An open government advocate defended a school board member against censure over his critical comments only to find that the judges ruled that the district’s free speech rights trumped those of the dissident board member. -DB
CalAware Today
March 11, 2009
Sunshine Week (March 15-21) is a national celebration of open government, but here in California a court decision has favored the suppression of dissent and cost a long-time open government advocate $80,000.
More than four years ago the people of California went to the polls and, by an overwhelming 83 percent support for Proposition 59, passed a state constitutional amendment guaranteeing the public fundamental access to the meetings and records of their local and state government agencies.
This month, however, despite those constitutional protections, California courts finalized an order that a small public interest non-profit group and its past president must pay nearly $86,000 for merely asking them to protect the public’s right to hear the opinions expressed by its local elected representatives.
The problem began when a majority of the Orange Unified School District (OUSD) Board didn’t like one of its members’ criticism of its decision supporting the superintendent’s transfer of a high school principal to a nonexistent position, “principal on special assignment,” at a continuation school. The dissident member said the board should have fired the principal after the many complaints received from parents about his performance—instead of transferring him to a school already having achievement problems.
The superintendent edited the dissenter’s comments out of the DVD the district distributes to local cable TV stations for airing. Then, in violation of its own bylaws, the board censured the member for his negative comments, warning him not to repeat the offense. The Board majority saw its chance to issue a public rebuke to a dissident thorn in their side, who favored the use of long diatribes during meetings to pronounce the Board majority and school administration corrupt.
Richard McKee, then president of Californians Aware (CalAware), had earlier warned the board that such an action violated the Brown Act’s prohibition against discouraging the expression of one or more of its members. After the censure action, McKee and CalAware petitioned the court for an order overturning the censure and for a declaration that the editing of the recording of the meeting was unlawful. It sought no money damages or other remedies, and was filed by a trial lawyer on the CalAware board who took the case pro bono publico—waiving any fees if the action was unsuccessful.
Orange Unified filed an anti-SLAPP motion, claiming that McKee and CalAware were trying to stifle the district’s right to free speech. Such a motion asks dismissal of any lawsuit that attempts to chill the valid exercise of free speech in matters of public interest. If the court grants the motion, not only is the case against the speaker tossed out of court, but the plaintiff seeking to stop the speech must pay the speaker’s attorney fees.
The trial judge liked—and promptly granted—the district’s anti-SLAPP motion, saying the OUSD Board was right to censure the minority member’s criticism, calling it “boorish,” and concluded that the alteration of the meeting tape to remove the critical comments was protected, because it represented the right of the district to control its own speech.
Confident that the ruling would be overturned under Proposition 59, the Brown Act and the First Amendment, McKee and CalAware appealed, pleading that the public had a right to hear all the comments made by its elected representatives at an open meeting. But the Fourth Appellate District sitting in Santa Ana agreed with the trial court that the district’s speech rights trumped the dissident trustee’s, ruling that McKee and CalAware were responsible for OUSD’s attorney fees. Then, after the California Supreme Court denied review, reality set in.
Despite the fact that the Brown Act itself protects plaintiffs suing to enforce open government from such a fee order unless the action is judged “clearly frivolous and totally lacking in merit” (a finding not made by either of these courts), McKee and CalAware are on the hook.
But CalAware is a five-year-old nonprofit with very limited assets. It has already contributed all the cash it could raise, $6,000. Thus McKee, whose wages have already been garnished by OUSD, and who has had a lien placed upon his home by the district, is left to scramble to come up with the remaining $80,000. He’s already paid $59,000 of it through a second trust deed on his home, depleted his savings, and is now taking another $16,000 from a tax shelter annuity. How he will come up with the remainder is uncertain.
None of this was supposed to happen. The California Constitution requires that any law, like the Brown Act, which furthers the people’s right of access to information concerning the conduct of the people’s business, “shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”
In this case the courts gutted the Brown Act of the protections that were there to secure the people’s right to hear the concerns expressed by their local elected representatives, as well as their statements of support.
Here, despite the California Constitution and the Brown Act, the courts have granted public agencies the right to punish expressions of concern made by their own officers to the public they serve, and to censor any information from its publications that the agency doesn’t want the people to see or hear. These are rights usually associated with an authoritarian regime, not a democratic republic.
So now it’s back to the drawing board, trying to formulate a legislative remedy for the loss of a fundamental right voided by the courts.
Meanwhile McKee, a chemistry professor of 34 years who, as a non-lawyer, has successfully prosecuted 14 other Brown Act and Public Records Act cases to protect the public’s right to open government, is wondering what happened to his retirement savings—and not just because of the economy.
Copyright CalAware Today 2009