YOUR RIGHT TO KNOW--Open Government and Freedom of Information in California
By Leland Yee, Ph.D.
Assistant President pro Tem
California State Senate
Recently newspapers, broadcasters, online media outlets, schools, libraries, and civic groups across the country celebrated open government with Sunshine Week 2008. Here in California, I am working with First Amendment and public access advocates, teachers, students, and labor unions on a series of bills to provide greater transparency of government and increase public access to records that rightfully belong to the people. These bills range from protecting state whistleblowers and student speech rights to allowing public access of government contracts and reviewing of audits.
Protecting Journalism Teachers and Student Speech
This week, the California Senate approved legislation to protect high school and college teachers and other employees from retaliation by administrators as a result of student speech, which most often happens when a journalism advisor or professor is disciplined for content in a student newspaper. With this vote, California continues to lead the way in making sure true freedom of the press is alive and well on our campuses. Senate Bill 1370 follows a 2006 law I authored to prohibit censorship of college press by administrators and protect students from being disciplined for engaging in speech or press activities.
Allowing a school administration to censor in any way is contrary to the democratic process and the ability of a student newspaper to serve as the watchdog and bring sunshine to the actions of school administrators. It is quite disheartening to hear, that after we specifically prohibited prior restraint by administrators, that some are engaging in this type of nefarious activity and even firing quality teachers because of content in the student newspaper.
Specifically, SB 1370 would prohibit an employee from being dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against for acting to protect a student's speech.
There have been a number of documented cases throughout the state of journalism advisors being dismissed or reassigned due to student speech. In fact, my office has learned of cases in San Francisco, Los Angeles, Claremont, Fremont, Novato, Oxnard, Rialto, and Garden Grove.
A Los Angeles Unified School District case is one of many where a highly respected and successful newspaper advisor was removed from his position. In November 2006, the student newspaper published an editorial criticizing random searches conducted on campus. The newspaper advisor, Darryl Adams, was immediately removed after refusing to eliminate the editorial at the principal's request. Adams was later removed as basketball coach and even as announcer for the football games.
"In a span of four months, they all but stripped me of my professional existence," said Adams.
Another case involved Janet Ewell, a Garden Grove tenured teacher and certified journalism educator, who was removed as newspaper advisor in 2002 despite her students winning numerous journalism awards. The school's principal admitted to student reporters that he had removed Ewell as a result of editorials that ran in the school newspaper. The editorials focused on such issues as the school bathrooms, cafeteria food and a teacher who was unavailable to help students.
Ronnie Campagna, a journalism teacher of 18 years at San Marin High School in Novato, was removed in 2003 and replaced by a new teacher with no previous journalism experience after the student paper published stories critical of the administration. For example, one story criticized the school administration for not letting students stand up in the bleachers during varsity basketball games. The school board went so far as to attempt dissolving the entire program until parents protested and even offered to fund the class themselves.
In San Francisco, journalism and English teacher Katharine Swan was told that she must find a different school in which to teach after her students covered a first-year principal's attempts to effect prior restraint and influence coverage of events occurring at the school.
Last week, the Newspaper Association of America Foundation released a study that found students who work on high school newspapers and yearbooks are more likely to receive better grades in high school and college as well as score higher on college entrance exams.
SB 1370 will go a long way in ensuring student journalism is alive and well on our campuses.
Ensuring quality contractors, competitive bidding, and public access at UC
The Senate Appropriations Committee will soon consider legislation to ensure that the University of California contracts with responsible businesses and that there is a competitive bidding process every three years. In addition, the University of California (UC) Responsible Contracting Act requires the University to maintain a centralized database of contracts that is available for public review at each campus.
In coordination with the American Federation of State, County, and Municipal Employees (AFSCME), I introduced the measure as a result of numerous reports of UC's deficient and non-transparent contract bidding process. It was recently uncovered that a UC Santa Barbara contractor violated wage and hour laws. For more than a decade, UC Davis has failed to put out to a bid contract for food services. In fact, the same food service company has held the contract for over thirty years.
Each year, UC spends millions of dollars contracting for the delivery of products and services, yet the campuses are not required to maintain a centralized database of contracts and contractor information. SB 1596 will require such information be readily available to the public at each campus, health facility, and laboratory.
In addition, SB 1596 will establish a contractor responsibility program which requires contractors wishing to be considered for an award of contract with the University to file a questionnaire covering areas of past bankruptcy filings, convictions, loss of permits or license, and the disclosure of past judgments for issues such as taxes owed..
SB 1596 will also ensure competition by requiring all contracts be limited to three years terms and that upon completion of the term, the University shall solicit bids through a competitive bidding process.
Amidst growing public scrutiny of a food service contract at UC Davis, the University recently announced a six year extension coincided with the announcement of a multi-million dollar investment in the campus by the same contractor. It is unacceptable that UC Davis has contracted with the same campus food service company for decades without putting the contract out to bid. The cost to taxpayers and students as a result of this policy is immeasurable.
