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Transparency organization wins 'total victory' in Lynwood records case

For Immediate Release
April 26, 2016
California Policy Center
Contact: Will Swaim
Will@CalPolicyCenter.org
(949) 274-1911

SACRAMENTO  – The city of Lynwood will pay $22,000, part of a judge’s decision that city officials failed to disclose to the California Policy Center the names and salaries of Lynwood public employees.

You can read the April 22 judgment here.

CPC President Ed Ring declared the Los Angeles Superior Court judgment “a total victory for government transparency and the First Amendment.”

“In the back of every Californian’s mind is – or should be – the specter of Vallejo, Stockton and San Bernardino, cities driven into bankruptcy by reckless spending and excessive public-employee compensation,” said Ring. “The broader message in our legal win in is that vigilance alone isn’t enough. Without the threat of litigation, it seems, organizations like CPC and ordinary citizen watchdogs often haven’t got a prayer of seeing their city’s finances.”

CPC attorney Chad D. Morgan agreed, saying, “Unfortunately, the city refused to comply with the Public Records Act until CPC filed a lawsuit.”

The legal battle began in October 2014 when the public records were first requested. Nearly two months later, on December 2, Lynwood responded with a 2013 report that included job titles and compensation data but not employee names. The city dug in, refusing to release employee names.

In April 2015, CPC asked the superior court to step in. Months later, following a volley of demands and refusals for employee names and their compensation, Lynwood handed over two files. One of those was “a PDF file containing 146 pages listing 165 employee names, positions and information about each employee’s gross pay and benefits.” But the second file cast doubts on the first: it included compensation data for 250 positions – without names.

In his response to the release, Morgan pointed out the disparity and noted that “certain ‘lower-level’ positions” were missing from the second file. More alarming, the documents did not include the names of several executives and managers – including the city manager, council members, mayor, deputy city clerk, public information officer, and interim city manager.

Morgan wondered why the city spent so much time and money refusing to produce documents it was required to produce.

“The city’s refusal to provide the documents and subsequent delays caused us to incur $22,000 in legal fees to enforce the Public Records Act,” Morgan said. “This is in addition to whatever they paid their own outside counsel in defense of their frivolous attempt to conceal public records.”

McCune & Harber represented Lynwood.

ABOUT CHAD D. MORGAN
Chad Morgan represents the California Policy Center in matters related to the Public Records Act. As a public records attorney, Morgan has represented clients in litigation in courts throughout California. While still in law school, he served as chief of staff for a member of the state Legislature. Morgan is a graduate of Western State University College of Law and received his undergraduate degree in Business Administration from California State University, Fullerton.

ABOUT THE CALIFORNIA POLICY CENTER
The California Policy Center is a non-partisan public policy think tank providing information that elevates the public dialogue on vital issues facing Californians, with the goal of helping to foster constructive progress towards more equitable and sustainable management of California’s public institutions. Learn more at CaliforniaPolicyCenter.org.

Three Ways California Governments Try To Avoid Transparency

Few politicians or government officials publicly oppose transparency in government. After all, transparency isn’t just about information; it’s a tangible acknowledgment that government officials work for citizens, not the other way around.

Still, there’s a big difference between mouthing support for transparency and actually fulfilling public records requests as required by California’s Public Records Act.

TransparentCalifornia.com, a public service website run by the California Policy Center and Nevada Policy Research Institute that contains over 3.4 million salary and pension records, has made over 2,000 public records requests in their efforts to make government compensation information easily and readily accessible to the public at large.

While most government agencies have complied, a few are employing some rather creative stalling techniques or actively refusing to comply.

Technique 1: Provide the requested records in an unusable format

Government Code § 6253.9(a) requires that agencies provide records in their “original, electronic format” when requested as such. Despite this, agencies like the Hacienda la Puente Unified School District, chose to print out and mail the records as their first response to Transparent California’s request for electronic records.

The Town of Apple Valley is trying the electronic variation of this tactic. Transparent California asks agencies to send records as an Excel file to expedite uploading the records. Apple Valley is currently only providing a PDF file that an employee printed out and then scanned through a copier, according to the file’s PDF properties. The file appears to have originally been in Excel format.

Thankfully, some cities, like Sierra Madre, eventually abandoned their ludicrous attempts to avoid transparency and have produced the requested records in the legally required format.

