Anaheim politicians are cracking down on using private cellphones and other electronic devices to conduct city business – a practice that independent investigators say city officials frequently used to circumvent the state’s public records act.
Echoing a California Supreme Court decision, lawyers with both the ACLU and the First Amendment Coalition have previously said that no matter where emails, text messages and documents are sent, they are subject to disclosure laws if its officials business.
It’s something City Attorney Rob Fabela also noted at Tuesday’s city council meeting.
“If you conduct city business on personal devices, it’s a public record,” Fabela said.
On Tuesday, city officials directed staff to require the use of government phones and devices for top city officials and staff, forbid conducting city business on personal accounts and requiring officials to forward city business emails to government email accounts.
The discussion is part of a series of scheduled reform proposals Anaheim City Council members are expected to debate this fall.
These proposals are in response to what both FBI agents and independent investigators have concluded – lobbyists and Disneyland resort interests control city hall and heavily influence policy making.
City officials are also creating a staffing plan to hire people to handle public records requests, amending the city’s record retention policy to keep emails for two years instead of three months.
“Whether it’s by design, or by mistake, the risk of having either documents not preserved or the intentional sidestepping of the public records acts really causes us to do what is in the safest and the best interest of our city,” Mayor Ashleigh Aitken said Tuesday.
Aitken’s father, Wylie Aitken, chairs Voice of OC’s Board of Directors.
Officials are also expected to start publishing completed public records responses on the city website.
Councilman Jose Diaz said much of the changes won’t stop people from skirting public records law.
“If a crook wants to bypass the law with intention (they) will use their personal accounts regardless of what we do today because you’re a crook,” Diaz said. “
He did not support creating a new unit made of up to four people to handle public records requests that come into the city – a proposal that could cost $750,000 a year in salaries.
Councilwoman Natalie Rubalcava disagreed, arguing that the price wasn’t that much and can help lighten staff’s workload.
“I think it would probably be a nice addition to supporting a very important effort here,” she said.
Councilwoman Natalie Meeks agreed with Diaz that the measures won’t stop people from trying to circumvent the records act, but called the policy changes a great start to keeping people honest.
“Crooks will be crooks, and none of this is probably going to stop a crook,” she said.
Aitken disagreed and said the policy proposals should have penalties that can discourage people from trying to bypass the public records act.
“What kind of teeth can we put into this?” Aitken said. “I think having harsher penalties does deter people.”
Fabela said they can institute penalties on employees who disregard the policy, but for city council members “ that’s always a tricky issue … they would have to be discussed.”
Who’s Using Private Phones?
Aitken asked City Manager James Vanderpool who uses their private phones, with Vanderpool replying that he does, along with city spokesman Mike Lyster.
“Apparently there’s a few others, madam Mayor. We can get you a complete list,” Vanderpool said.
Councilman Carlos Leon said if emails have to do with city business, residents and the city should have access to it and encouraged enforceable policies to keep officials from doing government business on personal cell phones.
“Part of the issue that we found ourselves in is that there are folks who in the past have decided to use personal phones and so then we can’t access that information,” said Leon. “It’s accountability.”
Last year, FBI agents accused disgraced former Mayor Harry Sidhu of destroying records regarding the Angel Stadium sale to hide from the OC Grand Jury and engaged in witness tampering.
Earlier this month, Sidhu pleaded guilty to public corruption, including lying to federal investigators about leaking critical information to an Angels consultant in an effort to ram the Angel Stadium sale through for $1 million in political backing on his reelection campaign.
In a 353-page corruption report commissioned by the city and released at the end of July, independent investigators say that they couldn’t get into the phones of former Councilman Trevor O’Neil or Sidhu during their corruption probe.
Investigators said the Anaheim Police department also refused to help them access Sidhu or O’Neil’s phone for forensics examination because the phones weren’t under a “Departmental criminal investigation.”
Investigators from the JL Group also allege they also couldn’t get into Lyster’s phone, finding he uses his private devices for city business.
“This lack of access to Lyster’s device or records hampered JLG’s Investigation,” investigators wrote. “This is because any City employee custodian’s personally-owned devices should be within the scope of ESI (electronically stored information) associated with a City employee custodian just like their City-owned devices.”
In his plea agreement, Sidhu stated he received an email on Sept. 20, 2020 from an Angels consultant laying out how he and other city officials were expected to perform during the city council meeting to approve the sale and a plan to rehearse the meeting.
According to the agreement, that email went to Lyster’s private account.
The Voice of OC filed a public records request for that email, but Fabela said they couldn’t find it.
Officials didn’t address texting from the dais during public city council meetings on Tuesday – something called out by independent investigators.
“The practice of text messaging at the dais during City Council meetings has continued, and will likely continue to create doubt and suspicion with the public as to whether any such actions may be violations of the Brown Act,” investigators wrote in the report.
Meanwhile, Anaheim officials on Tuesday also directed staff to make it easier for residents to see where free tickets to events at city-owned properties like Angel Stadium, the Honda Center or the convention center go.
A Voice of OC investigation in June found that since the new city council took office last December, most of the tickets have gone to campaign donors, city staff and political allies instead of local nonprofits.
Tuesday’s meeting marks the first time city officials publicly debated reforming their ticket policy since the new council took office in December.
This week’s meeting came after Orange County Communities for Responsible Development (OCCORD), a local land use nonprofit, held a series of community forums to educate residents on the corruption scandal in Anaheim and gather input for reforms.
Vocal activists in the community have been pushing for city officials to address the large quantities of special interest money boosting politicians every election cycle.
But Anaheim city council members don’t plan to touch the debate until November.
Hosam Elattar is a Voice of OC reporter and corps member with Report for America, a GroundTruth initiative. Contact him at firstname.lastname@example.org or on Twitter @ElattarHosam.
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