It’s no secret that many legislative leaders dislike the proposal. For years, reform-minded lawmakers have proposed similar measures – but they never made it before the voters. Opponents of the rule say they are all for transparency, but that requiring such a long period of time for the public and critics to review all bills makes it difficult to get complicated and important measures put together as the legislative deadline approaches.

One would think that Prop. 54’s passage would have settled the argument, but a fracas last week in the Assembly suggests that core debates over the measure are far from settled and might soon find themselves hammered out in court.

The Legislature adjourned Friday following the deadline for bills to pass out of their house of origin. Senate President Pro Tempore Kevin de Leon, D-Los Angeles, assured that bills coming from the Senate waited 72 hours before a final vote. But Assembly Speaker Anthony Rendon, D-Paramount, is accused by Proposition 54’s backers of allowing more than 90 bills to be voted on without having been published for a full 72 hours before the vote.

There’s a question over terminology in the proposition’s language: “No bill may be passed or ultimately become a statute unless the bill with any amendments has been printed, distributed to the members, and published on the internet, in its final form, for at least 72 hours before the vote, except that this notice period may be waived if the governor has submitted to the Legislature a written statement that dispensing with this notice period for that bill is necessary to address a state of emergency … .” The issue involves the term “final form.”

The initiative’s proponents say final form means the final form before a vote in each house of the Legislature. But the Assembly argues that final form “does not pertain to a vote to move a bill to the opposite house and instead applies to legislation presented on the floor of the second house,” according to a Sacramento Bee explanation.

The chief clerk of the Assembly issued a statement explaining that “Assembly bills will not be in final form until they are presented on the floor of the Senate.” Proponents of Prop. 54, including former state Sen. Sam Blakeslee, R-San Luis Obispo, and moderate Republican financier Charles Munger Jr., strongly disagree with that interpretation and say they might go to court to defend what they say is the clear intent of the initiative.

One element of Prop. 54 that’s not in contention: The section finding that bills in violation of the 72-hour waiting period could be invalidated by the courts. That’s where the latest fracas resembles a game of chicken. De Leon clearly wasn’t taking any chances with his house’s interpretation of the proposition’s meaning. Rendon could have, say, passed a minor bill on a shorter notice as a test case to see how the courts would rule. Instead, if it’s true that he didn’t wait the full 72 hours for the votes, he may have put dozens of bills in jeopardy if the courts side with initiative drafters.

Supporters of the rule applying to both houses argue that it would be incomprehensible to give members of one legislative body (and their constituents) 72 hours to review a bill and deprive the same thing of members of the other legislative body.

Critics of the “both houses” interpretation suggest that Prop. 54’s drafters could simply have included the language “in each house” following the words “final form.” But the initiative’s drafters believe the plain reading of the initiative means that every bill must be in print 72 hours before each vote. Including the “in each house” language could have been interpreted to mean 72 hours in each house (for a possible total of six days), something proponents clearly didn’t intend.

It’s increasingly likely this dispute ends up at the state Supreme Court, with the stakes higher than ever. It will pit the intent of an initiative that passed by a nearly two-to-one margin and in all of California’s 58 counties against more than 90 recently passed bills, which could possibly be tossed aside even if the governor signs them.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

It’s no secret that the state’s legislative leadership is less than thrilled about an open-government initiative that California voters passed in the November election, and are doing what they can to undermine its clear intent.

Yet, it’s a testament to the measure’s importance that the Legislature painstakingly followed its dictates as they passed last week a controversial bill to increase gas taxes and vehicle-license fees to fund $52.4 billion in transportation upgrades over the next decade.

Had they not followed the timelines detailed in the measure, the transportation bill would be subject to legal challenge. That reality showcases the “teeth” in Proposition 54, which passed statewide with 65 percent of the vote – and even had the rare virtue of receiving voter approval in every one of California’s 58 counties.

The proposition is simple, though arcane sounding. It mainly requires that all bills be printed in final form – and published online –72 hours prior to a final vote in either house of the Legislature. Good-government reformers had for years tried to get the Legislature to approve such a measure, but were consistently stymied.