Technique 2: Use a court ruling declaring that records are public to refuse to provide records

The City of McFarland is currently refusing to provide employee names in conjunction with salary data, claiming that they are confidential. McFarland cites International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court as their justification for doing so.

What’s amazing is that in that case, the California Supreme Court held that employee names and salary data must be released in response to records requests. The plaintiff in that case only requested the names of only those who made over $100k, so these agencies are making the absurd claim that a ruling finding that public employees’ salary information are public records grants a privacy exemption to those making under $100k.

It could be worse. The Counties of Alpine, Modoc, and Trinity also are refusing to provide employees names, but haven’t even attempted to justify their refusal to comply with CPRA.

These agencies should consider what the Attorney General’s Office has noted: “The name of every public officer and employee, as well as the amount of his salary is a matter of public record.”

Technique 3: Stall them with kindness

The City of San Luis Obispo has perfected this. Transparent California requested payroll records on June 28th, 2013, and San Luis Obispo promptly responded indicating it received the request.
After a few clarifying emails, on August 15, the city emailed Transparent California that they were processing the request and would “forward the information to you shortly.” The records never came.

Unlike some government agencies where public employees are openly hostile to public records requesters, employees of San Luis Obispo have always been very courteous. They’ve responded promptly to Transparent California’s follow-up correspondence with apologizes for the delay and promises that the information is coming soon. While opacity with a smile is friendly, it still isn’t transparent.

In comparison, the neighboring City of Atascadero provided all of the requested records in less than two weeks time. Farther north, the City of St. Helena provided the requested records the very next day! Yet, San Luis Obispo hasn’t provided this information for the past 258 days and counting.

Government agencies that are currently stalling public record requests should join the thousands of government agencies that are complying with the law. Let the sun shine in.

Update: On March 20, 2014 after this piece was written but prior to its publication, the City of San Luis Obispo provided the records that were first requested on June 28, 2013.

About the Author:  Robert Fellner is a researcher at the Nevada Policy Research Institute (NPRI) and joined the Institute in December 2013. Robert is currently working on the largest privately funded state and local government payroll and pensions records project in California history, TransparentCalifornia, a joint venture of the California Public Policy Center and NPRI. Robert has lived in Las Vegas since 2005 when he moved to Nevada to become a professional poker player. Robert has had a remarkably successfully poker career including two top 10 World Series of Poker finishes. Additionally, his economic analysis on the minimum wage law won first place in a 2011 essay contest hosted by the George Mason University.

Public pension data belongs to the public

What goes up must come down.

That’s precisely what happened – in record-setting time – when the California Public Employees Retirement System, the state employees’ pension agency, attempted to provide to the public information about its retirees’ pensions and making it accessible to the public on the CalPERS’ website.

The need for pension reform has consumed much political capital, not only in Sacramento, but nationally as well, as more and more municipalities either fall into, or teeter on the brink of, bankruptcy. Pensions – and their unfunded obligations – led Detroit to become the biggest city in the nation to be driven into insolvency. Stockton and San Bernardino are engaged in court proceedings regarding their unmet pension obligations. Los Angeles is the most likely candidate to become a West Coast Detroit, in part, due to the generosity of the pension deals that public sector-unions have extracted from City Councils beholden to union campaign money.

The public has awakened to California’s pension crisis, concerned over questionable practices of “spiking” that appear to game the pension system and enable far too many public sector employees to gouge taxpayers. As a result, the public has demanded greater transparency in understanding the extent of pension obligations in California. There’s nothing wrong with that.

It was for this reason that CalPERS, the nation’s largest pension fund, amid much fanfare, trumpeted the posting of its online pension data bank. Then, the Retired Public Employees Association of California, representing retired and active state employees, vehemently objected and exercised some political clout. CalPERS’ posted data was removed the very next day.

Opposition to making the data public was characterized as a defense of privacy, a right guaranteed by the California Constitution. The RPEA, which lobbies for improved pension and health benefits for its members, also argued that it was seeking to protect senior citizens from becoming victims of Internet predators.

Hogwash.

The opposition was more about stifling a growing public outrage over the need for pension reform than the potential abuse of some elderly members.

The removal of the online pension data by CalPERS demonstrates the political obstacles California faces in achieving any meaningful pension reform. It also underscores the growing disconnect between the public’s demand for transparency and state leaders’ efforts to stifle reform on behalf of powerful special interests.

