Tuesday, April 08, 2003 2:32 PM
IN SHORT:
On April 8, 2003, one year after the Los Angeles County Board of Supervisor ordered numerous changes to their open government policies, the Los Angeles Sunshine Coalition released a six-page report attempting to fairly review implementation of those policies. The Sunshine Coalition also issued a report card giving the Board and County departments mixed grades for their policy compliance.
On April 2, 2002, the Board of Supervisors held an extraordinary public hearing during which scores of reporters, nonprofit representatives and public citizens complained about the Board’s alleged violations of the Brown Act and the often extreme difficulty accessing public records. Members of the L.A. Sunshine Coalition were among those who testified, proposing its Sunshine Act for consideration. Following the public hearing, the Board ordered that a series of actions be taken to correct both real and perceived problems raised by the Sunshine Coalition and the public and to emphasize the Board’s commitment to make government accessible to the people. The Board chose to make changes to their policies rather than enact an Ordinance.
“The problem with only changing the policy is that policies can be negatively changed or revoked by a new, less open Administration and they are open for interpretation,” says Karen Ocamb, a Board member of the L.A. Press Club and one of the leaders of the L.A. Sunshine Coalition. “Right now the Board’s open government policies have no mechanism for accountability, enforcement or penalty should the policy be violated. The enforcement subtext is: out of sight and out of mind. We hope the Board codifies their policy to at least give it some teeth. The public deserves no less.”
During public comment before the Board on April 8, Ocamb gave the Board and County mixed reviews overall. Positing that “C” is what County government should be doing, Ocamb gave the following grades and reasons for the grades:
The Board of Supervisors – “A-minus.” The Sunshine Coalition was very pleased with how well the Board responded to criticism that County government was so arrogant, it acted as if its mission was self-protection and self-perpetuation rather than serving the public. We give the Board an “A-minus” for intention.
The Board and the Executive Office – “D” for lack of clarity. While we applaud and greatly appreciate the transcripts and videos online and we understand that a new system will be introduced shortly – there were several times when we were confused about what actions had actually been taken when we read the official transcripts. In our report, we site examples such as the “whistle-blower” policy – which we thought was acted upon but apparently was not. (Please refer to the full report at www.lapressclub.org)
Board deputies – an “A- minus.” As we repeatedly mentioned last year, the Board deputies were very helpful and courteous. We also understand that they are going beyond what is required by both the Brown Act and the Board’s directive – though there’s room for improvement regarding making documents available to the public in a timely fashion.
Public Information Officer (Judy Hammond) – “A.” As many of our coalition members are journalists, we give an “A” to Public Information Officer Judy Hammond who has unofficially acted as the public information Ombudsperson we called for at a follow up Board meeting. Since there is no directive making the various departments’ PIO’s accountable to anyone but the department head, nor is there any recourse (other than a lawsuit), nor is there an enforcement mechanism in the existing policy – we strongly suggest that the Board put Judy – or the Public Information Officer – in charge. We do want to acknowledge, however, that many of the departments have complied with the Board’s directive to come up with and post a Public Records Policy on their website.
County Counsel – “F.” While we agree with Supervisor Burke that County Counsel should be the final LEGAL arbiter of Brown Act and CPRA compliance – we give him an “F” for failing to fulfill his obligations to the public. We constantly get complaints about how County Counsel denies public records requests claiming the ENTIRE public record should be withheld for some legal privilege when other attorneys and First Amendment advocates believe it would be sufficient to simply redact a name and address.
Additionally, there is no substantive information on County Counsel’s website – only a link to the Board Correspondence search engine – on which there are no documents posted when last we checked. If County Counsel is to be the final arbiter of CPRA requests, we fear that his failure to comply with the Board’s April 2 directive sets a bad example.
Finally, Ocamb noted that, “As with all report cards, there’s a chance to get all ‘As’ the next time. To do this, we hope you will seriously consider completing the unfinished business of your open government polices and decide to codify the policy to ensure compliance.”
None of the Supervisors indicated that there would be any follow up to the Sunshine Coalition’s criticism and requests. However, the Sunshine Coalition intends to remain vigilant and will continue to press the Board of Supervisors to live up to their own pronouncements about the importance of open government.
