Sunshine Week (March 12-18) is a good time to take stock of California’s commitment to open government in terms of both its laws and its practices. The following 10 lapses and limitations to our open meetings, public records and whistle-blower laws have manageable and sometimes long overdue solutions.
Problem: Needless Mystery about Closed Sessions
Solution-The San Diego City Council requires oral reports from staff on the factual status of any litigation, property negotiations or employee unit bargaining-updates provided in public session-prior to closing the doors to discuss matters the other side doesn’t already know. That’s the key: Whatever the other side already knows is shared with the public to keep it informed of what’s happening in these high-dollar arenas. This approach belongs in the Brown Act.
Problem: Settlements Disclosed as Done Deals
Solution-The City and County of San Francisco lets the public get a pre-approval look, 10 days in advance, at the text and any referenced documents for any settlement committing the city or a department “to adopting, modifying, or discontinuing an existing policy, practice or program or otherwise acting other than to pay an amount of money less than $50,000.” This approach belongs in the Brown Act.
Problem: Discovery Barred in Brown Act Suits
Solution-Amend the Brown Act to provide that, where a lawsuit alleges improper use of a closed session, members of the defendant body may be examined under oath in the discovery process about their statements or acts in closed session. As a preservation of proper confidentiality, also provide that the plaintiff conducting the discovery may be made subject to a protective order, to assure that the information is not disclosed until and unless admitted as evidence of the violation.
Problem: Too Clueless to Hold Accountable?
Solution-Amend the Brown Act to make the ignorance defense to misdemeanor prosecution-now a perfect escape hatch-available only to local body members who have taken Brown Act training, of sufficient substance to satisfy the district attorney, within the previous year.
Problem: Needless Enforcement Secrecy
Solution-Amend the California Public Records Act to conform to how the federal Freedom of Information Act deals with law enforcement confidentiality. Under those rules, the FBI, DEA and other such agencies must release closed case files, withholding only matters of personal privacy, confidential informant identities, confidential investigative techniques, procedures or guidelines, or facts whose release could endanger a person’s safety.
Problem: Needless “Bad Apple” Secrecy
Solution-Place peace officers under the same “bad apple” disclosure standard as other government workers. While it may be true that they are on the receiving end of more baseless complaints, those of a serious nature that are confirmed by their departments should be disclosed. Those entrusted with deadly force and the authority to detain, question, investigate and arrest their fellow citizens need to be at least as publicly accountable for serious wrongdoing as others in public service.
Problem: Needless Science Secrecy
Solution-Senators Deborah Ortiz (D-Sacramento) and George Runner (R-Lancaster) have just amended SB 401 to address secrecy and other problems with California’s stem cell agency, in a measure that would be submitted to the voters in the next statewide election. The bill provides voters, who were never told about secrecy in the stem cell institute, to correct these hidden defects in Prop 71. Similarly, Assemblymember Wolk’s AB 1244 should remove its secrecy provisions for the Independent Science Board advising the San Francisco Bay-Delta program.
Problem: Toothless Transparency Law
Solution-First, establish a per-day fine for whatever period a public agency denies access to a clearly public record, acting in bad faith. Second, authorize the Attorney General’s office to provide a nonbinding “second opinion” whenever another government agency denies access to a record; publish the opinions within 20 to 40 days after they are requested, and gather the opinions in annual published reports for the guidance of both citizen requesters and government agencies. Two bills with this approach were passed by the Legislature in successive years but were vetoed by Gov. Gray Davis; another try is needed.
Problem: Unlawful Sealing of Court Records
Solution-The California Judicial Council should survey the state’s courts to determine whether they are still sealing lawsuit records without the showing of need as required by law. If so, the council should amend the rules to say that if an intervening party succeeds in getting an order to unseal an improperly sealed record, the party requesting the seal should be ordered to pay its attorney fees. Private parties bending or breaking constitutionally based transparency rules should be as responsible to pay for unlawful secrecy as government agencies already are.
Problem: Punishment of Public Employee Whistle-blowers
Solution-Assemblymember Fran Pavley (D-Woodland Hills) with her AB 1812 would protect from disbarment government lawyers who blow the whistle to law enforcement authorities or the Legislature as a last resort because they can’t persuade their clients to desist from fraud or other serious criminal breaches of the public trust. Legislation is also needed to protect the job of any public employee who feels conscientiously compelled to go on the record to prevent or redress harm to an important public interest, even if he or she is speaking in an official capacity rather than simply expressing a personal view.
More information on these proposals can be obtained at the Web site: www.calaware.org
Terry Francke is general counsel for Californians Aware, www.calaware.org
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