As local governments are struggling with the issue of government officials texting and e-mailing during meetings, the state legislature is considering a law preventing lobbyists from texting lawmakers on the floor or in committee. Open government advocates say that electronic devices are difficult to monitor, and one advocate suggests that full disclosure of contacts with special interests would do more to ensure transparency. -db
By John Waters Jr.
It’s may be hard to believe, but it was one year ago this month that a flap, a dither, an excited state of agitation, was created on the Calistoga City Council when Councilman Gary Kraus interrupted a city council meeting to announce that Councilman Michael Dunsford was sending text messages during a council discussion.
At the time, Calistoga Mayor Jack Gingles said he believed sending text messages at city council meetings was not technically wrong, but added, “It sure can be annoying.
“I serve on several regional boards and committees and it’s not all that uncommon to see the various members of a board or committee sending or reading some kind of message,” Gingles said. “Where it really gets bad is at an ABAG (Association of Bay Area Government) meeting — that’s where you’ll see everybody and his neighbor with those Blackberry things or whatever they have, typing and reading while someone is talking.
“It’s really discourteous, although it’s likely not illegal,” he said. “I want to see how the rest of the council feels so that we can establish some rules that will allow for a councilmember to step away from the dais if a pressing personal matter comes up.”
First Amendment issue or not
Well, that’s apparently what the state lawmakers feel, too, according to an Associated Press report, with the added issue that maybe texting is becoming a Brown Act concern, prompting lawmakers to a new model for the digital age.
So, open government in the heart of Silicon Valley is starting to mean turn off, tune out and power down.
When the San Jose City Council meets just miles from the Apple and Google campuses, its members shut down all portable electronic devices, as though they were in a theater. If they’re on and they get a text or e-mail from a lobbyist or anyone discussing city business, they must say so right then and there.
Experts say San Jose’s policy is a model for open government in the digital age. Other cities and state legislatures are adopting their own rules at a time when officials are increasingly fielding requests for lawmakers’ cellphone records, e-mails and text messages.
“Essentially what we’ve said is a public record is a public record,” San Jose Mayor Chuck Reed said, “no matter where it exists.”
More than half of the legislative chambers in the states restrict the use of electronic devices in some form, including dozens that prohibit the use of cell phones on the floor, according to the National Council of State Legislatures.
San Francisco Mayor Gavin Newsom says he is considering banning texting and e-mailing between lobbyists and lawmakers during City Hall meetings.
But advocates for open and accountable government say that banning texting or e-mailing during meetings leaves huge loopholes since lobbyists and lawmakers could text or e-mail each other just before or after a meeting.
The better policy, they say, is one like San Jose’s, which requires officials to disclose all discussions of public business, including those conducted on personal cell phones or laptops.
“A ban is better than nothing but not much,” said Peter Scheer, executive director of the First Amendment Coalition, a San Rafael-based nonprofit that advocates for open and accountable government.
“It’s more a cosmetic political gesture aimed at avoiding embarrassment since so many public officials are actually receiving messages during a hearing or a voting session that tells them how to vote,” Scheer said. “Disclosure is the better idea.”
In California, the new Assembly Speaker, John Perez, D-Los Angeles, is trying to impose a ban on texting from lobbyists to lawmakers on the floor or in committee. The state Senate already requests that its members not use personal cell phones and electronic devices during meetings.
San Jose’s policy is a prototype, he said. But the law did not arrive there easily.
It was enacted months after a series of articles in the San Jose Mercury News last summer called attention to how text messaging between council members and lobbyists skirted the city’s promises of open-government reform.
The law also took a lawsuit from an environmental group, which cited the California Public Records Act in suing the mayor and council for refusing to produce e-mails, text messages and other electronic communications about city business from officials’ personal cell phones or other devices.
Mayor Reed said discussion of the new policy began a year ago, after a city council member received a text from a lobbyist during a voting session that was meant for another council member. The text, which the member made public, appeared to be directions on how to vote on the lobbyist’s issue.
Under the new policy and depending on the severity of the breach, the mayor said, violators could face public exposure or possible censure.
First Amendment advocates say that no matter what laws are enacted regarding texting, e-mailing and other electronic communication, anyone determined not to comply can probably find a way to skirt the law without being discovered.
Texts are easy to delete. Those that can be retrieved through a cell phone provider are only available for a short time, a few days for the most part. And it can take longer than a few days to obtain a subpoena for a text record.
So bans on texting largely rely on the honor system. “We’ve got a ways to go,” Peterson said.
Associated Press Writer Evelyn Nieves contributed greatly to this report.
Copyright 2010 Lee Enterprises