Richard P. McKee, who died suddenly at his home in LaVerne this past Saturday, was 62 years old and recently retired from a chemistry teaching career at Pasadena City College. Here is some of what the newspaper obituaries may not have room to tell about all that he did in his spare time to make California's government agencies more transparent to public observation and more hospitable to citizens' informed comment.
But for the next decade and a half Rich—not a lawyer—took to court and won more open government (open meetings/public records) lawsuits than any member of the State Bar of California, waging fourteen successful open government and First Amendment lawsuits, often representing himself. Notable among these are McKee v. Orange Unified School District, 110 Cal.App.4th 1310 (4th Dist. 2003), protecting the right of all citizens to sue any local agency for Brown Act violations; McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force, 134 Cal.App.4th 354 (2nd Dist. 2005), forcing rather stealthy regional drug law enforcement task forces to hold open, noticed meetings; and Los Angeles Times v. L.A. County Board of Supervisors, 112 Cal.App.4th 1313 (2nd Dist. 2003), affirming that closed session discussions on subjects not expressly authorized by the Brown Act are illegal.
KPFK radio dubbed him “John Q. Citizen.” KCET's Life & Times Tonight called him “the citizen who won’t shut up and go away.” The Los Angeles Times characterized him as “the scourge of public agencies across the eastern suburbs of Los Angeles County” who “walks softly and carries a big stick.” The Sacramento Bee christened him “Mr. Sunshine,” a man with “a head for the law, a heart for justice and a nose for government officials with secrets.”
As a teacher, Rich enjoyed explaining the law as well as enforcing it, lecturing frequently on open government issues to community organizations, public officials, media groups, public agency attorneys, and college and university journalism classes, where the Times said he “gets as animated as Jack Nicholson at a Laker game when he talks about the people’s right to know.”
Journalists, who instinctively view citizen watchdogs with at least initial skepticism, learned to accept Rich as a rare peer in the pursuit of access and disclosure. He served on the board of directors of the Los Angeles Press Club and was the first non-journalist president of CFAC. After that experience, he and I decided that people beyond the news media were needed to oversee and inform an open government organization, and seven years ago we left CFAC and joined by my daughter, Emily, founded Californians Aware, of which he was the first president. CalAware's board comprises one third journalists, one third government officials and employees and one third civic-minded community watchdogs.
Rich believed in testing government's understanding and observance of its own transparency laws. He helped design, administer and score a series of public records law compliance audits conducted by CalAware, with successive probes targeting leading state agencies, more than 200 law enforcement departments around the state, and the public education system: 194 k-12 school districts, half of all community college districts and all CSU and UC campuses. In the first audit of state agencies he worked with his son, Ryan, then fresh out of high school, to visit their headquarters offices in Sacramento and San Francisco and request the test records. For his effort Ryan won the 2008 James Madison award for citizen achievement by the Nothern California Chapter of the Society of Professional Journalists. It was that audit that also led Assembly Member Mark Leno to introduce AB 2927, which would have authorized the Attorney General to review and opine on public agencies' denials of access to records. The bill passed the Legislature unanimously but was vetoed by Governor Schwarzenegger.
Meanwhile Rich and CalAware, in our first joint litigation, sued a school board for censuring (and censoring, on cable TV) one of its members for stating his opinion about something done in closed session—one he hadn't attended. The suit was dismissed on an anti-SLAPP motion when the trial court concluded we were were attacking the school board majority's right to voice its own opinion. The dismissal was upheld in an unpublished opinion of the Court of Appeal, and as a consequence the court ordered us to pay the district's attorney fees. Since CalAware had no money, the fee payment came from a bond earlier purchased by Rich (anticipating recovery on appeal), and backfilling payments he made from his own funds, ultimately costing him more than $80,000. He had to invade his retirement savings and endure a lien put on his home before the ordeal was over. His experience led the California Legislature, in a bill by Senator Leland Yee of San Francisco, SB 786, to amend the anti-SLAPP law to provide that cases brought under the open government laws, even if SLAPPed out of court on the merits, will not result in an attorney fee debt to the government, unless they are not only without merit but frivolous.
That experience might teach most people to keep their heads down, but not Rich. Last year he retired from his full-time job teaching chemistry and began spending more time than ever closely tracking apparent open meeting violations, based on news reports and blogs captured by Google. At the urging of Rich as CalAware's Vice President for Open Government Compliance—a title created last year to recognize his unique vigilance and follow-through—we are now suing one local agency for overcharging citizens for copies of public records, and another for using closed sessions of a special committee to give employee unions a secret role in designing health benefit programs. Both actions drew adverse rulings from the trial court; both are currently on appeal.
In his capacity as VP for Open Government Compliance, Rich achieved a remarkable success rate in correcting violations without litigation (see appended summary reported to the CalAware Board at its most recent meeting).
On his own, meanwhile, Rich:
• was suing the Tulare County board of supervisors and the board of the Bay Area Rapid Transit District for open meeting violations;
• had just settled another Brown Act suit against the City of Manhattan Beach for how covertly it handled the departure of its city manager last year; and
• was negotiating (under threat of litigation) with another city to abandon its policy of routinely destroying e-mails.
If you Google on "Richard McKee" and "Open Government" you'll get some independent notion of how active, dedicated and effective he became. We will never be able to fill his shoes, but we will continue somehow on the path he blazed.
All this talk of litigation might make Rich sound like a tense scold or fanatic, which was farthest from his personality. Those who knew or dealt with him will instead remember a big modest John Wayne figure with a chuckle and friendly words for all—even his opponents in and out of court. We are heartsick at the loss not of what he did, which will continue to inspire us, but of who he was in our lives.
