Investigation: California”s unenforced openness laws are no match for some modern privatization efforts like MLPAI

Go too fast on a state highway and a California Highway Patrol officer is tasked with giving you a speeding ticket.

Fail to pay your state taxes and the Franchise Tax Board will eventually find you, with even more painful results.

But violate California”s two landmark laws that define how government meetings must be conducted in public and there won”t be anybody upstairs to notice, much less enforce the law, this newspaper has learned.

First, we filed a California Public Records Act Request with the state agency that enforces violations by other state agencies.

“On May 11, you inquired as to whether the Attorney General investigates violations or alleged violations of the Bagley-Keene Open Meeting Act and the Ralph M. Brown Act,” wrote Christine Gasparac, press secretary for California Attorney General Jerry Brown.

“After consulting our record indexes and knowledgeable persons within the office, we have been unable to locate any records concerning a civil or criminal enforcement action brought by this office to enforce either the Bagley-Keene Act or the Brown Act during the past 20 years,” Gasparac wrote.

MLPAI and Bagley-Keene

Although this revelation seems to have never been printed anywhere else in California, this news story actually began with a quest to answer the simple question of whether the Marine Life Protection Act Initiative (MLPAI) must follow Bagley-Keene.

The Marine Life Protection Act Initiative is a public-private effort to create a connected array of new areas of the ocean along the California coast where fishing uses are prohibited or restricted.

At an April 21 “workshop” meeting, David Gurney of Fort Bragg was arrested when he tried to film and comment. Photography at workshops was prohibited on the MLPAI website and it was stated there would be no opportunity to comment. Gurney defied this, considering photo and speaking bans violations of Bagley-Keene. MLPAI staff said the agency didn”t fall under the law. Although MLPAI officials accuse Gurney of being disruptive, there was no question the disruptions came over the issues of public access.

Following the arrest, this newspaper interviewed legal experts who said Gurney was right — the MLPAI fits the definition of a state agency, based on the fact it performs a state function under a legal contract with the state and its members are appointed by the state.

Public access laws

What laws protect the public”s right to access government?

For more than 40 years, California has had three of the nation”s most stringent “sunshine” laws, designed to throw the light of public view on all public proceedings.

“California law doesn”t exactly ban deal-making by politicians in smoke-filled rooms, but it comes close to doing that at the local level (under the Brown Act) and among state agencies (under the Bagley-Keene Open Meetings Act),” states the California First Amendment Coalition (CFAC) website.

The Ralph M. Brown Act has a criminal, as well as civil component. Jim Ewert, legal counsel for the California Newspaper Publishers Association, says there has never been a successful criminal prosecution under the Brown Act.

“The fundamental idea behind these statutes is that the full process of political deliberating and decision making — justly likened to the making of sausage — should be conducted in the open, in public meetings for all to see. Although the laws allow for certain matters to be considered in executive session,” they are the rare exception (in theory, at any rate),” the CFAC Website states.

Although the laws are lauded nationwide, evidence shows the general public doesn”t know or care much about their democratic First Amendment and state rights to participate in government.

“People get excited about public access rights, when they are personally involved, when they experience an infringement of their own right to participate … but otherwise … there is quite a bit of apathy,” said Peter Scheer, executive director of CFAC.

But the fact there is no record of any enforcement of the 43-year-old Bagley-Keene Act was a surprise even to those used to the lack of fame that comes with working for rights of public access.

“I am a little surprised to hear there has never been a Bagley-Keene action by the AG,” said Scheer.

If the state AG doesn”t prosecute, what about the county district attorney?

Both the Brown and Bagley-Keene Acts authorize that.

But if the district attorney in Mendocino County chose to prosecute a statewide agency in local civil court, she would have to show how the alleged violation took place in and concerned this county.

The local DA might have to challenge an established state agency like the California Fish and Game Commission.

Ewert said a judge might see such a local action as a stretch.

Yet by tradition, the state attorney general rarely files original cases outside of Sacramento, leaving that to local district attorneys.

“To be clear, the AG or interested persons” also could file a suit to force compliance with the act, but DAs have primary jurisdiction,” Gasparac said.

That leaves private party lawsuits as the only real means to enforce Bagley-Keene. But why would anyone file and pay for such an effort? Such cases are costly and have little chance of a monetary award.

Enforcement of the Brown Act

While no record of any prosecution of Bagley-Keene could be found, there has been enforcement of the Brown Act by some county district attorneys. Ewert says it has been spotty at best.

“Even under the Brown Act, very few DAs have taken a Brown Act body to court,” Ewert said.

He said Los Angeles County has its own public integrity unit that enforces the law, but the Brown Act doesn”t make the radar in some other counties.