That’s because legislators love to rush through those “gut and amend” measures at the last moments of a legislative session. That’s when the guts of a bill are stripped away and an entirely new piece of legislation is dropped into its shell. In these rush situations, most legislators are unaware of the details of what they are voting on and the public and media can’t see what’s in the bills. This situation breeds cynicism and contempt for the legislative process.

By contrast, the vote over Senate Bill 1, the transportation measure, was a model of openness, according to many observers. As observers have noted, there’s plenty of reason for criticism of the bill and other parts of the process – the size of the tax increases, the pork-barrel projects, the lack of reforms for current transportation programs – but there’s no doubt the voter-approved proposition made it easier to see what was in it, warts and all.

Prior to SB 1’s passage, an ideologically diverse group of Prop. 54 supporters, including the Howard Jarvis Taxpayers Association and California Common Cause, sent a letter to legislative leaders expressing their “concerns with the Legislature’s implementation to date, which could inadvertently result in the invalidation of bills that the Legislature wishes to pass.”

The bill seemed like a warning: The Legislature better follow the details of Prop. 54 in its consideration of SB 1 or potentially face legal efforts to overturn the measure if it passes. Indeed, the Legislature reportedly followed the 72-hour rule with nine minutes to spare.

But the warning was timely. As the San Francisco Chronicle’s John Diaz explained in an April 7 editorial, “Of particular concern was the Assembly’s attempt to interpret the 72-hour rule more narrowly than was presented to voters.” Assembly leaders interpreted the measure – which its authors say applies to all bills – “only to bills that had previously passed the Senate and were on their last stop before the governor.” That interpretation could eventually be challenged in court.

As the letter writers explained, “Each member of the Legislature is constitutionally guaranteed the right to have at least 72 hours to review the final version of any bill prior to a floor vote, regardless of the bill’s house of origin, and your constituents have the same right. We believe the Legislature’s rules should unambiguously reflect that right.”

The proposition also allows the public to record public meetings and requires the Legislature, beginning in 2018, to post videos of all such meetings online within 24 hours. The letter argues that the Legislature, however, is improperly adopting rules regarding such recordings.

“If the Legislature wishes to regulate the placement and use of recording or broadcasting equipment, it must adopt those rules in compliance with the Constitution’s requirements: that is, by a two-thirds vote concurring in each house, or by statute,” the signers explained.

As Diaz argued, the Legislature had for years “rejected any and all such reforms.” Supporters of the status quo had maintained imposing these “sunshine” rules would restrict the ability of legislators to get things done. But with the passage of SB 1, the Legislature passed one of its major and controversial priorities, despite having to operate with a new level of openness.

Legislators still are resisting the new rules, but they face grave risks if they push their recalcitrance too far. “If the Legislature does not adopt rules consistent with Proposition 54, there is a risk that the Legislature may schedule votes in violation of the Constitution’s 72-hour notice requirements,” according to the coalition letter. “Any such vote for passage will be invalid, and that bill will be ineligible to become a law.”

Ultimately, the Legislature understood what was at risk, which is why they apparently didn’t take any chances with their transportation bill.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

The case, City of San Jose v. Superior Court of Santa Clara County, revolves around one question: “Are writings concerning the conduct of public business beyond (the California Public Records Act’s) reach merely because they were sent or received using a nongovernmental account?”

The superior court ruled that records concerning the public’s business should be turned over to the public upon request; the appeals court, however, found that agencies do not have “an affirmative duty to produce messages stored on personal electronic devices and accounts that are inaccessible to the agency,” or to even search for them.

The case goes back to 2009, when a local citizen, Ted Smith, sought records regarding the activities of the city of San Jose’s redevelopment agency, its executive director and some elected officials including the mayor and two City Council members, as the court explained. The city produced the requested documents from official phone numbers and email accounts – but would not provide information stored on the officials’ personal accounts.

The city offered a simplistic defense. Messages created on personal accounts are not public records because they are not within the control of the city. If the city had prevailed, the ramifications would be immense. Elected officials and governmental staff working for California’s numerous government agencies could legally shield sensitive information from the public merely by conducting such business on their personal email account or cellphone.

