Here is the substance of what more than 83 percent of voters in the 2004 general election approved:

The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.

A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

That language seems simple enough, especially the part that requires the rules — effectively the Public Records Act — be broadly construed if they further the right of access. The law already statutorily required a broad view of disclosure, but putting the same language in the Constitution added significant weight.

But then comes the legal mumbo jumbo — the words that seem to mute much of the above: Nothing about Prop. 59 shall nullify the right to privacy, or any statutory exemption to access to records.

In other words, Prop. 59 starts great and ends poorly. It took a lot of compromising language to get it on the ballot — language that effectively gives the government’s information gargoyles too much wiggle room to disregard the voters’ intent.

I cite Prop. 59 in every public records act request I file and in many, many arguments with bureaucrats as I try to wring public records from them.

It has, for years, been largely an effort in futility. Bureaucrats don’t think outside of the preverbal box, and judicial interpretations tend to come slower than BART expansion, or the Caldecott Tunnel’s fourth bore, or the new Bay Bridge. In other words, never as quickly as the public needs them.

The problem always seems to be that there is no clear judicial writing on Prop. 59’s meaning, something, when needed, that can be used as a figurative club in the fight for access.

But one has finally arrived. And bizarrely the person at the root of it is Antioch’s Philip Garrido, the convicted sex offender who is accused of keeping Jaycee Lee Dugard captive in his backyard for 18 years.

A pair of newspaper companies — McClatchy and Hearst — sued the California Department of Corrections and Rehabilitation for Garrido’s parole field file after the department refused to release it under the Public Records Act.

At the heart of the newspapers’ argument was a simple question: How did Garrido manage to avoid being found out for nearly two decades when parole agents were supposed to be checking up on him?

The state argued that regulations made the file exempt from disclosure. But that’s where Prop. 59 made what is arguably its biggest difference yet.

Sacramento County Superior Court Judge George P. Marlette ordered the records released, specifically citing Prop. 59 because the regulation was adopted in 2009 — well after voters amended the Constitution — and it didn’t contain any findings demonstrating why limits on disclosure were appropriate.

Marlette then went on to write in his decision that Prop. 59 also requires the principle of the broad view of disclosure.

The case was argued by attorney Karl Olson, who has also worked for the Bay Area News Group.

Given the likelihood that aggressive parole oversight of Garrido would have saved Dugard years of terror and imprisonment, the public interest in disclosure was “at its apex” in the case, Olson said. “It was obvious from the start that this was an egregious situation.”

There are no higher needs for access to government records when those records illuminate wrongdoing, incompetence or corruption.

Lo and behold, the records that Marlette ordered released because of his interpretation of the constitution showed parole agents had little interest in thoroughly checking on Garrido and didn’t even realize for a year after he moved from Nevada that he was a registered sex offender.

Down here in the trenches, Marlette’s reliance on Prop. 59 is a welcome weapon, although certainly not one worth a minute of Jaycee Dugard’s suffering. Perhaps the disclosures the judge ordered will prevent someone else from experiencing her horrors.

During these tough economic times, government at every level faces media scrutiny. The public has a right to know how elected officials are spending taxpayer dollars.

That’s why it’s especially troubling that the Placer County District Attorney’s Office does little to actively enforce the Ralph Brown Act.

A couple of highly publicized examples help illustrate the point:

When examining Placer County receipts, the Auburn Journal found one from 2008 that touched a nerve with taxpayers – a $1,600 dinner in Washington, D.C. to “thank” then-Congressman John Doolittle.

Supervisors Jim Holmes, Rocky Rockholm and Robert Weygandt dined handsomely on the taxpayers’ dime, along with CEO Tom Miller and then-assistant CEO Richard Colwell, among others.

When questioned about the lavish dinner, Weygandt bristled.

Weygandt said the dinner was an effective way to lobby our Washington representative, and that it paid off many times over in bringing home federal dollars.

The problem with that reasoning, however, was the dinner was never agendized nor the public ever notified that three or more supervisors were meeting together discussing Placer County business.

A minor violation of the Brown Act perhaps? Business as usual? Or is this an environment in which spending has gotten out of control?

One look at the massive Placer County budget deficit helps provide the answers.

Another more recent scenario shows not much has changed since 2008:

Supervisors rubber-stamped the hiring of board chairman Kirk Uhler’s wife to an unadvertised near six-figure salary, and then subsequently OK’d a 5 percent raise after just six months.

