Dan Walters: The Legislature has a choice: Let the sun shine or sanction secrecy

Sacramento Bee

By Dan Walters

Aug 25, 2002

California cities have been induced by circumstances -- primarily the loss of much of their property tax base -- to become active partners in commercial development projects, hoping to reap harvests of sales, hotel and property taxes from those deals.

It's not a particularly welcome phenomenon, because it distorts local land-use decision-making and often leads to misuse of redevelopment to seize land and/or grant unwarranted subsidies to private developers. A recent case in point is the furor that arose in Cypress when it attempted to use redevelopment powers to seize church-owned land for a Costco outlet.

As worrisome as the city-as-developer syndrome may be, it's unlikely to disappear. And as it has developed over the past quarter-century, one aspect is its conflict with state open-meeting laws. It's inherently incompatible for a city council to act as a land developer, particularly in partnership with private interests, when the Ralph M. Brown Act and other "sunshine laws" require the public's business to be conducted in public, with rare exceptions.

An example of that conflict surfaced recently in San Jose. Local landowners and merchants are complaining that San Jose's city council skirted, and perhaps violated, the Brown Act when it fashioned a controversial scheme to overhaul the Tropicana shopping center in East San Jose, in partnership with a private developer. The project involves seizure of private land.

"To put it simply, they cheated," the San Jose Mercury News quoted Rich De La Rosa, a leader in the Tropicana Merchants Association opposed to the project. "We believe they violated procedure and need to be called on it."

It's against that background that the state Legislature is exhibiting an irritating syndrome of its own: adopting policies that conflict with one another.

The state Senate has approved President Pro Tem John Burton's constitutional amendment that, if it clears the Assembly and is enacted by voters, would strengthen California's sunshine laws. It would place in the California Constitution the principle that with rare and justifiable exceptions, the public's business must be open to the public.

While newspaper publishers and pro-sunshine groups support Burton's measure, the League of California Cities, the California State Association of Counties and other local governments oppose it, saying that current exceptions might be undermined.

Burton's measure has been stalled in the Assembly, but that house has already approved a bill that would move in the opposite direction by cracking down on anyone who dares to reveal what does occur in those secret meetings of city councils and other government bodies. This legislation, of course, is sponsored by the League of California Cities and other local government groups that oppose the Burton measure.

While the bill, carried by Palo Alto Assemblyman Joe Simitian, supposedly contains protections for those who blow the whistle on illegal secrecy, its enactment could have a chilling effect on a local official or employee who dared to reveal what's happening behind closed doors.

The Senate Local Government Committee approved the legislation, even though its sponsors were unable to cite even one example of how such revelations had adversely affected the public interest. They offered only vague rationales about how some local officials were airing internal conflicts in public -- as if that should be a sin.

This conflict can only grow more acute as local governments become more involved in elaborate development schemes. One example: Sacramento's city manager, Bob Thomas, wants to develop an auto mall on the city's northern edge and lure away auto dealers now in unincorporated county territory. As Thomas negotiates with auto dealers over city subsidies, the infighting between city and county officials over millions of dollars in potential sales taxes has become fierce, and virtually all of the wheeling and dealing has been conducted in secret. Thomas and others of his ilk probably would like to have new laws that make it tougher for someone to reveal how they're secretly dealing with auto dealers and developers. And that's why Burton's measure is important and why the rival bill could be dangerous to the public's true interest.