Santana: The Pesky Public

Squashing public input is becoming an increasingly popular sport for today’s elected class.

In Orange County, we’ve seen a rash of efforts recently to illegally restrict public comment at county supervisors’ meetings, destroy documents and even limit city council members across our region from being able to debate issues on respective public agendas.

Earlier this month, OC Superior Court Judge Sheila B. Fell ruled against a longstanding County of Orange effort to destroy government documents before the state’s, two-year retention period, as part of an ACLU lawsuit that also questioned county restrictions on public comment.

Voice of OC reporting on the restrictions – at the time they were instituted several years ago – was heavily cited in the ACLU lawsuit as our coverage detailed official decisions about the county’s illegal document destruction policy as well as uneven enforcement of speaker comment rules by Orange County supervisors.

Yet it’s not just public speakers.

Now, its seems city officials across Orange County also want to censor themselves.

We just reported earlier this month, that Irvine joined six other cities – Anaheim, Fullerton, Garden Grove, Newport Beach, Villa Park and Westminster – in restricting individual council members’ ability to put items onto the official agenda.

The ability to monitor government through public records, investigations and regulatory changes is also getting increasingly blocked by a variety of factors.

Last month, when Sheriff Don Barnes released a small set of police misconduct records that were made available for public review under a new state law, he didn’t meet with reporters or take questions on the cases he released for public inspection.

While other police agencies across the state have been releasing misconduct records under SB 1421, Barnes’ agency has been super slow  – with the Sheriff putting a small contingent of administrative staff on the task, despite having a well-funded media office.

Note that Barnes benefitted from more than $650,000 in independent campaign expenditures for his 2018 election campaign from the Deputy Sheriff’s union, which recently lost their court bid to seal the misconduct records against a media coalition led by Voice of OC.

Months after the court cases were concluded, and right on the heels of critical news coverage about delays in records releases – both here and from the Orange County Register – Barnes abruptly put out a quick press release and unveiled a webpage on the Sheriff Department’s website with tons of records splashed together as a response to a growing mountain of public records requests from reporters and the general public.

All while Sheriff Barnes slammed the media for reporting things without context in an odd video posted on the department website, which had the feel of a 1980s-era hostage-release video from a Beirut bunker, with Barnes doing a really lousy job of reading cue-cards.

“Transparency without context can be just as detrimental to our civic discourse as the perception of secrecy,” said Barnes in his video statement. “Too often, we only see a very short clip or part of a report in the media. And I want you to see the entirety of the information and come to your own conclusions.”

Yet you would think that someone who wants things reported properly would sit down with reporters and actually go over each case released, maybe even provide a general narrative on each case, even take questions in public.

Sheriff Barnes could have even taken the bold step of asking the news media and the general public to offer input on how these records releases could have been be handled.

Barnes’ anemic record on public disclosure stands in stark contrast to the recent release of records in the case of 17-year old Anaheim resident, Hannah Williams, who was killed in an officer-involved shooting earlier this month.

After considerable public debate, Fullerton Police opted on Friday afternoon to release body cam video of the incident, along with a videotaped narrative providing context as well as the department’s take on events.

District Attorney Todd Spitzer also vowed in a release to make as much information public as possible.

The effort to release so much information made me recall my month trying to understand the harassment allegations being made against State Assemblyman Bill Brough (R-Dana Point) as well as the state investigation into the issue.

I spent some time searching for any public records of investigations into sexual harassment complaints in the Assembly Rules Committee against Brough, who has come under fire over harassment allegations that were reported to the panel.

Now, Brough fiercely disputes the harassment allegations, saying he’s being set up by special interests connected to the Orange County Toll Road Authority, an agency he targeted for sunset with legislation.

Yet the women who have spoken out publicly and privately about Brough do describe a pattern of harassing behavior.

Now, the State Assembly Rules Committee says in its official response to my public records requests that they have no responsive records on anything involving Brough and harassment.

However, I have seen documents that indicate the committee did indeed conduct an investigation, an inquiry that concluded the allegations against Brough were unfounded. The victim appealed the results of the investigation.

Now, again, Brough says he’s being set up.

