Gilroy
– A request for e-mails surrounding the secret retirements of
two police chiefs has led the mayor to call for a review of how
officials communicate with each other – and the public.
Gilroy – A request for e-mails surrounding the secret retirements of two police chiefs has led the mayor to call for a review of how officials communicate with each other – and the public.
The call by Mayor Al Pinheiro comes after open-government experts questioned the propriety of elected officials using private e-mail accounts to conduct city business, as well as the ethical dilemma posed when officials review their own communications in response to a records request.
“I would argue it is a violation of the law to allow the agency to delegate its responsibility to identify records subject to the request to potentially self-interested drafters and receivers of the subject records, especially when easy, quick and cheap computer searches can be done to objectively and unemotionally accomplish the task,” said Tom Newton, general counsel for the California Newspaper Publishers Association.
The Dispatch learned Wednesday that city council members and top city staff were reviewing their own e-mails in response to a request for communications surrounding the retirement deals of Police Chief Gregg Giusiana and Assistant Chief Lanny Brown. The deals – only disclosed to city council and rank-and-file police after the Dispatch began inquiring into the matter – have sparked weeks of controversy about transparency at City Hall and the proper spheres of power between elected officials and top administrators.
The paper also learned this week that council members do not have e-mails archived by the city like all of Gilroy’s 270 other public employees. Instead, messages to their city e-mail addresses are automatically redirected to private e-mail accounts. Structuring the system that way means that messages normally subject to public scrutiny fall beyond the reach of the California Public Records Act. Only a court subpoena could force public disclosure of such e-mails, Councilman Craig Gartman pointed out.
“I guess that’s the difference between legal and ethical,” he said. “I have nothing to hide so I don’t have an issue forwarding that information. Maybe people who do have something to hide would have a problem with it.”
And that requires a big leap of faith by the public, according to Terry Francke, general counsel for nonprofit Californians Aware.
“The redirection (of e-mail) seems deliberately designed to frustrate the intent and due procedure of the California Public Records Act by creating a secret channel of communication with all elected officials,” Francke said. “For example, someone sending a proposal or other message to most or all council members – a communication that would be presumed public under the Act – is allowed to do so not only privately but invisibly.
While citizens can privately lobby individual council members, identical communications sent to a majority of the council constitute a public record, he said.
“City staff members have no right to lobby the council confidentially at all,” he added. “Yet all of these messages are being piped underground.”
The handling and disclosure of electronic records by public agencies has emerged as a troublesome gray area in recent years, according to Francke, who plans to ask the state attorney general to weigh in on the matter. In the absence of guidance from the courts, the state’s top legal official often steps in to clarify open records and meetings laws.
In addition to standards on e-mail storage and retrieval, Francke and Newton hope for clarification on how long e-mails should be retained and whether city employees should be allowed to delete e-mails.
Technology makes retention and retrieval vastly easier than in past years. City Information Technology Manager David Chulick said he was not asked to retrieve the e-mails in response to the Dispatch request, but he said it would be a simple matter of searching for key words and phrases within the accounts of city officials.
With respect to the routing of council members’ e-mails to private accounts, he said that system involves slightly less overhead than storing the e-mails in house. Neither he nor Baksa could say who decided to structure the system that way when it was created four or five years ago, but Chulick said it would not be hard to reconfigure City Hall’s computers to store copies of council communications.
“With technology, anything’s possible,” he said.
Mayor Al Pinheiro said he plans to ask Baksa to inquire with the League of California Cities about e-mail retention standards.
“If there’s any ethical conflict,” he said, “I guess the next question is to look at how other cities are structured. If we’re not in the right structure, then we need to fix it. I don’t profess to know or be up to date as to all these things. I thought I was doing a pretty good thing in having all my messages reside in an account devoted to the city.”
Baksa said he plans to review how other cities are handling e-mail communications that could be considered public records. In the meantime, he suggested there is a built-in safeguard that ensures full disclosure in the case of the chiefs’ retirement deals. Each of the parties, he explained, would be wise to disclose all the e-mails they sent, since copies of their messages would likely be disclosed by the recipients.
“This is evolving. This isn’t just for e-mails,” he said. “What starts happening with text messaging? You’re talking about an enormous amount of new technology that’s coming out with almost every breath. The laws, the common practices haven’t even been created on the last generation of (communication), much less what is coming up. I agree that there is going to have to be some standards or parameters so everyone knows where to look.”
On Feb. 22, the Dispatch requested e-mail and written communications sent and received by both police chiefs, Baksa, all seven city council members, and Human Resources Director LeeAnn McPhillips. Earlier this week, city attorneys said that officials would need an extension until March 19 to comply with the request.
The deals negotiated by Baksa allowed the police chiefs to formally retire earlier this winter and “return” – without any break in service – as part-time employees. The arrangement saves the city $100,000-plus in medical and pension payments, and doubles the earning potential of Brown and Giusiana. Each chief stands to make at least $240,000 in retirement benefits and hourly wages.