The appeals court exempted “huge swaths” of information based on where the information was located, not based on content, explained Jim Ewert, general counsel for the California Newspaper Publishers’ Association, which filed an amicus brief in the case. “If the Supreme Court had not decided (this way), it would have eviscerated the California Public Records Act,” he added.

A Los Angeles Times editorial captured the likely effect had the appeals-court decision stood: “As soon as a public official realizes that his constituents have no right to look at anything he says on his personal cellphone or laptop, he’ll simply do all of his sensitive or secret communications on those devices. With a flick of the wrist, public officials will exempt themselves from accountability.”

The state high court recognized the new reality of email and other electronic communications, even though the state Constitution and the public-records act were crafted in a time before such communications were envisioned. “It requires recognition,” the Supreme Court found, “that, in today’s environment, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace.”

The appeals court was concerned about the problems inherent in capturing and turning over records that were out of an agency’s control. But the state high court, while not mandating any particular policy in dealing with such matters, offered some possible scenarios in dealing with a public records request.

For instance, as a Lexology article explains, an agency could require employees to search their own emails for relevant records or develop a policy requiring “all emails involving agency business, sent by an employee through a private account, to be copied to the employee’s agency email account.” The main point is the court upheld the idea that the public has a right to access a public record, even if the details of obtaining it are up for debate.

In fact, the court explained that because the city did not try to search for any particular documents in its employees’ personal accounts, “the legality of a specific kind of search is not before us.” But it found that agencies are obliged to at least try to locate and disclose any such public documents on private servers “with reasonable effort.”

The decision, however, does not change the complex balancing act that exists between public access and privacy rights. Some documents are protected from public exposure, but the court’s ruling finds that the location of those documents – on a public or private server – has nothing to do with whether or not those documents are legitimate public records.

The high court quoted from the state’s public records act, which defines a public record as “any writing containing information relating to the conduct of the public’s business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics.” Not everything produced by a public employee is public, of course, and it might take hair-splitting to determine where to draw the line.

Here, the court used an example to illustrate the point: An employee’s email to a spouse complaining that “my coworker is an idiot,” is unlikely to be considered public, whereas “an email to a superior reporting the coworker’s mismanagement of an agency project might well be.” The court agreed that public employees do not “forfeit all rights to privacy.” But the city of San Jose claimed an exemption for all communications from personal accounts, which was an open invitation for employees to evade the clear intent of open-records laws.

The high court was not persuaded by the city’s argument that the Legislature required public access only to records “accessible to the agency as a whole.” Many genuinely public documents, it explained, are stored in “filing cabinets and ledgers” that would not be accessible to all of an agency’s employees.

The question, of course, is whether the document was produced by employees who are conducting business on behalf of the agency. It’s not a matter of where the document is stored that determines whether the public should have access to it. If, for instance, an agency contracted with a consultant to produce a report, then the agency – and therefore the public – has a right to that document even if the consultant is retaining that document, according to the court.

The recent presidential election reinforces the significance of these distinctions. “Our concerns are not fanciful,” the newspaper association’s brief explained. “For example, former Secretary of State and … presidential candidate Hillary Rodham Clinton turned over 50,000 pages of government-related emails that she had kept on a private account, although federal regulations, since 2009, have required that all emails be preserved as part of an agency’s record-keeping system.” Many other states consider public records on private servers to be accessible to the public.

While local and state government agencies still need to come up with policies that detail exactly how such records must be maintained and disclosed, the court resolved the fundamental principle: A public document is a public document, even if it was created and stored in a private email account.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

Transparency ballot measure nearly unopposed

Good Thursday morning! While the governor pumps out signed bills and vetoes to wind down the year, political campaigns are heading into the final stretch. 

Although one ballot measure campaign is hardly heating up. In fact, for all the fighting and million-dollar spending over November’s 17 ballot measures, one proposal stands nearly unopposed.

Though not entirely unopposed, the committee against a measure aimed at making legislative proceedings in Sacramento more transparent is unfunded and run entirely by the pro bono work of Democratic political strategist Steve Maviglio.