Taxpayers were rightfully outraged.

The response from the supervisors? They say they had no choice because of a step-salary increase ordinance to which they were forced to adhere.

To justify the seemingly wasteful, nepotistic spending, Rockholm said he had made his distaste for the ordinances known in a previous closed-session meeting.
The problem with that argument is familiar: Closed-session discussion items must be agendized, according to the Brown Act, but they were not.

League of Placer County Taxpayers leaders wrote letters to the editor complaining about the Brown Act violations after both instances were made public in the Journal.

But there was no response on the alleged Brown Act violations from supervisors, county executives nor the District Attorney’s Office.

With myriad Placer County elected officials, how is the District Attorney’s Office monitoring compliance with the Brown Act and when are violators warned or prosecuted?

A good start would be by enforcing the Brown Act and utilizing the grand jury to the full extent of its legal capabilities. Perhaps Scott Owens, the heir-apparent to the District Attorney’s throne, can explain to taxpayers here, in space provided by the Journal.

Many local elected boards take the Brown Act, the state open meetings law, very seriously.

County supervisors might think they do, as well, but what many see is a good-old-boys network with a spending addiction.

The county is facing budget deficits estimated at $20 million to $38 million over the next couple of years. County rank-and-file employees are facing possible layoffs. Services are being reduced. There are mandatory furlough days, and no sign of real changes in attitudes.

With one exception: Newcomer Jennifer Montgomery has found the courage to speak and vote against the rubber-stamping, good-old-boy theology.

With campaign war chests beefed up by local developers, Indian tribes and a political machine, it’s tough to change Placer County’s management-oriented spending.

Now that CEO Miller is poised to look at all departments for personnel and spending cuts, maybe the District Attorney’s Office will pay attention to the Brown Act and the nepotistic environment in the county.

It would be about time.

Copyright 2010 Gold Country Media

I remember very clearly the first time I discovered that it’s all too easy to skate around the rules to get what you want. My third grade teacher, Mrs. Mills, had assigned the class 20 math problems to do as homework.

As numbers and I haven’t always gotten along, I decided to start on my math problems early. While struggling to remember the rules about fractions, my classmate turned to me and said, “You know, the answers are in the back of the book.”

A quick turn of the pages revealed the truth in my friend’s statement and suddenly my math troubles were history. I whipped through my homework, copying down the answers number for number. Wow, I thought at the time, this is great! My euphoria lasted until my first math test.

After failing miserably and having to explain to my parents and teacher why my homework was done perfectly but I couldn’t answer one test question correctly, I gave up taking the easy road and earned every homework grade the hard way.

What I did in third grade wasn’t cheating. The teacher knew the answers were in the back of the book. The answers were supposed to be a teaching tool. If your answer didn’t match the book’s then the thing to do was go back and rework the problem until it did match.

In the grown-up world there are many ways to take the easy path or to follow the letter of a law, but not the spirit of it. For example, the Turlock Unified School District Board of Trustees were in complete compliance with the Ralph M. Brown Act at their Tuesday night meeting. They posted a public agenda at least 24 hours in advance. They made sure the meeting was accessible to any community members who wanted to attend and allowed ample time for public comments.

However, I have to wonder if the district administration purposely put two controversial items — Debely stadium renovations and teacher layoffs — late on their agenda. While school employees and other members of the public were able to voice their opinions about these two items during the public comment section, which is the second item on the agenda, by the time the board of trustees began their discussion of the Debely renovations, it was 10 p.m. And it wasn’t until midnight that the board voted on laying off 75 teachers.

The standing-room-only-crowd that filled the Turlock High Auditorium at 5:30 p.m. on Tuesday dwindled down to under a dozen community members — which included media representatives — by the time the controversial discussions began. If five and a half hour school board meetings aren’t already listed as a means of torture, they should be.

Other public bodies, including the Turlock City Council, have been known to move an agenda item up when a large group of people have obviously come to a meeting just to hear discussion on one topic. It allows the public to be present during critical items, without having to endure hours upon hours of boring elected body housekeeping work. The board of trustees could have decided to hold a special meeting just to discuss Joe Debely renovations and layoffs. By waiting until the wee hours of the night to discuss these items, the school district was almost guaranteed a small and subdued crowd.

