Turlock Journal
August 31, 2010
By Maegan Martens

After eight months of chaos in the small Valley town of Hughson, a sense of victory was evident at Monday’s City Council meeting as three new council members were sworn into office.

“I am ready to get down to city business,” said Jill Silva, new council member who took the place of resigned council member Ben Manley.

Silva joined new council members George Carr, who replaced Thom Crowder, and Jeramy Young, who replaced Doug Humphreys, as they all asked to take their oaths of office together making Monday their very first council meeting.

Cheers, standing ovations and shouts of “hear, hear” were voiced by the over 30 community members as they celebrated the replacements of three council members who were recalled on Aug. 24 after the Stanislaus County Civil Grand Jury found them in violation of the Brown Act, the Hughson Municipal Code and the Fair Political Practices Regulations and Code in December 2009.

A moment was given to reflect on the circumstances which led to the need of a recall election.

“It was a sad day for the City of Hughson,” said Mayor Ramon Bawanan. “We had to remove three council members for breaking the law.”

Apart from the community’s embarrassment from the actions of the three council members and a $23,000 cost to the city to recall Manley, Humphreys and Crowder, Bawanan experienced one of his proudest moments.

“There is no prouder mayor in the county, and for that matter, the United States, than I am today,” he said.

Despite the long and difficult hurdle the City of Hughson has overcome with the recall election, two new hurdles still need to be jumped — the budget and the hiring of a new city manager.

The council will hold a budget study workshop at 6 p.m. on Sept. 7 to go over the 2010-2011 budget that was supposed to be passed in June.

Also, city manager final interviews are expected to be done either Sept. 6 or Sept. 20, depending on the availability of the last two candidates and the council.

As the small town of Hughson slowly starts to gain momentum on their new beginning, the chaos that ran the city for months at a time did have one positive outcome — a renewed sense of community involvement.

“This ignites a whole Renaissance of community involvement,” said Hughson Council member Matt Beekman, trying to hold back tears of joy. “There was a time when the city wanted a pool and people would grab a shovel and dig a hole. We need to get back to that.”

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Contra Costa Times
August 31, 2010
By Monica Rodriguez

A San Dimas resident contends the Pomona Unified School District board violated the state’s open-meeting law during closed-door sessions that led to placing a parcel tax on the November ballot.

Gil Aguirre told school board members in a letter dated Aug. 16 that they violated the Brown Act when they discussed and made decisions to pursue a parcel tax in closed session on several occasions between May and August.

But Pomona Unified’s attorney, Kasey Haws, said the board has not acted inappropriately.

Discussions along with “any and all action was taken in full open session,” Haws said.

Aguirre is calling for the board to take formal action and publicly announce it committed errors by going behind closed doors on six occasions in relation to the parcel tax.

He is also calling for the disclosure of discussions and actions taken along with the release to the public of meeting minutes, records and agreements related to the hiring of consultants involved in polling for the parcel tax.

“They seem to be under the false impression that they can go into closed session to discuss politically sensitive or embarrassing matters, and that’s just not the case,” Aguirre said. “Those are the very things they should be conducting in public.”

Discussion of a matter such as a parcel tax needs to take place in public in order to give residents the opportunity to provide their opinions and contribute to the public debate on such a matter, Aguirre said.

Aguirre, who describes himself as “a little bit of an open-government advocate,” said he and his family own property in various places in the region, including Pomona, and that he tries to remain abreast of what is taking place in the area.

Aguirre said he was involved in a lawsuit against Glendora about two years ago over records not being made available to the public. The suit led to changes in the handling and improvement of access to public documents, he said.

In this case, Aguirre said he would prefer to have the school board take the necessary corrective actions but is prepared to take the matter to court if it fails to do so.

“I’m keeping my fingers crossed that they do the right thing,” he said.

The matters Aguirre is highlighting are valid points, said Terry Francke, general counsel for Californians Aware.

CalAware, as the nonprofit is also known, works to support and defend open government in order for California residents to hold government and other institutions accountable.

Francke said the state’s open-meeting law doesn’t allow government bodies such as school boards to meet behind closed doors for discussions “with an attorney or anyone else on elections.”

If the school board fails to take corrective action Aguirre would have grounds for a lawsuit, he said.

