Throughout Californias history, local legislative bodies have played a vital role in bringing participatory democracy to the citizens of the state. Local legislative bodies - such as boards, councils and commissions - are created in recognition of the fact that several minds are better than one, and that through debate and discussion, the best ideas will emerge. The law which guarantees the publics right to attend and participate in meetings of local legislative bodies is the Ralph M. Brown Act.
While local legislative bodies generally are required to hold meetings in open forum, the Brown Act recognizes the need, under limited circumstances, for these bodies to meet in private in order to carry out their responsibilities in the best interests of the public. For example, the law contains a personnel exception based on notions of personnel privacy, and a pending litigation exception based upon the precept that government agencies should not be disadvantaged in planning litigation strategy. However, assessing litigation impact is one thing but setting policy that may have legal implications in closed sessions could be crossing the line.
Finally, elected officials and designated District employees are required to complete annual conflict of interest for the Fair Practices Political Commission. Failure to do so can lead to legal action.
One requirement of the Brown Act indicates the need for adequate disclosure of agenda items. Read the article below or this article and you decide if the Brown Act was violated. The local members of the League of Women Voters monitor meetings and occasionally file complaints. In Vallejo, a school board candidate filed a complaint alleging a Brown Act violation because the district did not provide backup documetation of the agenda items.
(b) Except as authorized pursuant to Section 54953, any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the members of the legislative body is prohibited.
While personnel matters maybe discussed in Closed Session, there are certain actions that must take place in public session, including approval of the superintendent contract. In addition, firing the superintendent requires a public hearing, if requested. The consequences for not conducting a public hearing can be severe. A grey area is the awarding of bonuses and whether or not the vote can be taken in Closed Session and reported out or the vote must take place in public. Apparently, to be safe, this Board decided to recast their in public.
Closed session does not protect a School Board in personnel matters when the party of the Closed Session waives their confidentiality status. The Lucia Mar School Board was the subject of a grand jury investigation after conducting Closed Session meetings about the employment status of two principals.
Matters discussed in Closed Session are confidential. Staff needs to train new Board members about the nature of Closed Session or it could lead to embarassing disclosures and censure for the new Board member.
Then there is the strange case where the Board conducted a series of Closed Session meetings that led to accepting the resignation of the Superintendent the buyout of his contract for $410,000. After which a Board member demanded a grand jury investigation to why the majority voted to accept the resignation and still pay the $410,000.
Sometimes, Board member attempt to allege Brown Act violations to shift emphasis away from their own curious behavior. When a Board member calls for termination of an employee in public, the Board attempts to censure that Board member. Then that Board member sues citing protected speech, which leads to another lawsuit, where the Brown Act is gutted. Then Board attempts to limit this Board member ability to have items placed on the agenda.
SUSD discussions about candidates may violate law
By Yasmin Assemi, Stockton Record, February 10, 2005
Stockton Unified school board members met in parking lots, talked over the phone and consulted each other outside public meetings before appointing a new school board member Tuesday night.
Those actions likely violated the Brown Act, the state's good-government open-meeting law, according to a media attorney for The Record.
On Tuesday night, the board voted 4-2 to appoint Venice Holladay to a vacant board seat. There was little public discussion before the decision.
"If there was no technical violation of the Brown Act, there was a violation of the spirit of the Brown Act," said Record attorney Rachel Matteo-Boehm.
Holladay replaces Clem Lee, who left the board in December after being elected to the Stockton City Council. Trustees Katrina Rios and Ed Garcia voted against Holladay.
Most Stockton Unified trustees said Wednesday that they had discussed the candidates for the open seat outside public meetings but denied that they had collectively come to a decision about whom to appoint.
Rios denied speaking to any trustees about the candidates outside of public meetings. Yet Trustee Sarah Bowden said she had had phone discussions with board members Rios, Anthony Silva and Glen Dolberg about candidates before Tuesday's meeting.
"There was really no pressure exerted," Bowden said. "Maybe they were trying to exert pressure, but I never felt any pressure except from Clem Lee last night. They just gave me information I didn't necessarily know."
Lee had told the school board Tuesday night that voters might demand a special election if the board didn't appoint a qualified candidate.
The Brown Act forbids "serial meetings," in which officials communicate with each other on public business outside of public meetings, because the officials could develop a "collective concurrence" even without committing to a certain vote. Matteo-Boehm said that when the Stockton school board members discussed the pros and cons of candidates, a collective concurrence could result.
Dolberg said he and other trustees interact outside meetings but don't violate the Brown Act.
"Everybody interacts to some degree," Dolberg said. "It's not against the law to talk to each other."
"(Trustees) called me and I shared some of my views with them," Dolberg said.
