Local Government Sunshine Reform

Most local governments leave open meeting and public records matters to the state. But often the slowness and expense of the state enforcement process, as well as weaknesses in state law (e.g., too short a period for noticing agendas, vague guidelines on filling FOI requests), can mean that open meeting and public records laws are insufficiently effective or are ignored.

Historically, enforcement depends largely on the news media, but with their cuts in budget and staff, they are often not doing the job anymore. Citizens don't have the expertise, or the time or money to hire counsel and go to the state capital. Good government groups usually give individual sunshine matters a low priority.

It's a good exercise for every local government to consider whether its state's laws are sufficient (remember, like all ethics laws, they provide only minimal requirements), whether these laws are being properly followed, and whether more specific rules and guidelines might be required to make the process more effective and efficient.

For example, the state might require that an agenda be put up in city hall 24 hours before the meeting, but it might be felt that this is not only insufficient in terms of place (who can go to city hall during working hours?) and time to prepare for a meeting, but completely ignores the fact that we are in the 21st century, where posting online costs nothing and provides easy access to nearly all citizens.

It also might be felt that an agenda alone is insufficient, that the materials provided to board and committee members should be available to the public and the press in enough time that they can discuss the issues in person and online, ask intelligent questions, and share educated thoughts. In fact, the board and committee members themselves might want to be sure they have the materials far enough in advance so that they can prepare, something that is not always the case (see, for instance, my blog post yesterday, where a memo containing complicated constitutional issues was provided to commission members only the day before they met).

Local Sunshine Reform in California
As is often true, the movement for local governments to deal more quickly, firmly, and locally with sunshine issues seems to be gathering steam in California. Oakland, San Francisco, and a few smaller cities and counties already have sunshine ordinances.

The impetus for local sunshine laws can come from civic groups or from the government itself. According to an Action Alameda News blog post, in February, the Alameda city council created a sunshine task force of five people to go out into the public and create a list of issues the public deemed important. In Berkeley, according to an article yesterday in the East Bay Express, an independent citizens' sunshine committee spent years working on a sunshine ordinance, without any council input. In frustration with council indifference, the independent committee petitioned for a referendum on the proposed ordinance.

In San Jose, a draft ordinance was prepared by the city's daily newspaper, the League of Women Voters (who bowed out of the Berkeley task force, apparently due to disagreements), and neighborhood groups. The big issue with the San Jose ordinance appears to have been police records (see Mercury News article on this topic). I can't provide more links, because the San Jose website appears to be down. But in March a San Bernardino County supervisor proposed a sunshine ordinance based on San Jose's.

There can be problems either way.

Council-Originated Sunshine Reform
In Alameda, the council simply wants a list of issues, not policy input. And one wonders how much the citizen task force understands open government, or is truly independent when, according to an opinion piece in The Island, there has been a disagreement over whether the task force is covered by the state open meetings act. The city attorney says it is not covered, but whatever the law may be, how could a sunshine task force take the position that it is not covered by extant sunshine laws? Once again, this city attorney's position raises the question whether government attorneys should be involved in ethics matters, where law is not necessarily ruling. So many of them just don't seem to get it.

And according to the Alameda Blog on sfgate.com, the council is considering a campaign finance ordinance without public input. This makes one question how serious they are about the goals of sunshine ordinances.

According to an Action Alameda News blog post, when the task force presented a preliminary list of issues members of the public had raised with them, council members complained that it was too long and that it should have kept to a list of five subjects, some of which don't belong in a sunshine law (the list is at the end of this Blogging Bayport Alameda blog post).

Citizen-Originated Sunshine Reform
The do-it-yourself approach can end up, as it has in Berkeley, being truly do-it-yourself, if the council chooses not to play along. According to the East Bay Express article, after the council would not schedule a workshop to discuss the task force's draft ordinance, the task force decided to take the ordinance to referendum. Council members say they don't agree with aspects of the ordinance, but they demand that first the referendum process be stopped. In other words, the Israel-Palestine situation, resulting in a lack of open government. Even the task force website is inadequate in terms of presenting the issues. In fact, it's not clear from this website, or from the city's page on the subject, whether the petition was filed in time, whether they're still seeking signatures, or what.

The fact is that sunshine makes life rough for local government officials. Working in secret is easier than working in the public eye. Filling FOI requests is a pain. Putting everything online is asking for trouble. When there's a state law, any more seems unnecessary. But sunshine laws are necessary for quality citizen participation, and to ensure the public that there are no secrets other than what must be kept confidential for a good reason and for the necessary length of time.

Robert Wechsler
Director of Research-Retired, City Ethics

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