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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.<br>
<br>
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.<br>
<br>
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.<br>
<br>

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.<br>
<br>
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, <a href="http://www.cityethics.org/content/broward-county-commission-should-not-…; target="”_blank”">my
blog post yesterday</a>, where a memo containing complicated
constitutional issues was provided to commission members only the day
before they met).<br>
<br>
<b>Local Sunshine Reform in California</b><br>
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 <a href="http://www.firstamendmentcoalition.org/category/resources/sunshine-ordi…; target="”_blank”">sunshine
ordinances</a>.<br>
<br>
The impetus for local sunshine laws can come from civic groups or from
the government itself. According to an <a href="http://www.action-alameda-news.com/2010/04/30/alameda-city-council-argu…; target="”_blank”">Action
Alameda News blog post</a>, 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 <a href="http://www.eastbayexpress.com/ebx/berkeley-open-government-measure-gets…; target="”_blank”">an
article yesterday in the East Bay <i>Express</i></a>, an independent citizens'
sunshine committee spent years working on <a href="http://www.berkeleysunshine.org/BerkeleySunshineOrdinance.pdf&quot; target="”_blank”">a
sunshine ordinance</a>, without any council input. In frustration with
council indifference, <a href="http://www.berkeleysunshine.org/&quot; target="”_blank”">the
independent committee</a> petitioned for a referendum on the proposed
ordinance.<br>
<br>
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 <a href="http://www.mercurynews.com/ci_7648370?nclick_check=1&quot; target="”_blank”"><i>Mercury
News</i> article</a> on this topic). I can't provide more links, because
the San Jose website appears to be down. But in March <a href="http://iepolitics.com/2010/03/19/supervisor-neil-derry-sunshine-ordinan…; target="”_blank”">a
San Bernardino County supervisor proposed</a> a sunshine ordinance
based on San Jose's.<br>
<br>
There can be problems either way.<br>
<br>
<b>Council-Originated Sunshine Reform</b><br>
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 <a href="http://www.firstamendmentcoalition.org/2010/04/alameda-brown-act-disput…; target="”_blank”">an
opinion piece in <i>The Island</i></a>, 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.<br>
<br>
And according to <a href="http://www.sfgate.com/cgi-bin/blogs/inalameda/detail?blogid=113&entry_i…; target="”_blank”">the
Alameda Blog on sfgate.com</a>, 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.<br>
<br>
According to an <a href="http://www.action-alameda-news.com/2010/04/30/alameda-city-council-argu…; target="”_blank”">Action
Alameda News blog post</a>, 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 <a href="http://laurendo.wordpress.com/2010/02/19/walking-on-sunshine/#more-3319…; target="”_blank”">this
Blogging Bayport Alameda blog post</a>).<br>
<br>
<b>Citizen-Originated Sunshine Reform</b><br>
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 <a href="http://www.eastbayexpress.com/ebx/berkeley-open-government-measure-gets…; target="”_blank”">the
East Bay <i>Express</i> article</a>, 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 <a href="http://www.berkeleysunshine.org/&quot; target="”_blank”">task force website</a> is
inadequate in terms of presenting the issues. In fact, it's not clear
from this website, or from the <a href="http://www.ci.berkeley.ca.us/contentdisplay.aspx?id=17770&quot; target="”_blank”">city's
page on the subject</a>, whether the petition was filed in time,
whether they're still seeking signatures, or what.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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