Articles Posted in Public Records

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Public officials who say something stupid or corrupt often don’t use their work computer.

The device du jour for sending incriminating or embarrassing messages has become the “personal” computer or smartphone.

Recent revelations of such incriminating or embarrassing e-mails by aides to Governor Chris Christie of New Jersey and Scott Walker of Wisconsin have shone a bright spotlight on the extent to which public officials are attempting to use “private” electronic devices to conduct public business, and to evade disclosure of their writings. The revelations also raise the issue of whether such e-mails and texts are covered by states’ public records laws.

In Wisconsin, newly-released e-mails showed that Gov. Walker’s aides did campaign business on government time. An investigation revealed that some of Mr. Walker’s aides while he was a county executive routinely used personal laptop computers, a non-county computer network, and private Yahoo and Google e-mail accounts to conduct campaign-related business while at work. His chief of staff forwarded a chain e-mail to undisclosed recipients that concluded, “I can handle being a black, disabled, one-armed, drug-addicted, Jewish homosexual on a pacemaker who is H.I.V.-positive, bald, orphaned, unemployed, lives in a slum, and has a Mexican boyfriend, but please, Oh dear God, please don’t tell me I’m a Democrat.”

Gov. Christie’s aides used various e-mail accounts while orchestrating lane closures in the George Washington Bridge scandal that has jeopardized Christie’s Presidential ambitions.
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Income inequality is one of the biggest issues in the country.

The University of California Regents recently joined that issue squarely on the side of the billionaires, and against everyone else — including taxpayers — in a case involving the degree of transparency which should be allowed into the university’s venture capital investments.

In a recent court case, Regents of the University of California v. Superior Court, the Regents coddled two of the richest venture capital funds, Sequoia Capital and Kleiner Perkins Caulfield & Byers, by spending taxpayer money to hide the individual fund performance of UC’s investments in those two well-connected and fabulously-rich firms.

In the insular world of the Regents, if a billionaire venture capitalist says “jump,” the Regents ask “how high”? The Regents count themselves lucky if they can give the venture capital firms tens of millions of taxpayer dollars.

If the name Kleiner Perkins sounds familiar, it should. The firm’s co-founder, Tom Perkins, who is worth an estimated $8 billion, recently made news by comparing those who wonder about income inequality to Nazis. Perkins said in a letter to the Wall Street Journal, “I would call attention to the parallels of fascist Nazi Germany to its war on its ‘one percent,’ namely its Jews, to the progressive war on the American one percent, namely the ‘rich.'”

It’s easy to see why Mr. Perkins feels persecuted, since he’s down to his last $8 billion. And it’s easy to see why the UC Regents would spend taxpayer money to help out the Kleiner Perkins firm, given the firm’s dire financial situation. Of course, Kleiner Perkins may need to hold on to some of its money since it’s now fighting a gender discrimination suit brought by a former partner, Ellen Pao.
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A Los Angeles judge has issued what may be the last ruling in a years-long battle for pension transparency in California.

Superior Court Judge James Chalfant held on November 15 that the Los Angeles Times is entitled to know not just the names and pensions of retired Los Angeles County employees, but also their start date, years of service at retirement, service years they “purchased,” benefit payment options, the formula used to calculate the benefits, and their gross medical benefits. His ruling became final on December 13.

The Los Angeles County Employees Retirement Association (“LACERA”) had, for two years, resisted turning over even the names of pension recipients. Finally, after three separate 2011 Court of Appeal decisions held that names and pension amounts must be disclosed, LACERA agreed to disclose the names of its pension recipients, but still balked at disclosing other information like years of service, pension formula and medical benefits received.

Judge Chalfant’s 14-page, single-spaced decision interpreted the three Court of Appeal decisions and found that the public had a right to know not only how much a public employee’s pension is, but also how it’s calculated. He agreed with newspaper reporters and taxpayer advocates who testified that without knowing how a pension is calculated, the public is unable to determine whether a pension has been “spiked” by adding perks to a last year’s salary, or “purchasing” service time. “A retiree member’s election of retirement options is a necessary component in the calculation of his or her retirement benefits in which the public has a legitimate interest,” Judge Chalfant ruled. “A retiree’s years of service at retirement, service years purchased, benefit payment options, and the formula used to calculate the benefit all must be disclosed…LACERA’s calculation of retirement benefits cannot be evaluated without this information.”

LACERA has stated it will not appeal Judge Chalfant’s ruling and that it will turn over the records by February 15.

Many of LACERA’s tens of thousands of retirees receive six-figure pensions, and at the state level California Governor Jerry Brown has called for raising the retirement age and trimming pension formulas to help the cash-strapped state balance its budget and avoid ever-deepening cuts to education and other services.
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There’s an old saying: I may not agree with what you say, but I will defend to the death your right to say it.

Add to that: transparency may not always be convenient, but it’s important to government.

This occurred to me recently in a case I am handling for the Los Angeles Times. The Times is suing the LA county retirement system for records of pensions paid to its tens of thousands of retirees. The system, LACERA, fought against disclosure for over a year and a half before finally relenting (in part) in the face of three court decisions ruling that the names and pension amounts of retirees must be disclosed.

Before anything was disclosed, a police union filed a lawsuit trying to block disclosure, claiming that some of its members might be “undercover retirees” who would be endangered by disclosure. Meanwhile, LACERA sent a letter to its members telling them it had to disclose their names and pension amounts. Its call center got jammed.
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A San Francisco appellate court on August 26 handed a third victory to open government advocates wanting to know who’s receiving county pensions.

The decision from California’s First District Court of Appeal in Sonoma County Employees’ Retirement Association v. Superior Court comes on the heels of earlier rulings from Courts of Appeal in Sacramento and San Diego and may signal the end of resistance from county pension organizations which have fought against the disclosure of pension amounts received by their members.

The San Francisco-based court held that state law shields retirees’ birth date and age from disclosure, but not their name and the amount of their pension. Like the other appellate courts, the First District Court of Appeal relied upon the California Supreme Court’s ruling (in a case I handled) that public employee salaries are public information, and said “the taxpaying public has substantially the same interest in [the retirement agency’s] operations and payout levels as it does in the salaries of county employees.”

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Two California Courts of Appeal have shed light on a hot issue, ruling that county pension agencies must disclose the names and pension amounts of members receiving generous pension amounts.

Both courts, in rulings a month apart, rejected privacy arguments raised by by the agencies and the pension recipients, and both ruled that a state law providing for confidentiality of “individual records” did not allow the agencies to hide records of their payments to named pension recipients.

The rulings — a May 11, 2011 decision from the Third District Court of Appeal in Sacramento (in a case I handled), and a June 28, 2011 decision from the Fourth District Court of Appeal in San Diego — are welcome news for open government advocates and for taxpayers who foot the bill for the state’s overly generous public pension benefits. In an era when private sector pensions have been eliminated or cut back, and public agencies are laying people off and cutting back services, many retired state and county employees are receiving six-figure annual pensions. Public safety employees in California generally are allowed to retire at age 50 with up to 90 percent of their last salary under a so-called “3 percent at 50” formula giving them 3 percent of their last salary for each year of service. To make matters worse, workers are often able to “spike” their pensions by working overtime in their last year or cashing out vacations and other perks just before they retire.

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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.

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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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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.

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