Open-government groups fighting with political ethics watchdog

Good morning. Happy hump day. We start with an interesting read from the Los Angeles Times about good government groups fighting with the FPPC.

“A rare and heated dispute has erupted between California’s campaign finance regulators and open-government groups that have accused the watchdog agency of pressuring them to rescind their support for legislation designed to show who is funding political ads.

“Supporters of the bill criticized the state Fair Political Practices Commission for heavy-handed tactics that they said included pushing groups the commission has the power to investigate and fine to drop their support for the transparency bill.

“‘It’s really inappropriate for a regulator who has enormous power over organizations to call up those organizations over which they have power, and lobby them,’ said Trent Lange, president of California Clean Money Campaign. ‘It’s just inherently intimidating to have your regulator call you and ask you to do something.’

“Michele Sutter, co-founder of the group Money Out Voters In, called it ‘shocking behavior by the FPPC.'”

The Los Angeles Times has more.

In other news:

• “In addition to their six-figure salaries and benefits, California’s 120 lawmakers are compensated for their cost of living and meals when they leave home and travel to Sacramento to write and pass bills. Unlike in many other states, however, California lawmakers have over time crafted loosely worded rules for themselves that allow them to collect those payments regardless of whether they even show up to work,” reports AP/The San Jose Mercury News. 

• “Kamala Harris, in the final weeks of her U.S. Senate campaign against fellow Democrat Loretta Sanchez, released a higher education plan Tuesday calling for making public colleges and universities free for students whose families earn less than $140,000 a year. She also wants to allow borrowers to discharge student loans in bankruptcy.” The Sacramento Bee has more. 

• “The retiring forecaster for California’s largest public employee pension fund offered some final advice on Tuesday: State and local governments should be required to pay more into the system as soon as next year.” The Los Angeles Times has more.

• “A prominent group advocating for LGBT rights has withdrawn its endorsement of six state Assembly members because they abstained or voted against a bill aimed at protecting gay and transgender students from discrimination at private colleges,” reports the Los Angeles Times.

   

Legislature:

• Gone ’til December. 

Gov. Brown:

• No public events announced.

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New follower: @claireconlon

Judge rules against Hayward’s exorbitant public records fees

Good morning! It’s Friday — we made it.

A Bay Area judge recently ruled against the city of Hayward and its police department for charging exorbitant fees for public records.

The case stemmed from the National Lawyers Guild’s request for footage from officers’ body cameras as they helped patrol a contentious overnight Black Live Matters protest in Berkeley on Dec. 6-7, 2014 — a request police complied with after the guild paid $3,247.

Police justified the high cost by saying the footage had to be carefully examined and redacted.

CalWatchdog has more.  

In other news: 

• Loretta Sanchez, the Orange County Democratic Congresswoman, secured yesterday another high-profile Republican endorsement in her bid for U.S. Senate: Conservative radio host Hugh Hewitt. The Huffington Post has more.
• Sanchez is still trailing in polls, however. Democratic Attorney General Kamala Harris is still on top after her first place finish in last month’s primary, leading a new Field Poll 39 percent to 24 percent for Sanchez. The San Jose Mercury News has more.   
• After being placed under a three-year restraining order by a judge for domestic violence allegations and subsequently being stripped of his committee assignments, Assemblyman Roger Hernandez has fallen on hard times. Now, at least six fellow Democratic lawmakers have revoked their endorsements of Hernandez’s bid for Congress. The Los Angeles Times has more. 
• “After 42 years of regulating the state’s political ethics, with countless updates and tweaks, the Political Reform Act is due for an overhaul — and stakeholders are set to begin the process next week,” writes CalWatchdog.
• “Gov. Jerry Brown’s administration has been talking directly with oil companies in hopes of reaching a consensus on extending California’s landmark climate programs, opening a back channel with an industry the governor has harshly criticized as a barrier to addressing global warming,” writes the Los Angeles Times. 

Legislature: 

• Gone ’til August.

Gov. Brown:

• On vacation.

