CalAware Today

Mayors' Security Details' Cost: Why the Secrecy?

PUBLIC INFORMATION -- Contrasting with the secrecy that shrouds the cost of San Francisco Mayor Gavin Newsom’s police security detail, the City of Sacramento makes no bones about what it pays to protect its mayor—and has been asking private firms to beat its cost of using city police.  As reported by Brent Begin for the San Francisco Examiner, 

Now questions have arisen as to why Newsom’s protection costs are confidential while the celebrity mayor of Sacramento, Kevin Johnson, has put out a request for a private security company that can beat the $90,000 a year the city pays in police costs to guard the former NBA star.

The idea of farming out security to a private firm was initially proposed by the Sacramento City Council, but the mayor was open to it, said Steve Maviglio, a spokesman for Johnson.

In San Francisco, police have yet to release the cost of Newsom’s security detail despite a request from supervisors who were looking to cut the Police Department’s budget. Records requests from news agencies have also gone unanswered.

The department claims releasing the costs would jeopardize the confidential security plan.

Newsom has traveled the state extensively, including for his campaign to be California governor. Supervisor Ross Mirkarimi raised doubts that those trips were always mayoral business and has continued to push for transparency.

“If Sacramento can be transparent about their challenging budget needs such as dignitary security for their mayor, then why can’t ours?” Mirkarimi said.

Bill to Put State Contract Data Online Advances

PUBLIC INFORMATION -- The Senate Committee on Governmental Organization yesterday approved, on a 7-4 vote, a bill that would make detailed information about state agency contracting for personal services and consulting available in a searchable format on the Internet.

AB 756 by Assembly Member Mike Eng (D-El Monte) would require a state agency to provide
a link to a centrally located and accessible state-run Internet website that includes a list of the 
personal services and consulting contracts entered into by the agency. The bill would require the
listings on the state's Internet Web site to include specified information, namely: 

• the name and identification number of each contractor ,as well as whether the contractor is a for profit, nonprofit, small business, micro-business, disabled veteran, or nonprofit veteran's service agency;
• the statutory basis for the authorization of each contract, including, if relevant, any applicable condition permitting personal services contracts provided by Section 19130 of the Government Code;
• the duration of each contract;
• the number of amendments to each contract and the number of renewals of each contract, where applicable;
• the reason why a low bid was not accepted;
• the reason for any noncompetitive bidding;and
• the total amount of the contract price over the duration of the contract, including all known amendments to the contract, the total amount paid by the state agency during the most recently completed fiscal year, and the number, cost, bill rate, and staffing levels associated with each type of contract employee retained during the most recently completed fiscal year. In time and material contracts, staffing levels shall also be described or accounted for in personnel years or full-time equivalent terms. In deliverables based contracts, average staffing levels and bill rates shall be available and reportable 90 days after the completion of the contract or after one year, whichever occurs first.

The bill would require contractors to electronically provide specified information to assist state 
agencies in reporting of information for the listings of personal services and consulting services 
contracts. This bill would make contractors who fail to provide this information ineligible for any 
additional personal services or consulting services contracts, and would cease payment for any 
ongoing contracts, until the information is provided.

The bill is sponsored by Service Employees International Union Local 1000 and supported by the
American Federation of State, County and Municipal Employees (AFSCME), the California 
Association of Professional Scientists, and Professional Engineers in California Government. 
Its next stop is the Senate Appropriations Committee.

Bill on Campus Auxiliary Entities' Records Moves

PUBLIC INFORMATION -- The Assembly Governmental Organization Committee yesterday unanimously approved legislation to ensure greater access to public records at the University of California (UC) and the California State University (CSU), reports Senator Leland Yee (D-San Francisco/San Mateo.

Yee's SB 218 would bring greater accountability to UC and CSU by updating the California Public Records Act (CPRA) to include "auxiliary organizations" that receive public funds or perform government functions on state campuses. 

"UC and CSU have often evaded the public records act by shifting some responsibilities to foundations and other auxiliary organizations," a statement released by Yee's office says.

A shocking betrayal of the public trust was recently revealed at the Sonoma State University Academic Foundation using donated funds to provide huge personal loans to cronies of foundation board members, some of which may never be recovered.

“With 87 foundations and auxiliaries operating on 23 CSU campuses, the SSU scandal may be just the tip of the iceberg,” said Yee.  “It is imperative that we pass SB 218 to ensure that these organizations comply with the state’s public records act and are held accountable.”

“It creates a noxious brew when we combine large sums of money with little or no public openness. And, it’s an obvious invitation to corruption,” said Lillian Taiz, president of the California Faculty Association (CFA), who is a history professor at Cal State Los Angeles. 
 
According to the CSU Chancellor’s Office, 20 percent of its $6.7 billion budget, or $1.34 billion, is held in auxiliaries and foundations, which is out of public view.

“Taxpayers and students deserve to know how their public universities are run,” said Yee.  “SB 218 will ensure that our public higher education systems operate in the light of day and are held accountable.”

In 2001, the Fresno Bee newspaper was denied information, specifically concerning the identity of individuals and companies that purchased luxury suites at the Save Mart Center arena at Fresno State.  The denial resulted in CSU v. Superior Court (McClatchy Company), in which the Court opined that although it recognized university auxiliaries ought to be covered by the CPRA and that its ruling was counter to the obvious legislative intent of the CPRA, the rewriting of the statute was a legislative responsibility.

