Council's E-messaging During Meetings Tamed?

OPEN GOVERNMENT -- "Elected officials and lobbyists still can be seen tapping out messages on their iPhones and BlackBerrys during San Jose City Council meetings," reports John Woolfolk for the San Jose Mercury News. "But apparently they aren't secretly messaging each other about pending decisions — something they had acknowledged was once a regular occurrence — since the council earlier this year agreed to disclose such communications in a policy that government watchdogs hailed as among the most progressive in the state."

During a contentious meeting last month on a redevelopment land sale, several observers noticed council members and lobbyists busily messaging on their smartphones. Yet a Mercury News request for personal e-mail, text and other communiqués to and from council members about the matter produced none from lobbyists.

The disclosure policy concerning personal electronic records is an honor system: The city attorney must simply ask council members to turn over relevant records; private cell phones or phone logs cannot be seized. Council members indicate lobbyists don't text them much anymore. And absent evidence to the contrary, Mayor Chuck Reed, who called for the tougher disclosure policy, called that "a good thing."

Reed led the council in January to expand its open-government policies after a Mercury News report found what appeared to be a common practice of lobbyists communicating with council members by text or e-mail during meetings. Public speakers, meanwhile, were limited to two minutes each at the microphone.

In one particular case, the then-head of the South Bay AFL-CIO Labor Council drafted a note suggesting how a council member should vote — then sent it to the wrong councilman. Council members later acknowledged regularly receiving such messages from a variety of advocates during meetings.

Before the council policy change, San Jose had followed most other cities in treating messages kept on officials' personal computers or cell phones as off limits to records requests, even if they concerned public business. Officials cited practical and privacy concerns about retrieving them. Courts have yet to definitively overrule that practice, but government watchdogs argue it creates a gaping loophole in public records laws.

The newspaper's request for the records, made in the wake of the April 20 hearing on a sale of two city-owned parking lots downtown, was the first test of the San Jose council's policy.During that meeting, labor advocates and their allies on the council urged a delay in the sale and sought wage guarantees for future construction projects on the property. After several hours of debate, the sale ultimately was approved.

Only two electronic messages were provided under the Mercury News request: one from a neighborhood activist to all the council members raising questions about the deal, and a question from Councilwoman Nora Campos' chief of staff to the city's redevelopment director about the timing of a letter from another developer who urged delay.

Tim Steele, who was representing buyer Sobrato Interests at the meeting, and Labor Council chief of staff Ben Field said they weren't texting or e-mailing council members about the matter that evening. Field — whom reporters and several others in the chamber observed busily texting during the discussion — would not say via a spokesman whom he was messaging.Councilman Pierluigi Oliverio said he sent only a brief note on his BlackBerry to his chief of staff remarking how long the meeting was going, but it was deleted before the records request came in later in the day.

Councilman Ash Kalra said he was messaging back and forth with his staff about unrelated upcoming agenda items, something he does frequently because "it's the one time of the week when they have me captive and I can get stuff done."

Scott Knies, executive director of the San Jose Downtown Association — who urged approval of the sale at the meeting — noted that the perception of furious texting between lobbyists and council members may have been driven by a power outage at City Hall that disabled city computers during the hearing.

But Kalra added that messages from lobbyists or other interested parties generally have dried up since the council adopted its policy."Even people saying hello, everything's kind of stopped," Kalra said.