Silva said trustees weren't given enough time to publicly discuss the candidates because Lee "came during that period and did all the talking."
The school board's discussion over whom to appoint Tuesday night lasted less than 30 minutes.
"We could have gone around and around," Silva said. "That thing could have taken all night."
Gonzales said board members have discussed issues -- including the candidates -- outside the boardroom but there was never talk or pressure on how to vote, he said.
"I don't want to go to the extent of saying, 'Hey, I want you to support this issue,' " Gonzales said. "But I will bounce things off of people and see where things are going. I think there's nothing wrong with that, and I think that's healthy."
The Record's attorney did not agree.
"It's troubling to me that these conversations occurred," said attorney Matteo-Boehm. "It sounds like a violation."
Trustees said they voted for Holladay because he's a "team player," has common sense and would help the board improve school safety.
Trustees Rios and Garcia both preferred candidate Marcia Knudsen. Garcia was unavailable for comment despite several attempts Wednesday by The Record to reach him.
Brown Act violations weren't the only problem with the appointment process.
According to the San Joaquin County Registrar of Voters, candidate Bruce Kern didn't reside in Area 5 -- a school board requirement for representing the area. He lives in Area 4. The school board never disqualified him.
Silva, the committee chair in charge of the appointment process, said he tried to check candidates' eligibility by consulting maps but never verified their eligibility with the Registrar of Voters.
"I did some checking and somehow that must have eluded me," Silva said. "If he (Kern) was really interested he should have checked."
The board also initially disqualified candidate James Whigham because he's a district employee, but then held a special meeting to interview him on Monday. Whigham never showed up.
Holladay's Area 5 seat represents the region generally bounded by Kensington Way and Baker Street to the west, Wilson Way and Sanguinetti Lane to the east, the Calaveras River to the north and Harding Way to the south. The area also includes parts of the city between North California Street and Baker and Edison streets.
Tuesday night was "the beginnings of dysfunction," Lee said.
"There are agendas at work that are not being made public and not being made visible," Lee said.
Lee emphasized that he has no ill feelings towards Holladay, and wishes him the best.
"I feel he is an innocent victim in all of this," said Lee, whose son attends school in the district.
Dolberg, Silva and Bowden countered that it is actually Lee with a political agenda.
"I was leaning myself to Mrs. Knudsen until there was such an overwhelming campaign suggesting there were other things afoot," Dolberg said.
Holladay said Wednesday he was excited to take over the vacant seat.
"I was kind of thrown a bit by the spirit of it," he said, adding that he was surprised he was chosen over some candidates who had good interviews with the board.
Holladay said he doesn't know any of the board members personally and did not speak with any of them between his interview and Tuesday.
"It was just something I would like to do for my community," he said. "This came up, and I thought I'd give it a shot."
SR school bonuses' legality at issue
2002 failure to note 2 awards in minutes after closed meeting attributed to clerical errors
By Robert Digitale, The Press Democrat , March 19, 2005
During the past four years Santa Rosa school board members voted in closed meetings to award bonuses to two top administrators, actions that in two cases never appeared in minutes of those sessions.
But the board is awaiting a determination from its attorney to see if the votes actually violated state open meetings law.
The board sought legal advice following a complaint to the Sonoma County District Attorney's Office by a school district employee.
"There isn't anybody on the board who believes that anything ought to be done in secret," said board member Bill Carle.
Bonuses given in 2002, one to then-Superintendent Mel Solie and another to Associate Superintendent Doug Bower, don't appear in any board minutes.
But Carle insisted that on each occasion the board members emerged from closed session back into the public forum and made announcements about the bonuses. He said the lack of corroboration in the minutes is due to clerical errors.
Even if the school attorney and the district attorney conclude that the closed session actions violated state public meetings law, the only result may be that the board must take the votes on the years-old bonuses again, this time in public session.
The bonuses total more than $95,000 during the past four years. It is the votes on those bonuses, not the bonuses themselves, that are at issue.
They were first brought to light in spring 2004 by Maxine Stornetta-Smith, a longtime school district secretary. In December she complained to the district attorney that the board had violated the state public meetings law when it voted on the bonuses in closed sessions.
"The public had no idea this was happening," Stornetta-Smith said, referring to a $20,000 bonus awarded to Solie and an $11,067.50 bonus given to Bower.
Her complaint came after she filed a lawsuit against the district in early 2003, alleging that administrators were violating the state Public Records Act by refusing to promptly allow her access to records about personnel actions the board had taken.
The lawsuit was settled in 2003 and Stornetta-Smith was given the public records.
She soon determined that while bonuses were publicly recorded for 2001 and 2003, there was no such record in 2002.