“Placing college and university auxiliaries under the authority of the state's public records act will safeguard the use of public funds and provide much needed accountability and oversight to state policymakers,” stated John Travis, Humboldt State University professor and legislative committee chair for the CFA.

“SB 218 reinforces the need for greater transparency and open government,” said Jim Ewert, Legal Counsel for the California Newspaper Publishers Association.   “This bill ensures that students, the legislature and the public will have access to detailed information about how over $1 billion annually is moved through these government agencies.”

SB 218 will be considered next by the full Assembly.

Funding Shift Noted in Staff Report, Not Agenda

OPEN MEETINGS -- The Santa Barbara County Association of Governments is being accused of violating the Brown Act when it approved channeling money from a Highway 101 widening project toward construction of a suicide barrier on Cold Springs Bridge, reports the Santa Ynez Valley Journal.

Marc McGinnes, a former lawyer and a representative for Friends of the Bridge, a local group opposed to the barrier, sent a letter to the county’s District Attorney’s office calling for an investigation and then to take “appropriate civil and criminal actions to address the violation.”

On June 18, SBCAG approved as a consent item — meaning there was a consensus to approve without open discussion — a fund transfer between three construction projects to close a shortfall for the $12.5 million Highway 101 Ellwood/Cathedral Oaks interchange project in Goleta.

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“The proposed funding trade would help ensure timely delivery of two projects supported by SBCAG — the Elwood/Cathedral Oaks interchange and the Cold Spring Bridge,” reads the staff report.

Though SBCAG provided a staff report on the proposal, it did not name or refer to these two projects in its consent calendar.

“Thus, stakeholders and other members of the public interested in participating in SBCAG decision-making concerning either or both the Cold Spring Bridge barriers and/or the Hwy 101 Milpas to Hot Springs Road widening project were deprived of notice of the proposed action(s) and the opportunity to be heard,” wrote McGinnes in a letter to the association.

As of press time, SBCAG Chairwoman Lupe Alvarez did not respond to several attempts to contact her for comment.

Kevin Redding, legal counsel for SBCAG, dismissed the accusation. He said because the item was primarily about funding the Ellwood/Hollister project, naming the other projects in the consent calendar was unnecessary. “This was not about the bridge,” he said, adding that the staff report, which details the proposal’s impact on the other projects, was posted on SBCAG’s bulletin board and on its Web site.

“That is laughable,” McGinnes responded, during an interview with the Journal. “And it’s not just laughable. What they did is illegal.”

“If you’re reading an agenda that doesn’t appear to pertain to anything you’re concerned about, why would you go online?” McGinnes said. “Carrying that argument to a logical conclusion, you’d have to say there’s a duty on the part of any citizen who’s interested in any topic to not only read the agenda item description but all the staff reports. No court would agree with that. They’re hoping that the court will agree with his characterization.”

Chill Follows Public Records Request 'Gone Wrong'

FREE PRESS -- "There are signs on the seventh floor of San Diego's City Hall that say 'authorized employees only' that weren’t there two weeks ago," reports Eric Wolff for San Diego CityBeat. "And, for the last week, city staff have been considering installing gates to keep uninvited members of the public out of parts of City Hall where no public services are rendered.

"The staff on the seventh floor, mostly bookkeepers, accountants and members of the comptroller’s staff, are jumpy—nervous, it seems, at the sight of strangers.

"What has them on edge?"

It was a request for public documents gone wrong, a confrontation between city staff and Union-Tribune reporters Brooke Williams and Danielle Cervantes last month. The reporters wanted to review public records, as they had in the past. City staff wanted to know why a couple of strangers were wandering around their offices. Arguing ensued, and the reporters were asked to leave the building empty-handed.

The events come to light during a tense time in San Diego’s public-records history. Recently, the Union-Tribune criticized city staff for asking the paper to cover costs related to a series of database inquiries. And a dispute over e-mails requested by voiceofsandiego.org resulted in the online news site threatening to sue the city. That situation is still being resolved by the City Attorney’s office.

CityBeat’s account of events comes from an interview with Williams and an ad-hoc “incident report” put together by the city in which four city staffers described what they witnessed. Cervantes told CityBeat that, for the most part, Williams spoke for her as well. A Union-Tribune blog reported a version of the story, but the paper didn’t know about the existence of the report until CityBeat called Williams and Cervantes for comment.

On June 17, Williams and Cervantes, both reporters on the U-T’s “Watch Dog” investigative team, decided to go to City Hall in person to request and review public records. Williams told CityBeat that she’d left several phone messages asking for the records and finally got fed up. She said she’s requested documents in person in the past with no problems.

According to the city’s report, Veronica Murillo, executive secretary to the comptroller, noticed the pair of reporters “wandering unescorted” on the sixth floor. Murillo said in the report that she knew they weren’t city staff because “one of them was wearing a tank top.” Williams said Murillo offered to walk them up to the seventh floor to help them with their request.

“When I grabbed my jacket, they offered to help me put it on,” Murillo wrote. “They were being overtly nice, so I knew something was up.”

Murillo passed the reporters to Financial Service Operations Manager Marcelle Rossman. Rossman said she offered to assist the reporters and asked them to wait in the entryway. While Rossman searched the city’s file system for the documents, she said, the two reporters “walked about 25 yards into the Comptroller Offices and were examining the labels on storage boxes temporarily stored in the hallways.”

