March 4 2014 12:00 AM

City stalls on open-government ballot initiative

A recent issue concerning government transparency in the city of San Diego has been defined largely not by open communication but reticence and obfuscation.

Citing concerns from the City Attorney's office, the City Council has swept aside a ballot initiative, sponsored by City Councilmember David Alvarez, aimed at increasing access to public records.

In response to concerns about a culture of secrecy at City Hall, Alvarez teamed up in November with government-transparency group CaliforniansAware to craft an initiative for the June ballot.

"Since I've served on the City Council, I have seen that, in many cases, the city has not lived up to the spirit of open-government laws," Alvarez said in an email. "There have been many times that the media or members of the public are denied access to information without cause."

The proposed measure would change San Diego's city charter to require the city to legally justify each of its individual policies in the municipal code for withholding documents from the public that exceed what's already exempted from disclosure under state or federal law. There are roughly 20 city policies that would need to be approved with legal findings, according to the Independent Budget Analyst's office. The council would need to approve these findings two years after adoption of the measure and then again readopt findings every three years.

However, the council, which had to approve the wording of the proposition for it to be placed on the ballot, never discussed the merits of the proposal. Instead, the council repeatedly directed CaliforniansAware to work on the proposition with the City Attorney's office, which in turn continuously rejected the draft language.

The proposal was then indefinitely tabled at a Feb. 25 City Council meeting after Councilmember Sherri Lightner expressed concern that the proposal might "overlap" with a statewide ballot initiative.

"It has recently come to light that there is a state initiative, Proposition 42, which will be on the June ballot and includes many of the proposals included in Councilmember Alvarez's initiative," she said at the meeting.

If Prop. 42 passes in June, the state will no longer be responsible for reimbursing local agencies for costs related to the Brown Act-the state's open-meetings law-or the California Public Records Act, according to the state Legislative Analyst's Office. At the same time, it would amend the state constitution to require that local governments continue to follow open-government laws.

The two ballot proposals have no "substantive overlap whatsoever," Terry Francke told the council. "It's essentially a financial policy decision. It's adds nothing to either the Brown Act or the Public Records Act. It subtracts nothing from the Brown Act or the Public Records Act."

In response to a CityBeat inquiry, the City Attorney's office said Prop. 42 overlapped with Alvarez's ballot initiative because his proposition could also give the state an excuse not to reimburse the city for its costs associated with public records.

"Proposition 42, which is already on the ballot, will also affect this, because its passage would eliminate the state's obligation to reimburse the city for certain state-mandated requirements," said Deputy City Attorney Catherine Bradley in an email. "Thus, there is concern about the overlap of the charter provisions and the state measure, and the effect they may have."

If state reimbursements were cut off by Prop. 42, it would render moot any similar concerns about the local initiative. So it's not clear how the two propositions could affect each other.

Mayor Kevin Faulconer, City Council President Todd Gloria and Councilmember Lightner all declined to comment for this story.

Starting in January, the City Attorney's office opposed the idea of having to legally justify withholding information from the public, citing concerns it could open the city up to litigation. What followed were several failed attempts by CaliforniansAware to get the City Attorney's office to help draft a proposition on which the council could vote to put on the ballot.

"From the start of the discussion about the proposed amendments to the city charter, the City Attorney raised questions but did not offer much in the way of solutions," Alvarez said in an email. "Two of the three reports written by the City Attorney were either released the day before or the day of a public hearing where the proposal was discussed, which allowed little to no time to address their ever-evolving concerns, which I think was by design."

About a month after first receiving the proposed language, the City Attorney's office provided a report on the ballot measure one day before the issue was docketed to be heard by the council's Economic Development and Intergovernmental Relations Committee.

The committee-which consists of Chair Lightner, Vice Chair Mark Kersey, Alvarez and Marti Emerald, as well as Faulconer's vacant council seat
-voted unanimously (including Faulconer, before he was sworn in as mayor) to have the City Attorney work with CaliforniansAware to solve concerns so that it could have an opportunity to be placed on the June ballot.

When the issue returned to the City Council on Feb. 10, the City Attorney's office released its second report just hours before the meeting.

Citing a need to review the report, Lightner made a motion to continue the issue to Feb. 25, when it would be indefinitely tabled.

Alvarez and Emerald voted against the continuance, as Lightner would not amend her motion to require the City Attorney's office to work with CaliforniansAware to produce a ballot proposal that could be voted on at the subsequent meeting.

"I can only support this continuance if we are guaranteed an ordinance back here on the 25th of February," Emerald said. "Otherwise, I can only believe that this memo coming at the last minute is a stalling tactic."

During the Feb. 25 council meeting, both Gloria and Faulconer declined to make any comments. However, Councilmember Lorie Zapf pointed out the elephant in the room.

"Changes to the city charter are permanent and very difficult to change quickly or often," she said. "We've seen that time and again in the last few years that I've been here. I believe doing this as an ordinance rather than a charter amendment, we can still achieve the same goal without having our hands tied or be ensnared in any legal nightmares should there be any unintended consequences that are locked into a charter."

Both Alvarez and Emerald quickly said they would support tabling the ballot initiative if the council would support an open-government city ordinance, which is far easier to tweak than a charter amendment. 

However, that idea got no traction.

"There are a lot of very good goals in this proposal, but I think there are some pretty key questions that Ms. Lightner raised that I'd like to see answered," said Mark Kersey.

With that, the issue was tabled at least until after the June ballot, and the City Council completed what had amounted to three months of skirting any sort of substantive debate on Alvarez's open-government-initiative proposal.

Correction: An earlier version of this story stated that the City Attorney's office had no written contact with CaliforniansAware between mid-January and Feb. 10. That was inaccurate, and we regret the mistake.


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