In the wake of years of FBI probes and ongoing scandals, Proposition C aims to fight corruption in San Francisco by creating a local inspector general position for investigating government fraud, waste and abuse of city resources. 

Listen to a summary of what this ballot measure would do.

Support

The measure’s supporters hope it would let San Francisco lead the effort to root out bad actors at City Hall.

“Rather than having the FBI get to the bottom of our dirty laundry, we can have our own city do it,” said Aaron Peskin, president of the Board of Supervisors, at a July public meeting. Peskin wrote the measure and is running for mayor. 

Proponents argue that the measure would improve government accountability, increasing efficiency and saving taxpayers money. Its backers include all members of the Board of Supervisors, former Controller Ed Harrington and California Assemblymember Phil Ting, among other current and former city officials. 

Opposition

The measure’s opponents include Larry Marso, an official opponent of multiple measures on the San Francisco ballot, and Jay Donde, president of the Briones Society, a local Republican group. Marso argued that voters should fight corruption by electing better politicians, rather than by creating more bureaucracy with a new position. Donde said that because the mayor and Board of Supervisors would be involved in approving the inspector general’s appointment, that person would lack the independence to hold those officials accountable and effectively fight corruption.

Local groups TogetherSF Action and GrowSF also oppose the measure. Both are backed by tech and venture capital and aim to reshape local politics, in part by giving the mayor more power. Proposition C concentrates too much power in the inspector general position, TogetherSF Action has said. 

The San Francisco Democratic Party also opposes the measure. The party’s leadership shifted in March away from the political left and toward the center.

What it would do

If passed, Proposition C would create an inspector general position within the controller’s office, which oversees the city’s finances. The inspector general could lead investigations into potential violations of city law and, alongside the city services auditor, review complaints from citizens and whistleblowers. The inspector general would coordinate with and refer complaints to the city attorney, district attorney, Ethics Commission and Department of Human Resources. 

The inspector general would publish reports on their investigations twice per year.

To enable this person to carry out their duties, Proposition C would empower the controller’s office to issue subpoenas to lobbyists, people and companies contracting with the city, and recipients of city permits or services. The controller’s office could also execute search warrants.

The controller would appoint the inspector general with approval from the mayor and a majority of the Board of Supervisors. 

Implementing Proposition C would cost $725,000 to $775,000 annually to cover salaries for the inspector general and two staff members, according to an analysis by City Controller Greg Wagner. The city would likely incur additional costs that varied each year, for legal services like executing subpoenas and preparing search warrants. 

History and context

At least 18 people, including city officials and private contractors, real estate brokers and construction executives, have been convicted in the last five years on charges including bribery, money laundering and fraud, Mission Local reported.

That includes Mohammed Nuru, former director of the Department of Public Works, who was sentenced to seven years in prison after pleading guilty to wire fraud. Nuru received bribes — like a $40,000 Rolex watch from a city contractor and upward of $1 million from a former Recology employee — and used the money to pay for lavish parties. 

Peskin has called the inspector general model the gold standard of municipal public integrity, and noted that local governments across the country have them but “San Francisco is one of the only major cities that does not and is arguably the city that needs it the most.” 

New York, Chicago, Philadelphia and Atlanta are among the cities with inspectors general. 

Campaign finance

As of Oct. 7, the Ethics Commission had reported no official campaign spending for or against the measure.  

Votes needed to pass

Proposition C requires a simple majority of “yes” votes to pass.

Click here to return to our full voter guide.

Editor’s note (10/10/2024): This article has been corrected to accurately convey Jay Donde’s position on Proposition C.

The post Proposition C — New Inspector General Would Fight Local Corruption appeared first on San Francisco Public Press.

Responding to requests can be time consuming, expensive and legally risky, said award-winning journalist Miranda Spivack, author of the forthcoming book, “Backroom Deals in Our Backyards: How Government Secrecy Harms Our Communities and the Local Heroes Fighting Back.”

And, she added, sometimes the people with the information simply don’t know what the law requires them to disclose.

Spivack shared her thoughts in a recent interview with Lila LaHood, executive director of the San Francisco Public Press, at an event where they discussed government transparency. This excerpt from their conversation has been edited for length and clarity.

In this episode of “Civic Presnts,” hear LaHood’s full interview with Miranda Spivack at a July 11 event that featured a question-and-answer session with the audience.

You have said that there is evidence that points to secrecy in state and local government being on the rise. How do we know this, and what explains this increase?

Starting with 9/11 (the 2001 terrorist attacks on the U.S.), there was a big retrenchment in government transparency at the local level. 

From that time on, there is a lot of evidence that governments are just not living up to state public records laws. It’s inconvenient. It’s costly. It’s everything from they don’t know where the information is, to they haven’t digitized their records. 

When a state or local agency says it doesn’t have or doesn’t want to give up information, what are the most common reasons you hear?

There are a couple I think are occurring with greater frequency. One of them is the use of the “trade secrets exemption,” which is all over the country. It’s in the federal FOIA (Freedom of Information Act) law, too, and allows private contractors to say “that’s a proprietary piece of information,” that our competitors are going to be tipped off on. 

There are sometimes security and privacy issues. The “investigative exemption” is used a lot, where a government agency will say, “this is still under investigation.” But, of course, investigations do not go on for five years, and documents that are older should be available. But they want to charge you a lot of money for this stuff. And that’s a big deterrent.

Watch the full interview and audience questions.

Can you point to any places where the system for getting access to public records works really well? Conversely, where have you run into the most obstacles? 