Maviglio has the political savvy to run the campaign — he’s working on two measures in support of the ban on plastic bags and against another measure to require voter approval for revenue bonds of $2 billion or more — but the money just isn’t there. 

“It’s an uphill battle to be sure because many donors have bigger fish to fry,” Maviglio said. 

CalWatchdog has more.

In other news:

• “Frustrated transportation groups urge the Legislature to come back in a lame-duck session,” reports the Los Angeles Times. 
• “The California Democrats running for U.S. Senate delved Wednesday into their records on for-profit colleges, with Loretta Sanchez continuing to tie Attorney General Kamala Harris to Republican presidential nominee Donald Trump and the businessman’s defunct Trump University,” writes The Sacramento Bee. 
• “California tenants have a new arrow in their quiver: a law to protect them from being unfairly placed on rental blacklists that jeopardize their credit ratings and shut them out of the housing market,” reports The San Jose Mercury News.
• “Gov. Jerry Brown, laboring to build support for California’s controversial cap-and-trade program, signed legislation Wednesday authorizing $900 million in spending on climate-related programs, including clean car rebates, parks and public transportation.” The Sacramento Bee has more. 

Legislature:

• Gone ’til December.

Gov. Brown:

• Another medal of valor ceremony, this time at 10 a.m. in Elk Grove for officers and staff of the California Department of Corrections and Rehabilitation. 

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New follower: @minnieclass

Against a national backdrop of discord over police killings of black men and deadly anti-police violence, state lawmakers who back law enforcement conduct and transparency reforms are making little progress in Sacramento.

Sen. Mark Leno, D-San Francisco, introduced Senate Bill 1286 to initial success. The measure would have classified internal reports that confirmed serious misconduct by law enforcement officers as public records to be made available upon request. In April, the bill won approval in the Senate Public Safety Committee on a 5-1 vote, leading reform advocates to hope the 2016 legislative session wouldn’t be  as disappointing as the 2015 session.

But the measure has yet to receive a vote or any discussion in the Senate Appropriations Committee, effectively killing it from further consideration this legislative session.

The political influence of police unions was seen as the key factor in the bill’s demise. However, unions also appear to have won a receptive audience from some lawmakers to their complaint that Leno was uninterested in working on less far-reaching reforms they might have been willing to consider. The Los Angeles Police Protective League knocked the termed-out lawmaker for preparing his measure “with no input from law enforcement.”

Law enforcement dead-set against asset seizure changes

Another high-profile reform is back for a second time after being rejected late in the 2015 session: SB443 would change state asset seizure rules to require that an individual be convicted of a crime before his or her assets could be seized by law enforcement. Sen. Holly Mitchell, D-Los Angeles, and Assemblyman David Hadley, R-Manhattan Beach, are leading the fight for the measure, saying current rules allow law enforcement to disregard due process in pursuit of the budget-boosting money they can get by cooperating in federal asset-seizure programs intended to thwart drug trafficking. California agencies got $86 million in 2015 from the U.S.

Mitchell and Hadley argue that the profit motive warps law enforcement’s judgment.

“When you get outside of [the Capitol] you get a general consensus that something like this in its broad form should not be happening in the United States,” Hadley told the Los Angeles Times.

Nevertheless, they made a significant change to their bill in response to past criticism: a section was added to allow seizure of assets from suspects who flee or can’t be found.

That hasn’t assuaged the coalition of police and prosecutors who thwarted the previous version of the bill in the Assembly in 2015 after it won easy passage in the Senate. Its strongest voices depict asset-seizure reform as “a message to drug dealers that the cost of doing business has gone down,” in the words of Ventura County District Attorney Gregory Totten.

SB443 was rejected by the Assembly 44-24 last September after passing the Senate 38-1 in June 2015. With 63 Assembly incumbents seeking re-election this November — some in districts that now appear more competitive because the “top two” primary change allows moderate candidates to make the general election ballot — the prospects for the measure don’t appear strong.

November ballot fills out with 17 measures…

Good morning, happy Friday and welcome to July!

