Lois Henry

Tuesday, Jun 18 2013 10:30 PM

LOIS HENRY: Sacramento blunders with your public records

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    Californian columnist Lois Henry on "First Look with Scott Cox."

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By Lois Henry

I'm tired of Sacramento playing chicken with the public's right to access its own government.

Gov. Jerry Brown is about to sign Assembly Bill 76, the budget trailer bill, which includes language that will make parts of the Public Records Act "optional" for government agencies.

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Contact the governor

If you think restricting the public's right to access its own government stinks, contact Gov. Jerry Brown and tell him to VETO AB76.

Call his office at (916) 445-2841.

To email his office, you have to go to this website: http://gov.ca.gov/m_contact.php

An email prompt pops up and you want to choose the category "AB00110\Budget Act of 2013" since AB 76 was a trailer to the budget bill.

Lois Henry appears on "First Look with Scott Cox" every Wednesday on KERN 1180 AM from 9 to 10 a.m. The show is also broadcast live on www.bakersfield.com. You can get your two cents in by calling 842-KERN.

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Not to be cynical or anything, but if agencies didn't legally have to give people records detailing their own waste, fraud and abuse, do you really think they would?

The answer to that is NO.

This whole thing is all about saving money but it never had to come to this, which I'll get to.

Brown went down this road a few years ago when he suspended the Brown Act, California's open meetings act. (It wasn't named for Jerry or his governor-father, by the way.)

That was all about saving money too.

Local agencies get to charge the state for reimbursement of state-mandated activities. The Brown Act requires agencies to announce agendas and provide minutes of public meetings. Seems simple, right? But some cities and agencies were charging the state exorbitant amounts, up to $12,000 for a handful of agendas in one case.

Clearly that wasn't right.

But neither was tossing out the Brown Act.

The act was reinstated in 2012 when some smart folks put a provision in Proposition 30, the governor's temporary tax hike, creating a constitutional amendment that the state wasn't responsible for repaying local agencies for adhering to the Brown Act.

They just had to do it.

Well, here we are again, same issue only this time it's the Public Records Act.

The State Commission on Mandates ruled in 2011 that the state must reimburse local agencies for providing records electronically and assisting the public in determining which records are available.

That's because those and other parts of the Public Records Act were added after 1975 when a law was passed that the state couldn't just issue mandates willy nilly without paying for them.

So, again, the governor was faced with potentially large reimbursement costs. And again, he decided to toss the baby out with the bath water.

In his January budget, Brown said he was going to suspend the Public Records Act.

The actual language in AB 76, the budget trailer bill, is a bit more complicated, saying public agencies have to announce their intent not to adhere to the act before they can legally blow off the public.

But it all results in the same thing -- less access for the public.

And, by the way, the agency doesn't have to hold a hearing or make findings as to why it won't adhere to the act, it just has to mention it once a year. Perhaps during board member comments at the end of a marathon meeting in the wee hours, or inserted into a discussion on some dull-as-dirt topic. Whenever.

Los Angeles area Assemblyman Bob Blumenfield, chair of the Democratic budget conference, tried to convince me that forcing agencies to announce they wouldn't follow the Public Records Act was the best compromise Assembly members could get.

They did the same thing with the Brown Act when it was suspended and "not a single agency announced they wouldn't conform to the act."

"It was the same hue and cry back then and all the fears were unfounded," he told me.

He doubted any agency would have the guts to announce it wouldn't follow the Public Records Act because that would create a "firestorm."

Yeah, maybe if it was the Kern County Board of Supervisors, which is watched pretty closely. But what about any of the countless little fiefdoms in California such as mosquito abatement, water and cemetery districts? Those go south every so often and when they do, it's the Public Records Act that helps right them.

"There's no question this isn't ideal," Blumenfield said.

So, why not put another constitutional amendment on the ballot saying the state doesn't have to pay for costs associated with governmental entities adhering to the Public Records Act?

That's harder than it seems, Blumenfield told me. And, no, no such amendment is in the works.

Legislators had plenty of time, months, or even years if you go back to the State Commission on Mandates' 2011 ruling, to come up with a better solution than making the Public Records Act "optional," for Pete's sake.

But here we sit with this crappy "compromise" and, as usual, it's at the 11th hour.

No one, not even First Amendment attorneys such as Jim Ewert of the California Newspaper Publishers Association, who've been following the issue since the governor announced it in January, anticipated the actual language would be this bad and its passage so swift.

It came up before committee June 12, sailed past the Legislature and landed on the governor's desk June 14.

"They just peeled me off the ceiling today," Ewert said Tuesday of his reaction to AB 76's passage.

All he and others can do now is gear up for another constitutional amendment, which could be on the ballot as soon as 2014.

Since this was a budget trailer bill for a Democratic governor's budget, the vote was predictably split down party lines.

Only one Democrat voted against AB 76. He did so specifically because of the Public Records Act issue. That was Senator Leland Yee, who represents San Francisco.

Yee's take was that it's ludicrous to say local agencies will go ahead and follow the intent of the Public Records Act regardless of it being required.

Why have any laws on how government agencies must function, then, was Yee's question.

Indeed.

I can tell you from personal experience that agencies try and squirm out of the adhering to the Public Records Act at almost every turn already.

If you don't believe me, ask Dr. Donald Cornforth who had to sue the County of Kern to get a report written by the county's health benefits consultant on how its $100-million-a-year health contract was being administered.

That's $100 million of taxpayer money. Not to mention the tax dollars used to hire the consultant and commission the report.

That's all public, public, public.

But the county tried to keep the report hidden saying it was part of labor negotiations.

The judge, however, found that slapping the term "labor negotiations" on the report's title was totally contrived and "developed in order to avoid disclosure of the reports." She ruled the county had to cough it up.

Think about that one example and try to convince yourself Kern County, or any other public agency, would do the right thing if the Public Records Act was suddenly optional.

Opinions expressed in this column are those of Lois Henry, not The Bakersfield Californian. Her column appears Wednesdays and Sundays. Comment at http://www.bakersfield.com, call her at 395-7373 or e-mail lhenry@bakersfield.com

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