It’s very erratic, even within a state. You can have government employees who really do want to be helpful. I think places that have digitized their documents have a better chance of putting the information up online. You shouldn’t have to file a public records request just to find out who the contractors are in San Francisco to cross check them with public finance and campaign finance reports.

How does our government’s ability to keep and record large quantities of information affect its willingness to provide access to that information? 

Around the country, and probably within California, smaller governments are not well funded. Legislatures don’t necessarily fund their own state agencies very well. So, you know, there is a bona fide issue that I have to acknowledge, which is that this is not an inexpensive process — although it should be, given that we have all this technology. 

I’ll tell you that the email searches are very hard. They don’t know who’s got the emails. They don’t know where it is. Is it on the main server? Is it on somebody’s laptop? Those are really hard issues.

Should governments retain all their digital files forever? Or might it make sense to clear certain things out after a certain period of time?

Probably five years is a good measure for most records. I think law enforcement records have to be kept much longer. A lot of it has to do with who has the server. Does the city own the server? Is it outsourced to some private contractor? What are they charging for it? I think those are all real considerations. 

What do you think motivates people to withhold information? 

So, there is a fellow I know in Washington, Tom Susman, who actually helped write the amendments to the Freedom of Information Act in the 1970s. He says the mindset is, “when in doubt, don’t give it out.”

In some states, you can be sued as a government employee if you give out information that you shouldn’t give out. There’s a big fear factor.

If you look at police agencies, the culture is, “We’re a paramilitary organization, and that means you cannot have the insight into what we’re doing.”

Your book is about people who were trying to improve their communities and, in the process, took on governments that were withholding public information. How did you decide which stories to include in the book?

The book has five profiles of different people from around the country whom I’m calling accidental activists. They don’t get into this because they want to. They really get into this because they have to. 

These stories just spoke to me. As a journalist, it’s hard to do this work, and so I was very interested to see how novices would go about doing this. Their success and failures were really instructive, because I think state and local government is really where people’s lives are most clearly affected.

One of the stories is about poisoned drinking water. Another is toxic chemicals in firefighter gear. There’s a story about dangerous roads. 

Can you explain in a nutshell why government agencies wouldn’t want people to know which roads were the most dangerous?

Well, you’re being logical. Congress passed a law a couple of decades ago in response to state governments who were worried that they would get sued if they had a list of the top 10 worst roads in their state that they wanted to apply for federal funds for. So, they know where the problems are, but they’re not fixing them and they were very worried that they would get sued for negligence. 

Can you talk a little bit about why civic engagement matters on the local level, especially in this era of hyperpolarization? 

One of the biggest problems is that people don’t trust the government. They think the government is hiding stuff. Governments, I think state and local in particular, can do a lot to be more open about what their process is, what they’re doing, who they’re working with, who the mayor is meeting with. What’s the harm in that? 

And yet, there’s this sort of a defensive crouch. I think in a lot of governments, there’s a lot of fear. There are issues that I think are legitimate where politicians really feel that they are being hounded unnecessarily. I think the press has to be careful about what you go after and what you make a big issue about. But there’s really a nexus between transparency and government and civic engagement, and keeping our democratic system “small d” democratic.

Wondering which state governments are the most responsive to records requests? Check out this interactive tool by MuckRock, a news site focused on government transparency and accountability.

This article is part of U.S. Democracy Day, a nationwide collaborative on Sept. 15, the International Day of Democracy, in which news organizations cover how democracy works and the threats it faces. To learn more, visit usdemocracyday.org.

The post Why Do Governments Keep Information From the Public? A Veteran Journalist Weighs In appeared first on San Francisco Public Press.

That’s the focus of our July 11 event, “What You Don’t Know About Local Government Can Hurt You.” San Francisco Public Press Executive Director Lila LaHood will discuss government secrecy with Miranda Spivack, an expert on the topic and longtime investigative reporter and editor, formerly of The Washington Post.

Join us for this eye-opening conversation! Buy tickets here.

Ticket prices:

• $10 to $35 sliding scale for the main event at 6 p.m.
• $250 for pre-event fundraiser reception at 5 p.m.

No one will be turned away from the main event for lack of funds. If you’d like to come, but expect to have trouble paying, email us at community@sfpublicpress for a sponsored ticket.

Spivack is the author of the forthcoming book, “Backroom Deals in Our Backyards: How Government Secrecy Harms our Communities — and the Local Heroes Fighting Back,” scheduled to be published in 2025 by New Press.

During and after her 20 years at The Washington Post, Spivack specialized in stories about how government accountability and transparency fall short. Her reporting led to changes in the way that some jurisdictions worked with real estate developers and government contractors. She continues to write about development trends for The New York Times.

Her series “State Secrets,” for Reveal from The Center for Investigative Reporting, was honored with the Sunshine Award from the Society of Professional Journalists.

The post Join Us to Learn How Government Secrecy Can Hurt You appeared first on San Francisco Public Press.

Proposition D would amend the city’s Campaign and Governmental Conduct Code by expanding the kinds of gifts that city officials are prohibited from accepting. It also expands existing rules to bar people who have tried to influence city officials in the past or who have business with city departments from giving gifts.

The proposition was created in response to ongoing bribery, fraud and money laundering charges that involve individuals across several departments. Another significant change would allow the city to fine officials who fail to make required disclosures about any relationship that may represent a conflict of interest, and impose penalties on lobbyists, permit consultants and third parties who pass gifts to officials.

The measure also creates additional ethics training requirements for employees with decision-making authority, expanding the training pool to include more than 4,000 decision-makers in local government. It would remove exceptions for what is considered a “gift” and standardize rules around non-work activities as well as disclosure requirements for gifts given to city departments.