Haws said a response was being e-mailed to Aguirre.

Aguirre’s letter will be on the school board’s agenda tonight. The open portion of the meeting begins at 7:30 p.m. in the district’s offices, 800 S. Garey Ave.

“We’ll go over his request point by point by point,” Haws said.

A major concern in Aguirre’s letter is “that somehow (board members) were strategizing or colluding how they were going to vote” on the parcel tax, he said.

Those in attendance at the Aug. 5 meeting saw “it was crystal clear the board was completely unscripted” in how votes were cast, Haws said. “Any and all action was taken in full open session.”

He added the information presented in open session prior to the vote was extensive.

Action related to using the services of consultants and lawyers connected to the parcel tax measure were carried out in open session as part of the Aug. 5 meeting actions, he said.

The school board is aware of the critical nature of complying with the Brown Act, Haws said, adding he is prepared to stop board members from taking any action that would be out of line with the act.

“I understand the public relies on us to be transparent,” Haws said.

As a result of Aguirre’s letter, changes will be made to school board agendas.

“I think there are going to be some improvements,” he said.

“The way we do certain agenda postings could be worded better,” Haws said. “I think we can improve the actual description of agenda items.”

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San Jose Mercury News
Commentary
August 29, 2010
By the Mercury News

In this election, it’s the Goldman family vs. incumbents

Here’s something you don’t see every day: Three members of the same Sunnyvale household are running for the Fremont Union High School District board in a challenge to a trio of incumbents.

Michael and Miyuki Goldman are running with their son, college student Monet, in a seven-person race for three spots on the board. Sitting members Barbara Nunes, Hung Wei and Bill Wilson are seeking re-election, while Pradeep Jain is also in the race.

Michael Goldman, a software consultant, said he tried to recruit other candidates to run with him, but they had to drop out for various reasons. He then asked his family members, including Monet, who attended Fremont High and is now at Foothill College.

The family patriarch said he was motivated to run by concerns about how the district spends its money; Goldman thinks funding improperly tilts toward the administration rather than teachers or students.
“The incumbents are basically a rubber stamp for the administration,” he said.

But Internal Affairs (IA) had to wonder whether the Brown Act, the state law that prohibits unofficial meetings with a “quorum” of an elected body, would cause problems for the Goldman ticket. After all, there are just five seats on the school board.

And Michael Goldman specifically cited his family’s potential to coordinate as an incentive to vote for the slate. “We work from a common base, and it’s easy to get hold of each other,” he said.

A spokesman for the state attorney general’s office told IA that simply living under the same roof wouldn’t necessarily create a Brown Act violation if all three Goldmans were elected: The trio would have to actually discuss pending board business amongst themselves to run afoul of the rules.

On the other hand, Judy Nadler, a government ethics expert at Santa Clara University’s Markkula Center for Applied Ethics, found the situation “troubling.” She wondered how the school district would be able to police the family’s compliance.

“If you live with someone, trust me, the decisions that you’re making and the discussions you’re having become part of your everyday life,” said the former Santa Clara mayor. “It’s not as if you turn off your trustee role when you go home.”

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Big Bear Grizzly
August 27, 2010
By Arrissa Owen Turner

Mountain Area Regional Transit Authority violated the Ralph M. Brown Act, as well as California Labor Laws, according to the drivers and dispatchers’ teamster union.

In a letter from Carol Greene, San Bernardino County deputy county counsel, she states that “it is conceded that the (MARTA) board did not call itself to order prior to adjourning to closed session.” Greene states that as such any action taken in closed session would be considered null and void. However, there was no action taken in closed session so no corrective action to be nullified, Green states.

Green writes that in the future, the MARTA board will ensure any meetings are convened in open session before the board adjourns to closed session as required under the Brown Act.

Green’s letter was sent to Elizabeth Garfield, attorney for Union 572, in response to a letter sent by Garfield on Aug. 19 claiming the MARTA board violated the Brown Act.

Garfield also claimed the Employer-Employee Relations Resolution passed by the boar at its Aug. 16 meeting violated the California Labor Laws because MARTA representatives did not negotiate with Teamster Union 572 representatives prior to adopting the resolution.