The state meeting law, generally known as the Brown Act, requires most government business to be conducted in public.
The law specifically allows school boards and other government groups to meet in closed session to evaluate the performance of employees.
But such bodies must discuss and decide compensation matters in public, said an attorney for a nonprofit group dealing with government access and free speech issues.
"You can't decide to give a bonus in closed session," said Peter Scheer, executive director of the San Rafael-based First Amendment Coalition. "It has to be done publicly. That's all there is to it."
District Attorney Stephan Passalacqua acknowledged receiving both a complaint against the school board and a response from the district. However, he declined comment on the legality of voting on bonuses in closed session.
"The only thing I can say is that the matter is pending review," Passalacqua said. "We are evaluating this entire matter closely and should hopefully have a decision by the end of this month."
Board minutes from 2001 note that the board gave Solie a bonus of $2,856. As well, bonuses of $22,000 in 2003 and $28,752 in 2004 for Solie are noted in the personnel transaction report.
A 2004 bonus of $11,067.50 for Bower was reported in personnel transactions.
But neither the minutes nor the personnel transactions note a June 12, 2002, bonus of $20,000 for Solie or a Sept. 25, 2002, bonus of $11,067.50 for Bower.
Stornetta-Smith said she learned of those bonuses after asking former board member Jere Jacobs if bonuses had been given in 2002.
Jacobs acknowledged the other bonuses, though not the amounts, in an April 19, 2004, letter.
To address the reporting issue, the board earlier this month was scheduled to vote on revising its old minutes from 2002. But board members postponed the action.
School attorney Andy Wick said school officials have assured him that after each of the 2002 votes the board disclosed the bonuses publicly.
Usually such an announcement takes place to an empty meeting room, but it is a requirement of state law.
Wick said he is analyzing the meeting law's requirements on bonuses.
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Votes taken in secret to be recast
School board granted bonuses in closed sessions; D.A. reviewing actions
By Robert Digitale, The Press Democrat , April 8, 2005
Santa Rosa school board members are scheduled next week to vote publicly on staff bonuses that were previously approved behind closed doors in apparent violation of the state public meetings law.
The action will correct votes taken during the past four years. But school officials are refusing to explain why the votes are needed and instead are referring questions to school board attorney Andy Wick.
Wick was unavailable for comment Thursday and school officials claimed attorney-client privilege in refusing to release an opinion Wick drafted.
Board President Frank Pugh acknowledged the past board actions on the bonuses "need to be fixed" but he deflected questions on whether the board violated state law by granting them in closed session.
"I guess I would have to wait and see what the district attorney would say to that issue," Pugh said, referring to a review of the past votes by Sonoma County District Attorney Stephan Passalacqua. That review followed a complaint by a longtime district employee.
The board is slated to vote again Wednesday on four bonuses previously approved to two top administrators, former Superintendent Mel Solie, who retired last year, and current Associate Superintendent Doug Bower.
During the past four years the school board members voted in closed meetings to award six bonuses. In two cases the board's actions never appeared in minutes or related personnel reports.
The six bonuses total more than $95,000.
The employee who raised the complaint, Maxine Stornetta-Smith, maintains that state law requires school boards to vote on bonuses and other compensation matters in public session. Her complaint to the district attorney deals with the legality of votes on the bonuses, not the bonuses themselves.
Passalacqua said earlier this week that he expected to conclude his review of the matter soon, possibly by next week.
It remained unclear Thursday why the board was scheduled to vote on only four of the six bonuses. The two bonuses not slated for new action Wednesday were awarded in closed session last August.
"Why would they only do four of the six?" asked Stornetta-Smith. She said she would await Passalacqua's review before making further comment.
Pugh referred questions on the remaining two bonuses to the school district's attorney. But he said of the four other bonuses, the attorney had concluded "those are the ones that have a problem."
In bringing the bonuses to light, Stornetta-Smith previously had filed a lawsuit against the district, alleging that administrators were failing to promptly make available the personnel actions the board had taken.
After that suit was settled, Stornetta-Smith received the public records and soon discovered that bonuses were recorded in 2001 and 2003, but there were no records for bonuses handed out in 2002. School officials eventually acknowledged the board that year gave a $20,000 bonus to Solie and a bonus of $11,067.50 to Bower.
Wick, the school district's attorney, previously has said that even if the board failed to follow the law, the only action needed was to have the elected officials take the votes on the bonuses again, this time in open session.
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Appeals court agrees Rio board erred
By John Scheibe, VenturaCountyStar.com, January 27, 2006
The 2nd District Court of Appeal in Ventura this week upheld a judge's decision that Rio School District trustees violated the state's open-meeting law when they voted 2 years ago to fire Superintendent Yolanda Benitez.