The proposition requires more than 50% affirmative votes to go into effect. A “yes” vote means you support the changes to gift regulations and additional trainings. A “no” vote means you want bribery regulations to remain the same.

If passed, the changes would be implemented about six months after the election. Future changes to the ethics code would need to be passed by voters, or by supermajorities of the Ethics Commission and Board of Supervisors if voters approve the measure.

The main proponent of the measure is the San Francisco Ethics Commission, which voted unanimously to endorse it.

“Our city residents and dedicated public servants alike expect and deserve a city government that works to promote the public good, not personal interests,” said Theis Finlev, the commission’s vice chair. “Reformed conflict of interest laws and increased training for city officials can help ensure that governmental decisions are made on a fair and impartial basis.”

Opponents of the measure include Eve Del Castello, president of the Republican Forum of San Francisco, and Larry Marso, an attorney and tech executive. Marso wrote that Proposition D is a bureaucratic measure “to justify out-of-control spending and bloated staff.”

The Budget and Legislative Analyst’s Office estimates that the measure would cost $43,000 upfront and an additional $25,000 annually for software related to implementing new trainings and tracking gift disclosures. This represents a small fraction of the commission’s annual budget, which is about $788,000 for the 2023-24 fiscal year.

No paid remarks in support or opposition were submitted.

The post Proposition D — Changes to Local Ethics Laws appeared first on San Francisco Public Press.

In a unanimous decision issued Friday, a three-judge panel of the 1st District Court of Appeal in San Francisco said the commission’s lengthy and open-ended administrative procedures violate the strict timelines of the California Public Records Act.

The ruling could bring more accountability to the commission, which has faced criticism of excessive secrecy and ineffectiveness, advocates said. It regulates corporations ranging from utilities to ride-hailing services.

The commission had claimed that a century-old law — intended to prevent abusive litigation by railroad barons fighting regulations — required people requesting records to undergo a convoluted administrative process before they could sue the agency to compel the release of public records.

Citing that section of the Public Utilities Code, the agency over the years has blocked requests for records on its handling of disasters such as Pacific Gas & Electric Co.’s Camp fire, the failed San Onofre nuclear power plant and thousands of collisions and assaults on Uber and Lyft rides.

But the court roundly rejected the agency’s argument, holding that the procedures set forth in the utilities code “do not apply to the PRA,” or Public Records Act.

“[T]he procedural scheme, and specifically the rehearing process, set forth in the Public Utilities Code is not only entirely different than, it is at odds with, the procedural provisions of the PRA and the Legislature’s intent in enacting them,” the court said.

More widely, the court said “any” administrative process that state and local agencies adopt to handle records requests “must comply with the language and purpose of the PRA.” If agencies fail to complete their internal reviews within the deadlines of the records act, it said, requesters may seek court review without further delay.

But the court also held that the specific records requested in this case — correspondence between the commission and the governor’s office concerning the devastating 2018 Camp fire — were confidential and need not be released.

Citing prior holdings on similar records, the court said releasing the governor’s correspondence with the commission would interfere with the ability of government officials to speak frankly.

How the Public Utilities Commission circumvents the California Public Records Act

David Snyder, executive director of the First Amendment Coalition, a nonpartisan organization that advocates for government transparency, said that although the court found the governor’s correspondence to be confidential, the ruling was an important advance.

“The decision is a real win for transparency,” said Snyder, whose organization joined with the Associated Press and the Center for Investigative Reporting in supporting the lawsuit. They had filed a brief in the case that said the commission has a history of “unlawful delays” in responding to requests.

“The court has made clear that an agency’s administrative procedures can’t trump the Public Records Act, and that an agency like the PUC cannot indefinitely delay processing a public records request,” Snyder said.

Terrie Prosper, the commission’s director of news and outreach, and Christofer Nolan, a lawyer representing the agency in the case, did not respond to emails seeking comment.

Steve Zansberg, the Denver attorney who filed the lawsuit on behalf of television station ABC-10 in Sacramento and its reporter Brandon Rittiman, said his clients were gratified that the decision will make it easier for people to seek judicial review in cases where the agency delays or denies their requests.

“No one should have to wait, as did my clients, for months and months to be able to ask a court to review that agency’s decision to deny records access,” he said in a statement.

As the court put it, “The delay that occurred here was egregious by any measure.”

On Nov. 19, 2020, Rittiman requested copies of communications between Marybel Batjer, president of the commission at the time, and Gov. Gavin Newsom’s office concerning the Camp fire. The Butte County blaze destroyed 18,000 structures and killed at least 85 people. PG&E pleaded guilty to 84 counts of involuntary manslaughter and one of causing the fire.

Rittiman was investigating why the agency waived a $200-million fine against PG&E and whether the governor’s office influenced that decision.

The agency said the records were confidential; Rittiman filed an administrative appeal. When seven months had passed and the agency had made no decision, Rittiman sued, the court noted.

The agency then sought to get his case dismissed because he had not completed its administrative process, but the state Supreme Court ordered a review.

The commission has long maintained that those requesting records could not sue it for failing to comply with the Public Records Act until they underwent two internal administrative appeals of their claim. As its legal basis, the agency cited the 100-year-old law intended to prevent abusive litigation by railroad interests.

But as the lawsuit noted, the agency’s appeals system provided no deadline, allowing it to indefinitely delay its decisions on whether to release records, despite the Act’s requirement that agencies decide within 24 days. In this way, the agency prevented people from having a court independently review their cases, even as their requests languished at the agency.