The L.A. Sunshine Coalition is a nonpartisan ad hoc coalition made up of the L.A. Press Club, the Society of Professional Journalists/LA, the First Amendment Coalition, California Common Cause, New California Media/LA, the Black Journalists Association, the California Chicano News Media Association/LA, the Asian American Journalists Association/LA and the National Lesbian and Gay Journalists Association/LA, as well as a number of representatives from nonprofit organizations and individual journalists and interested citizens.
THE FULL REPORT
April 8, 2003
MEMO: To the Los Angeles County Board of Supervisors
From: The Los Angeles Sunshine Coalition
Re: One Year Progress Report on Open Government Policies
As you know, April 2 marked the one year anniversary of the unprecedented public hearing and changes you directed in the County’s open government policies. We would like to take this opportunity to review some of those directives and consider their implementation with both applause and some suggested corrections and recommendations. While we will focus on the website, we assume you will apply the same principles to hard copy public record requests at the Board’s Executive Office, the Public Information Office and/or at each department’s main office.
INTRODUCTION
In early 2002 the Board of Supervisors voted on a series of motions, including eliminating tape recordings of closed session meetings, that raised red flags for several reporters. Following up leads and professional instinct, two reporters made public record requests regarding Board actions taken in Dec. 2001. Their requests were officially denied. But ironically a packet containing more than the requested information, plus a cover letter denying the request, turned up on the desk of L.A. Times reporter Evelyn Larrubia. The stories she and others subsequently reported suggested numerous violations of the Brown Act, and potential illegality – which were immediately corrected before any improper action was taken.
The L.A. Sunshine Coalition, an ad hoc coalition of journalism, First Amendment and civic organizations led by the L.A. Press Club, had been working on a Sunshine Ordinance since June 2001. In Feb. of 2002, Press Club representatives publicly reprimanded the Board for eliminating the closed session documentation. When Larrubia’s story broke in March about closed door “secret meetings,” the Board was forced to face an avalanche of criticism. The Sunshine Coalition immediately presented itself as an independent but friendly open government group interested in helping make the corrections. In testimony before the Board and numerous meetings with deputies, we offered the Sunshine Act as a remedy.
So far the Board has declined to pass the Sunshine Ordinance we offered. But in acknowledgment of journalists’ and the public’s problems with accessing public records, and to dispel the perception that Board decisions were all made behind closed doors, the Board held an unprecedented public hearing on April 2. Following the hearing, and in a number of subsequent actions, the Board positively responded to the criticism and changed the Board’s policy. This review is specifically of the April 2 directives regarding the Brown Act and the California Public Records Act, though we will comment on other actions as well.
Given the County’s behemoth bureaucracy and its reputation for glacial movement, we were pleasantly surprised to find in our review that by last December the majority of departments had complied with the Board’s directive to come up with some sort of displayed Public Records policy. We also applaud the departments that have statements noting their desire and responsibility to serve the public and that asked for feedback. Their websites are welcoming to the public, user-friendly, and respectful.
Other websites, however, are barren and only link to a search engine for which they have not yet provided documents. Since most correspondence and most documentation is now done electronically, we consider this a flagrant violation of the Board’s directive and an example of how the department treats the public and reporters.
At the conclusion of this review, we will offer reasons why we think the corrected policy should be codified.
THE REVIEW
1. The Board ordered the preparation of materials and annual seminars for staff of all County bodies that operate under the Brown Act. While we understand County Counsel has prepared materials, we do not know if they include the new policy changes since we were unable to find the materials on the website. Additionally, with the seemingly constant rotation of commissioners, staff and other personnel, one seminar isn’t enough.
Additionally, we are not sure how effective the Brown Act seminars actually are. For instance, former HIV Commissioner Genevieve Clavreul has previously charged that the minutes of HIV Commission meetings were altered to delete unflattering comments. In fact, last year, after an audit by the County’s Auditor-Controller, the Board recognized the entanglement problems between County staff and the HIV Commission and voted to create an ordinance that would prohibit employees of the Office of AIDS Programs and Policy (OAPP) from sitting as voting members on the Commission on HIV Health Services to avoid charges of actual or potential conflict of interest. Clavreul also has complained about the Citizen Economy and Efficiency Commission which she says “is reluctant to provide copies of the materials under discussion to the public,” among other instances she perceives as Brown Act violations.
