The watchword is reasonableness.
Norberto Santana, Jr.
A pioneering leader in the nation’s rising nonprofit news movement and an award-winning journalist. Santana has established Voice of OC as Orange County’s civic news leader, uncovered truths across Southern California governments for more than two decades and reported on Congress and Latin America. Subscribe now to receive his latest columns by email.
Anaheim city officials were reminded of that standard this week following a decision from Orange County Superior Court Judge David Hoffer, referring to the state’s legal standard under the Public Records Act when it comes to disclosing public records about how Anaheim officials privately decided to sell off their public stadium.
To date, Anaheim officials insist there’s very few public documents that can be disclosed about their stadium negotiations — things like emails between city and team officials about the sale, or internal memos about maintenance issues at the stadium.
It’s pretty clear at this point that Anaheim city officials and their counterparts — the LA Angels who happen to play in Anaheim — don’t want anyone to know how they put their deal together, one they insist is already concluded.
If they’re right, that means a billion dollar taxpayer asset was effectively sold on the back of a napkin.
More than 150 acres and a stadium for $150 million.
Anaheim’s approach was so brazen that it didn’t last a day in court.
That’s because a citizen’s group, the People’s Homeless Task Force, got help from the renown public records attorney, Kelly Aviles, who ultimately helped them file a lawsuit calling out the secretive nature of the stadium negotiations as illegal.
Aviles is also general counsel for the statewide First Amendment Advocacy Group, CalAware.
I have been honored in recent years to serve alongside Aviles as President of the CalAware Board of Directors.
Note that under the state’s open meeting laws, there’s only limited exemptions for public officials to privately discuss public property negotiations — like the stadium sale.
Price and terms of payment.
Despite being straightforward, it’s a limitation that many public officials and their taxpayer-funded attorneys are constantly bucking, especially when it comes to ramming through questionable development deals with private interests seeking to profit off public property.
Consider a similar lawsuit that has been filed by a local property owner in Mission Viejo against that council majority in its bid to remake a shopping center near city hall.
Now, in most local jurisdictions, enforcing the Brown Act is a job that is supposed to be handled by local district attorneys.
It’s actually a pretty easy standard to police because district attorneys can send out public warning letters calling out city councils for violating the state’s open meeting law, known as the Ralph M. Brown Act.
Yet more and more, it is rare to see this kind of public political policing by our chief law enforcement officer.
This week, I asked DA Todd Spitzer, through his spokeswoman, to let me know how often those kinds of warning letters are sent out, especially since Spitzer had recently sent out a warning letter to the Laguna Beach City Council raising concerns about whether recent hotel negotiations violated the Brown Act.
That’s not something they could quickly turn around and answer, something that leads me to think it’s rarely done.
Now, after publicly congratulating Spitzer on Twitter this week for doing the rare act of calling out local politicians for violating the Brown Act, many Democratic activists Tweeted questions about whether Spitzer would enforce that kind of standard on his Republican city council colleagues as he did to the Democrats in control in Laguna.
Certainly, the Anaheim situation raises questions about where Spitzer’s office has been on the least transparent public property negotiation I’ve ever witnessed in all my years of reporting.
And I covered the San Diego Chargers stadium negotiations back in the 1990s for the SD Union Tribune.
In order to comply with state law, as I wrote back then, San Diego city officials established a public task force to conduct deliberations and make recommendations to city officials about negotiations.
San Diego taxpayers didn’t end up paying for a stadium.
LA private interests ultimately did.
Aviles also took on the LA Coliseum Commission in their dealings with USC, which also violated the Brown Act — meaning that their negotiations had to completely redone in public after Aviles won in court.
Now, the Angels and Sidhu’s council majority openly scoffed at that kind of transparent government standard and rammed the stadium sale though just ahead of the Christmas holidays back in 2019.
City Councilman Trevor O’Neil, who voted for the stadium land sale, has repeatedly said from the council dais, that there’s no way to publicly negotiate a stadium deal.
Except that’s exactly what state law calls for.
Read the preamble to the Brown Act.
“The people of this State do not yield their sovereignty to the agencies which serve them.”
“The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”
Our newsroom feels so inspired by the preamble here at Voice of OC that we emblazoned the statement on the back of T-shirts we made after County Supervisors Chairman Andrew Do called us the “Noise of OC” because our reporters file so many public records requests.