The court would not, however, order the district to give Benitez back pay. Instead, it ruled that Ventura County Superior Court Judge Henry Walsh erred in ordering the district to give back pay and benefits to Benitez. But it left the door open for Benitez to seek back pay and benefits through a lawsuit she filed in Superior Court.
Benitez, reached by telephone in Los Angeles, where she works as an education consultant, said she was ecstatic over the court's decision.
"I always knew we were going to win," Benitez said.
Benitez could be owed as much as $445,000 in back pay and benefits, said Nick Calderon, one of her attorneys. The Court of Appeal also ruled that Benitez is entitled to attorney fees and costs related to her legal defense that the district violated the Brown Act the state's open-meeting law.
Esau Herrera, an attorney for the district, said trustees will discuss what to do next when they meet behind closed doors on Feb. 2.
Trustees placed Benitez on administrative leave during a closed-door meeting in March 2003, nearly eight years after she was hired to lead the often troubled school district. Their action came after the board received complaints alleging Benitez was abusing the district's bilingual education program. Benitez said the meeting violated the Brown Act because the board failed to notify her that it was considering taking disciplinary action.
Trustees voted 3-2 behind closed doors three months later to fire Benitez, even though she'd asked that they discuss her employment in public.
The district argued that Benitez was not entitled to a public hearing because the action to fire her was based on an internal investigation of her job performance.
Judge Walsh agreed that the district had violated the Brown Act. The district appealed Walsh's decision.
Benitez brought a separate lawsuit against the district, alleging that it violated her civil rights and her right to privacy, Calderon said. The lawsuit also alleges that the district owes Benitez back pay, since the board failed to follow the Brown Act when it voted to fire her, Calderon said. Benitez is alleging in another lawsuit that she's owed 28 days of vacation pay, Calderon said.
Those lawsuits were put on hold until the Court of Appeal decided whether the district violated the Brown Act, Calderon said. He said those lawsuits can now proceed.
Calderon said he fully expects Benitez will prevail in court, given the Court of Appeal's decision. Still, Calderon said, he hopes the district will agree to settle the two remaining lawsuits out of court.
Trustee Simon Ayala, who voted not to fire Benitez in 2003, said on Thursday he was saddened that the district has spent so much time and money on this case.
"Much of it has been a political vendetta against Mrs. Benitez to ruin her reputation," said Ayala, who now serves as the board's president. He said he hopes the district will settle with Benitez out of court, rather than spend more time and money on the case.
"I also want an investigation so that those who are responsible for all of this be held accountable," he said.
Trustee Henrietta Macias, who voted to fire Benitez, said the Court of Appeal's decision was a loss for Benitez, not the district.
"She got no back pay, she got zero," Macias said. As to an out-of-court settlement, Macias said she would be against it.
"Let her go to court; she won't win."
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Open Government Threatened by Recent Court Rulings
By Terry Francke, General Counsel and Founder, Californians Aware
Sunshine Week (March 15-21) is a national celebration of open government, but here in California a court decision has favored the suppression of dissent and cost a long-time open government advocate $80,000.
More than four years ago the people of California went to the polls and, by an overwhelming 83 percent support for Proposition 59, passed a state constitutional amendment guaranteeing the public fundamental access to the meetings and records of their local and state government agencies.
This month, however, despite those constitutional protections, California courts finalized an order that a small public interest non-profit group and its past president must pay nearly $86,000 for merely asking them to protect the public’s right to hear the opinions expressed by its local elected representatives.
The problem began when a majority of the Orange Unified School District (OUSD) Board didn’t like one of its members’ criticism of its decision supporting the superintendent’s transfer of a high school principal to a nonexistent position, “principal on special assignment,” at a continuation school. The dissident member said the board should have fired the principal after the many complaints received from parents about his performance—instead of transferring him to a school already having achievement problems.
The superintendent edited the dissenter’s comments out of the DVD the district distributes to local cable TV stations for airing. Then, in violation of its own bylaws, the board censured the member for his negative comments, warning him not to repeat the offense. The Board majority saw its chance to issue a public rebuke to a dissident thorn in their side, who favored the use of long diatribes during meetings to pronounce the Board majority and school administration corrupt.
Richard McKee, then president of Californians Aware (CalAware), had earlier warned the board that such an action violated the Brown Act’s prohibition against discouraging the expression of one or more of its members. After the censure action, McKee and CalAware petitioned the court for an order overturning the censure and for a declaration that the editing of the recording of the meeting was unlawful. It sought no money damages or other remedies, and was filed by a trial lawyer on the CalAware board who took the case pro bono publico —waiving any fees if the action was unsuccessful.