Williams recalls looking at the boxes but said they were located near the area where they were waiting—she said they didn’t get up from the waiting area and that she never touched anything. Cervantes said there was a binder of documents near her on the couch; she flipped through it but then returned it.

“I anticipated Marcelle would come out and say we could look in the boxes,” Williams said.

Rossman told the two to return to the waiting area while she looked into their request. The reporters, however, walked back into the office, Rossman said, and she repeated her request for them to wait. At this point, things got heated, but neither Williams nor Rossman can say how. The three women began arguing over whether the reporters had the right to review the documents then and there. Williams said the documents she wanted—mostly checks from the city to vendors—are “basic public documents” that she had no trouble getting in the past. Rossman wanted time to review the request and to get advice from a city attorney, whom Rossman said she couldn’t reach.

Judge: Public Retirees' Big Pensions Are Public

PUBLIC INFORMATION -- California's leading taxpayers' rights group says the public scored a major legal victory last week when a judge ruled that a county's pension records are not entirely confidential. As reported in LegalNewsline.com,

The judge ruled that the Howard Jarvis Taxpayers Association and California Foundation for Fiscal Responsibility, a public pension watchdog group, are entitled to a list of names and total retirement benefits for all Contra Costa County employees receiving an annual pension of at least $100,000.

Retired Contra Costa County Deputy Sheriff Donna Irwin sued the county retirement board, claiming that releasing her pension amount was an invasion of privacy.

Attorneys for the taxpayers' group intervened in the case, arguing that unlike the IRA and 401k plans of private citizens, public employee defined benefit plans pay a guaranteed amount that are funded by taxpayers.

"The public interest in knowing how public money is spent, outweighs any embarrassment public employees might feel from the disclosure of their retirement benefits," said Tim Bittle, director of legal affairs for the Howard Jarvis Taxpayers Association.

In his ruling Wednesday, Contra Costa Superior Court Judge Barry Baskin ordered the records released, saying a "transparent government is the cornerstone of our democracy."

In addition to the Howard Jarvis Taxpayers Association and California Foundation for Fiscal Responsibility, the Contra Costa Times, the Los Angeles Times and the California Newspaper Publishers Association also joined the lawsuit.

7th Grader's T-Shirt with Fetus Images Banned

FREE SPEECH -- A Merced mother says public school administrators violated her daughter's First Amendment rights when they ordered the seventh grader to take off her pro-life T-shirt, reports Fox News.

Anna Amador has gone to court on behalf of her daughter, who she says was ordered by her principal to change her shirt on "National Pro-Life T-Shirt Day." The shirt the girl was wearing displays two graphic pictures of a fetus growing in the womb.

The incident occurred in April 2008 at McSwain Elementary School, a K-8 school in Merced, Calif. Amador alleges in her legal complaint that school Principal Terrie Rohrer, Assistant Principal C.W. Smith and office clerk Martha Hernandez mistreated her daughter and denied the girl her First Amendment rights when they ordered her to leave the cafeteria and change her shirt.

"Before Plaintiff could eat [breakfast] she was ordered by a school staff member to throw her food out and report immediately to Defendant Smith's office, located in the main office of McSwain Elementary School," the complaint reads.

"Upon arriving at the main office, Defendant Hernandez, intentionally and without Plaintiff's consent, grabbed Plaintiff's arm and forcibly escorted her toward Smith's office, at all times maintaining a vice-like grip on Plaintiff's arm. Hernandez only released Plaintiff's arm after physically locating her in front of Smith and Defendant Rohrer...

"Smith and Rohrer ordered Plaintiff to remove her pro-life T-shirt and instructed Plaintiff to never wear her pro-life T-shirt at McSwain Elementary School ever again...

"Completely humiliated and held out for ridicule, Plaintiff complied with Defendants' directives and removed her pro-life T-shirt, whereupon, Defendants seized and confiscated it. Defendants did not return Plaintiff's property until the end of the school day."

The school administrators dispute some of the allegations, said Anthony N. DeMaria, attorney for the McSwain Union Elementary School District.

*****

The complaint quotes school district officials saying that they ordered Amador's daughter to remove the shirt because it constituted "inappropriate subject matter" in violation of the school's dress code, which bans clothing with "suggestion of tobacco, drug or alcohol use, sexual promiscuity, profanity, vulgarity, or other inappropriate subject matter."

Here's what they were talking about.

State Worker Unions Go After Spending Details

PUBLIC INFORMATION -- A large public-sector union sued the University of California last week seeking public records showing how the university spends its money, reports the Sacramento Business Journal.

It alleges the university hasn’t fully complied with an October 2008 public records request, despite communication back and forth between the union and the 10 university campuses, five medical centers and university Office of the President.

UC spokeswoman Leslie Sepuka from the Office of the President said the university has not been formally served with the complaint.

“We believe we responded appropriately to the (Public Records Act) request, but will address this issue once we have been served,” she said in an e-mail.

AFSCME union represents about 21,000 UC employees statewide, including more than 3,700 at UC Davis.

The union is seeking records associated with purchase orders, vendor payments and requisitions at each campus or medical center. Some information has been provided, but a number of campuses said they would not release the information until the union paid for staff time to pull it or “extraction” of the requested data, court documents allege.

*****

“Producing financial records detailing the expenditures of the public’s money should be a routine operation of business, yet the University of California officials claimed for months on end that there were no such records readily available or that accessing the records would be a monumental task and cost upwards of $7,000 to $8,000,” AFSCME president Lakesha Harrison said in a press release.