Making it hard on the public to hear discussion on issues of importance is not illegal. Neither is it cheating to cram six hours of school board work into one weeknight.

But it’s not right either.

Copyright 2009 The Turlock Journal, CA

Trustees indeed met Sunday for a closed session without any public notice. That seems unusual, but there’s actually a section of the government code that allows such closed-door meetings for employee negotiations.

The meeting was called to order at 6:15 p.m., with all trustees in attendance — although Anna Bryson attended by telephone.

Superintendent Bobbi Mahler and the district’s lead negotiator were the only other attendees. No action was taken.

The meeting was called quickly as the deadline nears for the release of the independent mediator/fact finder’s report on the district’s impasse with the teachers. The 30-day deadline comes at the end of this month.

That is the report that will recommend a settlement. It will be a public document. The fact-finder was mutually agreed on by the district and teachers and travels the state doing the work, so it will be well versed in the current complications of school financing. The district will have 10 days to respond to the report.

Here’s the code:

California Government Code Section 3549.1 All the proceedings set forth in subdivisions (a) to (d), inclusive, are exempt from the provisions of Sections 35144 and 35145 of the Education Code, the Bagley-Keene Open Meeting Act \ (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2), and the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5), unless the parties mutually agree otherwise:

(a) Any meeting and negotiating discussion between a public school employer and a recognized or certified employee organization.

(b) Any meeting of a mediator with either party or both parties to the meeting and negotiating process.

(c) Any hearing, meeting, or investigation conducted by a fact finder or arbitrator.

(d) Any executive session of the public school employer or between the public school employer and its designated representative for the purpose of discussing its position regarding any matter within the scope of representation and instructing its designated representatives.

That’s apparently OK, but unusual, Californians Aware attorney Terry Francke told me. He’s one of the top public-meeting laws experts in the state. “They can step out from under the Brown Act,” Francke told me. “But I have never seen a school district use it.”

I emailed six trustees — everyone but Larry Christensen (I just couldn’t put my hands on his email) — and only heard back from Trustee Ken Maddox. Maddox admitted it was a hastily called meeting, but said trustees are under the gun with the approaching deadline for the release of the independent report.

“None of us are working on Sunday,” he added.

Copyright 2010 Capistrano Insider

Two unannounced meetings were conducted in 2008, one on June 20 when only two of five board members were present and another on June 24 when a majority of the board attended. They were captured on surveillance footage shot by a private investigator hired to follow district CEO Margo Arnold, who an attorney thought was for months ducking attempts to be deposed in a civil lawsuit.

The meetings were at the Keystone Pacific Business Park, where the district hopes to move its clinic.

On June 20, district board member Jeanette Kessler, as well as Arnold, went to the business park, noted private investigator Johnny Smith. The investigator also saw the car of board member Evan Schut parked there, as well as the SUV of ambulance driver Barry Hurd, who regularly attends board meetings. Smith said Harold Hill was also there, though at that time he was not on the district’s board, so there was no quorum of the board on June 20.

But on June 24 — according to a report by Smith and surveillance footage — board members Kessler, Schut and Betty Carlson went to the business park to meet Arnold; Hill; Dennis Litos, president of Doctors Hospital in Modesto; and Kevin Dal Porto, a vice president at the real estate firm CB Richard Ellis.

Arnold said the only thing that took place at those meetings was board members “hearing a presentation by a company” that was going to “head up” the clinic’s move to Keystone.

“It was an informational,” Arnold said. “It wasn’t interactive, and there was no discussion and no decisions were made. If that was the case, we certainly would have announced it right.”

Ed Maring said he was president of the board during June 2008 when the meetings took place, and though he was absent, he said they shouldn’t count as real board meetings.

“As far as I recall, I don’t remember being at those meetings,” he said. “To my knowledge, the board has never had an official meeting at Keystone. To me, it looks like someone’s just trying to dig up dirt.”

Arnold said she’s under the impression that because the meetings were merely “informational,” no public meeting laws were violated, chief among them being the Ralph M. Brown Act, which governs public meetings in the state.

But Terry Francke, lead lawyer for Californians Aware, a nonprofit that deals with public forum rights, says Arnold’s claim is absurd.

“The attitude these boards have, that they can hold these little ‘workshops’ and don’t have to let the public in on it, is the reason for the original passage of the Brown Act to begin with,” Francke said.