Enacted in 1968, the California Public Records Act is modeled on the federal Freedom of Information Act. The state law declares that “access to information concerning the conduct of the people’s business is a fundamental and necessary right.”

It says all state agencies “shall” determine whether the requested records are releasable within 24 days, immediately notify the requester and “promptly” release them. If an agency withholds records, it says, the requester may seek court review “at the earliest possible time.”

Voters reinforced the law in 2004 when they overwhelmingly passed Proposition 59, which embedded similar words in the state Constitution.

The commission, too, has roots in a voter-backed constitutional amendment. The agency was created in 1879 as the Railroad Commission but was corrupted by the Southern Pacific Railroad, says a history written by commission staff. In 1911, voters following Gov. Hiram Johnson’s reform platform granted the agency greater autonomy with the intent of insulating it from undue influences. Its authority was extended to other utilities, and in 1946 it was renamed.

The agency is led by five commissioners appointed by the governor to six-year terms. They oversee 1,402 employees and a $1.1-billion budget.

The commission’s policy on records requests — known as General Order 66-D — says requesters must complete the internal administrative reviews before they can seek judicial review of the agency’s withholding of records.

But the court concluded that just as the Legislature had used its “plenary” power to pass the public utilities code of the early 20th century, it used the same sweeping authority in 1968 to pass the records act, which it clearly intended to apply to the commission.

The court declared that “the PRA fixes the bounds” of the commission’s authority to adopt internal procedures for records requests. The agency’s open-ended process, it said, “cannot be squared” with the records act’s much tighter timeframe.

“In short, the PRA calls for the handling of record requests and the resolution of disputes over such requests with alacrity,” the panel said, and permits requesters to sue to enforce the act.

“The PUC has for so many years operated in a black box,” said the First Amendment Coalition’s Snyder. “The public has not had as much access to its inner workings. Hopefully this will open the door, at least a bit, to greater transparency and, thus, greater accountability for the Public Utilities Commission.”

For more coverage on this topic, see Ride Hailing’s Dark Data. This story was produced in partnership with the McGraw Center for Business Journalism at the Craig Newmark Graduate School of Journalism at the City University of New York. Support also came from the Fund for Investigative Journalism.

The post Court Says California Utilities Commission Must Obey State Public Records Act appeared first on San Francisco Public Press.

Despite vows to become more transparent, the California Public Utilities Commission has systematically violated the public’s right to know about its handling of deadly disasters and corporate scandals, according to court records and First Amendment attorneys.

Applying century-old laws meant to fight corruption, the commission has effectively limited court enforcement of the state’s public records act. But a state appeals court on May 3 is hearing a lawsuit challenging that practice and could bring more transparency to the commission. 

David Snyder, executive director of the First Amendment Coalition, a nonpartisan organization dedicated to advancing government transparency that is supporting the lawsuit, said it’s “absolutely crucial” that people have timely court review of agency denials of their requests for information.

“Administrative agencies should not and cannot have the final say on whether the Public Records Act has been followed,” said Snyder, a lawyer and former journalist. “That’s the proverbial fox guarding the henhouse.”

Citing special powers granted no other state agency, the commission has obstructed requests for records on its handling of catastrophes such as Pacific Gas & Electric Co.’s Camp Fire, the failed San Onofre nuclear power plant and thousands of collisions and assaults on Uber and Lyft rides, a San Francisco Public Press review of court cases and state documents found.

Those powers were intended to fight the corrupting influence of the railroad barons, but the commission has deployed them to undercut the California Public Records Act, meant to promote government transparency and accountability, court records show.

The Legislature and the governor’s office have not resolved the conflict between these historic reforms, legislative records show, despite incidents revealing that secrecy at the agency has contributed to inefficiency and corruption.

Terrie Prosper, the commission’s director of news and outreach, did not respond to several requests for comment for this story. 

The agency has denied that its procedures violate the public records act’s requirements that it release records promptly. In adopting its current policy in 2018, it called such allegations “simply speculative” and cited “our longstanding practices supporting disclosure and our progressive development of rules that will promote public access to records in our possession.”

But over the objections of the agency’s lawyers, the state Supreme Court in November reinstated a lawsuit challenging its refusal to release records concerning communications between Gov. Gavin Newsom’s office and the commission about the 2018 Camp Fire — the deadliest wildfire in state history — and the agency’s decision to waive a $200 million penalty against PG&E.

That case, to be heard in the state’s First District Court of Appeal, highlights the hurdles facing anyone seeking records from the powerful agency, which regulates power, water, telephone, transportation and other utilities that affect the lives of all Californians. It is responsible for ensuring that utility services are fair and safe.

The lawsuit was brought by television station ABC-10 in Sacramento and its reporter Brandon Rittiman, whose award-winning coverage of the Camp Fire has garnered national attention.

Steve Zansberg, the station’s Denver-based attorney, said in court records that the commission has a “practice of imposing unreasonable and unlawful roadblocks” to public records.

According to Zansberg, the case poses a fundamental question: Is the commission above the state law that requires all agencies to promptly release records about how they conduct public business?

“We’re trying to hold the PUC accountable,” he said in an interview. “You can’t do that if you don’t have access to the records that show what’s going on behind the scenes.”

Christofer Nolan, one of the lawyers representing the agency in the case, did not respond to an email seeking comment. 

The lawsuit has drawn support from the First Amendment Coalition, based in San Rafael; the Associated Press; and the Center for Investigative Reporting, the nation’s oldest nonprofit investigative newsroom.