“We’re concerned that at the same time UC is moving to severely cut workers’ pay, either the university doesn’t have established internal controls or business practices to monitor expenditures or UC officials are purposefully thwarting the Public Records Act to hide something,” Harrison said.

Meanwhile, Sacramento Local 1000 of the other major public employee labor group, Service Employees International Union, is sponsoring a bill that has cleared its house of origin and is due to be heard tomorrow in the Senate Committee on Governmental Organization, that would require most state agencies to provide a link to a centrally located and publicly accessible website that would post, in a searchable database, the following information about the agency's personal services and consulting contracts (most recent amendments in italics):

    (1) The name and identification number of each contractor, as well as whether the contractor is a for profit, nonprofit, small business, micro-business, disabled veteran, or nonprofit veteran's service agency.
    (2) The statutory basis for the authorization of each contract, including, if relevant, any applicable condition permitting personal services contracts provided by Section 19130 of the Government Code.
    (3) The duration of each contract.
    (4) The number of amendments to each contract and the number of renewals of each contract, where applicable.
    (5) Reason why low bid was not accepted.
    (6) Reason for noncompetitive bidding.
    (7) The total amount of the contract price over the duration of the contract, including all known amendments to the contract, the total amount paid by the state agency during the most recently completed fiscal year, and the number, cost, bill rate, and staffing levels associated with each type of contract employee retained during the most recently completed fiscal year.  In time and material contracts, staffing levels shall also be described or accounted for in personnel years or full-time equivalent terms. In deliverables based contracts, average staffing levels and bill rates shall be available and reportable 90 days after the completion of the contract or after one year, whichever occurs first.

Governor Faulted for Stand on Violent Videos

FREE SPEECH -- Governor Arnold Schwarzenegger is trying to rewrite the First Amendment with the same relentless zeal of the killer cyborg he played in the 1984 movie “The Terminator,” says First Amendment attorney Robert Corn-Revere, arguing in a new opinion paper released yesterday that the effort must be short-circuited by the U.S. Supreme Court.

As noted by the paper's co-publisher, the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Va.,

California has asked the U.S. Supreme Court to overturn a ruling by the U.S. Court of Appeals for the Ninth Circuit against a California law that would’ve restricted access by minors to violent video games. The circuit court found that the law violated the First Amendment on several grounds, including that the Constitution does not permit regulating violence as a form of obscenity. That decision is one of five similar rulings from three federal appeals courts and several federal district courts against nine state and local governments that sought to regulate video violence. Despite that clear message, “California is asking the Supreme Court to reverse 60 years of First Amendment jurisprudence,” Corn-Revere says, and “to lower the bar so that protected speech may be regulated based on legislative whim.”

Corn-Revere’s paper, “The Terminator Cometh,” is the latest in the Speaking Freely series published jointly by The Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Va., and The Media Institute in Arlington, Va.

If the Supreme Court is likely further to expand the tiny class of expressions entitled to little or no First Amendment protection (obscenity, child porn, libel) we'll get our first sense of how far it might go in a case to be heard and decided in next year's term, involving the sale of videos showing the torture or killing of animals to those with an appetite for such depictions.

But meanwhile the "slippery slope" refrains in the culture wars probably win more skeptics than converts, and deserve to.  One faction says if you make it harder for minors to get their hands on Grand Theft Auto, next you'll take the Iliad and the Old Testament away from adults.  Another says if you proscribe trafficking in mortars and rocket propelled grenades, next you'll try to round up sporting and household defense firearms.  Neither faction takes the other seriously, and neither has the intellectual honesty to admit that one application of the reductio ad absurdum is as convincing—or unconvincing—as the other. 

A Case for Opening up Higher Ed Foundations

OPEN GOVERNMENT --The Santa Rosa Press Democrat reported yesterday that the Sonoma State University Academic Foundation used donated funds to provide huge personal loans to cronies of foundation board members, some of which may never be recovered.  That's a good example of why such foundations need to be transparent, says the office of a lawmaker who's got a bill on the issue.

The Assembly Higher Education Committee is set to vote on a bill Tuesday to ensure greater access to public records at such foundations and auxiliaries operating at California State University and the University of California campuses.

Specifically, SB 218, authored by Senator Leland Yee (D-San Francisco/San Mateo) will allow for greater accountability by updating the California Public Records Act (CPRA) to include auxiliary organizations that receive public funds or perform government functions on state campuses. 

“With 87 foundations and auxiliaries operating on 23 CSU campuses, the SSU scandal may be just the tip of the iceberg,” said Yee.  “It is imperative that we pass SB 218 to ensure that these organizations comply with the state’s public records act and are held accountable.”

“It creates a noxious brew when we combine large sums of money with little or no public openness. And, it’s an obvious invitation to corruption,” said Lillian Taiz, president of the California Faculty Association, who is a history professor at Cal State Los Angeles. 

According to the CSU Chancellor’s Office, 20 percent of its $6.7 billion budget, or $1.34 billion, is held in auxiliaries and foundations, which is out of public view.

“Taxpayers and students deserve to know how their public universities are run,” said Yee.  “SB 218 will ensure that our public higher education systems operate in the light of day and are held accountable.”

State Launches New 'Online Data Repository'

PUBLIC INFORMATION -- The State of California today launched a new online data repository that makes state data files, databases, geographic data and other sources easier to find, state Chief Information Officers Teri Takai announced.

