Government Waste

See here for stunning facts about public sector unions:

For every $1-an-hour pay increase, noted Dennis Cauchon in USA Today, public employees have gotten $1.17 in new benefits. Private workers have gotten just .58 cents in benefits for every $1 raise. This gap worries left-liberal labor economist Barry Bluestone. The price of state and local public services increased by 41 percent nationally between 2000 and 2008. Private services only increased by 27 percent. The benefit growth has continued unabated into the Great Recession, and Bluestone says the gap will inevitably produce a backlash.

Like banks, but with even less self-control, state governments make long-term promises in boom times while depending on the short-term flow of revenues. But when the boom ends, the benefits that have been ratcheted up have to be paid for out of a declining private sector economy. Barring a sharp recovery, state and local government tax-funded pension contributions in New York are likely to triple over the next five years in order to pay out the pension benefits guaranteed by the state constitution. (This is equally true in Illinois.) California’s public pension fund liability has already topped $200 billion, and in cities such as Oakland, Vallejo, and Rio Vista bankruptcy looms.

If you want to really scare people on Halloween, dress up as a retired teacher, police officer, county lawyer, or any other public employee eligible for a pension and lifetime medical benefits. (Actually, that's the problem--we're not yet scared of these people, even as California issues IOUs. Maybe we'll pay attention when the sales tax is 20% and the DMV charges $400 to register an old car.)

Tim Donaghy: Sacto Was Jobbed in 2002 Western Conf Finals

I feel like baseball fans did when the steroids allegations came out. At first, I disbelieved the allegations; however, over time, I agreed the MLB had a problem. (Seeing a rookie Oakland A's McGwire card and a St. Louis Cardinals McGwire card helped.) And I am disgusted. I don't care if Tim Donaghy lied on other issues. When someone lies, it means you may--but are not required to--discount his entire testimony. My gut tells me that Donaghy is right. And for the first time in my life, I hate the NBA.

I graduated from UC Davis in 1999. (Davis is only ten minutes away from Sacramento.) I remember the classy but futile Mitch Richmond era, and I loved seeing Jason "White Chocolate" Williams throw up half-court treys that would somehow go in. I loved seeing Vlade's flops, Webber's crisp passes, and stories about Christie's henpecking wife. And even though I felt Sacto got jobbed, I still didn't know they got jobbed. There's a difference.

Now that I agree/believe Sacto got jobbed, I am sad, angry, and miserable. Sad, because I love the NBA. Most Americans come alive in March for the college tourney, but it's too hard for me to keep up with all the different players. With the NBA, you get to see the best players, and (with some exceptions) you get to see them grow up over several years.

I am angry, because I don't understand how Stern or the NBA's front office could have allowed a referee's personal preference to change a game's tempo and/or result. I suddenly have newfound respect for both Allen Iverson and Joe Crawford, which is amazing, b/c I hated Crawford after he called the infamous technical on a bench-sitting Tim Duncan. (Congrats, Stern--your negligent oversight has made me appreciate the hot-headed, bald, and cranky Joe Crawford.)

Finally, I am miserable, because an NBA refereeing scandal is far worse than doping in baseball. In baseball, doping might provide a player an advantage, but umpires cannot consistently collude to give one team a game or a series. Donaghy's allegations of referee favoritism create doubts not just about previous NBA champions, but about the foundation of the game itself. Who wants to watch a sport if they know referees can and have pre-ordained the result? (On a personal note, I am also miserable because I don't really love any other sport. I like hockey, but I don't love it. And if it weren't for fantasy football, I could not care less about Sundays.)

Stern needs to reform the league. Now I think Stern should have continued using replacement refs. By allowing the regular refs to return, Stern may have missed a good opportunity to eliminate the NBA's bad/corrupt refs. (He could have re-hired the good refs a few years later.)

Here's one excerpt from the book, which isn't being published yet because of legal threats from--who else?--the NBA:

http://deadspin.com/5392067/excerpts-from-the-book-the-nba-doesnt-want-you-to-read

The 2002 Western Conference Finals between the Los Angeles Lakers and the Sacramento Kings presents a stunning example of game and series manipulation at its ugliest. As the teams prepared for Game 6 at the Staples Center, Sacramento had a 3–2 lead in the series...As soon as the referees for the game were chosen, the rest of us knew immediately that there would be a Game 7. A prolonged series was good for the league, good for the networks, and good for the game. Oh, and one more thing: it was great for the big-market, star-studded Los Angeles Lakers.

Before Donaghy, I would have just sighed at the disgrace that was Game Six. Now, I am angry. If Stern and the NBA want to keep me as a fan, they'd better do something. Quick.