While privacy is vital to every Californian, attempting to obscure our access to information about the scope and depth of pensions is unjustifiable. The public should not settle for an admonishment that we have no right to “follow the money” when it comes to pensions – the singular most significant issue correlated with the rise of municipal bankruptcies. Furthermore, courts have ruled that information about how public money is spent belongs in the public domain, underscoring that the right to privacy is not – nor should be construed to be – in conflict with the public’s right to know.

Public information is essential to a democracy. We’ve already seen multiple efforts in recent months to erode the public’s right to know, including the Legislature’s blatant efforts to gut the state Public Records Act. Only an outcry by open-government groups and media outlets – including the Register – convinced the Legislature to backtrack on their effort to reduce the amount of sunshine in government.

CalPERS has buckled to political pressure by shutting down the pension website. Now is not the time to deny the public the right to know the depth of the pension iceberg, and how it will impact our cities and municipal bond market in the future.

What went down, needs to go back up. Now.

Gloria Romero is an education reformer and former Democratic state senator from Los Angeles. This article originally appeared as a guest column in the Orange County Register and is republished here with permission from the author.

Are Unions Behind California Assembly Bill 76 to Hinder Public Records Access?

What special interest group would have such disregard for the tenor of the times that it would now push for a law to hinder the public’s ability to obtain records from local governments?

And what special interest group would have the chutzpah to get that law enacted through a supplemental trailer to an annual budget, thus avoiding public hearings or an opportunity for the public to comment on it?

Until June 12, 2013, California Assembly Bill 76 had been an empty shell for a “budget trailer bill” to be passed as a supplement to the 2013-2014 California state budget. Then it was filled with technical changes and union-backed statutory provisions and whipped through the legislature and to Governor Jerry Brown on June 14. It now waits for the governor’s signature.

At one time, the legislature could claim that it while it was “mindful of the right of individuals to privacy,” it found and declared that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” But now there are suspicions that it is more concerned with protecting a special interest group or an individual or individuals  from damaging revelations.

Among the provisions of AB 76 is language that gives local agencies “discretion” to comply with certain provisions of the state’s longstanding Public Records Act. Certain requirements would transform into optional “best practices.” Local governments would no longer need to explain why they couldn’t provide requested records within 10 days; for that matter, local governments would no longer need to explain why they couldn’t provide records at all. Local agencies would no longer need to provide records (such as financial data) in a useful and appropriate electronic format or cooperate with the public to ensure satisfactory fulfillment of records requests.

Special language in Section 4 of the bill seems to indicate that the public records access provision would take effect in law immediately, rather than on July 1, 2013 as explicitly stated (in Section 119 of the bill) for many other sections. Starting in 2014, but not before then, a local government would have to announce orally at a scheduled public meeting that it would not be complying with the relevant public records laws for the next year. It’s hard to believe, but it seems the law was written to allow a local government to avoid compliance with public records access laws for the remainder of 2013 without making a public announcement of the policy.

AB 76 justifies this change with a cynical provision (Section 118 of the bill) claiming the legislature has a “strong interest…in allowing, to the extent possible, local agencies to control the manner in which they perform their public duties, including, but not limited to, the manner in which they comply with the spirit and purpose of the California Public Records Act.” This statement is laughable.

As readers of www.UnionWatch.org know from articles such as With Senate Bill 7, California Unions Advance Plot to Neuter City Charters, the California state legislature recently enacted two union-backed bills (Senate Bill 922 and Senate Bill 829) that nullify local Fair and Open Competition policies that prohibit Project Labor Agreements in counties and general law cities and cut off state funding for charter cities that enact Fair and Open Competition policies. The union-backed Senate Bill 7 is now moving through the legislature to cut off state funding for charter cities that establish their own policies concerning government-mandated construction wage rates (so-called “prevailing wage”).

Local control is not the consistent principle in the affairs of the California state legislature – union control is the consistent principle. Knowing this, and recognizing that almost no one in Governor Brown’s office or in the state legislature is publicly defending this attack on government records access with a thoughtful argument, there’s justification to speculate that this provision in Assembly Bill 76 has something to do with a union concern.

