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  • Sunday, March 16, 2008



    Metro VIEWS
    giving voice to the Greater Orange Communities

    The following opinion piece from Richard McKee ,President emeritus of Califonians Aware, appeared in the Santa Cruz Sentinel and the Inland Empire Daily Bulletin. The artcle updates the lawsuit between his group and OUSD.

    Richard McKee:
    Sunshine Week forecast: Still overcast with limited visibility

    Santa Cruz Sentinel Editor's note: Sunshine Week -- which promotes the ideals of open government and a free press -- begins today and ends March 22. The following opinion piece addresses some of these issues.

    Three years after passage of Proposition 59, California's "Sunshine Initiative," the public's access to governmental information has greatly improved -- not!

    Passed unanimously by the state Legislature, this constitutional amendment requires meetings and writing of governmental entities to be open to the public, and the courts to broadly interpret statutes to further the people's right to access.

    However, today's ugly truth is that secrecy within public agencies is being more strongly supported by the judiciary than ever before. In fact, just asking a court to determine whether a public agency has violated open government laws can cost you $100,000.

    We know, because that's what happened to us, Californians Aware -- a lowly, public-access nonprofit that survives financially by the skin of our teeth. Here's the back story.

    Eighteen months ago, a majority of the Orange Unified School Board took offense when a minority member criticized a secretly made decision, transferring a high school principal to a hastily created, special assignment position after parents loudly criticized him during a previous meeting.

    After asking about the decision, which was discussed in a closed session he didn't
    attend, the minority member announced he would have voted to fire the principal, not reassign him.

    When the superintendent made copies of the meeting for public broadcast, he removed the minority member's comments, asserting they amounted to defamation and a breach of privacy.

    The majority then punished the minority member by passing a censure resolution, claiming he had violated the Brown Act [Government Code 54950 et seq.] and the principal's constitutional right to privacy. The board president said the censure was a disciplinary action, telling the minority member not to do it again.

    However, that contradicts the district's bylaws, which forbid censure of a board member "for the exercise of his or her First Amendment rights no matter how distasteful the expression."

    And beyond the fact that the First Amendment protects the public's right to hear opinions expressed by its elected representatives, the Brown Act commands "the legislative body of a local agency shall not prohibit public criticism" of either the agency or the legislative body. [GC 54954.3].

    Californians Aware demanded the Board reverse its censure action. When the Board refused, we petitioned Orange Superior Court for a writ of mandate, ordering the board not to punish members for protected comments nor censor broadcasts of its meetings.

    The Brown Act expressly allows such a request "to determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid" under state law. [GC 54960] Only if the court finds the petition "clearly frivolous and totally lacking in merit" can a plaintiff be held liable for costs. [GC 54960.5]

    Nevertheless, without such a finding, the trial court ruled our petition was an attack on the board's right to free speech and called our action a SLAPP [strategic lawsuit against public participation, CCP 425.16], ordering CalAware to immediately pay OUSD's attorney fees of $37,000 or post $55,000 in cash as collateral for civil bond during an appeal.

    Added to our own attorney fees, plus costs accumulated in prosecuting the appeal, we've now committed nearly $100,000 -- almost all in loans from our supporters -- simply to protect the principle of the public's right to hear what its elected officials have to say.

    The only bright light at the end of this tunnel may come around Fathers' Day when Californians Aware v. Orange Unified School District [Case No. G038499] is heard by the 4th Appellate District.

    Lest you think ours is the only example since the passage of Prop. 59, consider the plight of the San Diego Union-Tribune in Copley Press v. Superior Court [2006] 39 Cal.4th 1272. The San Diego Sheriff's Department terminated a deputy, who then appealed his firing to the Civil Service Commission. The Tribune sought records of the commission's hearing. But the California Supreme Court ruled those records, even the name of the deputy, were confidential. Seems the public has no right to know what misdeeds got the deputy fired.

    So much for Prop. 59's requirement that the courts interpret the Brown Act broadly to promote the people's right of access to and involvement in government meetings.

    When Assemblyman Mark Leno tried to strengthen the Public Records Act with AB 2927, which created a process for the attorney general's review of records requests that were previously denied, Gov. Schwarzenegger vetoed it. Despite the Legislature's unanimous support of the bill, the governor called it "unduly burdensome."

    In 2004, five out of every six voters supported Prop. 59. The constitutional changes it made were supposed to end frustrations over government secrecy. Obviously, there's still lots of work to be done.

    This "Sunshine Week," we should begin by reminding those we elect that secrecy breeds distrust, and their time in office will be determined by their commitment to openness.

    Richard McKee is president emeritus of Californians Aware.

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