Recently, UC Santa Barbara awarded a low-bid contract to provide painting services on campus. Unfortunately, the contractor declared bankruptcy and the employees were unable to cash their paychecks for painting services they had already provided the University. Wages owed to workers included approximately $90,000. SB 1596 is expected to prevent such events from happening in the future.
SB 1596 will ensure that the University contracts with responsible entities, workers are protected, and the taxpayers' and students' dollars are being wisely spent. It is imperative that UC has a competitive environment where bidding is fair, transparency and accountable to the people of California
Providing Greater Access to Government Contracts
Recently, the California Senate approved legislation to allow greater public access to government contracts as well as audits and reviews of public agencies.
Senate Bill 1696 would prohibit a state or local agency from allowing an outside entity to control the disclosure of information that is otherwise subject to the state's Public Records Act. In addition, the bill would specify that regardless of any contract term to the contrary, a contract for the purpose of conducting a review, audit, or report between a private entity and a state or local agency is subject to the same disclosure requirements as other public records.
The need for the measure arose from the denial of a January 2007 request by the San Francisco Chronicle to the University of California at San Francisco (UCSF). UCSF refused to release an independent review of its finances or even the name of the firm that was issued a contract for $165,000 to carry out the review. UCSF claimed the auditing firm controlled the confidentiality of the contract and the audit.
Since the inception of the California Public Records Act, records created, held maintained or used by a state or local agency have been presumptively disclosable to the public unless an exemption in the law permits the agency to withhold requested information. The law was enacted to ensure accountability of government institutions and specifically states that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state."
The public deserves to see how their tax dollars are being spent and should not be prevented access to contracts, audits, reviews or reports of government agencies. Simply entering into a confidentiality agreement with a third party will no longer be an excuse to not disclose information and avoid scrutiny and accountability.
Assisting State Whistleblowers
California's law to protect state employees who report waste, fraud, or abuse within state agencies, has done little to help Ruby Cornejo and Michelle Dille, two whistleblowers within the Department of Social Services (DSS). Cornejo and Dille, who had a combined 66 years of experience within the Department when they openly criticized a lax policy on criminal background checks for foster parents and childcare and senior home licensees, which they argued risked the lives of already vulnerable citizens.
The vocal criticism didn't sit well with the department's management. Cornejo and Dille reported their criticisms to the Bureau of State Audits in January 2003, only to consequently be retaliated against by their superiors. According to Cornejo and Dille, they faced four years of "continuous and unabated hostilities, harassment, and retaliation from DSS management."
The response from DSS management is a clear violation of the California Whistleblower Protection Act, which is designed to protect civil servants from improper retaliation or intimidation and is supposed to provide a timely review and resolution of complaints regarding "waste, fraud, abuse of authority, violation of law, or threat to public health and safety."
However, the State Personnel Board has still not reviewed or resolved the cases, and Cornejo and Dille have faced combined legal costs of approximately $500,000. As a result, I have introduced Senate Bill 1267 to increase and better define the legal rights of whistleblowers.
State employees have a fundamental right to report without retaliation instances of waste, fraud, and abuse. Without whistleblowers, government works in a vacuum and is often not accountable to the people it is supposed to serve. SB 1267 will ensure whistleblowers are not subjected to years of administrative hearings at the expense of themselves and taxpayers.
The cases of Cornejo and Dille are apparently not isolated cases. According to the State Personnel Board's report to the Governor and Legislature, of the 106 whistleblower retaliation complaints accepted by the Board between 2003 and 2005, none were resolved in favor of the complainant. 58 of the complaints were denied, 5 resulted in a "stipulated agreement" and 42 were "still pending."
Not only do these delays result in unfair costs to whistleblowers, but they also result in burdens to the state, and in essence, render the current California Whistleblower Protection Act useless.
SB 1267 would explicitly give whistleblowers the right to take their case to court if the State Personnel Board exceeds a 70 day timeframe in resolving the case; would prevent excessive timeframe extensions by requiring the personnel board to resolve cases within 70 days even if multiple complaints are consolidated into one investigation or hearing; would entitle the State and the injured party to seek reimbursement for their expenses, costs, and attorney fees when liability is established; and would provide protections for former employees, not just current employees.
It is our duty to ensure whistleblowers are protected and that their contentions receive prompt and impartial investigations. SB 1267 will allow public servants, without reservation, to best serve the residents of California.
I urge you to join me in supporting these much-needed measures – SB 1267, SB 1370, SB 1596, and SB 1696.
Leland Yee is a member of the California State Senate Democratic Leadership team and the Assistant President pro Tem of the Senate. Senator Yee is also a graduate of the University of California at Berkeley.