Union representatives charge that there was not enough notice given prior to the resolution appearing on the agenda for the Aug. 16 meeting. The union was notified on Aug. 12, according to Greene. Lonnie Holmes, the union representative, did not have enough time to raise detailed objections and concerns prior to its passing, Garfield wrote.

MARTA will take no action to enforce the resolution until after a subsequent board meeting in September when the board will vote whether to adopt the resolution again, Greene states.

Kathy Hawksford, MARTA general manager, rejected the most recent offer presented by MARTA employees’. Union representatives also state that MARTA administration violated labor laws by imposing a deadline on negotiations. Union members are scheduled to vote on another MARTA offer on Sunday, Aug. 29.

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Fontana Herald News
August 26, 2010
By Alejandro Cano

It has happened at least twice at School Board meetings in the last few months: Fontana Unified School District Board President Gus Hawthorn interrupting people during public comments, saying he would turn the microphone off if the speaker’s topic is not changed.

Some observers have claimed that Hawthorn’s actions are a violation of the Brown Act, which guarantees the public’s right to attend and participate in meetings of local legislative bodies.

However, Hawthorn defended himself by saying he is following the California Education Code.

On Aug. 18, Jess Vizcaino, a representative of Rep. Joe Baca (D-Rialto), was interrupted by Hawthorn as soon as he began praising the work Baca has done for the region.

In May, then-San Bernardino County controller candidate Alfred Palazzo was also stopped when he offered some ideas on how the district could save money.

Hawthorn said in both instances the speakers were “politicking,” and if this practice was allowed, he could face penalties of up to a year in jail and fines not exceeding $1,000, because he would be violating California Education Code Section 7054.

“The Fontana Unified School District board meetings are a limited public forum, which means that the public has a right to speak, but only as it relates to educational business or board business. It is not a general public forum where anything and everything can be discussed,” said Hawthorn. “It is really a board business meeting conducted in public so that members of the community, and anyone else who is interested, can understand how and why things are done. It is not a forum given to politicians to make campaign speeches for their political offices.”

Section 7054 states that “no school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.”

In other words, “the boardroom cannot be used to promote or sanction a candidate for office,” added Hawthorn.

“This is not a Brown Act situation,” he said.

The Brown Act, authored by Assemblymember Ralph M. Brown, is a series of statutes that intends to create transparency in governing bodies, whether they are county government, city council, school board, college districts, commissions, committees, task forces and advisory bodies, among others.

Since its inception in 1953, the Brown Act has been a significant rule for government leaders and a violation of it could bring serious consequences.

Fontana’s interim mayor, Frank Scialdone, learned about the subject days after he shut the microphone off when Edgar Montes, a local activist, was speaking during the public comments section of a City Council meeting in July.

Scialdone later apologized during another City Council meeting, and Montes accepted the apology.

“At least he understands that shutting the microphone off is a clear violation; they should learn this in Government 101,” said Montes.

Meanwhile, Hawthorn emphasized that he is “compelled to strictly follow the law,” meaning he will not allow anybody to make political remarks during school board meetings.

“My intent is to let anyone speak at the board meeting as long as what they say is legal. Individuals have been allowed to speak even when I did not agree with what they were saying or knew that their remarks were inaccurate at best or false at worst,” said Hawthorn. “This will always be the case as long as I am board president.”

Copyright 2010 Century Group    FAC Content Use Policy

San Francisco Chronicle
August 26, 2010
By Nanette Asimov

California State University at Stanislaus violated public records laws and will have to release the speakers contract with Sarah Palin it had tried to keep secret, a judge has ruled.

The details of Palin’s contract to speak at a June 25 fundraiser for the foundation became national news last spring after foundation officials refused to tell state Sen. Leland Yee, D-San Francisco, how much Palin would be paid. Yee has been trying to change a state law that shields campus foundations from public scrutiny.

The Palin story grew more bizarre in April after students found discarded pieces of the secret contract in a Dumpster on the property of the public university – after university officials told Yee and CalAware, an open-government group, that they didn’t have any of Palin-related documents.

CalAware sued, and in May, the foundation released hundreds of pages of Palin-related paperwork – but not the contract. Among them were e-mails showing that Charles Reed, chancellor of the 23-campus CSU system, favored suppressing the contract to avoid news stories about its contents.