Voters have been warned for a while to be prepared for a seemingly never-ending series of ballot measures, and on Thursday the secretary of state released the final list of what initiatives qualified.

Seventeen total. And while voters will read and learn more as the campaigns unfold between now and Election Day, we put together a quick reference guide for your reading and learning pleasure.

The guide includes an increased tobacco tax, a repeal of the death penalty, a sped-up death penalty process, gun control, Legislature transparency, plastic-bag ban referendum, and so much more.

CalWatchog has more. 

In other news:

• Lawmakers can still get measures on the November ballot, which one senator is hoping to do with a $3 billion bond for low-income housing. The Los Angeles Times has more. 
• The Legislature sent 12 gun-control bills to Gov. Jerry Brown today, where it’s unclear how many he’ll sign. But we’ll know shortly as he’s headed out on vacation afterwards. The Sacramento Bee has more. 
• The state’s controversial vaccination law takes effect today, and it’s causing some people to move away, writes The San Jose Mercury News. 
• The San Bernardino County Sun explains why CA regulators want more money to improve air quality.

Assembly:

• Gone ’til August.

Senate: 

• Gone ’til August.

Gov. Brown:

• Headed for a European vacation.

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New followers: @michaelkapp @ethnicphysician

Assembly speaker, transparency proponents spar

Good morning!

A war of words erupted in recent days between the proponents of a transparency ballot measure and Assembly Speaker Anthony Rendon, after members of the Legislature and legislative counsel dismissed the measure as full of “ambiguities” and introduced their own watered-down versions.

In a scathing letter, the Lakewood Democrat accused the measure’s proponents of allowing their “passion” for the measure “blind” them to the “shortcomings that may be obvious to others,” painting them as unwilling to work with the Legislature.

But Hold Politicians Accountable — the committee formed by former Republican legislator Sam Blakeslee and Republican donor Charles T. Munger, Jr., backing the California Legislative Transparency Act — fired back that the measure was “refined by three distinguished attorneys, including a Constitutional scholar,” and independent vetting by cosponsors, none of whom found fault.  

CalWatchdog has more. 

In other news:

• Sweeping reforms of the state’s embattled Public Utilities Commission were announced Monday, which, subject to legislative approval, “would give the attorney general new authority to enforce limitations on private communications between PUC personnel and utility executives — a key issue after an email scandal revealed numerous improper contacts,” writes The San Jose Mercury News.
• “In the wake of a scathing state audit released in March, the University of California mounted a $158,000 publicity campaign to dispute claims that its admissions policies had disadvantaged resident students,” writes The Sacramento Bee.
• “The two groups at the center of a violent Sacramento rally that left at least seven people with stab wounds on the Capitol grounds Sunday represent a marriage of the past and future of white supremacist organizations, experts and law enforcement officials said,” writes the Los Angeles Times.
• How bad is water management in California? The Capitol Weekly answers that question. 

Assembly:

• Full day of hearings. 

Senate: 

• Full day of hearings. 

Gov. Brown:

• No public events announced.

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New followers: @LostBookshop @KernQuirks

• Transparency duel
• Budget by midnight
• Welfare rule to be repealed
• Gun control advances
• Crisis looming for energy grid expansion?

Lawmakers will consider two transparency bills today in an effort to head off a ballot measure that would go to greater lengths.

The Constitutional Legislative Transparency Act, backed by Republican donor Charles T. Munger, Jr., is a constitutional amendment requiring the Legislature make available online the final version of a bill at least 72 hours prior to a vote on either the Assembly or Senate floor. The Legislature-introduced versions, however, would make this apply to only votes in the second house.

CalWatchdog has more. 