2. There continues to be confusion about Board deputies operating under the Brown Act. We understand that County Counsel’s interpretation is that the deputies are NOT subject to the Brown Act. However, in the Statement of Proceedings, it appears the Board voted to place the deputies under at least some of the Brown Act provisions. Some Coalition members believe the deputies continue to meet without any adherence, while others think the deputies have gotten so weary of violations, they comply more than is required by the Board’s action. Coalition member Miki Jackson, a healthcare consultant who often sits in on Health deputy meetings, says the adherence is “close enough to be okay so far,” though written material for public distribution isn’t always available.
The Sunshine Coalition recommends an amendment to the April 2 to eliminate any distinction between the Supervisor and their deputy representatives to avoid any confusion and/or suspicion that the deputies might circumvent the imposed limitations. We recommend that the Board make deputy meetings subject to the Brown Act.
3. The Board ordered tape recordings of closed session meetings. Good.
4. The Board also called for Board meeting transcripts to be made available online within 24/48 hours. It took awhile to comply, but the transcripts are now available and very much appreciated. We also appreciate the effort to translate the transcripts into other languages besides English, a point we particularly applaud the Registrar/County Clerk. Major kudos for the video screen in the hall and for the video links.
5. The Board’s independent counsel worked with County Counsel and presumably the Executive Office to come up with a protocol to ensure that Board Agenda descriptions for closed sessions are more descriptive and informative. Some Coalition members are very comfortable with the one or two line descriptions in “layman’s language” describing why the closed session was called. However, others wish for a bit more information. Overall, this area has improved.
6. The Board requested a protocol for announcing Board actions taken in closed session. We ran into some trouble here. We expected to find announcements about the previous meeting’s closed session action in the same spot as the announcement of the new closed session meetings in both the transcript and the Statement of Proceedings. Since we couldn’t find the information, we thought it wasn’t posted. We were wrong. It turns out that the previous sessions’ announcements are at the end of the transcripts and Proceedings – because that’s when the closed sessions happen. Fair and logical enough. But because we doubt that we are alone in our confusion, we recommend that a one line parenthetical notice be placed at the top, under the announcement of the current closed sessions, guiding those of us who are less logical to the end of the transcript. It’s a quick fix.
7. The Board instructed County Counsel to no longer place the Children’s Services Inspector General’s reports in closed session, so that any administrative and policy matters related to these confidential written reports will be placed on the regular agenda, by motion of any Board member, and discussed in public.
This is a very important step and we applaud the intention. Additionally, we recognize that this is a specialized area and therefore demands more attention. However, since the media often report that L.A. County has the worst foster care system in the nation, we think it is important to discuss. Here are just some of the problems our Coalition members have encountered:
A. Finding out what cases the Inspector General (IG) is investigating is “next to impossible.” Reporters are still told that the matters are confidential and therefore not open for discussion. “The instruction sounds great – but we have yet to see it,” says Cheryl Romo, an expert in reporting on children in the foster care system.
B. Apparently there has been an Interim IG for the past three years and reporters are not quite sure to whom he reports and who gives him assignments. There are also questions about his autonomy and why, unlike other Inspector Generals, there are no press releases or public reports once a case has been investigated and completed. Reporters note, for instance, that there is a public double standard when it comes to dead and missing children. Missing children’s faces, names, and birth dates are prominently featured on County websites – but if children turn up dead, they disappear from the website and County officials refuse to discuss them, claiming confidentiality. Additionally, if the IG is investigating and making recommendations regarding systemic problems, what reason does the IG or the County have in keeping those corrections confidential?
C. A search of the Board Correspondence search engine under DCFS reveals that DCFS has apparently not had ANY correspondence with the Board about foster children since January, 2001.
