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San Diego Open Government Ballot Measure Is Back Again

Aired 6/10/14 on KPBS News.

A ballot measure proposal meant to protect the public's access to government records will go before a San Diego City Council committee Wednesday.

A ballot measure proposal meant to protect the public's access to government records will go before a San Diego City Council committee Wednesday at 9 a.m.

The measure, which would ask voters whether to change San Diego's charter language to increase government transparency, was tabled indefinitely by the council in February. Supporters of the measure, including former City Councilwoman Donna Frye, had hoped to put the ballot measure in last week's election.

Frye, now president of the open government advocacy group Californians Aware, is aiming to place the measure on the November ballot instead. City Council Members David Alvarez and Marti Emerald are sponsoring the measure.

This current version makes three changes to the measure tabled by the council, Frye said. They are:

  • A provision that emails, text messages and all other public records must be retained for two years. Frye said this change was in response to an "administrative regulation" enacted by interim Mayor Todd Gloria that all city emails would be deleted after a year. The policy was later rescinded by Mayor Kevin Faulconer.
  • A provision that says records from all entities doing business with the city are also open to public. Frye said this change was made after the now-disbanded nonprofit Balboa Park Centennial Inc. said it was not subject to state open records laws.
  • A provision that says if a court finds litigation that was filed using the new charter language is frivolous, the city could be paid attorney fees. Frye said this change responds to City Attorney Jan Goldsmith's questions over whether the ballot measure would open up the city to more lawsuits.

The original open government measure said if the city denies access to a public record, it must provide a written justification explaining what harm would result from that disclosure. The City Attorney's Office raised concerns that this language could open up the city to more lawsuits.

When the original measure went to the City Council in February, City Councilwoman Sherri Lightner worried that the measure might overlap or conflict with the state's Proposition 42, which would require all local agencies to comply with the California Public Records Act and the Ralph M. Brown Act, a requirement that government meetings be open to the public. Proposition 42 passed in the election last week.

"The most prudent thing to do would be to wait until state initiative passes and then harmonize new city policies with state law," Lightner said in February.

The state measure legislates whether the state or local governments should pay the costs required to keep records and meetings open. A memo from the San Diego City Attorney's Office this week says the state proposition does not overlap with Frye's proposed charter changes.

In early March, the City Attorney's Office told San Diego CityBeat that the state and local ballot measures do overlap.

Frye also said that the City Attorney's Office stalled on giving her feedback on her original ballot measure, including issuing a memo outlining problems with the measure only hours before a committee meeting.

Mike Giorgino, a spokesman for the City Attorney's Office, disagreed with Frye's description of events.

"Donna Frye is flat out wrong on her accusation that the City Attorney's office did not cooperate with her," he wrote in an email. "She knows better. The lawyer on this is Cathy Bradley who Donna Frye worked with during her time on the city council. Cathy spent considerable time working with Donna Frye and others on this and has a stack of emails to prove it."

Bradley advised Frye that the open government measure is "a policy issue for the committee and city council," Giorgino said.

"The committee and the city council have the right to vote on this," he wrote. "The City Attorney's office does not."

Frye said she's been able to work with the City Attorney's Office on her revised measure.

She also said she's been talking with council members on the city's Committee on Economic Development and Intergovernmental Relations, who will hear her measure, and said she's been "moderately successful" in assuaging their concerns. But, she said, she does not know whether the committee will send her measure on to the full council, or whether it will make it to the ballot.

Despite her lack of assurances, Frye said she has to keep trying.

"Our intention is to codify as part of the city charter the public's right of access, so that they're not whipsawed back and forth based on who gets elected to office, so they have some certainty and the ability to participate in that process," she said. "This is such an important issue that I can't not continue to bring it forward."

This story has been updated with comments from the City Attorney's Office.

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