A Tireless Fighter for Open Government in California

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Richard P. McKee, who died suddenly at his home in LaVerne last Saturday, was 62 and recently retired from a career teaching chemistry at Pasadena City College.

Here is some of what the newspaper obituaries may not have room to tell about all that he did in his spare time to make California’s government agencies more transparent to public observation and more hospitable to citizens’ informed comment.

Rich first called me in the early 1990s because of a dispute with the city council of Glendora. I was then the executive director of the California First Amendment Coalition (CFAC). He represented himself in a legal challenge to an open meeting violation, and did so again the following year. Both times he lost. The trial court was wrong, but Rich wasn’t aware of how he could appeal.

But for the next decade and a half Rich who is not a lawyer — took to court and won more open government (open meetings/public records) lawsuits than any member of the State Bar of California, waging fourteen successful open government and First Amendment lawsuits, often representing himself.

Notable among these are McKee v. Orange Unified School District, 110 Cal.App.4th 1310 (4th Dist. 2003), protecting the right of all citizens to sue any local agency for Brown Act violations; McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force, 134 Cal.App.4th 354 (2nd Dist. 2005), forcing rather stealthy regional drug law enforcement task forces to hold open, noticed meetings; and Los Angeles Times v. L.A. County Board of Supervisors, 112 Cal.App.4th 1313 (2nd Dist. 2003), affirming that closed session discussions on subjects not expressly authorized by the Brown Act are illegal.

KPFK radio dubbed him “John Q. Citizen.” KCET’s Life & Times Tonight called him “the citizen who won’t shut up and go away.” The Los Angeles Times characterized him as “the scourge of public agencies across the eastern suburbs of Los Angeles County” who “walks softly and carries a big stick.” The Sacramento Bee christened him “Mr. Sunshine,” a man with “a head for the law, a heart for justice and a nose for government officials with secrets.”

As a teacher, Rich enjoyed explaining the law as well as enforcing it, lecturing frequently on open government issues to community organizations, public officials, media groups, public agency attorneys, and college and university journalism classes, where the Times said he “gets as animated as Jack Nicholson at a Laker game when he talks about the people’s right to know.”

Journalists, who instinctively view citizen watchdogs with at least initial skepticism, learned to accept Rich as a rare peer in the pursuit of access and disclosure. He served on the board of directors of the Los Angeles Press Club and was the first non-journalist president of CFAC.

After that experience, he and I decided that people beyond the news media were needed to oversee and inform an open government organization, and seven years ago we left CFAC and joined by my daughter, Emily, founded Californians Aware, of which he was the first president. CalAware’s board comprises one third journalists, one third government officials and employees and one third civic-minded community watchdogs.

Rich believed in testing government’s understanding and observance of its own transparency laws.

He helped design, administer and score a series of public records law compliance audits conducted by CalAware, with successive probes targeting leading state agencies, more than 200 law enforcement departments around the state, and the public education system, including 194 k-12 school districts, half of all community college districts and all CSU and UC campuses.

In the first audit of state agencies he worked with his son, Ryan, then fresh out of high school, to visit their headquarters offices in Sacramento and San Francisco and request the test records.

For his effort Ryan won the 2008 James Madison award for citizen achievement by the Nothern California Chapter of the Society of Professional Journalists. It was that audit that also led Assembly Member Mark Leno to introduce AB 2927, which would have authorized the Attorney General to review and opine on public agencies’ denials of access to records.

The bill passed the Legislature unanimously but was vetoed by Governor Schwarzenegger.

Meanwhile Rich and CalAware, in our first joint litigation, sued a school board for censuring (and censoring, on cable TV) one of its members for stating his opinion about something done in closed session-one he hadn’t attended.

The suit was dismissed on an anti-SLAPP motion when the trial court concluded we were were attacking the school board majority’s right to voice its own opinion. The dismissal was upheld in an unpublished opinion of the Court of Appeal, and as a consequence the court ordered us to pay the district’s attorney fees.

Since CalAware had no money, the fee payment came from a bond earlier purchased by Rich (anticipating recovery on appeal), and backfilling payments he made from his own funds, ultimately costing him more than $80,000. He had to invade his retirement savings and endure a lien put on his home before the ordeal was over.

His experience led the California Legislature, in a bill by Senator Leland Yee of San Francisco, SB 786, to amend the anti-SLAPP law to provide that cases brought under the open government laws, even if SLAPPed out of court on the merits, will not result in an attorney fee debt to the government, unless they are not only without merit but frivolous.

That experience might teach most people to keep their heads down, but not Rich. Last year he retired from his full-time job teaching chemistry and began spending more time than ever closely tracking apparent open meeting violations, based on news reports and blogs captured by Google.

At the urging of Rich as CalAware’s vice president for open government compliance-a title created last year to recognize his unique vigilance and follow-through-we are now suing one local agency for overcharging citizens for copies of public records, and another for using closed sessions of a special committee to give employee unions a secret role in designing health benefit programs. Both actions drew adverse rulings from the trial court; both are currently on appeal.

In his capacity as VP for open government compliance, Rich achieved a remarkable success rate in correcting violations without litigation (see his summary below reported to the CalAware board at its most recent meeting).

On his own, meanwhile, Rich was doing the following: Suing the Tulare County board of supervisors and the board of the Bay Area Rapid Transit District for open meeting violations; had just settled another Brown Act suit against the City of Manhattan Beach for how covertly it handled the departure of its city manager last year and was negotiating (under threat of litigation) with another city to abandon its policy of routinely destroying e-mails.

If you Google on “Richard McKee” and “Open Government” you’ll get some independent notion of how active, dedicated and effective he became. We will never be able to fill his shoes, but we will continue somehow on the path he blazed.

All this talk of litigation might make Rich sound like a tense scold or fanatic, which was farthest from his personality. Those who knew or dealt with him will instead remember a big modest John Wayne figure with a chuckle and friendly words for all-even his opponents in and out of court. We are heartsick at the loss not of what he did, which will continue to inspire us, but of who he was in our lives.

Note: Rich’s family invites fans, acquaintances or just appreciative members of the public to a memorial happy hour — Hawaiian shirts suggested but optional — at the Doubletree Hotel in Claremont from 3-7 pm on Saturday, May 7. This informal occasion — whose style Rich would have enjoyed and insisted on — will offer all who’d care to do so an opportunity to meet with Rich’s family and friends and the staff of Californians Aware to share reminiscences about Rich and how he affected their lives and lift a glass in his memory.

Terry Francke is Voice of OC’s open government consultant and general counsel for Californians Aware. You can reach him directly at terry@calaware.org. And add your voice with a letter to the editor.


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