The Brown Act defines a public meeting as “… any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.”

Francke said secret meetings could be considered a criminal act, though it’s difficult to prove. He said it’s possible a civil penalty could be imposed if wrongdoing was proven.

Schut declined to comment for this story, and other board members could not be reached for comment.

In 2006, the grand jury received and investigated four complaints of alleged Brown Act violations by the district board. The grand jury reached the conclusion that because the board did not intend to violate the Brown Act, the only recourse was to recommend the board attend an aggressive training session about open meeting laws.

The private investigator was hired by Norman Ronneberg, the attorney of former district medical director Dr. Paul Berry, who filed a wrongful termination lawsuit against Arnold and the health district in November 2006.

Ronneberg said he had tried for months to schedule a deposition with Arnold in which she would provide sworn testimony about the case, but he says she claimed she was physically unable to make any appointment.

He said he heard from people in Patterson who saw Arnold working as she normally would, so he paid Smith to shoot videotape of her between June 19 and June 24 of 2008.

The case has picked up steam. The two sides are supposed to discuss a possible settlement next month and schedule a trial for May or June if no out-of-court conclusion is reached.

Copyright 2010 Patterson Irrigator

Leo Wilson, Reynaldo Pisano and James Feinberg from the city’s Community Planners Committee – made up of chairpeople from the 43 community planning groups charged with advising the city on land use and development – told LU&H they were concerned about Development Services’ Technical Advisory Committee (TAC), which devised the incentive report.

TAC is weighted with building industry representatives and other development-friendly members, they said, and TAC’s meetings are inadequately noticed.

“Development Services is not a special interest group. They shouldn’t just be listening to [TAC],” Wilson said. “I think the fact that they’re just hearing one voice says they’re not doing their job right.”

District 3 Councilmember Todd Gloria chairs LU&H, which includes Councilmembers Sherri Lightner, Kevin Faulconer and Tony Young. Gloria asked the committee to hear the Development Services presentation, emphasizing that it was intended to be a discussion item – though the LU&H agenda makes no distinction between action and discussion items – and that no action would be taken.

Director of Development Services Kelly Broughton told LU&H that the community planners were likely referring to an earlier draft of the report and that those items had either been reworded to reflect greater cooperation between Development Services and the planning groups or had been removed completely. The incentives proposal is still in the early stages, he said.

“I couldn’t understand why the community planners’ representatives that were there were upset,” Broughton said. “I think some of them have been around long enough to know that what we do in government is not very stealthy. [The public process is] long and drawn out and we like to get input.”

Broughton said his department developed the incentives in-house with TAC’s sustainability subcommittee, but the full TAC board softened the community review process items at their Jan. 13 meeting, resulting in the revised report. Any proposals affecting the planning groups would have been brought to them later in the process, he said.

The disputed items – which were later removed – included a timeframe for community planning groups, which, if not met, would cause the group to forfeit all appeal rights; new subcommittees that would have the power to make recommendations without the full planning group; a rule that a planning group’s denial must include a detailed list of changes that would earn the group’s support; and creation of a mayor-appointed planning group for projects outside the regular planning group process.

“I understand the skepticism of the planning groups,” Gloria said. “I think the misunderstanding at the meeting is that there was never any intention for community planning input, which is definitely not the case. We are very early in the conversation.”

John Ziebarth, a TAC member representing the American Institute of Architects, agreed. “[TAC is] trying to look to see if there are ways to help Development Services run more efficiently, and maybe there are ways the community groups could also work more efficiently,” he said. “We wanted to address the fact that these incentives are not intended to circumvent community planning groups.”

Regardless, Wilson said if TAC can influence city policy that directly affects how planning groups operate, he wants further transparency about who is on the board and their interests.

“I’m seeing a lot of people in the development industry get together and make recommendations and … if you’re a builder and you’re going to get a direct financial interest from that policy, should they be making a recommendation without a disclosure of ‘Hey, this is going to benefit my company’?” Wilson said.

LU&H first convened a TAC in February 1997 to make recommendations on affordable housing projects. Currently, TAC is tasked with advising LU&H on improvements to the development review process “using communication, technology and best business practices to reduce processing times and better serve the customers and citizens of San Diego,” according to the organization’s newest bylaws, adopted May 19, 2009. The bylaws state that committee members must be customers of the city’s Development Services Department and no limits exist on how many people can sit on the committee.