According to a press release quoted in Government Technology, the data site provides access to numerous data sets, such as:

• vital statistics such as population, birth, death, and marriage data;
• more than 50 million data records on education;
• imports and exports coming through California ports,
• traffic counts on state highways;
• driving statistics, fatalities, accidents, and injuries;
• travel and tourism;
• water data; and the
• Cal-Atlas Web site, which provides geospatial data and allows others to contribute their geospatial data.

The data are provided in different formats: CSV, XLS, KML, TXT and XML.

"Governor Schwarzenegger has made open government and accountability a top priority," said Takai in a prepared statement. "This new centralized data repository allows the public to find, use and repackage the volumes of data generated by the state, which were previously hard to find in various places throughout government. By publishing in different formats, we are empowering the public to use government data in creative ways to help improve our great state."

California becomes the third state-level government to launch a data portal, following the District of Columbia and Utah.MJ

City Attorneys Agree: Executive Secrecy 'Dubious'

PUBLIC INFORMATION -- San Diego's new city attorney agrees with his predecessor, whom he defeated in November: the deliberative process (AKA executive) privilege used to shroud government decision-making is of dubious legal authority after Proposition 59. 

Maybe lower ranks in the city attorney's office literally didn't get the memo, however.  Rob Davis, writing for the Voice of San Diego, reports that they're citing deliberative process to block his information request for records bearing on the development of a questionable water rationing plan.

Update: Davis has just announced that the Voice of San Diego today gave the city a 24-hour ultimatum to change its denial position or defend a lawsuit under the California Public Records Act.

The city argues that the 692 e-mails I've requested are subject to the "deliberative process privilege." In short, the city claims it must keep the e-mails secret to protect the officials' decision-making process. If those officials knew the public would see what they e-mailed about, the city argues, they'd be less likely to discuss policy candidly. And the harm that would inflict on the public outweighs the benefits of being transparent, the city says.

But the city already turned over some e-mails in which its officials—Alex Ruiz, the Water Department's assistant director and Gerry Braun, the U-T columnist turned Sanders aide—discuss policy ideas. And it turned over drafts of some documents in responding to our request, despite claiming that drafts should be kept secret.

In justifying its case, the city cites a 1991 court ruling against the Los Angeles Times that allowed Gov. George Deukmejian to keep his calendars secret. That case has since been challenged. The California First Amendment Coalition sued Gov. Arnold Schwarzenegger for his calendars; Schwarzenegger turned them over in a pre-trial settlement.

What was different? California voters approved Proposition 59 in 2004. The ballot argument for the ballot measure said:

Proposition 59 is about open and responsible government. A government that can hide what it does will never be accountable to the public it is supposed to serve. We need to know what the government is doing and how decisions are made in order to make the government work for us.

In 2005, former City Attorney Mike Aguirre opined that in the wake of Proposition 59, the Times-Deukmejian case "is of dubious authority."

Aguirre's opinion said voters had decided that keeping an eye on government officials outweighed the benefits of keeping their decision-making process secret. Aguirre's opinion said with the proposition's passage: "Voters in their law-making capacity appear more concerned about the corruption secret government makes possible than chilling the discussions amongst their public officials."

I asked City Attorney Jan Goldsmith today whether Aguirre's legal opinion was still being followed. Yes, he said. In an e-mail, Goldsmith wrote:

The Opinion is on our web site and its legal analysis is sound. There has been no change in interpretation.

So, at the same time that Goldsmith stands behind the opinion, which concluded the Times-Deukmejian case is of "dubious authority," his attorneys are citing it to me as the main reason for keeping those 692 e-mails from being disclosed.

Student's Attorney Fee Award Gets Haircut

FREE PRESS --  A Marin County school district owes a student's attorney a much lower legal bill after illegally censoring the student's article eight years ago, reports Brian Stewart for the Student Press Law Center.

Instead of the nearly $1.5 million legal bill initially requested by Andrew Smith — who penned an article in 2001 that was censored by administrators — a trial court ruled the Novato Unified School District will pay $336,350 in attorney fees. The California Court of Appeal in San Francisco, Calif., affirmed that decision May 28.

The only matter left to settle is the amount of interest the school district will be required to pay on that total, which a trial court will decide within a few months, said Stephan Birgel, who represented the school district.

Birgel said the reduced amount was "a good ruling," noting he felt the requested $1.5 million was "very unrealistic." Birgel said the figure was high because the plaintiffs had included "a lot of excess," including charging to rent cars, learning new trial technology, and claiming six hours of attorney fees for a one-page form.

The lawsuit stemmed from Smith's 2001 editorial titled "Immigration" in the school's newspaper, the Buzz. Smith criticized immigration laws, causing some students to protest. Then-Principal Lisa Schwartz quickly implemented prior review and postponed a second column by Smith titled "Reverse Racism."

Governor's Sunshine Moves 'Too Little, Too Late'

OPEN GOVERNMENT -- "Forgive me for not running to the newsroom parapets with a trumpet when Gov. Arnold Schwarzenegger finally decided to join the 21st century earlier this month and order the posting of government contracts and audits online," writes Thomas Peele in the Contra Costa Times.

Imagine that, California government transparency on the Internet. Who'd have thought?

Actually, a lot of people have. Like every member of the Legislature, every open government advocate and just about anyone with a computer and a smidgen of common sense.