Terry Francke, General Counsel, Californians Aware
2010 Brown Act and Public Records Act Compliance Summary
Issues Resolved without Litigation
- Alameda Corridor-East Construction Authority: The Board did not properly notice a meeting at which they held an unauthorized closed session. Rich sent a demand on behalf of CalAware, with which the agency complied by agreeing the closed session had been improper and revealed the discussion had within.
- Amador Water Agency: The agency was refusing to allow public comment on issues at their meetings since they had already allowed public comment on those issues at prior meetings. Rich sent a demand on behalf of CalAware. The agency responded by allowing public comment on that issue at a subsequent meeting.
- Chula Vista Elementary School District: The school board was holding meetings immediately preceding the school board meetings where the board member and staff would eat and members could ask staff questions about the issues on the agenda. Further, the agendas stated that the Board may discuss, but not take action, on topics not on the agenda. Finally, the agenda stated that no member of the public could make any comments including complaints or charges against any employee of the district. In response to the Demand submitted by Rich on behalf of CalAware, the District changed their agendas to conform to the law. However, they denied that the majority of the Board discussed items together at the pre-meetings. Due to lack of sufficient evidence of the actual discussion at the pre-meetings, it was decided that litigation would not be prudent at the time. However, we did inform the local reporter covering the district regarding the Board’s obligations under the Brown Act and she continues to monitor the pre-meetings to ensure compliance with the Brown Act.
- Chino Valley Unified School District – Two different issues arose at CVUSD this year. Also, of note, Rich had successfully litigated against the district in the past for other Brown Act violations.
o First, a compliance check of the district revealed that it had resumed its inadequate notice of pending litigation closed sessions, which they had been ordered to correct years earlier in Rich’s previous litigation. Upon demand, the district promptly released the facts and circumstances, as required by law and the prior court order, and once again changed the agendas to comply with the law.
o Second, it was brought to our attention by a member of the public that the District was secretly supplying the Board with information about tort claims, but not providing that information to the public prior to the Board considering the claims. After Rich’s demand, the board has resolved to give the public the same information that the Board receives.
- Feather River District – The District failed to properly notice its closed sessions. Although they never responded to the demand Rich sent on behalf of CalAware, they have since corrected the agendas to comply with the law.
- La Puente – There were also two issues in the City of La Puente. After Rich sent a demand on behalf of CalAware, they corrected both issues.
o First, the council was failing to release facts and circumstances regarding its pending litigation closed sessions. Improper pending closed sessions – no facts and circumstances announced. The city attorney agreed to follow law.
o Second, the City was charging $0.25 per page for copies of public records. After the demand, the City Council reduced it to $0.10 per page, which more accurately reflects the actual cost of duplication.
- Porterville – Held an unnoticed closed session, where they approved a Cooperation Agreement, Memorandum of Understanding. However, based upon our demand and some local complaints, the City took up the issue again during an open session, with public comment and a new vote.
- San Diego County Planning Commission – Discussed item that was not on agenda. Although they failed to respond, they redid the action.
- Santa Ana – Mayor pro tem stopped members of the public from talking about specific people at public meetings. Since Rich sent a demand on behalf of CalAware, she has not done it again.
- Santa Clara – Mayor put letter signed by majority of council on her Facebook page. Rich sent demand on behalf of CalAware and the Council rescinded the action.
- Upland – City Manager was upset with the City Attorney because the City Attorney had previously made some comments about the City Manager’s legal problems. The City Manager, in what seemed like an attempt to retaliate, had the Council hold a closed session to discuss the City Attorney’s contract. Approximately 2 weeks later after Rich’s demand, the City Manager was put on administrative leave. The mayor has since resigned. Currently the Mayor is being investigated by FBI for extortion, bribery, and racketeering.
- Walnut Valley USD – Rich send a Brown Act demand in December on behalf of CalAware regarding lack of information about closed session on agenda, especially when dealing with personnel matters. They agreed to fix it.
- Del Puerto Health District – Improperly held a closed session, under a provision which would allow a closed session to discuss a health district’s trade secrets, when they really discussed moving to a new building. After our demand, they agreed thay would not do this again.
- Grossmont Healthcare District – A board member had resigned, seeking employment by the District. When the District failed to hire him, he tried to get put back on the Board. The Board improperly went into closed session to consider putting him back on the board. Rich sent a demand on behalf of CalAware. In response to our demand, they exposed the closed session discussions and agreed not to do this again in the future.
- Northern California Power Authority – A reporter was asked to leave a conference put on by the agency. Also, the meetings seemed to be held outside of NCPA’s jurisdiction. However, because of some of the factual questions that arose during our investigation, we decided not to pursue the matter.
- Oak Valley Hospital District – Improperly extended the general manager’s contract at a special meeting without allowing for public comment. There were also some problems with the closed session agendas. After our demand, they rescinded the contract and acknowledged the action did not conform to the Brown Act.
- Pasadena – City Manager created a citizen’s commission to oversee police issues, but would not release the names of the members. The city manager, after receiving our demand, agreed to release the names and subsequently disbanded the commission.
- Yuba Community College District – Held a closed session for public employee performance evaluation and then announced that they had given the chancellor a $29,000 raise. After we complained, they rescinded the action – without reauthorizing her raise. It was nearly a year later when the college again discussed her raise, this time only authorizing $15,000. She has since announced her retirement.