D. The Sunshine Coalition is heartened by the selection of David Sanders as the new director of DCFS. We greatly appreciate his comments about openness and hope he will follow through. The Coalition has been so disappointed with the stonewalling and what appears to be flagrant cover-ups of the deaths of children while in the foster care system, that we have offered our assistance to advisors of Assemblymember Merv Dymally who is trying to correct loopholes in the Lance Helms Act.
8. There is a sense among Coalition reporters that litigation against the County has run amok. We are very happy to see the tremendous improvement in and amount of information on the Auditor-Controller website. However, County Counsel’s website is virtually blank. We recommend that the County Counsel office and website create an accessible notebook and web page with a list of litigation as it appears in the closed session announcement notices, as well as a centralized data base regarding lawsuits ( and documentation once a case is determined), Claims Board documents, and Board Correspondence redacted where privilege is an issue. This should help the Board regularly keep track of clusters of lawsuits around certain issues, as well as other important information such as the costs of retaining outside counsel.
Unfortunately, it appears to us that County Counsel is one department that has failed to comply with the Board’s directive. While we recognize that a number of documents might be considered privileged and therefore not posted in the Board Correspondence search engine, we find it extremely difficult to believe that the public has no right to see ANY documents. For instance, when County Counsel’s Board Correspondence link is clicked, we are sent to the County search engine. When we call up the “County Counsel” department and type in the words “foster care” – there are NO matching results – even though the Closed Session for March 11, 2003 stated “CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION (Subdivision (a) of Government Code Section 54956.9), Katie A. etc., et al. v. Diana Bonta, Director of California Department of Health Services, et al., United States District Court Case No. CV 02-05662. This is a Federal lawsuit alleging failure to adequately provide for foster care children.” It seems logical that the closed session announcement and perhaps the results/action should have come up.
This is extremely important to us for if we lose faith in County Counsel, the Board, the public, and the media is in trouble. County Counsel teaches the seminars on the Brown Act and the Public Records Act and is the final arbiter for the Board’s open government policies. If County Counsel doesn’t comply with the Board’s directives on these matters, what message does that send the public and County employees?
9. There is an urgent need for clarity in exactly what actions the Board has taken. Towards the end of the Statement of Proceedings for April 2, 2002 there is a note that reads: “(NOTE: AMENDED BY SUBSEQUENT ACTION. SEE: SYN. 94 OF 7/16/02)” The smaller size lead-in reads: “12.REFERRED SUPERVISOR YAROSLAVSKY’S FOLLOWING RECOMMENDATION TO COUNTY COUNSEL AND THE INDEPENDENT COUNSEL FOR REVIEW AND REPORT:” However, what the eye jumps to is the large-type instruction that appears to be a final action. “INSTRUCT THE CHIEF ADMINISTRATIVE OFFICER AND COUNTY COUNSEL TO PREPARE AMENDMENTS TO COUNTY POLICY TO PROVIDE THAT NO DEPARTMENT HEAD, EMPLOYEE OR CONSULTANT SHALL BE REQUIRED TO OBEY ANY DIRECTIVE FROM THE BOARD OF SUPERVISORS THAT WOULD VIOLATE ANY PROVISION OF FEDERAL, STATE OR LOCAL LAW IN PURSUIT OF ANY COUNTY OBJECTIVE; AND TO PROVIDE THAT THIS POLICY MAY BE USED BY ANY DEPARTMENT HEAD, EMPLOYEE OR CONSULTANT AS A DEFENSE AGAINST DISCIPLINARY ACTION IMPOSED FOR REFUSING TO FOLLOW SUCH A DIRECTIVE.”
Because of the presentation in the official Statement of Proceedings, we are left to conclude that the Board passed a “Whistle-Blower” amendment, similar to one the Sunshine Coalition discusses in the Sunshine Ordinance. However, it turns out that this provision was not passed. This is very confusing both for the public and for any employee who might have heard the discussion in the April 2 open government context, look it up and subsequently believe that the amendment passed.