Matthew Cate, the Washington, D.C., attorney who filed a brief on behalf of the organizations, wrote that the commission has a history of “unlawful delays” in responding to requests and that its practices could encourage other agencies to erect similar obstacles to public information.

“The PUC has created a set of procedures completely contrary to the letter and spirit of the CPRA and the constitutional right of access to public records,” Cate wrote, referring to the state public records act.

A gauntlet of obstacles

A review of court cases, commission filings, legislative history and interviews with attorneys, in addition to this reporter’s experience as a requester, found a gauntlet of obstacles that disadvantage requesters and favor agency denials:

• The agency can take months or years to release records. Between Jan. 1, 2017 and April 4, 2022, the agency received 3,115 requests and took an average of 58 days to close them, statistics it released under the public records act show. Five requests submitted by the Public Press for records concerning thousands of ride-hailing safety incidents have taken between six and 27 months.
• The commission tends to interpret the scope of requested records narrowly, while applying exemptions from disclosure broadly, effectively reducing public access to information.
• With other state agencies, a person may directly seek independent court review of a denied request. But under commission rules, they must first file an administrative appeal and then apply for a rehearing, a far more cumbersome and lengthy process.
• The commission requires requesters to appeal within 10 days or lose their right to challenge its denial, compared with 90 days allowed under the federal Freedom of Information Act.
• Agency rules provide no deadline for the commission to resolve appeals or rehearings, and the agency asserts that requesters may not seek court review until it has, effectively holding their requests in limbo. Federal law, by contrast, allows requesters to sue as early as 20 working days after appealing.
• With all other California agencies, requesters may seek review in local superior court. But for the commission they may seek review only in state appeals courts or the California Supreme Court, forums that are more complicated and costly, effectively deterring independent review of denials.

And though the public records act requires agencies to adopt written guidelines that “reflect the intention of the Legislature to make the records accessible” and post them in “a conspicuous public place,” the commission’s rules are spread piecemeal across four parts of its website and are so labyrinthine that they even confound experienced attorneys.

Clicking on the FAQ link at the bottom of the agency’s request form returns a page that says “Nothing here yet! Check back soon.” A separate search of the website does return a functional FAQ page, but neither it nor the “Requester Resources” page mentions appeals or rehearings.

A unique agency

The commission has said in official filings that it is dedicated to transparency but must balance that goal with its legal duty to maintain confidentiality of trade secrets and personal data contained in filings it receives from companies.

The commission has noted that no other agency in the state is required to follow both the public records act and the Public Utilities Code, which says any employee who releases confidential information submitted by a utility, unless ordered to by the commission, is subject to a misdemeanor charge. This legal requirement “is unique to the Commission and thus analogy to other state agencies or local governments’ processes,” it said, are “inapplicable.”

The agency says it adopted its system of administrative appeal and rehearing to give requesters a chance to show records should be released while allowing utilities a chance to show the information is truly confidential before the commissioners make a final decision.

However, attorneys for requesters noted that employees of other agencies also face criminal penalties for improperly releasing information, such as criminal histories or medical records.

And whatever internal process an agency creates, they say, it may not violate the public records act’s clear deadlines. 

Enacted in 1968, the California Public Records Act is modeled on the federal Freedom of Information Act. The state law declares that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”

It says all state agencies “shall” determine whether a request seeks copies of releasable records within 24 days of receipt, immediately notify the requester of that determination and “promptly” release public records. If an agency withholds records, requesters may seek court review “at the earliest possible time.”

Voters bolstered the law in 2004 when they overwhelmingly passed Proposition 59, which embedded these words in the state Constitution: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”

Like the public records act, the commission has roots in a voter-backed constitutional amendment. The agency was created as the Railroad Commission in 1879 but was corrupted by the Southern Pacific Railroad, which dominated state politics, according to a history written by commission staff.

In 1911, voters propelled by Gov. Hiram Johnson’s reform platform granted the agency greater autonomy with the intent of preventing corruption. Its authority was extended to other utilities and in 1946 it received its current name. It is led by five commissioners appointed by the governor for six-year terms. They oversee 1,402 employees and a $1.1 billion budget.

San Bruno fights secrecy

The 2010 explosion of a PG&E gas pipeline in San Bruno killed eight residents, injured dozens more and destroyed or damaged scores of homes. It also revealed what San Bruno City Attorney Marc Zafferano described in an interview as a “roadblock at every turn” as he sought information from the commission.

San Bruno officials had grown concerned that PG&E and agency staff were holding secret meetings that would result in an unfairly light penalty against the utility. To find out, the city requested communications with PG&E executives, but the agency largely failed to respond, Zafferano said.

So the city filed an administrative appeal — only to discover agency rules specified no deadline for its decision.

After more delays, the city sued in San Francisco Superior Court only to hit another hurdle: the public utilities code barred lawsuits against the commission in superior court.

Originally intended to stop industrial titans from using diverse courts to undermine commission rulings, the utilities code allowed lawsuits against agency regulatory decisions only in state Supreme Court.

Efforts to expand judicial review of the commission’s decisions over the years have variously met with opposition from its leadership and several governors, who saw those efforts as an impediment to both regulation and business.

In 1991 Gov. Pete Wilson vetoed a bill that would have allowed such lawsuits in the state Court of Appeal.

“At this critical state in its economic and social evolution, California can ill afford the delay, expense and uncertainty invited by enlarged predicates for judicial review contained in this bill,” he said.

Only in 1996 was the law changed to allow lawsuits challenging limited kinds of commission decisions in the appeals court — a measure the commission opposed until it was narrowed.