That e-mail, and the finding that the university did possess Palin documents, led Stanislaus Superior Court Judge Roger Beauchesne to order the Turlock campus to release Palin’s contract.

In his Monday ruling, the judge said the contract was used “in the conduct of the public’s business; therefore, said contract is also a public record.”

CSU has yet to receive the judge’s ruling, said spokeswoman Claudia Keith, “We’re perplexed as to how he could have come to that conclusion,” she said. “Nevertheless, we’ll comply with whatever the court has ordered.”

Terry Francke, general counsel for CalAware, said the judge “sided with the public’s right to be informed about how its money is being spent.”

Yee said he also was pleased with the ruling. “The university openly violated a state law.”

Beauchesne’s ruling underscored that the foundation itself remains shielded from the state’s public records laws.

Yee’s SB330, which would overturn that law, was approved by lawmakers and is soon expected to land on the governor’s desk for approval or veto.

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Visalia Times-Delta
Editorial
August 26, 2010

Naturally, we at the Visalia Times-Delta and Tulare Advance-Register were disappointed that Tulare County Superior Court Judge Melinda Reed dismissed a lawsuit alleging Brown Act violations by the county Board of Supervisors.

But we were no more disappointed than those at 800 other member newspapers of the California Newspaper Publishers Association, which had also joined the lawsuit by First Amendment advocate Richard McKee over the practice of supervisors meeting in private over lunch.

The defendants have characterized this legal action as frivolous and spurious, but it is anything but. The principles surrounding this case are paramount. They include the effectiveness of California’s open-meetings law. They include the right of the public to know how their elected representatives conduct public business. They affirm the importance of open government on behalf of the people.

We’re disappointed because those important principles of the law were not affirmed in our local court. They should have been, because the flouting of the Brown Act violated the trust of the people of Tulare County, and people ought to be outraged over that.

We need to make one thing clear: This newspaper did not initiate the lawsuit. It was filed by an advocate and expert in open government. The Times-Delta/Advance-Register joined it only after it was filed, along with the California Newspaper Publishers Association. We joined it because of the importance of the principles of open government on behalf of the people.

In a nutshell, the plaintiffs, including this newspaper, alleged that supervisors met over lunch as a voting majority 46 times last year. The supervisors billed the public for those lunches and certified that they were “work-related” and for “official business only.” We believe that this is an admission that the majority was conducting county business. The Brown Act prohibits a voting majority of elected officials from meeting in private, except for purely ceremonial or social situations.

The court ruled that the plaintiffs had failed to allege that supervisors conducted official business at the lunches and refused to let the lawsuit move forward to trial on the merits. We’re astonished at the ruling because it puts an unfair burden of proof to allege specific details of Brown Act violations on the plaintiffs at this early stage of the lawsuit.

The proceedings of a secret meeting are by definition secret. Direct proof is possible only if someone at the meeting reveals the proceedings.

According to that logic, the Brown Act is toothless and might as well not exist.

It’s disappointing that a local judge would not allow local plaintiffs to have their day in court.

Those principles will not be tested here in Tulare County, but they will be tested, whether on appeal or in some future action. We look forward to seeing them affirmed on the side of open government and on behalf of the people. It is the people who will benefit, and they have told us that they demand and expect open government.

The public should be outraged that their elected officials so blithely dismiss action on behalf of open government as “frivolous.” They should be outraged that they are being played for suckers.

If people are content to pay for lunches at secret meetings by their elected supervisors, so be it.

But they ought to be angry. They ought to demand that their business be conducted in the open. They should express their frustration to supervisors. Write them at 2800 W. Burrel Ave., Visalia, CA 93291. Or write the newspaper at Box 31, Visalia, CA 93279.

They should tell officials they want their government to be open and public, and they will go to any length to ensure that happens, even to trial in a court of law. We accept nothing less.

Copyright 2010 Gannett     FAC Content Use Policy

Visalia Times-Delta
August 24, 2010
By Valerie Gibbons

A Tulare County Superior Court judge ruled Monday that a lawsuit seeking to stop the county Board of Supervisors from meeting over lunches lacks sufficient facts to go to trial.

Judge Melinda Reed ruled that there is no substantive proof that county business was discussed at such lunches.

“Thus petitioner fails to allege facts showing that any type of policy making discussions affecting the general public or having to do with the county’s governmental interest have taken place,” she wrote.