10. While we are on the subject of Whistle-Blowers – it’s the subject of much media and public attention because of Enron, the pre-Sept. 11 FBI foul up and the three whistle-blowers named Time Magazine’s “People of the Year.” However, the term only shows up once in the County’s search engine – when you sign on the Auditor-Controller’s page and do a “whistle-blower” search there. It directs you to the bottom on the page pertaining to the Fraud Hotline where there is ONE mention of the Board’s “Whistle-Blower Ordinance” in the County Code. However, clicking on that link brings you to the section in the code – where there are no more references to “whistle-blowers.” There area also no references to “whistle-blowers” in the Policy Manual.
The point is, while the Board may in fact have a policy, it is not easily accessible to County employees or the public. Now that each department has a Public Records Act policy and procedure, if an employee wants to report that her boss is specifically violating that policy (hates the media, doesn’t care about serving the public), she is not going to think about calling the Fraud Hotline. We recommend that there be specific “lay language” and common terms used – even if in parenthesis – so a regular person can find out what to do and how to avoid retaliation.
REASONS TO CODIFY THE BOARD’S OPEN GOVERNMENT POLICY
1. The L.A. Sunshine Coalition believes that the Board has made tremendous progress and we applaud you. However, we concur with Supervisor Yaroslavsky’s frustration when he expressed difficulty in finding the Board’s media policy. That policy is now accessible if one knows to look under “Public Info” on the County website, where one can also find the Public Record Acts policy. However, none of the other directives are available in one place. Additionally, if an employee has a question about the Board’s open government policy(ies), only the Media Policy is in the online Policy Manual.
2. It is too easy to violate a policy – especially one with no apparent accountability and enforcement – as the delinquent departments have illustrated. We believe there would be more compliance if the policy was a legal part of the county code.
3. Codification gives an over-riding uniformity to the policy. The Board instructed each department head to adopt a policy “similar” to the CAO’s existing policy, making Board letters and memoranda “available to the public immediately upon release.” A couple of things here:
A. We think there should be ONE streamlined, consistent overall policy with clear exceptions to the CPRA going first to the CAO/Public Information Office, then to County Counsel, if warranted.
B. Another problem with having a “similar” policy is that the person designated to respond to public record requests in each department may not know about the CPRA and/or the Board’s policy. There is no training mechanism built into your directives – other than the annual seminars to department heads. The employees chosen to handle CPRA for their department may not know, for instance, that it is Board policy to “expeditiously honor press requests.” Many department heads still haven’t appointed a CPRA PIO and there is no understanding that the CPRA PIO might change jobs. With no specific training for the PIOs or job performance, there is tremendous room for a lack of accountability
We recommend that your Human Resources person, in conjunction with the CAO and County Counsel, write one or two paragraphs describing the importance of the CPRA and the Brown Act for a your new employee orientation pamphlet. We suggest you start with your own statement, “Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” That way, each County employee, no matter where they are stationed, will have some sense of the Board’s policy. If the policy is codified, there is a greater opportunity for the employee to understand the Board’s commitment to open government and therefore be more willing to be of service.
C. We think each representative and PIO should be accountable to the PIO in the CAO’s office. We think she should be designated as the Public Information “Ombudsperson,” a job she is essentially doing now as reporters continue to have problems accessing records. This way, if the department representative OR the public petitioner has a question, they will have some identifiable recourse. If she has a problem or question, she can then go to County Counsel. She also has the “power” to ask County Counsel to enforce an order that a department head or representative might shirk. By the way, we are NOT using the term “Ombudsman” as the CAO’s “Open Government Initiatives” memo of Feb. 10, 2003 indicates. We use the term more akin to the main coach of a sports team.
4. We would like to use the codification of your open government policies as a template to take to other government bodies that have been unaccountable for too long – bodies such as the Los Angeles Unified School District and the Metropolitan Transit Authority. We think this will help make all of local government more transparent, as elected officials proclaim they wish to be.
5. We agree with Supervisor Yaroslavsky who said, on May 14, 2002, in response to testimony by Independent Counsel: “I would hope at some point, once most of our policies have been vetted, and we work out all the kinks which we’re in the process of doing as we speak and meet, that those things that we do agree on, I hope we would codify them and make them more than a policy. I’m not sure what a policy is. Half the people around here don’t remember 75% of the policies that we have. So if we could codify some of them that we all agree on, obviously that would be a good thing.” We urge you to codify your policies. Thank you.