So here's the governor, with barely 18 months to go in office and presiding over a fiscal apocalypse, he finally follows through on campaign promises to shine a light into California's dark fiscal corners.

None of what Schwarzenegger did by issuing executive order S-08-09 earlier this month is a new idea. In fact, he's twice vetoed bills that would have done more for online transparency. Now, when California's coffers looking as if John Dillinger just paid them a visit, he does a little two-step?

In the past, Schwarzenegger has been nearly Pollyannaish about access. He vetoed reform legislation in 2006 claiming that access wasn't a problem because he issued an order telling his bureaucrats to be sure to comply with the Public Records Act.

If he expected people to believe that, he might as well have stood on the Golden Gate Bridge telling tourists he had its deed in his pocket and was taking bids on it.

He claimed that releasing his appointment calendar after passage of Prop. 59 in 2004 was a sign that he understood transparency. But what the governor did, in reality, was gut any chance that advocates had of establishing a clear judicial interpretation of the meaning of Prop. 59.

Sure, Schwarzenegger did the right thing by releasing his calendar, but his decision bound no one else. He didn't even declare that it was the policy of his administration that the calendars of all officials in state government were to be released.

Among the ideas the governor rejected was creating an office of open government, which could have turned Prop. 59 into a hammer to pound away at openness issues. The legal meaning of Prop. 59, which amended the state constitution to require that the government always take the broadest possible interpretation of disclosure, remains untested and largely ignored.

Who Owns SF Muni Transit's Schedule Data?

PUBLIC INFORMATION -- It's a good thing, writes Joe Eskenazi for SF Weekly, "we've got NextBus.com to tell us when to sprint to the station and when to saunter. But the question of who owns the actual arrival and departure data for the trains isn't as straightforward as you might think."

A representative of the city told us the data belongs to San Francisco and "was generated by a publicly owned system using taxpayer dollars." Along those lines, a Mission Bay programmer named Steven Peterson feels that as a member of the general public, he had as much right as anyone to create an iPhone application called "Routesy" and present NextBus data in a slightly cuter format. Yet the CEO of a two-person company -- the other employee is the COO—told us that he and he alone owns the data on NextBus.com—and his company's angry e-mails persuaded Apple not to feature Routesy anymore.

This is a complicated argument because the fellow claiming he owns the content of NextBus.com is Ken Schmier, the man who first conceived of the Muni fast pass decades ago and invented—and patented—the NextBus system in 1996. Drowning in red ink, however, Schmier sold his company to a Canadian firm called Grey Island International Systems in 2005 for a piddling $700,000 and around $1.25 million in stock. Here's the catch, though: While Schmier's current company, Next Bus Information Systems consists of him and a COO named Alex Orloff—and that's it—Schmier retains the right to serve as "the agent for the commercial use of predictive data." What does that mean? Not even folks employed by the city with many letters following their names are sure, and it allows Schmier to claim he owns NextBus.com's data.   

In a nutshell, this is not how the city sees things. Judson True, the spokesman for Muni, states unambiguously that the city owns the Muni-related data on NextBus.com and NextMuni.com. When asked, then, how Schmier could possibly demand to be paid for use of this data—as he did with Peterson, and according to Peterson, the site MuniTime.com—True says he'll leave answering that question to us. Make of that what you will. Peterson, incidentally, has contacted the Electronic Frontier Foundation to query about taking legal action against Schmier's company.

Meanwhile, SF Weekly tracked down a source within city government intimately familiar with the situation who spoke on condition of anonymity. He described Schmier's current company as merely "a group of shareholders" that has the right to be "'the commercial representative for the commercial application of the data'—whatever that means." What that has meant so far, according to Schmier, is that he's sold banner ads on NextBus.com—a Web site owned by Grey Systems, not him. The total amount of money brought in this way since 2005: Somewhere between $5,000 and $10,000.

"Mr. Schmier is trying to make a buck. That is what we think," said the city source regarding Schmier's claims to NextBus data. "Contrary to the information Mr. Schmier is feeding the media ... the MTA spent years getting this system to work. The reason it took so long to roll out is it didn't work. Mr. Schmier had a good idea, but he didn't have the technical know-how to make it work."
*****
In the meantime, it warrants mentioning that the nine-year-old contract between the city and NextBus is in the final stages of a revision -- our city source expects it to be completed within weeks. It will be interesting to see what mention there is—if any—of Schmier and his "right to be the commercial representative for the commercial application of the data."

HBO Documentary Reviews Recent Speech Fights

FREE SPEECH -- "Shouting Fire: Stories from the Edge of Free Speech" airs tonight and later again this week on HBO as a reminder that freedom of speech as a constitutional bulwark is re-won in every generation by those whom most of us would prefer to shut up.

As described by HBO, the 74-minute documentary

examines the balancing act between protecting civil liberties and national security in a post-9/11 world, asking whether all speech is equally free. (Producer Liz) Garbus' primary tour guide in navigating this perilous landscape is her father, noted First Amendment attorney Martin Garbus, who applauds "the idea that you can have a country where anybody can think anything, say anything, create anything," calling it "a miracle." The documentary looks into his own experiences as a First Amendment lawyer, including the Pentagon Papers case and his defense of a neo-Nazi group's right to protest.

"Shouting Fire: Stories from the Edge of Free Speech" examines the case of Ward Churchill, a tenured professor of Ethnic Studies at the University of Colorado, who was fired after writing that U.S. foreign policy abuses were a partial cause of the 9/11 attacks. Dismissed for research misconduct, Churchill later won a lawsuit against the university for unlawful termination of employment.