TAC Chair Kathleen Riser explained that any organization could request representation on the committee, whose members ratify applicants by a simple majority vote. She acknowledged there is no representation on TAC from the community planning groups.

“We have talked over the years about creating a stronger tie to the community planning groups,” Riser said. “I guess we just never carried that discussion any further. If they were to ask for a seat, I would be willing to recognize them.”

In addition to Ziebarth’s seat for the American Institute of Architects, TAC includes representatives from the American Council of Engineering Companies, the American Society of Landscape Architects, Associated General Contractors, BIOCOM, the Building Industry Association, the Business Improvement District Council, the San Diego Chamber of Commerce, the Commercial Real Estate Development Association and the San Diego Economic Development Corporation. Advocates for accessibility and sustainable energy are also members.

At TAC’s Feb. 10 meeting, Scott Molloy, who participated heavily in discussing both the incentive items and another agenda item brought forth by the San Diego Chamber of Commerce, asked for membership on behalf of the San Diego Association of Realtors. TAC will consider his candidacy in March.

Riser maintains there is no conflict of interest among members, and that as an advisory group TAC is not responsible for filing conflict of interest statements.

“We don’t spend any city money,” Riser said.

Community planning groups, which the City Council established in 1976, are also advisory and therefore not required to file economic interest statements. However, unlike TAC they are elected by members from their respective districts (voting eligibility requires attendance at one meeting), not board members.

Both TAC and community planning groups have sections in their bylaws that direct members with a conflict of interest on an item to abstain from voting on it.

In addition to the structure of TAC’s membership, Wilson also questioned at LU&H if TAC is complying with the Brown Act, a 2003 state law calling for 72-hour public noticing of meetings and for those meetings to be held in publicly accessible venues.

An archived Development Services page on the city’s Web site shows TAC has been posting agendas under the “News and Updates” header since before the city attorney’s office directed the organization to comply with the Brown Act.

Riser said all TAC meetings are now held at the Development Services Center, 1222 First St., a public facility. However, some 2007 agendas say the accessibility subcommittee met at the Building Industry Association’s private offices at 9201 Spectrum Center Blvd.

Wilson said those meetings might have been a violation of the Brown Act. He also cited TAC with improper publication of agendas because no discussion of community planning groups was noticed along with the sustainable incentive program.

Although agendas for TAC and its various subcommittees are posted online (sandiego.gov/development-services/news), there is no link to the organization’s bylaws, no explanation of its purpose or membership and no posted meeting minutes. TAC’s bylaws state that an annual report be issued on behalf of TAC by “staff,” which Riser identified as Development Services. Though chairman, she said she has not seen such a report in several years.

While not a violation of the Brown Act, the lack of published information about the group is “making everybody uneasy,” Wilson said of his fellow community planners. Without dialogue and transparency, he said, the conflict in city development and the rift between community planners and developers will continue to grow.

Gloria indicated his staff is exploring any needed changes.

“We know [TAC's] role has evolved from commenting mostly on how to make the Development Services Department more efficient in the way that it operates, to providing technical opinions or advise on matters of policy,” Gloria said. “If that triggers any additional need for compliance with things like the Brown Act or the Statement of Economic Disclosure, then we need to make sure we’re in compliance with that. The city attorney hasn’t notified us of any deficiencies, but we are asking those questions.”

Regardless, Gloria said both planning groups and TAC have their place.

“To solicit input from community members is why you have community planning groups. I believe you have a technical advisory committee because you want members with technical ability and a technical skill set to provide advice to city staff and decision makers on what an industry perspective may be,” he said.

Several members of TAC and community planning groups interviewed for this story said that broader representation on advisory committees would be good for the city and may be the only way to avoid confrontation politics.

“The biggest problem that has faced the city and community planning groups and developers: the level of trust between all the different parties,” said TAC member Ziebarth, who said he has worked with both developers and community planning groups in San Diego for nearly 20 years. “Everybody is suspicious of everybody else’s motives. But if we all work together, we can get a better product.”

Wilson said that cooperative system is what he and his fellow planning volunteers are seeking.

“The idea of getting the community planning people and the development people together on a board early in the process is something that I think would be really good for this city. That’s something we don’t have,” Wilson said. “The [fighting] at Land Use and Housing is going to continue to take place unless we start a dialogue.”