“Most of the time Brown Act violations are enforced by private rights of action, if at all,” Ewert said.

Scheer said a change that would make sense would be for the government to pay the legal fees of citizen groups who are enforcing the open government laws the government doesn”t enforce.

“I don”t think we are ever going to see prosecutors taking a huge interest in enforcing open government laws. That could be because they are politically compromised themselves, or simply because they don”t have the time, with so many more serious crimes to deal with,” Scheer said.

“There needs to be a way to make some room to make it easier for private litigants to vindicate their rights in the courts,” Scheer said.

As it is, confusion reigns not only about the laws, but also about whom they apply to.

What agencies are affected

The Bagley-Keene Act has a series of tests designed to determine whether an organization is a state agency or not. How does California”s legal system help taxpayers understand what agencies are defined as public?

It doesn”t.

“I”m sorry, but we typically can”t provide guidance on the scope and application of the Bagley-Keene Act to a specific entity,” Gasparac said.

With nobody in authority worrying about the Bagley-Keene definitions, many new public-private organizations don”t worry much about whether they need to comply with state law.

None of the private and state agencies involved in the Marine Life Protection Act Initiative pre-charted how its numerous meetings should be conducted, past interviews showed.

Ken Wiseman, MLPAI executive director, said he did obtain an oral opinion from a Department of Fish and Game attorney that indicated MLPAI was not subject to Bagley-Keene.

“If public officials reasonably saw themselves at risk of being held accountable, it”s generally true that there would be better compliance,” Scheer said.

Who is watching

There are dozens of quasi-public agencies spending state money and performing actions once in the realm of government. The questions this newspaper has raised about the MLPAI and public access rights could be raised about many of the emerging “privatized” arms of government.

Who enforces laws intended to protect the public”s right to participate in these agencies?

“We are fighting a lot of wars on that front now, with billions of dollars now being spent essentially outside of public view,” Ewert said.

A high profile recent example came when Cal State Stanislaus officials hired former Alaska Gov. Sarah Palin to speak on June 25 at the university”s 50th anniversary celebration. But because those officials were acting on behalf of a private university foundation, they have successfully so far rebuffed California Public Records Act Request (CPRA) efforts to find out details of Palin”s contract, including her speaking fee. (The United Press International reported the fee was $75,000.)

The California Public Records Act is the third prong of California open government, giving the public access to most all government documents.

With no official enforcer of Bagley-Keene, such controversies must be slugged out in court with advocates of open government underwriting the legal bills.

The Cal State Stanislaus Foundation includes the university president and top administrators involved in hiring Palin. But it also includes university boosters, making the public status a matter for interpretation by the courts.

In an era when privatization is extremely popular and the news media far less popular and less watchful than in the past, advocates see democratic rights to open government slipping away virtually unnoticed.

“The biggest area where this is happening right now, in my opinion, is education,” said Ewert.

Ewert recited a list of recent cases from the education realm, many far more disturbing than the Palin contract issue, but all happening under media radar.

In one case, a “private” university foundation trustee is unable to repay loans the foundation made to his real estate developments.

“You have all these new hybrid entities, many of them finding new ways to shield themselves from public view. But the public still needs to know,” especially when they are acting in the names of public agencies, and on the public”s behalf,” said Ewert.

What the laws actually say

– California Constitution

Declares that “the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny,” and explicitly mandates open meetings for California state agencies. The constitution also requires that anytime a controversy or “sticky” area arises, state agencies must decide in favor of greater public access.

Article 1, section 2 — “A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people”s right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.”

The constitution also protects rights of individual privacy (not agency privacy) which can conflict with public access, which sometimes must be sorted out by courts.

– Bagley-Keene Open Government Act of 1967

Implements the California Constitution by defining California state agencies. Requires that members of the public be allowed to speak at any pubic meeting. Requires notices of any meeting of a public agency be sent to anyone who asks, 10 days before the meeting. Disallows last minute changes to the agenda unless an emergency exists. Photography is allowed unless it presents a physical obstruction.

No restrictions are allowed on tape recording.

– Ralph M. Brown Act of 1953

Guarantees the public”s right to attend and participate in meetings of California city and county government agencies, boards and councils.

The law was passed to interpret the constitution in favor of greater public access because many city councils, county boards, and other local government bodies were avoiding public scrutiny by holding secret “workshops” and “study sessions.”

Many of its provisions were incorporated into Bagley-Keene and the two acts are similar. The Brown Act includes the possibility of criminal prosecution, while Bagley-Keene does not. Both acts lack adequate enforcement, experts say.

– California Public Records Act of 1968

Mandates disclosure of all governmental records to the public upon request, with specific exemptions. The law was modeled on the federal Freedom of Information Act and thus follows its case law.