Liz Garbus also examines the story of Yemeni-American Debbie Almontaser, a veteran of the New York City public school system and founding principal of Khalil Gibran International Academy, the city's first dual-language Arabic-English public school. Almontaser claims she was forced to resign from her job in 2007 after she set off a firestorm by citing the literal definition of the word "Intifada" in an interview with the New York Post. After she left, the Academy opened with a temporary principal who did not speak Arabic. Alleging a witch hunt, Almontaser has filed a lawsuit claiming her First Amendment rights were violated.

The documentary also considers the case of Chase Harper, who was suspended from Poway High School in San Diego for wearing a T-shirt that read "Homosexuality Is Shameful" during a gay and lesbian awareness event. Advocates for Poway High argue that they have the right to censor speech that would disrupt the educational experience of other students.

Finally, Garbus looks at Ruth Benn and Ed Hedemann, who were arrested and detained along with other protesters during a nonviolent demonstration at the 2004 Republican National Convention in New York City. In the process of their defense, lawyers unearthed evidence that their organization and other peaceful groups had been subject to extensive surveillance by the NYC Police Dept.

Water Manager Tries to Shut off (News) Leaks

FREE PRESS -- Following a recent meeting with editors of the Antelope Valley Press, Randy Hill, general manager of the Palmdale Water District, denounced the newspaper for publishing an internal memo he circulated that alluded to the district's financial woes.  Then, the Valley Press reports, he went after his own staff to stanch future leaks. 

But the e-mail memo threatening them was also leaked.

The e-mail stated: Effective immediately while working for PWD no employee is to converse, or share information in any way with Antelope Valley Press reporter Alisha Semchuck. Anyone contacted by Alisha should immediately refer her to the General Manager. Failure to follow this directive will subject an employee to disciplinary action up to and including termination.

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Leaks to the media about dealings at government agencies are nearly impossible to suppress, according to (Jim) Ewert, legal counsel for the California Newspaper Publishers Association in Sacramento.

Whether government or corporate whistle-blowing, Ewert called leaks to the media "a time-honored tradition."

Demolishing a communication relationship with the press is equally ineffective, Ewert said.

"He's cutting off his nose to spite his face if he thinks he's going to control the flow (of information)," Ewert said.

Targeting a reporter to be singled out is shaky practice viewed through the lens of case law, Ewert said.

"If they're going to provide access to one media source, they must provide to all," Ewert said. "They have to treat all media sources the same." That conclusion falls under the equal protection clause of the 14th Amendment.

Hill, reached for comment by the reporter for this story, said that singling her out was not the whole intent of his order to cease and desist from supplying information to the Valley Press.

"It applies to all media," Hill said of his memos. "I just happened to use your name because you've been the problem," he told the Valley Press reporter.

Tenants Have Right to Display Window Signs

FREE SPEECH -- A helpful reminder for both landlords and tenants appeared in a recent San Francisco Chronicle, supplied by Project Sentinel: California law doesn't allow the former to censor or penalize the latter based on their display of political signs in their windows.

Attempts to regulate this type of tenant activity should be very carefully considered. California Civil Code Section 1942.5(c) protects tenants from retaliatory acts based on their exercise of "any rights under the law." The "No on Prop. 8" sign you are describing is an act of free speech and is almost certainly within the scope of Section 1942.5(c).

Since you already allow window signs, it would be difficult for you to argue that this particular sign is not permissible, unless it constituted some type of hazard because of its size or placement, or because of some other specific physical attribute. Deciding which signs can be displayed based on the content, such as deciding that certain language is "offensive," means that you are relying on a very subjective standard, because one person's "offensive" is another person's "free speech."

The referenced code provision states:

  (c) It is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit 
involuntarily, bring an action to recover possession, or threaten to do any of those acts, for 
the purpose of retaliating against the lessee because he or she has lawfully organized or 
participated in a lessees' association or an organization advocating lessees' rights or has 
lawfully and peaceably exercised any rights under the law. In an action brought by or
against the lessee pursuant to this subdivision, the lessee shall bear the burden of 
producing evidence that the lessor's conduct was, in fact, retaliatory.

Prof Who Compared Nazi, Israeli Actions Is Safe

FREE SPEECH -- A faculty committee has notified U.C. Santa Barbara sociology professor William I. Robinson that it has found "no probable cause" to pursue complaints about his invitation to students to compare photos of the Nazi assault on Jews and of the Israeli Defense Force's assault on Gaza.  But the tenured professor wants an apology, reports Inside Higher Ed.

In a statement, Robinson said that he is waiting for “a public apology from the university as a first step in clearing my name after it has smeared my reputation and undermined my professional integrity.” He added that he plans to file a grievance over how he was treated in the case.

The case has attracted attention far beyond Santa Barbara, with the American Association of University Professors last month calling on the university to "pause" its inquiries because of the academic freedom issues involved. Cary Nelson, national president of the AAUP, said Wednesday night that "although I am pleased that the Robinson case has been closed, I am also concerned that unnecessary investigations of faculty exercising their academic freedom are having a serious chilling effect on our more vulnerable or less courageous colleagues."