In 2015, the Legislature passed a bill to let superior courts hear public records lawsuits against the agency, but Gov. Jerry Brown vetoed it, saying he supported more transparency but was concerned such a change “will only result in increased litigation and likely delay commission decision-making.”

In 2017, an early version of a reform bill would have allowed public records lawsuits against the agency to proceed in Superior Court. The provision had backing from the California Newspaper Publishers Association, but it was dropped from the final bill.

The commission thus moved to dismiss San Bruno’s lawsuit from superior court for lack of jurisdiction. But the city negotiated a settlement in which the agency released records, spurring PG&E to release many more.

The records confirmed there were improper private communications between the agency and utility, for which PG&E agreed to pay $97.5 million in penalties. It also was fined $1.6 billion for violating safety standards.

As part of the settlement, the commission reviewed its public records procedures. San Bruno urged the agency to adopt deadlines to end the “potentially endless appeals process that it completely controls.” The city also recommended letting requesters challenge agency delays and denials of requests in superior courts.

These obstacles, Zafferano told the commission, “will likely continue to deter all but the most determined and well-funded participants from obtaining the prompt access to public records that all public agencies are required to provide.”

But in a 2018 order the agency dismissed such concerns as “speculative” and adopted its current policy, known as General Order 66-D.

Blocked records on reactor leak

Michael Aguirre, a former federal prosecutor in San Diego, ran into similar barriers when he sought records on the 2012 shutdown of the San Onofre nuclear station, at which engineers had discovered a radioactive leak.

Aguirre represented utility customers challenging the commission’s decision that customers should pay $3.3 billion of the $4.7 billion cost of the failed reactor.

In January 2015, he requested written communications between the commission and Gov. Brown’s office regarding the reactor. The agency released about 900 pages but withheld more than 100 records.

Aguirre sued the commission in San Francisco Superior Court for violating the records act. The agency asked the court to dismiss the case on the ground that it lacked jurisdiction — but Superior Court Judge Ernest Goldsmith disagreed. 

Goldsmith found “there is a violation of the Public Records Act by withholding public records.” And since the agency had made clear it would not release the records, he ruled in 2016, requiring Aguirre to exhaust his administrative remedies by appealing would be “futile.”

But the state appeals court overruled Goldsmith, saying the lower court lacked jurisdiction.

This forced Aguirre to start over. Later that year, he requested copies of communications between the commission and Brown’s office about San Onofre.

The agency denied his request 11 days later, claiming the records were exempt because they concerned the governor’s communications or the commission’s deliberative process.

Seven days later, Aguirre filed an administrative appeal. Four months after that, the commissioners affirmed the denial. 

This time, Aguirre sued the agency in state appeals court. He contended that the governor’s office might have secretly influenced the agency’s decision to let the utility pass costs to customers, and the public had a right to know.

The agency, he said, had “engaged in extreme delay tactics in violation of the prompt determination requirements of the Public Records Act.”

The commission denied Aguirre’s claims and asked the court to dismiss his lawsuit because he had not applied for a rehearing until after he sued. Since that application was pending, it said, the court had no jurisdiction.

The appeals court did not address whether the commission’s appeals procedures violated the public records act. But in June 2018, it ruled that the agency had improperly withheld records and ordered their release.

In a separate federal lawsuit, Aguirre and his law partner, Maria Severson, won commission approval later that year of a revised decision that saved ratepayers $775 million on the plant closure.

“While the PUC has feigned interest in greater transparency, it actually has historically worked to thwart disclosure of public records,” Severson said in an interview. “You are on the slowest possible track if you are trying to get information to the public in a timely way.”

Fighting release of fire records

In recent years, the commission has revised some policies to make more information public. It has posted more documents online. And it no longer lets companies simply stamp their filings “confidential,” now requiring specific justifications for secrecy claims.

But as Sacramento TV reporter Rittiman found, the agency still poses obstacles to records requests.

The Camp Fire in Butte County burned 153,336 acres, destroyed 18,000 structures and killed at least 85 people. PG&E eventually pleaded guilty to 84 counts of involuntary manslaughter and one of illegally setting the fire, caused by its faulty power line.

Rittiman believed there was a public interest in knowing why the agency waived a $200 million fine against PG&E and whether the governor’s office influenced that decision.

On Nov. 19, 2020, the ABC-10 special projects reporter filed four requests seeking records of communications between then-commission president Marybel Batjer and Gov. Newsom’s office.

Eleven days later, the agency told Rittiman that governor’s communications are confidential and closed his requests.

Rittiman appealed. Under agency rules, its legal division is supposed to prepare a draft resolution deciding the appeal, then send it to the commissioners for public review and comment. The resolution is scheduled for a hearing and vote. If requesters disagree with that decision, they may apply for a rehearing.

Requesters may not seek court review of the agency’s decision, it claims, until the commission decides the rehearing and requesters have “exhausted their administrative remedies.”

In Rittiman’s case, the agency did not schedule a hearing on his appeal, leaving his request hanging.

Four months later, on April 14, 2021, Zansberg wrote the commission saying that unless it held a hearing at its next meeting, Rittiman would consider its inaction to be a “constructive denial” of his appeal and seek court review.

Zansberg also challenged the agency’s claim that the records were exempt from release because they were governor’s communications. He noted that the state appeals court had said in two other rulings that the exemption applied only to communications sent by correspondents outside of government, not intra-governmental ones like those Rittiman sought.

Still, no hearing was set. On June 14, Zansberg filed Rittiman’s lawsuit against the commission in state appeals court. He posed two key questions: Is the agency subject to the time limits in the public records act? Or can it simply ignore requests, indefinitely, and thereby permanently avoid judicial review?