Orange Unified filed an anti-SLAPP motion, claiming that McKee and CalAware were trying to stifle the district’s right to free speech. Such a motion asks dismissal of any lawsuit that attempts to chill the valid exercise of free speech in matters of public interest. If the court grants the motion, not only is the case against the speaker tossed out of court, but the plaintiff seeking to stop the speech must pay the speaker’s attorney fees.
The trial judge liked—and promptly granted—the district’s anti-SLAPP motion, saying the OUSD Board was right to censure the minority member’s criticism, calling it “boorish,” and concluded that the alteration of the meeting tape to remove the critical comments was protected, because it represented the right of the district to control its own speech.
Confident that the ruling would be overturned under Proposition 59, the Brown Act and the First Amendment, McKee and CalAware appealed, pleading that the public had a right to hear all the comments made by its elected representatives at an open meeting. But the Fourth Appellate District sitting in Santa Ana agreed with the trial court that the district’s speech rights trumped the dissident trustee’s, ruling that McKee and CalAware were responsible for OUSD’s attorney fees. Then, after the California Supreme Court denied review, reality set in.
Despite the fact that the Brown Act itself protects plaintiffs suing to enforce open government from such a fee order unless the action is judged “clearly frivolous and totally lacking in merit” (a finding not made by either of these courts), McKee and CalAware are on the hook.
But CalAware is a five-year-old nonprofit with very limited assets. It has already contributed all the cash it could raise, $6,000. Thus McKee, whose wages have already been garnished by OUSD, and who has had a lien placed upon his home by the district, is left to scramble to come up with the remaining $80,000. He’s already paid $59,000 of it through a second trust deed on his home, depleted his savings, and is now taking another $16,000 from a tax shelter annuity. How he will come up with the remainder is uncertain.
None of this was supposed to happen. The California Constitution requires that any law, like the Brown Act, which furthers the people’s right of access to information concerning the conduct of the people’s business, “shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access.”
In this case the courts gutted the Brown Act of the protections that were there to secure the people’s right to hear the concerns expressed by their local elected representatives, as well as their statements of support.
Here, despite the California Constitution and the Brown Act, the courts have granted public agencies the right to punish expressions of concern made by their own officers to the public they serve, and to censor any information from its publications that the agency doesn’t want the people to see or hear. These are rights usually associated with an authoritarian regime, not a democratic republic.
So now it’s back to the drawing board, trying to formulate a legislative remedy for the loss of a fundamental right voided by the courts.
Meanwhile McKee, a chemistry professor of 34 years who, as a non-lawyer, has successfully prosecuted 14 other Brown Act and Public Records Act cases to protect the public’s right to open government, is wondering what happened to his retirement savings—and not just because of the economy.
Trustees seek to muzzle quirky colleague
Orange Unified board members want to cut Steve Rocco's speaking time; parents are with them. He says it's part of 'the Partnership' plot
By Seema Mehta, Los Angeles Times, March 23, 2007
Fed up with eccentric Orange schools Trustee Steve Rocco, his fellow school board members will try to curtail his ability to place discussion items on the meeting agenda next week.
District staff will present a proposal at the Thursday board meeting that calls for the board president to decide whether a trustee's discussion item ought to be placed on the agenda. If the president denies the item, the trustee can appeal the decision to the full board.
The move comes at a time when parents have begun publicly discussing a recall effort aimed at Rocco, the conspiracy-minded school board member who was elected in what was considered a fluke more than two years ago.
The board proposal and recall threat were prompted by Rocco's attempt this month to make a presentation at a school board meeting about what he calls "the Partnership," a shadowy cabal of politicians, business leaders, judges and other powerful individuals he says run Orange County and have tried to assassinate him. As parents at the meeting fumed, board members cut off Rocco, saying his talk wasn't related to school business.
"How dare you play your childish games at the expense of my children and the taxpayers of this city?" Michelle Thomas, a mother of two elementary students, said at the meeting.
In an interview this week, Rocco dismissed the recall threat, saying it was being made by associates of his fellow board members, who are themselves a part of "the Partnership."
"They get their cronies to come in and talk about recall," he said. "I could care less."
Rocco was elected to the Orange Unified School District board in 2004 with nary a campaign appearance or flier. His quirky style and conspiracy theories he contends, for instance, that local authorities were behind his father's death called into question voters' attention to school board races. Many in the district suspect that voters chose Rocco because he listed his occupation as a teacher, although he has not taught in years and currently is a caregiver to his elderly mother.
The district, with a $248-million annual budget and more than 31,300 students, is among Orange County's largest.