The women say he’s a harasser.

Yet there’s no public record of anything involving Brough at the legislature.

“It’s all about protecting the members,” said more than one woman about the process in California’s state legislature.

Some sort of meaningful public disclosure should be key to addressing these processes, both for victims and elected officials accused of things like harassment.

Shutting down public oversight and discussion is never a good idea, no matter how sensitive the area.

There should always be a concerted effort in the American model of government to involve the public, to disclose as a matter of practice, where practical.

This past week, the Trump Administration itself triggered a firestorm of protests among environmental groups when it fast-tracked changes to how FOIA requests are handled at the Environmental Protection Agency (EPA) – skipping any public review process for comments, citing exemptions in law.

Trump officials took tons of flack in national publications for politicizing the process – for going forward with changes that codified the fact that political appointees can review requests at the same time they centralized processing for all requests to Washington, D.C. instead of at field offices.

EPA officials defended themselves about skipping public comment by arguing that their changes were long overdue and actually increased effectiveness and transparency.

“After many years of delay, EPA’s FOIA regulations are now in line with the Congressionally mandated changes to the statute and EPA has no plans to withdraw the finalized rule,” said EPA Spokesman Michael Abboud in an email. “This rule will enhance transparency and efficiency of responses to FOIA requests. Allegations made that the rule is changing the political appointees role in FOIA are false and irresponsible.”

EPA officials argued against a public comment review period, citing statutory exemptions to the Administrative Procedure Act’s notice and comment requirements.

“The Agency has determined that the changes in this Rulemaking qualify for either the good cause or procedural exceptions to the Administrative Procedure Act’s notice and comment requirements. The changes in the Rulemaking bring EPA’s regulations into compliance with nondiscretionary provisions of the amended statute and reflect changes in the Agency’s internal organization, procedure, or practice,” read a statement emailed by Abboud.

Fair enough.

But when it comes to changing regulations, what’s the harm in getting feedback from end users?

For example, I’d point out that one of the key weaknesses to our open records laws in California is that the very people I’m often times looking into (city council members and public sector executives) have influence over official responses to requests about their own actions.

The advantage of the traditional FOIA process is that the two actors are more separated and you have civil servants in between them, coordinating responses to records requests. You even have Ombudspeople that can review decisions to deny documents.

Centralizing that process, especially around political appointees, I humbly submit, doesn’t make me feel like I have a better chance at access – especially when a story is sensitive.

Just my two cents…

I wasn’t the only person from Orange County who reached out to EPA.

Congresswoman Katie Porter, from South Orange County’s 45th District, also took issue with EPA bypassing public comment and sent the agency a tough letter asking questions.

“I am disappointed that the EPA chose to fast track a new regulation without first taking the time to hear concerns from my constituents in Orange County,” Porter wrote me in an email. “Frankly, the fact that they are now doubling down is consistent with their apparent belief that they are beyond accountability to the American people.”

Porter said she would “keep monitoring this issue and think about the best way forward.”

She also agreed on the importance of public input.

“You can’t be an effective public servant if you’re not open and accessible to the public—in my first six months in office, I have done my best to embody this principle by hosting regular public town halls, attending community events, and writing back to those who contact my office.”

Yet more and more, it seems we are facing an ominous trend as a Republic, where our elected officials, are getting more adept at skirting the public.

It’s this odd notion among many elected officials that somehow if things move fast, if meetings and decisions are quick and sterile, then the final policy product is judged as effective.

Yet history tells us that fast tracking, in most cases, just speeds up shitty decisions.

Officials, both elected and appointed, should welcome public debate.

Our founding fathers – pretty smart, educated folks who valued freedom – hardwired public input into every aspect of our government.

Yes, it makes decisions take longer.

Meetings run longer.

And yes, emotions are often on full display during intense public dais debates.

Yet all of that is good and ultimately saves time, money – even potentially lives – by saving us all on costly lawsuits and mistakes down the road.

Public policy is not supposed to move fast or be sterile.

Government should never run like a business.

That’s because the ultimate product in government is quality of life.

And that should take much longer to ponder than a simple widget.

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