The dispute dates to an e-mail message that Robinson sent to the approximately 80 students in January in a course about sociology and globalization. The e-mail contained an article criticizing the Israeli military's actions in Gaza. Part of the e-mail was an assemblage of photos from Nazi Germany's persecution of Jews and from Israel's actions in Gaza. Students were invited to look at the "parallel images." A message from Robinson argued that Gaza would be like "Israel's Warsaw."

In February, the Anti-Defamation League's Santa Barbara office wrote to Robinson to protest the e-mail and to urge him to repudiate it. "While your writings are protected by the First Amendment and academic freedom, we rely upon our rights to say that your comparisons of Nazis and Israelis were offensive, ahistorical and have crossed the line well beyond legitimate criticism of Israel," the letter said. It went on to say that the "tone and extreme views" in his e-mail were "intimidating to students," and that using his university e-mail to send "material that appears unrelated to" his course violated university standards for faculty members.

Following that letter, two students in the course dropped the class and filed complaints against Robinson. One student wrote that she felt "nauseous" upon reading the e-mail, and felt it was inappropriate. A second student complaint accusing Robinson of being unprofessional -- also from a student who dropped the course after receiving the e-mail -- said that Robinson has "clearly stated his anti-Semitic political views in this e-mail."

Local Officials As Brown Act Whistleblowers

OPEN MEETINGS -- Is it just a temporary blip or an illusion of wishful thinking, or is the Brown Act beginning to be enforced more assertively by the very local officials whose collective action it is designed to keep in the open?

Or is this phenomenon limited to local body alumni or short-timers with little to lose for rocking the boat? Consider two recent examples of those willing to blow the whistle on their current or former peers, complaining of perceived violations of the open meeting law.  One is from yesterday's Lompoc Record:

During a closed meeting of the Lompoc Unified School District Board of Education in June 2008, two of the members expected only to discuss the possible hiring of an interim personnel director.

Instead, former board members Bob Campbell and Ken Ostini said, they were surprised by the suddenness of a motion to hire Marilyn Corey, who had been interim personnel director in 2002, and the existence of a proposed contract to pay Corey $500 per day.

The actions of the board majority — Sue Schuyler, Anne Bossert and Kris Andrews — were highly inappropriate and perhaps violated California’s open meetings law, according to Campbell and Ostini, both of whom declined to seek re-election in November.

Andrews, Schuyler and Bossert deny that they violated the Brown Act and are reacting strongly to the accusation.

Although Corey wasn’t hired for that position, the discussion at the meeting a year ago threw the board into a tailspin, symptomatic perhaps of the turmoil it has been engulfed in for the past couple of years as it has made deep, painful budget cuts and controversial personnel moves.

It quickly became apparent, Campbell said, that the board majority had been discussing personnel moves privately and reaching a majority consensus outside of a board meeting — a clear violation of the Brown Act.

Another is from yesterday's San Jose Mercury News:

San Jose's planning commissioners Wednesday will formally rescind and retake last month's vote naming Thang Do as the panel's new chairman, following a complaint that the votes for his selection were illegally lined up ahead of time.

The outgoing chairman, Jim Zito, said Tuesday that he had asked the city attorney's office to investigate the matter, first reported in the Mercury News. The attorney's office recommended the vote be retaken.

Four of the seven commissioners — Xavier Campos, Christopher Platten, Hope Cahan and Do — reportedly discussed the matter before the panel's May 13 meeting, in violation of the state's open-meeting laws. They made up the four votes backing Do over outgoing Vice Chairman Matt Kamkar.

"I, as chair, specifically requested an investigation into this Brown Act violation," Zito said. "It's my responsibility."

The Brown Act is meant to prevent a majority of any government panel from privately discussing votes and other issues. Campos and Platten have said no such discussions occurred.

The recommendation by City Attorney Rick Doyle's office doesn't require commissioners to say whether Brown Act rules were broken. But commissioners apparently received a notice from Doyle's office spelling out the nuances of the law; Doyle could not immediately be reached for comment Tuesday.

A third item from yesterday's Atherton Almanac deals not with a Brown Act violation but still a restriction of speech and participation rights by majority jealous of its control.

Two members of the Atherton City Council are accusing their colleagues of censorship for making it harder to place issues on meeting agendas.

Until recently, Atherton had no formal process for a member of the council to add an item to a meeting agenda, leaving it up to the city manager to set the agenda. In March, a new policy was adopted requiring the approval of two council members before an issue could be placed before the entire council.

But now that's going to change. At the June 17 meeting, a divided City Council passed new rules requiring an additional step -- not only does a pair of council members have to agree in order to propose an agenda item, but it will require a majority vote of the council to authorize the item's placement on a future meeting agenda.

So, if three or more members of the council vote against a proposed item, that item won't get on a meeting agenda and won't be discussed by the City Council.

The vote was 3-2, with Elizabeth Lewis and Charles Marsala opposed.

"Agenda items can be very dangerous if they're not approved by the council," said Councilman Jim Dobbie.

Getting something on a council meeting agenda is important because, under the state's open meeting law known as the Brown Act, an elected body can't take action on anything that hasn't been placed on an official agenda and published at least 72 hours in advance. The rules can be cumbersome, but they serve a purpose -- to prevent the public from being blindsided by government decisions.

Mr. Marsala said that a lot of controversial issues faced by the town in the past few years would have benefited from a public airing, if only he had been allowed to get them on the council's agenda.

"If there is an issue that needs to be brought out and vented, then let that happen," he said. "I like the idea that if two council members want to bring something to the attention of the full council, (they can). I'm in favor of leaving things the way they are."