Since his election, Rocco has abstained from scores of votes because he believes administrators have failed to provide enough information, refuses to vote to expel students or fire teachers because he believes administrative hearings are biased against them, and refuses to participate in closed school board meetings to discuss issues such as personnel matters. Rocco says all school business should be done in public.
Rocco's behavior has led to conflicts at board meetings, including an October decision by his fellow trustees to censure him for disparaging a principal in public session. Rocco, who wears a knit cap and sunglasses to meetings, sued the district over the censure. A judge dismissed the suit, and Rocco has vowed to appeal. The matter has cost the district more than $40,000 in legal fees.
The sole board member Rocco occasionally agrees with is fiscal conservative Rick Ledesma, who co-sponsored two discussion items with Rocco on the March 9 meeting agenda. Ledesma was absent from the meeting and did not return calls seeking comment.
At the meeting, Rocco presented the first item a "minority board evaluation" that included lines such as "This district loves pedophiles" without interruption. But he wasn't allowed to finish his rambling talk on "the Partnership."
"He's been terribly distracting the last year and a half and requiring far too much time, energy, effort and resources on issues that have nothing to do with Orange Unified and don't benefit the education of our kids," said board President Kimberlee Nichols. "I absolutely think he's wasting our time."
Parents agree.
"He's just wasting the parents' time, the district time, and he's taking away from our kids' future," said Hoda Hamood, a mother of two high school students in the district who plans to meet with other parents to discuss launching a recall against Rocco and possibly Ledesma. "All he cares about is being up there in the spotlight. It's just getting to be a little ridiculous."
Bob Stern, president of the Los Angeles-based Center for Governmental Studies, said government bodies often employ such tactics to silence members who are part of a minority bloc or who are disruptive. But regardless of the content of Rocco's speech, Stern said, such policies are inappropriate.
"The board member has been elected, and the majority shouldn't be tyrannizing the minority," he said.
Rocco said his fellow trustees were bent on preventing the public from learning about "the Partnership" and would use any methods necessary. He added that it was the latest in a line of board efforts to silence him.
"I try to tell the truth and try to get it out. They find ways of stopping you," he said. "Everybody has more rights than I do. [But] I'm still here, and I've got two more years."
Agencies violate public access law
40% in county failed to release documents, with law enforcement the worst offender
By Tamara Koehler, Ventura County Star, March 12, 2006
Ventura Unified School District employees feared for their lives when a young man walked into the office, asked for public records and refused to give his name. He didn't get the records.
When confronted with a similar anonymous request, employees of the tiny Oak Park Unified School District produced the documents promptly no questions asked.
At the Ojai Police Department, a sergeant told a man asking to review and copy the log of daily calls for police service: "Unless you're a reporter, we don't allow private citizens to see those records."
At the Thousand Oaks Police Department, a free copy of the daily call log was handed over immediately.
From schools to police departments, city halls to special districts, the public's ability to inspect government records is uneven at best in Ventura County, an audit by The Star found. At worst, that access guaranteed under the state Constitution depends on policies that violate the law or on the whims of public agency employees.
The audit, conducted during the last week of January, sought to test how average people are treated when they ask for public documents.
A person wanting the daily log of calls to police may want to know if a crime wave of burglaries or car break-ins is occurring in the neighborhood. A parent may want to prepare for a school board meeting on shortening the school day by viewing a consultant's report on the issue. The state Public Records Act says they're entitled to that information.
All told, 91 documents were requested of 51 agencies. About 40 percent of those agencies either denied the request outright or made demands that violated the law.
"As journalists, we know the law and have lawyers to fight for us, yet it's a struggle every day in our jobs to access public records. So what must it be like for ordinary citizens who want to know their government's business? That's why we conducted this audit, and what we found is pretty disheartening," said The Star's editor, Joe Howry.
The issue is an important one to the voting public. In 2004, 83 percent of Californians voting passed a proposition making public access to government information a constitutional right. Under Proposition 59, there is even more of a burden on government agencies to either turn over documents or give legal grounds for withholding information.
A recent nationwide poll by Scripps Howard News Service found Americans overwhelmingly believe that public access to government records and other official information is critical to good government. Most Americans believe that the federal government is closed and secretive.
That's what Steve Schleder of Ventura believes of local government. For years, Schleder has painstakingly tried to piece together the history of Cemetery Memorial Park in Ventura. The struggle for public records has been intense at times, he said, with Schleder at one point going to the Grand Jury over allegations that the city of Ventura withheld information from a file. The grand jury's findings were inconclusive.
"You have to be able to stand up to them and take the position that they are your employees, you are not their's," Schleder said. "The clerks and government officials work for the citizens of this county."
