By the time his term ends in January 2011, Gov. Arnold Schwarzenegger may well have experienced the worst fiscal environment of any California governor since the Great Depression – much of it bad luck, some of it his own doing. But he can still make a positive, indeed historic mark in keeping with some of the most encouraging promises in his 2003 campaign to replace Gray Davis.
To the degree that his ambitious platform proposed programs relying on any substantial new spending, the state’s budget deficit – now estimated at $16 billion for the coming fiscal year – is prohibitive. It’s also widely sensed that the state is entering a recession, and perhaps even a stagflation, likely to drive down tax revenues for much of the remaining Schwarzenegger years.
Nonetheless, in considering what the governor can accomplish in a positive way, we should remember that in his 2003 campaign he pledged "to throw open the doors and windows of government," commenting in one speech, "There’s no such thing as democracy in the dark."
His "open government reform plan" included a commitment to add the Legislature (which had exempted itself) to a constitutional amendment mandating open government records and meetings of official bodies. But that commitment was quietly dropped.
The governor also takes credit for giving the press access to his appointment calendars, but his office began to provide them – in edited form – only when it appeared that a lawsuit for them might be in the offing.
More typically, last fall the governor vetoed a modest bill – AB 1393, which Californians Aware sponsored – that would have allowed citizens to file public records access requests on every state agency’s Web site, with follow-up contact information. His veto message stated: "Ensuring access to public information is one of my administration’s top priorities. That is why last year I issued Executive Order S-03-06, requiring all state agencies to review their guidelines governing access to public information. In addition, the order required that every agency identify and train staff to be responsible for ensuring compliance with the California Public Records Act."
The governor neglected to mention that his executive order was issued only 15 days after Californians Aware released the results of its executive branch audit showing that the average score among 31 key state agencies was only 37 percent compliance with basic, undisputed requirements of the California Public Records Act.
All in all, then, contrary to his stated commitment, Gov. Schwarzenegger has not been a champion of openness. He has not shown leadership in this area and has in fact consistently vetoed open government legislation that would affect state agencies subject to his control.
If the Governor wished to have a lasting and positive legacy in California history despite the budgetary and greater economic constraints he seems likely to remain saddled with, he could take action to sponsor a bill creating a state open government commission.
On Californians Aware’s Web site over the past year an admittedly unscientific open-ended survey has been indicating overwhelming dissatisfaction with the current situation, in which "enforcement of the open meetings and public records laws is now almost entirely left up to private lawsuits." There are 334 responses as of this writing, more than two-thirds of which agree that there needs to be some public office or officer authorized "to investigate complaints, order correction of violations, and provide training." Of these, about 26 percent preferred "a statewide commission" as the enforcer, about 24 percent local district attorneys and about 18 percent the Attorney General. Only about 23 percent opted to leave the situation as is.
There is one clear precedent for a statewide body of the kind described in the survey. The Connecticut Freedom of Information Commission, appointed by Gov. Ella Grasso in 1975, has five members, a staff of 20 and recurring operating expenses last year of $1.7 million – lean and mean by anyone’s measure. On the enforcement side, the FOI Commission hears complaints from those denied access to meetings or records of public agencies, holds hearings on the complaints and will then can either dismiss the complaint, order release of a record or nullification of a meeting action, or assign the matter to mediation with a commission staff attorney acting as ombudsman. The commission attorneys can also defend its orders if challenged in court.
On the training and education side, the commission conducts educational workshops and speaking engagements for public agencies throughout the state. Much more information is provided at the commission’s Web site, www.state.ct.us/foi.
Gov. Schwarzenegger would not need to sponsor such legislation; it would be enough if he would sign it. But if he really meant what he said when, during the recall campaign, he became the first gubernatorial candidate in California’s history to make open government a specific plank in his platform, this is one achievement that his name would always be linked with, with gratitude.
Terry Francke is the general counsel of Californians Aware, a nonprofit organization helping journalists keep citizens aware of open meeting laws and other steps they can take to hold government and other institutions accountable. Call him at (916) 487-7000.