CalAware Today

Public Forum Law Week in Review: 11/2/07

(CalAware Weekly comprises this plus the previous three posts)

Free Press
    Gag denied   A judge has again denied a public employee union’s bid to stop the Daily News in Los Angeles from publishing members’ names, positions and salaries in a lookup database on its website.
    Police clashes   Law enforcement officers blocked news media coverage in several incidents in the San Diego wildfires, according to a report by the local ACLU; a San Diego Police Department spokesman responded that the police have the authority to protect evacuees from unwanted press interviews.
    Offending column   The Benicia Herald, a daily newspaper, has fired its editor for a political column he wrote that upset two heavily advertising candidates in next week’s city election.
    Shield veto threat   The White House is threatening to veto the federal shield law bill, H.R. 2102, if Congress passes it, which USA Today predicts is likely.

Free Speech
    Flame retardant   Statements posted to a website on homeowner association issues attacking an attorney’s professional integrity were merely “a private campaign of vilification” and not a matter of public concern meriting anti-SLAPP protection, ruled the Court of Appeal in an unpublished decision.

Open/Secret Government
    Paper trace   Senator Jim Bunning (R-KY) has put a hold on a bipartisan bill to reverse President Bush’s 2001 executive order giving presidents and former presidents more power to halt indefinitely the release of their White House records. The House-originating measure is authored by California’s Henry Waxman.  Meanwhile candidate Hillary Clinton, asked about releasing her husband’s papers, stayed true to message and said they’ll be available after being processed.
    Pumping irony   Contra Costa Times columnist Tom Peele’s reaction to Governor Schwarzenegger’s boast, in vetoing AB 1393, that “My administration's commitment to the public records act is unwavering"—“Really? Does the governor actually believe the things his staff writes in his name?” Meanwhile Schwarzenegger’s office has told the Daily Journal in Los Angeles (sorry for the link lack—its website is subscription only) that it will not identify those whom it consults for recommendations on the appointment of judges, although it has said it would release the names to the Assembly—by January.
    Land deal secrets   The Legislative Analyst’s Office has concluded after two years of research that the Department of Fish and Game and other California state agencies “keep too many documents secret when they buy land and do not have consistent standards to ensure the public is paying reasonable prices,” reports the San Jose Mercury News.

Public Information
    Day labor employers   The California Newspaper Publishers Association, the Los Angeles Times and the San Diego Union-Tribune have appealed a judge’s ruling barring the City of Vista from disclosing a list of those who have registered as an employer of day laborers.  The ACLU obtained a temporary restraining order in September against release of the names to protect the employers’ privacy.

Records Released Reveal . . .
A city official denied pension credit for time she never worked; an admired police chief’s retirement marred by an issue of possible pension-spiking; a legal aide to the Insurance Commissioner secretly helped regulated companies in their lawsuit against his boss; Long Beach subsidies for a summer Sea Festival run by a private association were wasted, according to an online news site.

Open Meetings
    A Fate Worse Than Indictment?  The Orange County DA won’t prosecute four members of the Capistrano Unified School Board who accepted his report that over a six-month period they discussed business unlawfully in closed session and otherwise violated the open meeting law dozens of times. But wait—OC Weekly reports that the county Republican Central Committee “did something unprecedented by unanimously voting to call for the resignations of four of its own elected officials who sit on the Capistrano Unified School District Board.”

Whistleblowers
    Dummy up!   The Bush administration isn’t the first to punish insiders who go public  with inconvenient facts.  But, James Sandler tells Salon, it’s the most ferocious in resisting Congressional efforts to protect them.

Tax-supported Media to Influence the Vote?

When do publicly funded information media become propaganda unlawfully supporting one side in an impending election? The Whittier Daily News reports that the Montebello City Council, holding a special meeting today, was set to consider the city’s subsidy of a nonprofit group’s newsletter that, three members told the reporter, “put a positive spin on the city.” Mayor Norma Lopez-Reid, who asked for the special meeting, and Councilman Bob Bagwell are up for re-election next Tuesday. The paper quotes Councilman Bill Molinari as saying, “You'd have to be very naive not to think there's not a political connection between the timing of the publication and the election.”

But fellow Councilman Jeff Siccama said the city had been trying to get the latest edition of “Montebello Today” published for a year and a half, with the prepress work already paid for. The third incumbent not on the ballot, Rosie Vasquez, said she was bothered that the council had not seen the current edition before it went to press. "Taxpayer money is being used for this publication," she said, "and we have an obligation to approve or not approve something paid for using the public's money." The newsletter is published by Montebello Tomorrow, Inc., founded in the 1970s to promote city activities, and currently supported entirely by city and redevelopment agency funds, with the publication’s cost coming to $12,000.

Molinari’s concern that the newsletter amounts to a campaign boost for Lopez-Reid and Bagwell raises a key issue now before the California Supreme Court in Vargas v. City of Salinas which, at the risk of oversimplification, boils down to this: May a local government agency spend public funds for public education/propaganda media whose impact favors a particular candidate or ballot measure in a coming election, so long as the messages do not actually come out and say “Vote for” (or against) him, her or it by name? The “express advocacy” standard that the City of Salinas and the League of California Cities, for example argue is the law has just that permissive effect—say anything you like but the taboo words. But the two taxpayer plaintiffs in the case, Angelina Morfin Vargas and Mark Dierolf, instead contend that the qualitative thrust and net effect of the agency’s media efforts are the factors that decide whether it has engaged in forbidden advocacy. The plaintiffs’ lawyer, Steven Andre, spells out their perspective in the current Monterey County Weekly.

In the leading case on this matter, Stanson v. Mott, the California Supreme Court in 1976 laid down the general principles that “at least in the absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote partisan position in an election campaign,” adding that

Frequently, however, the line between unauthorized campaign expenditures and authorized informational activities is not so clear. Thus, while past cases indicate that public agencies may generally publish a "fair presentation of facts" relevant to an election matter, in a number of instances publicly financed brochures or newspaper advertisements which have purported to contain only relevant factual information, and which have refrained from exhorting voters to "Vote Yes," have nevertheless been found to constitute improper campaign literature. . . In such cases, the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication; no hard and fast rule governs every case.

The style/tenor/timing analysis is the one argued as critical by the taxpayer plaintiffs; the city and its allies say that standard has been abandoned in subsequent legal developments which tolerate all but "express advocacy."