First Amendment Lawyer Blog

California is broke.

There's plenty of blame to go around, but one of the prime culprits is a lack of transparency. If people don't know how public money is being spent, it's hard to ensure that public money is being spent wisely.

One especially troublesome area is public employee pensions, especially for police and firefighters. Legislators who are wary of offending the powerful public safety lobbies, and voters deluged with glossy brochures of burning buildings and police in uniform, have handed public employee retirees pensions which far exceed those in the private sector. In San Francisco alone 709 retirees get pensions of over $100,000 a year. Most private sector workers don't earn that kind of money while still on the job. Other local agencies in the Golden State also have hundreds of workers in the six-figure pension club, and the state's pension fund, CalPERS, has nearly 5,000. This is happening while the state is trying to close a deficit of more than $20 billion.

Making matters worse, some public employee retirees recently fought a legal battle aimed at keeping the public from knowing the amount of their pensions. They unsuccessfully argued that the public which funds their lucrative pensions has no right to know how much they receive.

Several newspapers and a taxpayer group intervened in that case and convinced a judge that the pension payments are public information. Good thing: as public agencies across the country scratch and claw for money and cut services, it's more important than ever to know how public money is spent.

In a welcome shift from its predecessor, President Obama's administration has issued new guidelines favoring disclosure and transparency in handling Freeom of Information Act guidelines.

Obama first signaled a shift on his first day in office when he issued a presidential memorandum calling on agencies to "usher in a new era of open government." Attorney General Eric Holder followed up on March 19 with new FOIA guidelines directing all executive branch departments and agencies to apply a presumption of openness when administering FOIA.

The devil will be in the details, of course, but the high-level endorsement of openness -- and the explicit reversal of the so-called Ashcroft Memorandum issued in President Bush's first year in office -- is important. Holder's memo tells federal bureaucrats that FOIA is the responsibility of everyone, and directs Chief FOIA Officers in each agency to report each year to the Department of Justice on their progress in improving FOIA administration.

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OBAMA: RECORDS PRESUMED OPEN

President Obama didn't waste any time in breaking with the secrecy-first policies of his predecessor.

On his first full day in office, Obama issued a memorandum reversing the policy of the Bush Administration toward Freedom of Information Act requests. The so-called "Ashcroft Memorandum" issued early in the Bush Administration directed federal agencies to deny FOIA requests if there was any defensible argument against disclosing records. Obama's new policy shifts the presumption in favor of disclosing records. The new President made clear that records might still be withheld for reasons of, say, national security, but the new Memorandum is still an important policy shift.

The Bush Administration's penchant for secrecy was revealed early on -- even before the 9/11 attacks gave it a reason for full-throated defense of secrecy -- when former Vice President Cheney refused to reveal the names of oil company executives and others with whom he met to formulate energy policy. Cheney fought a lawsuit designed to pry those records loose all the way to the Supreme Court. Obama's new policy is a welcome change and indicates the new President won't routinely use government money to hide information from citizens.

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Last year's California Supreme Court ruling mandating disclosure of public employee salaries is the gift that keeps on giving to the public.

Every day, some newspaper throughout the state does a story reporting on some city which can't manage its budget, or some public employee who appears to be making more money than they should because of nepotism or cronyism. Transparency is vital to allow the public to at least see what's happening and agitate for change.

Some (but not all) powerful public employee unions, including those representing police and prison guards, waged a long fight recently to keep named public employee salaries under wraps. That fight ended last August when the California Supreme Court, in a lawsuit brought by the Contra Costa Times, held that public employee salaries are public records. The court held that disclosure of public employee salaries is necessary to guard against instances of nepotism, cronyism and inefficiency. The Court also brushed aside claims by police that their salaries couldn't be disclosed because of separate laws governing disclosure of police records.

The Court's ruling (full disclosure: I represented the Contra Costa Times in the case) pays daily dividends to the public. California has a multi-billion dollar deficit, and one of its cities, Vallejo, recently faced bankruptcy because of police and fire pay. There are many hard-working aunderpaid public employees out there, but there are also many instances of nepotism and out-of-control overtime. In the words of the U.S. Supreme Court, people in an open society don't demand infallibility from their government, but it's difficult for them to accept what they can't observe. Last year's public employee salary ruling from California's high court at least lets the public see who earns what.

Postmus gives public the mushroom treatment

Some government officials view members of the public as mushrooms, to be kept in the dark and covered with manure.

San Bernardino County Assessor Bill Postmus is surely one of those officials. Postmus waged a pitched battle, at county expense, last year to resist turning over calendars and e-mails from his time on the San Bernardino County Board of Supervisors in 2006. Now, in a stunning development, his aide Adam Aleman has been criminally charged with destruction of public records. The District Attorney’s office says Aleman deep-sixed the hard-drive of a laptop computer which belonged to his boss Postmus when Postmus was on the Board of Supervisors. Postmus has not been charged with a crime.

Aleman’s alleged criminality isn’t the only questionable conduct to take place on Postmus’ watch. The same day Aleman was arrested, June 30, the county Grand Jury issued a scathing report saying that the Assessor’s office had been widely used for political purposes, with staffers engaging in Republican party activities at county expense.

The Grand Jury found that when Postmus took office in January 2007 he hired an “executive support staff” which “lacked experience or training directly associated with assessor work.” Most of the “executive support staff” had been with Postmus when he was on the Board of Supervisors and/or was Republican Central Committee Chairman. While dedicated career employees who’d been on the job before Postmus was elected did the day-to-day work, Postmus’ people did “public image” work and “engaged in political activities for various national, state, and local political candidates during normal working hours.” In other words, Bill Postmus harnessed your tax dollars to the service of his own large political ambitions, whether you liked it or not. That’s called taxation without representation, or maybe even Tammany Hall corruption.

Continue reading "San Bernardino County Assessor Bill Postmus Fights Public Records Disclosure" »

Playing Hide and Seek With Public Records

It’s not unusual for newspapers, or lawyers in Public Records Act or Freedom of Information Act cases, to accuse the government of trying to “hide” things. Now a San Bernardino County case has revealed what may be a criminal attempt at hiding public records, just in time for a Fourth of July reminder about the importance of access to information about government.

San Bernardino County officials June 30 arrested Adam Aleman, a 25-year-old assistant assessor in that county. Aleman was charged with six felony counts – among them a count for destruction of public records. That count alleges that he destroyed the hard drive of a laptop computer that had been issued by the county to Assessor Bill Postmus during Postmus’ tenure on the Board of Supervisors.

The link to Postmus is significant. He was the central figure in a Public Records Act lawsuit brought by the California First Amendment Coalition and the San Bernardino Sun claiming that Postmus should have disclosed calendars and e-mails relating to a two-week period in the summer of 2006 when fires raged in San Bernardino County and Postmus, then the chairman of the Board of Supervisors, was mysteriously absent.

A San Bernardino County judge ordered a few calendar entries and e-mails released but upheld the county’s decision to withhold many calendar entries based upon the county’s claim of “deliberative process.” But during the case, the judge ordered the county to prepare a “privilege log,” an inventory of withheld records and the county’s reasons for withholding them. The log revealed a gap in the summer of 2006 during which Postmus seemed to have been cut off from e-mail. His spokesmen offered conflicting accounts about where Postmus was and whether he had email access.

The DA’s office has not linked Aleman’s indictment to the mysterious events surrounding Postmus (and Postmus himself has not been charged with any crime). However, the hard drive may have been destroyed in June or July of 2006 – the same summer Postmus was absent during the raging fires in his home county.

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