In other news: 

• Midnight is the deadline for the legislature to pass a budget, which should avoid any major drawn-out battles, writes The Sacramento Bee. Highlights of the budget deal include: “a hefty deposit into the state’s rainy day fund, $1.3 billion for new state office work (potentially including Capitol renovations) and the repeal of a rule denying welfare payments for new kids that lawmakers have attacked for years as cruel and counterproductive.”
• And about that welfare rule, “Gov. Jerry Brown has agreed to repeal the so-called maximum family grant policy that prohibits people from receiving increased welfare income if they have more children while receiving public assistance,” writes The San Jose Mercury News/AP. “The change would cost the state about $220 million a year.”
• The legislature advanced a dozen gun-control measures on Tuesday, reports the Los Angeles Times.
• Gov. Brown’s plans to expand California’s energy grid is being panned by critics who say “it isn’t so much about spreading the clean energy gospel but returning the state to the era of manipulated energy markets that led to the 2000-2001 energy crisis,” reports the Los Angeles Times.   

Assembly:

• In at 3 p.m. Several hearings.

Senate: 

• In at 3 p.m. Full slate of hearings, including Budget and Fiscal Review Committee.

Gov. Brown:

• No public events scheduled.

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New followers: @StopCEQAAbuse @xoneli

Transparency measure close to qualifying

Good morning! TGIF

Is it worth giving the public more time to consider major pieces of legislation if it also gives special interest groups more time to unravel the deal?

That’s the debate over a transparency measure that appears headed for the November ballot. It would require all bills be made available online in their final form at least 72 hours prior to a floor vote in either chamber of the Legislature.

It would also require all open legislative meetings to be recorded, with the videos posted online within 24 hours. It also allows individuals to record and share their own videos of open meetings.

CalWatchdog has more. 

In other news:

• Even though Trump is the likely GOP nominee for president, California Republicans are still split on the business tycoon. Congressman Darrell Issa of Vista has endorsed Trump, reports The San Diego Union-Tribune. Meanwhile, Assembly Republican Leader Chad Mayes has said not yet, according to the Los Angeles Times. And Capitol Weekly takes a look at how Republican Latinos feel about the candidate largely hated by Latinos. 
• It looks like the state Supreme Court might not block Gov. Jerry Brown’s proposed ballot measure to reduce prison sentences for some nonviolent offenders. The measure is being challenged on procedural grounds. The Sacramento Bee has more.  
• While Democratic leaders pat themselves on the back for raising the smoking and vaping age to 21, there are lots of disappointed and annoyed nicotine addicts who will now be either forced to quite or to get nicotine illegally. The Redding Searchlight has more. 
• Republican leaders in both chambers of the Legislature are seeking an additional $200 million in low-income dental services in Brown’s revised budget, which is set to be released next week. The Sacramento Bee has more.

Assembly:

• Gone ’til Monday. 

Senate:

• Gone ’til Monday. 

Gov. Brown:

• No public events scheduled.

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mflemingterp

New followers: @myolio @AFPPennsylvania

The initiative is a constitutional amendment requiring the Legislature to make available online the final version of a bill at least 72 hours prior to a vote on either the Assembly or Senate floor.

The measure would also require all open legislative meetings to be recorded, with the videos posted online with 24 hours. It also allows individuals to record and share their own videos of open meetings.  

“Voters are making it clear that they are fed up with special interest legislation being passed in the middle of the night, without time for input or careful consideration of how new laws impact them,” Sam Blakeslee, a former state senator and one of the measure’s proponents, said in a statement on Thursday. “We look forward to seeing these common sense reforms become a reality when all Californians have the opportunity to vote for this measure at the polls this November.”

The measure is backed by Republican donor Charles T. Munger Jr. and is supported by right-leaning groups like the California Chamber of Commerce, Howard Jarvis Taxpayers Association and the National Federation of Independent Business and the left-leaning California Common Cause.

The most outspoken and public opponent of the measure is Democratic political strategist Steven Maviglio, who argues it’s just another “tool” for special interests to unravel legislative deals at the last second. 

Maviglio points to the 2008 budget agreement, the 1959 Fair Housing Act, the 2006 climate change bill (AB32) and the 2014 water bond were all tough votes taken without 72 hours notice. This measure, he argues, would subject iffy legislators to attacks from special interest groups.

“Let’s not give special interests any more tools to prevent lawmakers from doing the right thing, whether it be unnecessary delays in enacting legislation or ways to demonize the Legislature,” wrote in The Sacramento Bee.