Starting the last week of January, a team of Star journalists fanned out across the county seeking public records such as expense reports, appointment calendars, employment contracts, police blotters and student expulsion rates. To ensure that they were treated as average citizens, the reporters were instructed to give only their first names. If an agency insisted on a last name before turning over the records, the request was considered denied.
Under the California Public Records Act, any member of the public is entitled to inspect public records without providing identification or a reason why the information is sought.
Special district staff and city and county clerks fared the best, turning over documents 80 percent to 100 percent of the time.
School districts and police agencies were the worst offenders, with 46 percent of school districts and 90 percent of police agencies failing to fully comply.
Several agencies insisted that subpoenas were needed to release the information. Others flatly refused to release expense reports or labor contracts, insisting that the documents were not public.
Many denials and delays sprang from the refusal to give a last name or a reason for requesting a document. Several agencies cited policies that required identification.
A request for Sheriff Bob Brooks' travel and credit card expenditures for the last month was denied after 12 days. Sheriff's officials required a letter be written directly to Brooks as well as a full name, address and phone number.
Moorpark Unified School District employees grew suspicious of a request for expulsion rates and the superintendent's contract. A secretary demanded a last name, phone number and employer name first. "Why would we give that to you?" the secretary asked.
In a post-audit interview, Superintendent Frank DePasquale who has since retired said he believes that the law requires identification but that he would check with the school district's attorney.
California Newspaper Publishers Association attorney Tom Newton said "suspicion" about who is asking for the documents or why they want them is not a valid legal excuse for denying access.
"The law is very clear these documents belong to the public, and that means all of the public, even those you don't like the way they look," Newton said.
While the public records act requires state agencies to adopt and post regulations for releasing information, there is no such rule at the local level, Newton said. The result is a hodgepodge of public access at the neighborhood level. The responsibility for making sure that employees follow the Public Records Act lies with top officials superintendents, city managers, police chiefs, he said.
"Why is this important? Because the people create government institutions. In order to maintain control over government, the people have to have access to the information generated by the government. The government is a mere custodian of the public's records," Newton said.
School districts
Six school districts turned down requests to review a form filed with the state listing student expulsions for carrying weapons on campus. Those same districts also denied requests to inspect and copy the superintendent's employment contract.
Staff members at nearly every district, including many that eventually complied, repeatedly asked reporters: "Why do you want this?" and "Who are you with?"
In the case of Ventura Unified, a newspaper intern's request for documents and refusal to identify himself were viewed as sinister. Nancy Bradford, administrator of support services, thought that it was "strange" that the young man refused to give his name.
His quiet demeanor also frightened Bradford, who works frequently with angry, upset parents, she said.
"That was the most frightening experience I've had in my career. I thought he had a gun. He had his hand behind his back. My job is to protect the superintendent. I didn't know if her address was in the contract and that he didn't plan to go and shoot her or blow the school up. It was a very odd situation," Bradford said.
Superintendent Trudy Tuttle Arriaga said later that Bradford spent hours going over surveillance video to see if the man's face showed up on camera. If it had, Bradford intended to forward the tape to police.
"The request for records became secondary because staff felt something was off and we were put in danger," Arriaga said.
Intern Daniel Miller's written account of the encounter described Bradford as friendly and helpful. He wrote that he simply entered the office and asked politely for the records.
Such a strong reaction, coming from a school district office, was surprising to Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press in Arlington, Va.
"Perhaps if the request had been made at an individual school where children are present and there's heightened awareness of security, I can see that sort of reaction, human nature being what it is these days," Dalglish said. "But at the district office, who you are and what you want the public record for should be no big deal."
At the Ocean View School District in Oxnard, the reporter was told to make an appointment with Superintendent Nancy Carroll to get a copy of her employment contract. Carroll repeatedly questioned why the contract was wanted and how the information would be used.
"It's just that I don't want these documents all over the place without my knowing why," she said.
The school district did, however, comply with the request.
In the case of the Santa Paula Elementary School District, the refusal to give a name or reason was taken in stride. "Even if someone has an agenda and wants the information for that purpose, we're obligated to give it to them, without question," Superintendent Luis Villegas Jr. said.
Villegas said it is critical to have "experienced" employees who know the public records law.
"All of our employees know all the information we have here at the district office is mostly public information," Villegas said. "We work for the public, and we're here to serve the public."
Law enforcement
Police agencies put up the most roadblocks, with nearly all denying requests for call logs and some requiring face-to-face meetings with top law enforcement officials.
A reporter asking for records at the front counter of the Ventura Police Department was told that she would have to meet with Assistant Police Chief Glen "Skip" Young. Eight days later, the meeting took place in Young's office. Young told the reporter that the department did not keep a daily call log and that producing such a document would be onerous.