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New followers: @callucrs @Endnearing

The claims have always been dubious, according to experts on state privacy and labor relations statutes. Law enforcement officers are strongly protected by both state laws and a controversial court interpretation of those laws. But rank-and-file government managers and employees who make mistakes have long been exposed or protected at the whims of city managers or mayors or school district superintendents.

The California First Amendment Coalition notes that governments officials often assert that personnel, medical and similar files are exempt from disclosure: “This exemption is routinely invoked when the public agency believes a request seeks information pertaining to identifiable public officials or employees that is private, sensitive or controversial. But in fact, the information may only be withheld if its disclosure ‘would constitute an unwarranted invasion of personal privacy.’ (Government Code § 6254(c)). That is, and is meant to be, a high threshold.”

Now a potentially landmark case is unfolding in San Diego Unified, the state’s second-largest school district, that could expose the discretionary nature of government officials’ sweeping claims of privacy for employee conduct.

Near the end of the 2013-14 school year at the district’s School of Creative and Performing Arts, Superintendent Cindy Marten refused to disclose the specific details of the decision to abruptly reassign Principal Mitzi Lizarraga and lock her out of the school. Rumored penalties given to a school counselor were also judged as protected by privacy laws.

But then the heat built on Marten and school board President Marne Foster over several Foster actions that raised questions about her ethics and judgment. A May 2015 grand jury report, without naming Foster, blamed a school board member for the School of Creative and Performing Arts’ shakeup. The grand jury corroborated what school activists had said about Foster reacting with fury to a negative college recommendation for her son, who was a senior in 2013-14, and said the district needed better rules to prevent improper board member interference.

Three months later, in the district’s official response, Marten dismissed the grand jury report as too vague to act on and as calling for safeguards against board member interference that were already in place.

School district cites privacy exemption, then says never mind

But Voice of San Diego pursued the matter and landed the first interviews with Lizarraga, now principal of the Los Angeles County High School for the Arts, and  Kim Abagat, a counselor who had been suspended for nine days.

Both described Foster as a nightmarish force at their school. Abagat said she had been punished for accurately describing her son’s record at the school. Lizarraga said she was abruptly reassigned by one of Marten’s top aides after Foster’s son was barred from the prom because of behavioral lapses.

This led Marten to issue 61 pages of internal district documents, including a private investigator’s report, that she said showed that she and the district had responded properly to Foster’s interference at the school and that the district had been justified in its personnel decisions. The superintendent said because of their interviews, the district was now justified in releasing information about Lizarraga and Abagat it had previously said it could never release.

But Lizarraga and Abagat didn’t agree, and they have hired a San Diego criminal defense lawyer, who strongly hinted a lawsuit was to come because the privacy rights of his clients had been abused. Such a lawsuit could be a landmark in that it might establish just how much of a right to privacy that school employees have, and if those rights are somehow vacated when they publicly respond to criticism of their job performance.

There is a bizarre element to the case. District documents credibly showed why Abagat’s punishment may have been deserved; counselors with deep concerns about students are supposed to pass college evaluations on to colleagues who may have a different opinion. She also got basic information about Foster’s son wrong.

However, Lizarraga wasn’t punished; she was reassigned to a position invented for her that she held for a few months before taking the Los Angeles job.

So San Diego Unified officials are in the peculiar position of saying Lizarraga’s job performance was so bad they had to abruptly promote her and that the decision wasn’t influenced by Foster’s fury over her son being punished and judged a poor college prospect but by a long accumulation of management miscues.

Lizarraga may not have much of a case that her privacy rights were violated. As the principal of a high-profile high school, reasons for her reassignment should be public record, according to the First Amendment Coalition. But when it comes to a defamation case, San Diego Unified’s vulnerability appears high.

… an auto allowance of $7,200 a year plus a mileage reimbursement for most trips at 57.5 cents a mile. … An independent committee that reviewed supervisors’ compensation found none of the other comparable counties it surveyed allowed such double-dipping. The committee recommended ending the mileage reimbursement except for travel out of county.

 

The committee’s position was buttressed by county calculations showing the auto allowance alone covers the costs of operating a car for county business, even for Piepho, the supervisor with the most mileage.

