Reporter's Sunshine Ordinance Column Missed the Mark

Editor's note: The editorial that Francke is speaking of can be found at www.thereporter.com in an article titles "Don't cloud the sunshine in Dixon," printed March 2, 2012. The author of this opinion piece quotes directly from the story to make his counterpoints.

By Terry Francke

Special to Dixon Patch

1. The Vacaville Reporter states: "(P)roponents want to enact their own version, with minimal input from the public."

Fact: The initiative process depends entirely on public input, first in placing the matter on the ballot by signing the circulated petitions and then by voting on it. The proposal can be rejected at either stage.

2. The Vacaville Reporter states: "Sure, voters may have the final say, but their only choice will be to vote 'yes' or 'no' to the version placed on the ballot. They won't be able to help shape the proposed Dixon Open Governance Act, as was happening during a series of public workshops held by the City Council."

Fact: Throughout the workshops over a six-month period, not a single suggestion from the public was taken up by the Council as a proposed amendment to the ordinance draft.

3. The Vacaville Reporter states: "Nor will the city attorney be able to suggest refinements that could prevent future legal battles."

Fact: The city attorney listed several pages of criticism in reaction to the first draft in a report to the Council that was kept secret until the Council was persuaded to waive the attorney-client privilege and make the list public.

4. The Vacaville Reporter states: "The law was initially proposed by Dixon resident Ourania Riddle last August."

Fact: Ms. Riddle proposed it more than a year ago; the City Council took it up for consideration only last August.

5. The Vacaville Reporter states: "Through the course of several public hearings, what started out as a 20-plus page document was cut in half, mostly by removing its duplications with state law."

Fact: That editing did not result from Council interaction with the public, but was done by me at Ms. Riddle's request after the first workshop, before any substantive discussion of the text took place.

6. The Vacaville Reporter states: "The council and the public were in the process of going through the latest version page by page, hammering out details, honing the language and carefully studying aspects that might or might not be such a good idea, such as having an unelected body overseeing actions by the elected City Council."

Fact: Instead of its snail's pace of review, which never got farther than section four, page two? The Council at any time could have asked the city attorney and/or other staff to draft a substitute version they thought would overcome legal or practical difficulties. This version could have been given one or two public hearings and passed as an ordinance, which is what the City of Berkeley did to give voters an alternative to a more demanding sunshine ordinance on the ballot. The Council could even have put its preferred version on the ballot for voters to approve or reject.

7. The Vacaville Reporter states: "But before the work was complete, ordinance backers started the legal process to put the document in front of voters."

Fact: That Ms. Riddle could and would resort to the ballot if the Council's reaction was unsupportive should have come as no surprise. It was acknowledged by at least one Council member in one of the first review sessions.

8. The Vacaville Reporter states: "It is understandable that they might ultimately want to do that, to ensure that future councils don't tamper with it. But they should have waited until the final document was completed -- even if that meant waiting for another election cycle. There is no reason to hurry this process."

Fact: As was also acknowledged at one of the early meetings, the time to lock in transparency policies that can't be repealed by a simple shift in the political environment is before a new Council majority is elected that could be hostile to open government. A sunshine-friendly Council such as the one now in place is precisely the leadership that could be expected to want its
openness to be a legacy guiding successor councils. It's had a year to "lead, follow or get out of the way" but has not shown any sense of urgency to safeguard openness from a receding tide of support at City Hall.

9. The Vacaville Reporter states: "If good-government advocates are serious about wanting more openness in Dixon, they should put the ballot measure on hold and ask the City Council to resume the public hearings. That *is* the public process. Don't subvert it."

Fact: Legislation by an elected body after deliberative hearings is *a* public process, but not the only one. Equally privileged in the constitution is the initiative process, enacted a century ago in California as an alternative and even more populist avenue of democracy to be used when the representative approach is not delivering at all, or with unsatisfactory dispatch or attention to perceived problems. At the statewide level the initiative process is increasingly criticized as the nearly exclusive tool of wealthy and often corporate or union-backed interests. That's not the case here, obviously. Ms. Riddle's initiative is subverting nothing but a process that has been given a long time to work but has offered only objections, not solutions. If you want to see a system created by elected representative action with no initiative track as an alternative, you have only to look at the federal government.

Terry Francke is General counsel for Calaware. Calaware is a Sacramento based nonprofit organization established to help journalists and others keep Californians aware of what they need to know to hold government and other powerful institutions accountable for their actions. Its mission is to support and defend open government, an enquiring press and a citizenry free to exchange facts and opinions on public issues. In short, Californians Aware will be a center for information, guidance and initiatives in public forum law. (www.calaware.org)