The Tulare County Counsel’s Office will seek to have the case dismissed, officials said.

Reed’s decision was lauded by county officials who have maintained since March that the lawsuit was frivolous and that the supervisors did not violate the state’s opening-meeting laws.

“The decision by the court affirms the position of the board that no Brown Act violations have ever occurred,” said Board of Supervisors Chairman Steve Worthley. “The petitioners did not allege one fact that would support a lawsuit going forward, which means that the lawsuit was completely spurious and without any factual foundation.”

The two sides have been warring since February over whether Tulare County supervisors admitted violating state open-meeting laws when they certified that dozens of lunch meetings held in 2009 represented a business expense.

Southern California open-meetings watchdog Richard McKee filed a lawsuit in March alleging that the Board of Supervisors violated state open-meeting laws — known collectively as the Brown Act — when it met with a voting majority 46 times for meals in 2009. He filed the suit to end such lunch meetings.

The California Newspaper Publishers Association and the Visalia Times-Delta/Tulare Advance-Register joined the suit in April.

In June Reed gave McKee and the media groups 20 days to come up with a witness who has personal knowledge of what the Board of Supervisors discussed in its unagendized lunch gatherings.

Lawyers for the plaintiffs argued that they needed to conduct discovery — in which the supervisors and other county employees could be compelled to answer questions about what they discussed during the lunches. But Reed said she wouldn’t allow them to go on what she called “a fishing expedition.”

On Monday McKee’s attorney, Kelly Aviles, said she disagreed with Reed’s ruling and the verification requirements the judge imposed in order to let the case go to trial

“The board certified that the lunches were official business,” she said.

Bruce Owdom, the attorney for Visalia Newspapers, Inc. and the California Newspaper Publishers Association, said Reed’s ruling missed the mark.

“I think a requirement for an open meeting is when the public’s business is discussed by a majority of the board,” he said.

Deputy County Counsel Julia Langley, who represented the Board of Supervisors, said the lawsuit should be dismissed within a few weeks.

“In my opinion, the court’s ruling was a correct and appropriate application of the law,” Langley said. “The petitions were based on speculation and flawed logic.”

Tulare County Counsel Kathleen Bales-Lange agreed, saying the board will evaluate a legal basis to bring a motion for fees and costs.

“We are very pleased that the court recognized that the plaintiffs have not been able to plead a single fact showing a Brown Act violation, even though they have had three chances to do so,” she said.

But Amy Pack, the president and publisher of the Times-Delta and Advance-Register, said the suit has merit.

“By failing to admit wrongdoing the Board of Supervisors is not only costing the county and tax-paying citizens thousands of dollars in unnecessary legal fees, it is saying the practice of weekly unannounced lunches at taxpayers’ expense is acceptable,” she said. “This case is anything but frivolous — or a California First Amendment expert, the Visalia Times-Delta and 800 California newspapers would not have petitioned so vigorously to see this practice stopped. Tulare County citizens should be outraged and should direct their dissatisfaction to the board.”

Copyright 2010 Gannett   FAC Content Use Policy

Metropolitan News-Enterprise
August 20, 2010
By Kenneth Ofgang

A Los Angeles Superior Court judge’s order barring publication of photos that were taken of a defendant in the courtroom with the jurist’s permission is an unconstitutional prior restraint, the Court of Appeal for this district ruled yesterday.

Div. Five, in an opinion by assigned Los Angeles Superior Court Judge Sanjay T. Kumar, ordered that Judge Hilleri G. Merritt’s order barring publication of the photos of Alberd Tersargyan be vacated. Merritt revoked the order late yesterday in a minute order stating that both the order prohibiting the photography, and the order of the following day denying the motion of the Los Angeles Times to vacate the ban, were vacated “nunc pro tunc.”

Court counsel Frederick R. Bennett declined to comment as to why the nunc pro tunc language was included.

The appellate court rejected the public defender’s assertions that the photographer took the pictures unlawfully because a prior order—made by another judicial officer, at an earlier hearing, in response to a request by a different news organization—barred taking pictures of the defendant, due to identification issues.

Kumar pointed out in a footnote that Merritt stated in open court that she signed an order that permitted news cameras, before the prosecutor commented on the prior order.