But the agency tried repeatedly to get the case thrown out of court before any judge could answer those questions.

It argued that the court had no jurisdiction because Rittiman’s administrative appeal was pending. The appeals court agreed, citing the public utilities code that says requesters must exhaust administrative remedies before suing.

Zansberg asked the state Supreme Court to review the case. The court ordered the commission to submit an update on his appeal.

On Sept. 27, the agency said it expected to vote on his administrative appeal in November.

Moreover, the agency’s lawyers declared, the high court itself had no jurisdiction in the case because Rittiman had “not waited for the Commission to prepare a resolution of the matter.”

Nevertheless, the court on Oct. 20 granted Rittiman’s motion for review and directed the appeals court to order the agency to show why it should not promptly release the Camp Fire records.

The commission once again told the appeals justices they had no jurisdiction. Only now it said that was because Rittiman had failed to apply for a rehearing. (On Nov. 19, 2021, exactly a year after the original records request was filed, the commission had finally denied his initial appeal.)

Zansberg replied that the Supreme Court already rejected the jurisdiction claim by ordering the appeals court to review the case. And besides, he had applied for a rehearing, emailing it to three agency attorneys a month earlier.

Commission attorney Nolan admitted to the court that Zansberg had emailed the application— but now asserted it was invalid because he had not followed agency rules for electronically filing documents.

As a result, Nolan said, the court still had no jurisdiction to hear the case.

To Zansberg, it seemed that the commission was turning the legal machinery voters had given it to fight corruption against a reporter who was trying to expose it.

“If this type of games-playing and procedural rigamarole was what the legislature contemplated as fulfilling an agency’s duties,” he said in an email, “then the public records act might as well be stricken from California’s Government Code.”

The post How California Utilities Commission Undermines the Public Records Act appeared first on San Francisco Public Press.

Freedom of information advocates and journalists have criticized a number of instances in which law enforcement officers arrested, detained or even injured reporters at work covering protests in California. In response, state Sen. Mike McGuire authored SB 98, which aims to codify journalists’ right to access demonstrations. As the proposal makes its way through the Legislature, David Snyder, executive director of the First Amendment Coalition, discusses the context for the bill and some of the ways in which current protections for journalists fall short.

A segment from our radio show and podcast, “Civic.” Listen at 8 a.m. and 6 p.m. Tuesdays and Thursdays at 102.5 FM in San Francisco, or online at ksfp.fm, and subscribe on Apple, Google, Spotify or Stitcher. 

The post After Journalist Arrests, State Legislation Aims to Protect Reporter Access to Protests appeared first on San Francisco Public Press.

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Skinner’s first expansion bill was SB 776, which won bipartisan approval in the Assembly, but was not voted on by the Senate before the session’s constitutional deadline. At the end of last year, Skinner re-introduced the expansion, now known as SB16. 

When she first joined the Legislature in 2008, she said, she was stunned by how little access to police records California allowed.

“California was an outlier, and was one of the few states that basically did not give public access to any information about the conduct of its police officers,” Skinner said. “Now compare that if you are a city manager, or a city street sweeper, or a city librarian — any person in the public can get a record about anything you do. I mean, it’s basically almost unlimited.”

Allowing the public to access records of how public officials, including law enforcement, behave is a building block of trust in government, she said. 

“Public safety requires public trust. And lately, we’ve seen an erosion of public trust,” she said. That could be because residents feel officers in their communities are biased or discriminatory, or are conducting unjustified arrests and searches. 

“We can’t know whether there’s a police officer in our community who has a history or a record of that,” Skinner said, which she said is why she included a provision to make such records available in her expansion bill.

The new proposal would also make it more difficult for agencies and individual officers to maneuver around the disclosures required by her first bill. One of the proposed additions would make records public even if an internal investigation into potential misconduct hadn’t been completed by the time the officer departed their position. Since SB 1421 applies to records of completed investigations, Skinner said an officer might simply quit their job as soon as they hear of their accusation, leaving no paper trail subject to disclosure requirements. Her expansion would close that loophole.

“So in realizing that our law could be interpreted that way, we decided in SB16 to tackle that, and to just ensure that if an officer was accused of misconduct, that that record would be carried with them no matter what they did, so a record would be created,” Skinner said. 

It also includes a requirement that agencies must request a full set of records about an applicant’s conduct if they have a work history in law enforcement.

While her proposals have won support in the Legislature, law enforcement groups have not always been on board. Initially, Skinner said, police chiefs and city managers supported SB 1421. Department chiefs are not in favor of the new timeliness requirements set by the expansion bill, she said, especially since it establishes fines if departments take too long to provide the records.

“The original bill had the rank and file police officers completely opposed and the police chiefs in favor. Now we have the opposite. We have the rank and file officers neutral. And the police chief saying, ‘no, we don’t like this,’” Skinner said.

If SB16 receives support in the Senate and is signed by the governor, it would go into effect at the beginning of 2022.

A segment from our radio show and podcast, “Civic.” Listen at 8 a.m. and 6 p.m. Tuesdays and Thursdays at 102.5 FM in San Francisco, or online at ksfp.fm, and subscribe on Apple, Google, Spotify or Stitcher. 

The post State Senator Who Made Police Disciplinary Records Public Pushes Transparency Expansion appeared first on San Francisco Public Press.

“There was a lot of indications that the CPUC had really bad fiscal controls, that their accounting practices were really odd, that all these different organizations were siloed within the CPUC, and she had started an investigation into that,” said Scott Morris, the investigative reporter who wrote the story. 

