A&A: Access to City Manager’s compensation denied

Q: I am a  director for the Public Utility District trying to access the General Manager’s compensation information.  Another director asked for W-2s with confidential information blacked out. And was told via email that they do not have to provide them. What information am I entitled to and how to I ask for it?

The GM told us that due to client confidentiality the board has to vote to review the billing statements. He only manages matters for the GM and Board. We have other legal counsel for water licensing and litigation. We need to make a plan to reduce expenses and his costs seem like an obvious place to start but we have to have a director vote to view billing statements? Two incumbent directors were voted out and one retired so we have 3 new independent directors. I need some help.

A: It sounds like there are two issues here: first, obtaining records showing the compensation of public employees of the district, as well as billing statements from the district’s outside counsel, and second, potential violations of the Brown Act in connection with emailed communications between three of the directors. I will address each of these issues in turn.

As I’m sure you know, under the Public Records Act, public records — which include “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,” Gov’t Code § 6252(e) — are presumed to be open to the public, and therefore must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.

With respect to your request for records showing employee compensation, I do not see anything in the Public Records Act that would in any way restrict the records a director or board member of a particular governmental entity could obtain, merely because of that individual’s office. To the contrary, the Brown Act explicitly provides that “[n]otwithstanding the definition of “member of the public” in Section 6252, an elected member or officer of any state or local agency is entitled to access to public records of that agency on the same basis as any other person.” Gov’t Code § 6252.5.

Moreover, there is nothing in the Act that seems to require requesters to even identify themselves (see Gov’t Code § 6253), just as the Act does not require requesters to state their purpose in seeking out the records they are requesting (“This chapter does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.” Gov’t Code § 6257.5).

Thus, to the extent that the district is questioning your motives in requesting documents related to district employee salary information, it would seem that it could not refuse to disclose these documents just because you are a director of the district, or because the district perceives your requests as implications of wrongdoing.

Second, The California Supreme Court has held that the names and salaries of individual public employees are generally required to be made public. See International Federation of Professional Engineers v. Superior Court, 42 Cal. 4th 319, 331 (2007) (“[t]he ‘broadly based and widely accepted community norm[]’ applicable to government employee salary information is public disclosure”).

Although there is an exemption for “personnel” records under the Act that public agencies routinely invoke when they believe a request seeks information pertaining to identifiable public officials or employees that is private or controversial, Gov’t Code § 6254(c), this exemption — which was developed to protect intimate details of personal and family life, not official business judgments and relationships, Bakersfield City School Dist. v. Superior Court, 118 Cal. App. 4th 1041, 1045 (2004) — applies only to “personnel files … the disclosure of which would constitute an unwarranted invasion of personal privacy.” Gov’t Code Section 6245(c) (emphasis added).

The Act also contains a “catch-all” exemption that agencies frequently attempt to invoke, which provides that an agency may withhold public records, even if no express exemption is applicable, if it can demonstrate “that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Gov’t Code § 6255(a). This exemption is broad and undefined, and is routinely invoked by public agencies in denying access to public records, but often does not justify non-disclosure.

It would seem that, in the situation you describe, documents showing the names and matching salaries of individual public employees — such as the tax return documents you describe — should be disclosed to the public. As you stated, any sensitive information, such as social security number, could be redacted to protect the individual from potential identity theft.

In addition, the the extent that any of the salaries at issue are the subject of an employment contract, the entire contract is subject to disclosure. Gov’t Code § 6254.8 (“Every employment contract between a state or local agency and any public official or public employee is a public record which is not subject to the provisions of Sections 6254 and 6255.”).

As for the attorney bills showing how much the district is paying its legal counsel, it is possible that the district is withholding the records based on either the pending litigation exemption (Gov’t Code § 6254(b)) or attorney-client privilege under the Evidence Code, which is incorporated into the Public Records Act by Government Code § 6254(k).

With respect to the pending litigation exemption, the fact that a requested record is “involved in litigation” may not be sufficient to allow the agency to withhold the record. The same would seem to be true with respect to the attorney-client privilege. Since the records you are seeking only contain financial information that reveals how much the district is paying this particular attorney, it could be that these exemptions are not applicable. Furthermore, the district could redact any descriptive information that might otherwise be considered attorney-client privileged.

As with the salary information, the district here, too, may attempt to invoke the Act’s “catch-all” exemption, contained in Government Code § 6255(a). Again, the burden of proof is on the agency to demonstrate “a clear overbalance on the side of confidentiality.” Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1071 (2006).

If you haven’t done so already, you might want to make a written request for the records you seek. Although not statutorily required, a written request should result in a written response, in which the agency, if it denies your request, should set forth the specific exemption that it is claiming justifies nondisclosure of the records, which will then give you the opportunity to respond with legal arguments as to why the records you seek should be disclosed. Keep in mind that under the Act, “disclosure is favored,” and therefore “all exemptions are narrowly construed.” County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321 (2009).Thus, if there are any valid exemptions that apply to the records that you seek, but the agency could, for example, redact that information, then the agency should release the records in a redacted form.

With respect to the email communications between the three directors, violations of the Brown Act would be implicated here if the directors somehow created a “serial meeting” through communications with each other. Under the Brown Act, a “meeting” includes any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains. Gov’t Code § 54952.2(a).

Members of a legislative body do not have to meet face to face in order to conduct a “meeting” or take action within the meeting of the Brown Act. In 2006, in a case called Wolfe v. City of Fremont, the Court of Appeal noted that “serial individual meetings that do not result in a ‘collective concurrence’ do not violate the Brown Act.” 144 Cal. App. 4th 533, 545 n. 6 (2006). The Brown Act was subsequently amended in 2009 to supersede this holding from the Wolfe case. Now the Brown Act provides that:

“A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” Govt. Code § 54952.2 (emphasis added) .

The Attorney General takes the position that a serial meeting, in violation of section 54952.2(b), may occur where there is a chain of communications (A communicates with B, B communicates with C, and so on), and/or when one intermediary acts as the hub of a wheel and communicates individually with the various spokes (i.e., board members A, B, C, etc).

See The Brown Act, Open Meetings for Local Legislative Bodies, Office of the Attorney General, 2003, at p. 11, available at http://caag.state.ca.us/publications/2003_Main_BrownAct.pdf.

It seems that, in the situation you describe, a serial meeting may have been held given board member A emailed board members B and C regarding a particular issue. If these three members make up a quorum (i.e., if there are only five directors), then they may have violated the Brown Act by communicating with each other with respect to board business.

As for enforcing the Brown Act, the Act does not specify a particular way that a violation may be cured and corrected, but presumably the legislative body could satisfy the Brown Act by reopening the process to permit public awareness of all the facts and views, as well as give the public the opportunity to express its views on the issue.

If the board continues to violate the Brown Act, you may want to make the district attorney aware of those violations.

Either a citizen or the district attorney may sue to compel the local agency to comply with the Brown Act; obtain a ruling that a particular practice of the local agency violates the Brown Act; or obtain a ruling that the local agency is violating the free speech rights of one or more of its members in seeking to silence that member. Gov’t Code section 54960(a).

Please note, however, that the Brown Act imposes fairly strict requirements on the enforcement of the Brown Act, including deadlines for taking certain necessary actions. You might find the information on the FAC’s web site at https://firstamendmentcoalition.org/category/resources/access-to-meetings/ useful for proceeding.

If you are looking for an attorney to represent you in this matter, you might consider trying the FAC’s Lawyer’s Assistance Request Form at https://firstamendmentcoalition.org/lawyers-assistance-request-form/.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.