Balancing Test

By engaging in a balancing test and concluding that defendant’s right to a fair trial overrode the media’s First Amendment right, Kumar said, the trial judge failed to follow the many U.S. Supreme Court, California Supreme Court, and California Court of Appeal cases holding that a strong presumption lies against prior restraints.

As for the defense’s asserted interest in protecting the defendant from prejudice resulting from being photographed in jail garb, Kumar wrote:

“Although the original order may have been issued to preserve the integrity of eyewitness identification, the record does not demonstrate it is substantially probable that either the integrity of the identifications or the defendant’s due process rights are at risk absent the prior restraint.

For example, the record is devoid of evidence that eyewitnesses expressed uncertainty over their identification, that they have not already seen photographs of the defendant in the media, or that their ability to accurately identify the perpetrator of the offenses would be threatened by the publication of the photographs. Indeed, given the fact that the media has previously published photographs of the defendant in connection with the charges in this case, it is not probable that defendant’s right to a fair trial would be threatened by the publication of additional photographs.”

Deputy Public Defender Albert Menaster, who argued the case for the defendant, complained that the compressed schedule set by the Court of Appeal—the alternative writ of mandate was issued Aug. 9, argument was held Aug. 10, the public defender was given until Aug. 16 to file a brief, and the Times was given until this past Wednesday to reply—did not allow the development of a full record.

Menaster lamented that “the court selected a newspaper’s right to publish photos over the defendant’s right to a fair trial,” but said he did not believe that any further remedies would be available, particularly in light of Merritt’s decision to vacate her order immediately, rather than wait for the appellate court’s order to become final, which takes three days under court rules.

Times Lawyers’ Statement

The firm of Davis Wright Tremaine LLP, which represented the Times, issued the following statement:
“We’re heartened that the Court of Appeal lifted the unconstitutional prior restraint against The Los Angeles Times. The Court reaffirmed the sound rule that restraining the press from publishing photographs that a photographer has taken in open court is a ‘classic prior restraint’ that violates the First Amendment. The interest asserted by the trial court and Mr. Tersargyan’s counsel—witness identification—cannot possibly justify censoring the press when photographs of the criminal defendant in connection with the charges already have been published on the Internet and on television.”

The unpublished opinion in Los Angeles Times Communications LLC v. Superior Court (People) appears in today’s Slip Opinion Supplement at 10 S.O.S. 4938.

Copyright 2010 Metropolitan News Company  FAC Content Use Policy

Visalia Times-Delta
August 21, 2010
By Valerie Gibbons

A Tulare County Superior Court judge will likely dismiss an open meetings lawsuit against the Tulare County Board of Supervisors next week.

Late Friday afternoon Judge Melinda Reed issued a tentative ruling in advance of a hearing scheduled Monday. In it, she upheld her ruling on July 1 that there wasn’t evidence to proceed with a trial, writing the lawsuit was based on “speculation and unreasonable inferences.”

Reed ruled there was no substantive proof that county business was discussed at the lunches.

“Thus petitioner fails to allege facts showing that any type of policy making discussions affecting the general public or having to do with the county’s governmental interest have taken place,” she wrote.

The two sides have been warring since February over whether Tulare County supervisors admitted violating state open-meeting laws when they certified that dozens of lunch meetings held in 2009 represented a business expense.

Southern California open-meetings watchdog Richard McKee filed a lawsuit in March alleging that the Board of Supervisors violated state open-meeting laws — known collectively as the Brown Act — when it met with a voting majority 46 times for meals in 2009. He filed the suit to end such lunch meetings.

The California Newspaper Publishers Association and the company that owns the Visalia Times-Delta and Tulare Advance-Register, Visalia Newspapers Inc., joined the suit in April.

McKee and the media groups contend the county’s characterization of the lunch meetings as “team building” and “building collegiality” represent an admission that the county violated the Brown Act.

In the response, County Counsel Kathleen Bales-Lange argued the lawsuit was filed frivolously.

“They have failed to allege any new material facts showing any conduct of the board that is in violation of the Brown Act,” Bales-Lange said.

The board has since suspended the practice of meeting for lunch when a voting majority is present.

The hearing will be held in Tulare County Superior Court Monday, August 23 at 8:30 a.m.

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