sessions. He has conducted eight workshops this year and is already scheduled to do ten more next year.
For more information on sponsoring an open government workshop, go to the coalition’s Web page at www.CFAC.org or call (916) 974-8888.
Civic Activist Elected as CFAC President (12/17/01)
A Pasadena City College chemistry professor with an impressive record of local open government victories in southern California has become president of the statewide California First Amendment Coalition.Richard McKee, of La Verne, was unanimously elected by the CFAC board of directors to replace Palo Alto Weekly Publisher Bill Johnson, whose two-year term as CFAC President expired this month.
McKee’s selection marks the first time in CFAC’s history that the organization has elected a civic activist rather than a journalist as its president.
Over the past eight years, McKee has been involved in ten open government lawsuits against cities, school districts, a water district and a community college district, usually representing himself. He lost his first two suits, but hasn’t suffered a litigation defeat since.
“Being president of an organization with such a rich history of promoting and defending the public’s right to know is a great honor,” said McKee. “I hope the organization can help convince public officials that it’s safe to operate in the open. And that doing the people's business in secrecy will never be tolerated.
An energetic and passionate advocate for open government, McKee was once described in a Los Angeles Times story as becoming “as animated as Jack Nicholson at a Lakers game when he talks about the people’s right to know.”
While McKee has brought litigation against recalcitrant public agencies, his approach is to persuade and educate local officials about open government laws. “I look to persuade local officials to open their deliberations beyond what the law requires, explaining to them that secrecy breeds unnecessary suspicion and distrust,” McKee said.
Outgoing CFAC President Bill Johnson praised McKee’s accomplishments and approach. "The election of our first non-media president represents a significant turning point for the Coalition. It reflects the organization's goal of helping all citizens gain greater access to the operations of government, and no one stands for this more than Rich McKee," Johnson said.
The California First Amendment Coalition was founded in 1988 to promote and defend the public’s right to know. The organization’s membership consists of journalists, attorneys and other citizens interested in keeping government open to public participation and scrutiny.
McKee received a prestigious Torchbearer’s Award from CFAC in 1995 for his diligence in litigating pro per lawsuits challenging the City of Glendora's open meetings and public information practices. He joined CFAC’s board in 2000.
McKee, who holds a Master of Science in Organic Chemistry from CSU Long Beach, has been a Professo