Bonus: completely random website recommendations:

http://mirroronamerica.blogspot.com/

http://www.aseaofblue.com/story/2007/6/7/102426/5876

Matthew Hoh: Conscience of a Nation

Matthew Hoh, a former Marine officer, served in Iraq and Afghanistan. After just five months in Afghanistan, failing to see any value in supporting the Afghan government, he resigned.

His letter contains several well-written gems: “Like the Soviets, we continue to secure and bolster a failing state, while encouraging an ideology and system of government unknown and unwanted by its people.”

Later, Mr. Hoh compares the Pashtuns to revolutionary Americans, fighting against “foreign soldiers and taxes.” He also compares the war to “South Vietnam.”

Mr. Hoh also fails to see any real strategy. For example, if the point is to prevent Al-Qaeda from regrouping, then American troops would have to also “invade and occupy Western Pakistan, Somalia, Sudan, Yemen, etc.” [Nice use of “etc.” in the aforementioned sentence, right?]

He also mocks the administration’s current strategy, saying, “to follow the logic of our stated goals we should garrison [i.e., put troops on duty in] Pakistan, not Afghanistan.” In addition, Mr. Hoh reminds us that the 9/11 attacks were planned in Western Europe, so even stopping Al-Qaeda in the Middle East won’t necessarily make Americans safer.

Mr. Hoh's letter is a must-read for all Americans. Full letter [Warning: PDF file] here.

Congress Passes a Law Promoting Gov Secrecy

Without transparency, citizens cannot keep their government honest. That's why I was surprised at a recent news story: "Photographs documenting US military abuse of detainees overseas will likely remain secret under a new law passed by Congress." See here. 

Congress essentially passed a law to circumvent a federal appellate court decision. That court ordered the government to release the photos to the ACLU (pursuant to the FOIA). 

Basically, our own government is withholding relevant information relating to the war on terrorism. But if we, the taxpayers, paid for it, we deserve to see the consequences of it (Note: common sense tells us these photographs contain no significant security secrets). 

Bottom line: don't sugarcoat something for me--I want to see all the results of my taxpayer contributions, good or bad. Tell me to wear a seatbelt, tell me where I can't smoke, but if you're spending my tax dollars killing other people and getting my fellow citizen-soldiers killed, I want to see the results. Doesn't that sounds fair? 

Update on December 1, 2009: Sadly, the U.S. Supreme Court has approved the withholding of detainee pictures. See here.

Pete Constant: Another Lying Politician?

Update on November 24, 2009: it's been several weeks since San Jose City Councilmember Pete Constant said he would provide additional information justifying his vote against government transparency. Even after I sent a reminder/email, no one from his office has contacted me. 

Update on October 27, 2009: after speaking with Councilmember Pete Constant, I need to add some comments to this post. 

First, I had complained his office did not return an email, but Mr. Constant indicated I may have used an incorrect email address. (The correct email address is Pete.Constant@sanjoseca.gov) 

Second, before you read my original post, which is below, I should provide some background. Mr. Constant voted against a Sunshine Reform Task Force recommendation that would have made it easier to access police records and statistics. Mr. Constant said he voted against the recommendation because he was concerned about victims' privacy and public safety. He specifically mentioned protecting the results of police investigations. He alleged that if the Council had approved the Task Force's recommendation "as is," then anyone would have been able to access details of police investigations, including personal information in identity theft reports. 

Also, as a former bank robbery detective, Mr. Constant told me he often included trade secrets--such as bank floor plans and vulnerabilities--in his investigative reports. One reason he did not vote to approve the Task Force's recommendation is because he believed the public, including potential criminals, would have been able to access such trade secrets. Mr. Constant also raised the issue of home robbery investigations and accompanying home inventory records, saying he wanted to protect residents from having their valuable assets revealed pursuant to a Public Records request. 

Sounds good, doesn't it? Except it's wrong. As the Task Force itself pointed out, Government Code section 6254(f) already addresses these concerns: 

Nothing in this chapter shall be construed to require disclosure of records that are any of the following: (f) Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the California Emergency Management Agency, and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency...[and] nothing in this division shall require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer. 

When I mentioned this code section to Mr. Constant, he said that it was unclear whether the 6254(f) exemption would apply if the Council approved the recommendation. Mr. Constant defended his vote against improved government transparency by saying, "If I believe there is [even] a [slight] chance under the recommendation that victim rights could be compromised, then I can’t support it [i.e., the recommendation]." 

I was skeptical about Mr. Constant's belief that the existing 6254(f) exemption didn't address his concerns. I responded that if the Task Force's recommendation would have released investigative results, then I would have voted against it, too. However, the Task Force itself cited the 6254(f) exemption, which indicates it was not trying to remove the exemption. 