 

Nevertheless, supervisors decided to keep the auto allowance and mileage reimbursement for trips outside their own districts. In Piepho’s case, she will keep almost the entire mileage allowance.

 

Based on her 2014 travel expenses, 93 percent of her trips have been to destinations outside her district. So the board’s decision means that she will retain mileage reimbursement of about $4,400 a year. Under the committee’s recommendation, it would have been trimmed to about $1,580.

Board sparked furor with its big pay raise

This sort of controversy is nothing new to the 1.05 million residents of Contra Costa County, located due east of the Bay Area. Last October, supervisors faced a public backlash after voting themselves a big raise. This account is from the Contra Costa Times:

MARTINEZ — After giving most of their employees raises of about 4 percent in contract negotiations this year, Contra Costa supervisors Tuesday decided they deserved something more: a 33 percent hike, boosting their annual salaries to more than $129,000 a year.

By a 4-1 vote, the supervisor salaries will now be permanently tied to those of Superior Court judges, which is a common practice among county boards throughout the state and eliminates the need for the elected bodies to vote themselves an unpopular pay bump.

 

In Contra Costa, the salaries are now set at 70 percent of judicial salaries …

 

The Richmond Confidential website placed this pay scale in context:

 

“[The] new salary structure gives Contra Costa County’s board more money than the Board of Supervisors in San Francisco, San Mateo and Marin counties. It’s also higher than those of California state Senate and Assembly members, who make a base salary of about $90,000. …”

Backlash leads to reduction in salary boost

But after critics quickly rounded up 40,000 signatures opposing the pay hike, the supervisors voted in January to rescind the entire raise. Last month, they approved a plan in which their salaries would go up in phases by a total of 20 percent, to $116,840, with the final increase on Jan. 1, 2018.

The controversy could haunt the political futures of some of the supervisors, particularly Mary Piepho, the ambitious daughter of former state Sen. John Nejedly, who is now deceased. San Francisco Chronicle columnist Chip Johnson, who normally doesn’t pay much attention to Bay Area bedroom communities, lampooned Piepho in January for insisting that the $33,000 pay hike was a “salary adjustment,” not a raise.

But this ridicule didn’t stop Piepho from leading the push to have Contra Costa supervisors get both a flat vehicle reimbursement and a per-mile repayment.

But at another powerful state agency, what appears to be an open conflict of interest is playing out without objection from its leaders. A CTA lobbyist who sits on the State Board of Education wants the board’s test-giving contractor to pay the teachers it hires to grade the tests more than the contractor thinks is necessary.

John Fensterwald mentions this in a post on EdSource on the board’s decision to award a three-year, $240 million contract to the Educational Testing Service to administer standardized tests required by state law:

ETS will continue to handle the administration and scoring of the new online tests, including the Smarter Balanced English language arts and math tests in the Common Core State Standards, which debuted this spring, and the yet-to-be developed Next Generation Science Standards. … 

In its revised bid, ETS said it will hold summer institutes and weekend trainings for teachers and would pay California certificated teachers $20 per hour to be trained in and score the tests. Ashley acknowledged that’s less than teachers earn per hour, but the primary benefit, he said, would be the knowledge that teachers would gain in both the end-of-the-year tests and the interim assessments that teachers would give during the year.

However, board member Patricia Rucker, who works as a lobbyist for the California Teachers Association, called $20 per hour “insufficient” and predicted that fewer than half of the scorers will end up being teachers. Teachers “carry the greatest burden to see that students are prepared and have the greatest stake” in the test results, and yet still will not be the primary focus of the recruitment strategy for scorers, she said.

Gov. Jerry Brown wouldn’t have appointed Rucker to the state school board without the general expectation that she would take the same positions as the CTA. However, a union official openly using her role as a state board member to push a contractor to help her union members get more money is unusual.

Two state laws spell out conflicts

On city councils, members routinely recuse themselves when contracts come before them in which they have some financial connection. They are heeding Government Code 1090:

Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members.