As for the chief's expense account report, Young said he could produce a copy right away but only if the reporter signed the city's public request form.
"Now I understand you have not been wanting to give your last name; however, we will need that information for this document," Young told the reporter. He added that an address was also required because of the "Homeland Security Act." Some asking for documents, Young said, plan to use them "for not very nice reasons."
City Manager Rick Cole said Ventura does not require that information before releasing public records. He said he would talk to the police chief about the department's response.
"Police officers by nature are trained to follow the law. If they interpreted it more strictly than necessary, that's the kind of thing we're happy to look into," he said.
All but one police agency denied or partially denied access to the day's log of calls for service. The Thousand Oaks Police Department a Sheriff's Department's contract station produced the document free of charge without asking questions. The Sheriff's main office responded to the request for its log but provided the wrong documents.
At the Santa Paula police station, a clerk allowed viewing of the call log but no copies because the information could not leave the station.
Steve McKenna, appointed last year as police chief, said the staff has been poorly trained when it comes to public access. "Our record system is not very strong. I've been here a short time, and we're fixing things that are broken. I'll be fixing this, too," he said.
Like McKenna, most police chiefs accepted the audit's findings and promised change.
"I'm glad you brought this to my attention. I'm going to modify our policy," Simi Valley Police Chief Mark Layhew said.
Brooks, who oversees five contract stations in cities throughout the county, said a standard public records policy should be in place. He said he will review the matter.
Cities, county, special districts
City and county clerks who are trained to deal with requests for information complied most frequently.
However, many still required forms and identification, especially when the records requested were not the regular grist such as budgets or board letters.
Several cities make public record request forms available to the public and ask people to fill them out before viewing or copying. Star reporters who filled out the forms gave their first names and an e-mail address.
The Star's audit asked for appointment calendars, expense accounts and conflict-of-interest forms.
City managers became suspicious after talking with each other about the rash of anonymous requests. They speculated that The Star was behind the effort, said Cole, the Ventura city manager.
"We figured it out," Cole said. With so many people coming in with an air of mystery, "it caught our attention."
In Thousand Oaks, a deputy city attorney refused to turn over a copy of the City Council members' appointment calendars or the city manager's expense report unless a full name and address were given.
Patrick Hehir wrote in an e-mail: "I need your full name and address. The City of Thousand Oaks needs to maintain proper records on requesting parties under the California Public Records Act."
After word got out that The Star was behind the requests, the city changed its position.
City Attorney Amy Albano e-mailed the reporter that the records were available for inspection and copying and that a name and address would not be required.
Eight out of 10 special districts responded promptly and completely. The director of an 11th district, South Coast Area Transit, discovered that the requester was a reporter and chastised her for being unprofessional. Deborah Lindham insisted that the reporter give her name and reasons for wanting Lindham's expense account and employment contract. When the reporter refused, Lindham sent her away empty-handed.
"There was this cagey thing; it was never about the records disclosure," Lindham said. "I definitely would have provided the information if this game was not being played."
Government officials don't get to make that decision, according to public record experts.
"Records are public. That doesn't mean there are segments of the public. It's the whole public. And anybody has the right to see public records," said Edwin Guthman, a journalism professor at USC's Annenberg School for Communications and former editor of the Philadelphia Inquirer.
Surprisingly, small special districts with tiny staffs performed better than large ones such as the Ventura County Fire Protection District.
Employees at the fire district in Camarillo said the expense report and employee contract for Fire Chief Bob Roper were confidential, then directed the reporter to the county Human Resources Department 10 miles away in Ventura. A secretary there also denied the request, saying the information was private.
Human Resources Director Barry Zimmerman, after checking with county counsel, said that a mistake was made and that the documents were public record.
Tactics questioned
Some agency officials, such as Cole, said the audit was an "artificial exercise" that measured people's instinctive response to anonymity rather than requests for documents.
"We're used to people, businesspersons, citizens, activists requesting public records, but it's so unusual not to give a name," Cole said. "While it's good to flex democracy's muscles, I don't really think this tells us anything accurately."
Others, like Ventura Unified's Arriaga, questioned The Star's method of conducting the audit.
"It surprised me as a longtime subscriber to The Star. And after working collaboratively with the press on many occasions, this particular mode of operation surprised me," she said.
But public access experts say similar audits in other states and communities have provoked change for the better. As a result, agencies have trained staff, laws have been passed improving public record access, and governments have changed policies.
"These types of audits are extremely beneficial in many ways, and most certainly result in voters having better ideas of what information they're entitled to," Dalglish said.