Really, does anyone believe Governor Jerry Brown one day decided that the public had excessive access to information about their local governments? Of course not. It’s more likely that a special interest group or a person or persons with significant political clout asked for this. Here are some reasons to suspect unions.

1. Union fingerprints are all over Assembly Bill 76. Many of the substantive policy changes in the bill are related to union objectives. These proposals have not been considered in public hearings and are too obscure and complicated to recognize unless you are already familiar with the related labor issues. Here are examples:

  • There’s a set of amendments to the California Labor Code that allows the California Department of Industrial Relations to charge unlimited fees to school districts for labor compliance and enforcement on construction funded by bond measures that receive state matching grants from the State Allocation Board, while limiting the amount that a school district can reimburse the state using proceeds from those state matching grants. In other words, the operations of the California Department of Industrial Relations will be subsidized by money borrowed by school districts through bond sales authorized by local voters.
  • Money is shifted and loaned among various funds overseen by the California Department of Industrial Relations.
  • The Displaced Janitor Opportunity Act of 2002 is expanded to include contractors that provide food and beverage services at a publicly owned entertainment venue. In other words, the new Sacramento Kings owners, with their planned new arena, will not be able to save money by ending the old union arrangements.
  • New opportunities will be created for unions to impose apprenticeship requirements on industrial construction and maintenance contractors through training and process standards developed through the Occupational Safety and Health Standards Board and the Division of Occupational Health and Safety (OSHA).
  • The threshold for state agencies to avoid competitive bidding for contracts under certain conditions is increased from $75,000 to $150,000.

2. Newly-elected Assemblywoman Lorena Gonzalez, who was head of the San Diego-Imperial Counties Labor Council before taking office on May 28, 2013, is one of the few legislators publically defending the proposal. Here’s an excerpt from an article Advocates Press Brown on Records Law in the June 17, 2013 UT San Diego newspaper:

Other Democrats including Assemblywoman Lorena Gonzalez, D-San Diego, said they appreciated the concerns of the public and the press but couldn’t bring themselves to oppose a bill that included funding for a host of other general government programs, including victims of crime for property losses, a commission on the status of women and to strengthen job safety and wage enforcement for workers.

“This wasn’t a bill situation where I could say ‘Yeah, it’s very easy to vote against this. I don’t agree with this portion,’” Gonzalez said. “What I would like to see is the onus on local governments, where they will continue to provide the information. If not, give me the concrete stories about that not happening because of the change and I’ll be happy to work with that.”

The absence of a credible policy rationale for hindering public records access (other than challenging the credibility of opponents’ arguments) is stunning.

3. Anyone looking for a conspiracy theory might want to research where there are currently active efforts to obtain public records from a local government that are potentially damaging to politicians and special interest groups. One case of note is a lawsuit filed by the Coalition for Fair Employment in Construction in San Diego County Superior Court on April 22, 2013 to get public records from the City of San Diego regarding the development and implementation of a Project Labor Agreement on the San Diego Convention Center Phase III Expansion. (See Coalition for Fair Employment in Construction v. City of San Diego, Case No. 37-2013-00045254-CU-WM-CTL.)

As www.UnionWatch.org readers know, this saga has been reported in the articles Unions Threaten Environmental Litigation to Block San Diego Convention Center and Persistent Pressure Compels San Diego to Spit Out Project Labor Agreement. The Coalition for Fair Employment in Construction has persevered for eight months to get records, and some have been obtained, including a set unexpected provided by the city on June 3, 2013 that contains jaw-dropping information in emails. This was described as “the tip of the iceberg” by an informed source. The Coalition for Fair Employment in Construction has not released that set of information to the public yet, for reasons that will one day become obvious, but it continues to seek and pry out additional government documents. See www.SanDiegoConventionCenterScam.com for more information.

In the meantime, groups such as the California Newspaper Publishers Association, the American Civil Liberties Union, the Electronic Freedom Foundation, the California First Amendment Coalition, Californians Aware, and California Common Cause are asking Governor Brown to veto this language. Readers of www.UnionWatch.org have good reason to support the efforts of this coalition to preserve open and transparent government.


Kevin Dayton is the President & CEO of Labor Issues Solutions, LLC, and is the author of frequent postings about generally unreported California state and local policy issues at www.laborissuessolutions.com. Follow him on Twitter at @DaytonPubPolicy.