Spitzer — and every DA that follows him — should send a copy of the Brown Act to every legislator in Orange County, every year, with a handwritten note reminding them that he’ll be watching.
Now, in Anaheim, city officials have spent years arguing they can essentially deliberate entirely behind closed doors to sell off the public’s property.
It’s what I’ve come to refer to as the Sidhu standard for transparency, naming it after Anaheim Mayor Harry Sidhu, who got his council colleagues to appoint him to lead the city’s stadium negotiating team after he won a tight election back in 2018.
For years, I’ve written that kind of standard just doesn’t jive with state law when it comes to selling off public property.
Anaheim’s contention about legal secrecy in public land sales is about as believable as Sidhu is when myself or our staff reporters have called his cellphone seeking official comment and he mistakenly takes the call.
Once realizing he’s got a reporter on the other line, on three separate occasions with three separate journalists, Sidhu has shifted and pretended, in his own voice, to be his much younger son — who then proceeds to take a message for his father, which we always leave with a smile.
It’s a message that is never returned.
It’s a standard that seems long gone when it comes to stadium negotiations in Anaheim.
Now that we have finally reached the courts, it will be interesting to see if this house of cards can hold up.
Given the purpose of the California Public Records Act and the state constitution’s emphasis on transparency, Judge Hoffer wrote that the City has the burden to prove that its search for responsive public records on deliberations was reasonable.”
“On the evidence before the court, the City fails to sustain this burden,” Hoffer wrote.
Hoffer also noted the assistant city clerk followed records search protocol, but the city’s filings lack any substance on how the records search was conducted for the biggest public land deal in the city.
“The declarations fall short, however, because they do not provide any information about how the search itself was performed or even as to how the searchers were instructed to perform it. This issue is of special concern when it comes to electronic searches. For such searches, the results will only be as good as the search terms utilized, and there is no information at all in the declarations about what search terms the persons performing the search utilized.”
Now, city and Angels officials are reportedly calling for a quick trial on the stadium issue so they can finalize their deal.
Yet Hoffer put them on notice they have work to do in the transparency department before they get to eat their stadium cake.
“Based on these findings, the court orders a further search. This search shall be limited to electronically stored documents related to the stadium site. As to the search terms themselves, the court orders the parties to meet and confer. Whatever terms are agreed upon must be utilized uniformly across all City departments (unless the parties stipulate to some other procedure).” Hoffer wrote.
This next week, comes a really interesting court hearing on the matter where Judge Hoffer will bring both sides together to talk about what kinds of search terms would generate more deliberative documents about how city officials worked to coordinate the sale of the stadium.
Again, like Sidhu’s messaging system, it’s hard to believe the official story…that officials never commented with each other electronically or on paper to sell the stadium.
In the roughly 2,600 page court filing from Aviles, there’s no substantial communications between council members or staff on the stadium deal.
Instead, things like a slideshow or the purchase sale agreement were reproduced by Anaheim multiple times.
How did city officials put together their negotiations strategy? How well did they do? Did they get the best deal for taxpayers?
How can you judge without seeing raw documents?
How did they agree on what to put together on public presentations for the deal points for the webinars that were produced before council approval?
How did city spokesman Mike Lyster get his direction from the council majority on describing the deal points in public and media before council members publicly discussed the stadium sale?
How did city officials coordinate the special presentations made to select news outlets or help Sidhu organize selective press conferences where news outlets like Voice of OC were often excluded?
In our case, Lyster told me that Voice of OC just didn’t have enough circulation (now hovering at 450,000 monthly unique visitors each month) to merit being invited to city press conferences.
Now, raw documents always tell stories much better than city politicians or spokespeople.
For example, since the state Supreme Court has ruled that private text messages to public officials are disclosable when they deal with public policy, I wonder what kind of process will get set up to check for those messages and will they be disclosed?
Here’s the most interesting part.
If the two sides can’t agree to be reasonable in their negotiations on how to search for records, what’s the likelihood that officials like Sidhu, Lyster or former City Manager Chris Zapata get deposed to find out what kinds of potential disclosable documents or text message chains may exist?
The course of this lawsuit not only dictates what happens to the future of Anaheim’s stadium land.
It’s also a test for how strong open meeting and public record laws are and if they’re enforceable.
Democracy in this part of America hangs in the balance.