Little Miss Sunshine
Alameda Mayor Trish Spencer recently advised members of a public panel on how to circumvent state and city public records laws.
Trish Spencer's advice to the public panel ran counter to the spirit of laws created to ensure citizens know how public officials are conducting the public’s business.
Stephen Texeira/File photo
When the Alameda Mayor’s Economic Advisory Panel met for its inaugural meeting in July, the group of 10 Alameda business people representing some of the Island’s most important and cutting-edge companies—such as Google’s Makani Power, St. George Spirits, Sila Nanotechnologies, and the biotech firm, Penumbra—appeared to be perplexed by the city’s and the state’s open government laws. The panel members were concerned that transparency requirements could harm their ability to have candid discussions about how to attract and nurture new business in Alameda.
Because the advisory panel was created in April by the Alameda City Council, it’s considered a public body, and its discussions are covered by the state’s open meeting law—the Ralph M. Brown Act—and Alameda’s Sunshine Ordinance, which are both designed to foster government openness.
After a member of the Alameda City Attorney’s Office described the do’s and don’ts to the panel members—concerning how to make sure their discussions are done in public, and not in private—some of the panel members pushed back, according to a recording of the meeting.
“This is going to be a slow process,” lamented one member. “Should we pretend we don’t know each other?” joked another. “I don’t understand how people who sit up here are able to get anything done,” said yet another member, in reference to the city council, in whose chambers the panel is conducting its meetings. Then one member asked if emails between the panel members and city staffers are subject to public disclosure under the California Public Records Act, the state’s open records law. The answer was “yes.”
But then, Alameda Mayor Trish Spencer, sitting in the audience, asked to address the panel and proceeded to conduct, in essence, a short seminar on how public officials, like the panel members, can keep their communications with city staffers secret.
“You’re coming from the private sector to my world,” Spencer told the advisory panel. “Personally, I don’t put anything in an email that I’m not comfortable having the whole world see. So personally, if I have a question for staff, I’m much more likely to pick up the phone and call staff and ask the question that way, and there are things like that that can make it work.”
She later urged, “Get your information that way.”
Alameda’s Sunshine Ordinance, passed in 2012 to further strengthen the open government aspects of the state’s Brown Act, is regarded with a certain sense of pride among many current and former Alameda public officials. “The right of the people to know what their government and those acting on behalf of their government are doing is fundamental to a democracy,” reads a portion of the ordinance. “That right supersedes any other policy interest government officials may use to prevent public access to information.”
The Alameda Sunshine Ordinance, for instance, extends the Brown Act’s 72-hour window for public disclosure of meeting agendas to 12 days, while also attempting to dissuade public meetings from extending into the late hours when fewer members of the public are likely to be watching. It also further encourages the ability of the public to request and receive government documents and emails—which Spencer effectively provided a road map for the public panel to circumvent.
Spencer’s advice to the panel members was probably not unlawful, but it ran counter to the spirit of laws created to ensure citizens know how public officials are conducting the public’s business, said Cherokee Melton, a staff attorney for the First Amendment Project, in Oakland.
“My expert opinion is that it’s terrible,” Melton said of Spencer’s comments to the panel. “But I wish I could say I’m shocked. It’s not uncommon. Governments at every level try to avoid a paper trail.”
There are also clear downsides, added Melton. “If all government officials did this, we, as the public, wouldn’t have records of their actions.” The problem of subverting transparency, Melton continued, is exacerbated by the gap between law and rapidly changing technologies. For instance, in San Francisco, good government advocates are worried about the increasing prevalence of public officials communicating with each other through texting apps not covered by most sunshine laws.
Spencer’s advice to members of a public panel on how to conduct business in secret also might shock many of her supporters who believe that Alameda City Hall is beholden to special interests and plagued by backroom deal-making—and that they elected Spencer to end those practices. The mayor has also come under fire recently for her repeated intrusions into city operations, which appear to violate the Alameda City Charter, including an incident involving the police officer who arrested her husband for drunken driving (see “The Meddlesome Mayor,” September).
Alameda Councilmember Jim Oddie said it’s disconcerting that the mayor would make such comments to the Economic Advisory Panel after he and other members of the council specifically decided that the panel should be subject to the Brown Act and Alameda’s Sunshine Ordinance. He said Spencer’s tenure as mayor, when considering her interference in city affairs coupled with “giving a playbook on how to perpetuate a cover-up,” is “unfolding like a Nixonian tragedy.”
Published online on Oct. 3, 2016 at 8:00 a.m.