Among the problems Stebbins uncovered was that $200 million in fees normally paid by utilities to the CPUC to support programs for disabled Californians were missing. 

“The utilities were actually just allowed to self-report what they thought they owed, and then pay whatever they thought they owed,” Morris said. 

Members of the commission that oversees the utilities regulator had been texting one another about Stebbins, a violation of California open meetings law. Nonetheless, the commission’s president, who was part of those text message discussions, was re-appointed by Gov. Gavin Newsom at the end of 2020. Stebbins has filed a wrongful termination suit.

The commission has a history of scandals. A previous commission president, a former utility executive himself, had helped PG&E choose a judge in a rate case and resigned when the transgression came to light. A former commissioner has repeatedly raised concerns that the commission is not accountable to the public. Following reporting from the San Francisco Public Press in early 2020 showing that the commission had for years kept ride-hailing safety data secret, it reversed that policy. 

“You’re dealing with massively powerful industries here that just have billions and billions of dollars at their disposal,” Morris said. “There’s just been kind of an endless tension in terms of who’s really running the CPUC — whether it’s the people of California or whether it’s the utilities.”

Read Scott Morris’ story here.

A segment from our radio show and podcast, “Civic.” Listen at 8 a.m. and 6 p.m. Tuesdays and Thursdays at 102.5 FM in San Francisco, or online at ksfp.fm, and subscribe on Apple, Google, Spotify or Stitcher. 

The post Reporter Investigates Firing of Utility Regulator’s Director After She Uncovered Missing $200 Million appeared first on San Francisco Public Press.

The Ethics Commission had planned to aggressively root out corruption this year, following a federal probe into former Department of Public Works head Mohammed Nuru’s alleged misconduct. But leading up to Breed’s announcement, a proposal for blanket budget cuts of 10% across departments, to address the $1.5 billion budget deficit caused by COVID-19, made commission members fearful they would be left without adequate resources to prevent corruption.

“That’s the good news, that it’s only a 3% cut,” said executive director Leeann Pelham. A bookkeeping quirk made the cuts appear much worse but will have little effect on the money the commission has to spend. Still, she said, even a smaller-than-feared decline in the agency’s budget would be worrisome.

“Historically the commission has been significantly underfunded,” Pelham said. “We’ve made strides in recent years, and that’s been terrific.” At issue now, she said, is “how much of those strides can we retain.”

To fulfill its mandate, investigating unethical practices of public and elected officials, the Ethics Commission needs not just to avoid budget cuts, but to have its funding increased, said chairwoman Noreen Ambrose. The commission had requested a 38% increase to its $4.5 million budget in January. Approximately $835,000 of the increase would go toward outreach and training on avoiding and reporting corrupt practices. Without that, Ambrose added, “People will be calling the Ethics Commission for support and engagement and they’ll be hard pressed to get their calls answered.”

Although the Ethics Commission depends on its funding to be effective, the COVID-related economic downturn has left the government in a difficult position, said Jessica Levinson, director of Loyola Law School’s Public Service Institute. All government departments will likely face budget cuts, and the Ethics Commission shouldn’t be funded at the expense of other departments like fire or social services, she said.

“None of this actually means that I think you have to fund the Ethics Commission to normal levels,” Levinson said. “The public will lose information or elect people potentially who don’t deserve to be elected. But governments have to make a choice.”

Smaller budget, less public accountability

Following the Nuru probe, the controller, who audits San Francisco’s financial condition, operations and performance, released a report on Nuru’s conduct with eight recommendations to address corruption. Two of them were initiatives specific to the Ethics Commission: speeding up electronic filing of economic statements and closing loopholes that could allow for unethical gift-giving to politicians or city officials.

The controller also recommended an assessment of nonprofits that provide tax-deductible support for government departments, which it would undertake. And it recommended looking at details from the federal probe into Nuru’s alleged misconduct.

The office of controller Ben Rosenfeld said in an email that it could not comment on how the Ethics Commission can fulfil its role without its full budget. It plans to deliver its full list of recommendations to the Ethics Commission at a later date. The Board of Supervisors and the mayor’s office did not respond to requests for comment.

Pelham said that although the new budget allows for the commission to hire one additional staffer, which had already been approved but never funded in previous budgets, it needs two to properly investigate corruption in San Francisco government. She decided to hire a policy analyst instead of an investigator, she said, because she viewed the former work as a preamble to the latter. The lack of an investigator would leave the agency understaffed, she said.

“This budget will require us to continue to operate at 75% capacity in our enforcement unit,” Pelham said.

Electronic filing of economic statements moves forward

Commissioners had previously warned that cuts could delay the agency’s efforts to implement electronic filing for economic interest documents known as Form 700s, an initiative aimed at increasing transparency into potential conflicts of interest. The electronic filing initiative was already under way by March, but was paused due to COVID-19, leading commissioners to fear it would be suspended indefinitely.

Only Breed, members of the Board of Supervisors and department heads file these forms online, allowing members of the public to review their statements for potential conflicts of interest.

An additional 3,500 city employees have decision-making responsibilities that require them to file Form 700s as well, yet they are only able to do so on paper. Their forms are kept internally by the department that employs them, meaning there is no capacity outside of public information requests for public inspection into the affiliations and economic interests of powerful city employees.

But Pelham said last week’s budget announcement includes technical support allowing the programs to meet their Jan. 1, 2022, deadline.

The post With Budget Cuts, Can the Ethics Commission Still Counter S.F. Corruption? appeared first on San Francisco Public Press.