Government Code 87100 offers a similar injunction:

No public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest.

In California, union members and officials are often on governing boards, where they participate broadly in setting policies that affect unions.

But that doesn’t usually apply to matters directly involving pay. For example, in Ontario, a police officer and a senior fire department official served on the City Council in the 1990s. They abstained from contract negotiations or other matters involving compensation and the city agencies that provided their full-time jobs.

Legislative gift-taking eroding public trust

In an effort to stem the damaging headlines, Senate Democrats announced on Thursday their plans to introduce a package of bills to reform the gift rules for elected officials. The proposals include a ban on receiving any gifts from lobbyists, an overall reduction in the annual gift limit from $440 to $200 and an outright prohibition on accepting gifts of spa treatments, golf games and tickets to theme parks, concerts and sporting events.

“There is no question that recent events are testing the public’s faith in how our government does its work,” Sen. Ricardo Lara, D-Bell Gardens, said at the press conference. “We need to restore the public trust.” Of course, legislative leaders wouldn’t need more laws if they followed the best practices of their colleagues.

In the Assembly, Gatto has set the standard for ethics and transparency. He not only declined all international junkets, but disclosed gifts that even the state’s political watchdog would find unnecessary to report. His disclosure reports even include footnotes. 

Gatto follows spirit and letter of the law

“Giving and receiving small tokens are part of life,” Gatto said. “I try to follow the letter and spirit of the law, and that’s anything over $50.” In explanation of the gift certificate given to his daughter, Gatto said, “The rules are very clear that we have to report anything over $50.” 

Technically, Gatto’s interpretation of the law is correct. According to Fair Political Practices Commission’s instructions for the Form 700, the annual statement of economic interests, elected officials must report “gifts given to members of your immediate family” if the official can “exercise discretion or control over the use or disposition of the gift.” This “control over the use or disposition of the gift” also includes tickets to concerts and sporting events. It explains why Gatto reported tickets to the Rose Parade and Rose Bowl that he gave away to local high school students who had overcome adversity.

For several years, unlike many of his colleagues, Gatto has worked with teachers and administrators and found deserving students to take his spot at the big game.  And don’t think Gatto does it for the positive publicity. He’s been doing it for years and never told the press. The only place you’ll find it: on Gatto’s financial disclosure report, in compliance with state law.

Ethics: Appearance of impropriety

Jessica Levinson, a Loyola Law School professor who specializes in governmental ethics, said that the issue of elected officials accepting gifts is a balance between what is allowed versus what appears to cross the line of undue influence. “If the laws allows legislators to accept gifts, then is it improper or indecent for them to do so?” she asked. “While some gifts are permissible, it can intuitively feel problematic when our elected lawmakers accept gifts when we all strongly suspect they would not receive those gifts were it not for their official roles, and the power they wield in those roles.”

That appearance of impropriety is exacerbated when lawmakers travel with lobbyists on extravagant junkets to exotic locales. Last year, California lawmakers collected passport stamps from Germany, Switzerland, Cuba, Mexico, Poland, Norway, Taiwan, Israel, China, Armenia, Sweden, Canada and South Korea, much of it on the dime of special interest groups.

“When it comes to traveling and attending conferences, I want our officials to leave the Capitol and learn from others,” Levinson said.  “I don’t necessarily want them to do all of that on the public’s dime. When the conferences look fishy, or the sources of the funds have substantial business before the state, it is certainly fair to ask questions.”

Some legislators have avoided the questions altogether. During the Legislature’s 2013 spring break, while dozens of lawmakers were relaxing in Taiwan, Eastern Europe and Cuba, state Sen. Ted Lieu, D-Torrance, fulfilled his monthly Air Force reserve duty. In addition to Lieu, state Sen. Jim Beall, D-San Jose, and Assemblywoman Lorena Gonzalez, D-San Diego, have declined to participate in junkets. And, of course, so did the Legislature’s ethical leader, Mike Gatto. “We are a big state with international implications, but I choose to stay in California,” he said. “My policy is simple: I will travel for limited circumstances but only in California. I am a California official.”