Also, it is common knowledge that local laws cannot trump state laws, only extend them, and you can't "extend" 6254(f)'s prohibition against disclosing investigatory reports--doing so would destroy the exemption itself. Mr. Constant said I was incorrect that the 6254(f) exemption would continue to apply, because the Task Force's recommendation would be extending rights under the Records Act, and the proposed extension of rights could be interpreted as eliminating the exemption for investigatory reports. 

I continue to disagree, but Mr. Constant said he would send me more information, so I will reserve judgment. [Update: as of November 24, 2009, I have received no further information from Mr. Constant or his office.] Still, once you see the quote I cited from the Task Force's report, which specifically cites Government Code 6254(f), it should be apparent that no reasonable person or judge would rule that the Task Force or Council intended to remove existing state law exemptions relating to police investigations. 

To offer support for his legal interpretation, Mr. Constant told me the Attorney General's(?) office, the Undercover Narcotic Officers' Association, and the D.A.'s office all told him they had issues with compromising investigations if the Council approved the recommendation. 

I asked Mr. Constant a final question: "What was ultimately decided regarding police records?" He said he would email me something that addressed my question soon, and we said our goodbyes. 

I think local law enforcement gave the "party line" to Mr. Constant, and he accepted it. Few government lawyers or police officers want to spend time figuring out how to shield potentially embarrassing information from the public. 

Right now, the police department can easily block information from the public. Under a "balancing test," explained below, the police may reject a request for records if they--in their subjective opinion--believe the request is improper. The police's rejection forces the requesting party to hire a lawyer and file a lawsuit, an option few people can afford. If, however, the Task Force's recommendation had passed, the public would be presumptively entitled to police statistics and reports not covered by a specific exemption. Of course, that's more work the police and government lawyers have to do, so they have an interest in telling Councilmembers the most far-fetched legal interpretation possible. It is still disappointing to think that any Councilmember would favor minority union interests over his/her own constituency's right to government transparency. 

By the way, Councilmember Sam Liccardo is a Harvard Law School graduate and a former D.A. He voted to approve the Task Force's recommendation. If there was a real problem with the task force's recommendation, wouldn't Mr. Liccardo have voted against it? 

In the end, government transparency is crucial to maintaining a reputable democratic republic. Therefore, if extending the law creates more work, so be it--the solution isn't to deny transparency, but to become more efficient in handling requests. 

Some color commentary: 

1. Mr. Constant was generous enough to speak to me for about 10 minutes, even though he had a cold and was coughing throughout the conversation. In fact, he told me he would probably be taking a sick day tomorrow. Kudos to him for responding to my emails and telephone call on the same day. 

2. Mr. Constant told me he would send me some information to further explain his rationale on the 6-5 vote. I specifically mentioned wanting some support relating to his belief that Government Code 6254(f) wouldn't apply if the Council passed the recommendation. If I get more information, I will update this post again. [Update: as of January 10, 2010, I have not received any information from Mr. Constant's office.]

SJPD to San Jose: You Want to See Police Records? Go Stick It Where the Sun Don't Shine

I can't believe I missed this--in a narrow 6-5 vote, San Jose City Council rejected greater transparency into police records and stats. The following six council-members voted against government transparency: Chuck Reed, Nancy Pyle, Pete Constant, Pierluigi Oliverio, Judy Chirco, and Rose Herrera. Remember to vote them out come election time.

The council voted 6-5 against the Sunshine Reform Task Force proposal. The vote came after almost an hour of public testimony and an even longer discussion by the council on the issue, proposed one year ago. Mayor Chuck Reed voted against the proposal along with Vice Mayor Judy Chirco and council members Nancy Pyle, Pete Constant, Pierluigi Oliverio and Rose Herrera. [SJ Merc, by Tracy Seipel, 10/21/2009]

While most residents appreciate our city's rank-and-file officers, it is incredible that our city council can't appreciate transparency when it comes to a police department that has cost local taxpayers millions of dollars in legal settlements and that has been accused of using excessive force without due cause.

Speaking of police officers, wouldn't it be nice to know whether SJPD Officers Kenneth Siegel, Steven Payne Jr., Jerome Smith and Gabriel Reyes have attacked unarmed college students before? (These officers were involved in a much-publicized beating of SJSU student Phuong Ho.) Perhaps, but that's nowhere near the level of detail the San Jose Task Force initially recommended--at first, they only wanted general statistics:

A quarterly report on the SJPD's use of force in arrests, including the race and ethnicity of the person arrested, some geographic designation of the location of the arrest, the reason for the use of force by category...whether a warning was given prior to use of force, the type of force used by category (for example, firearms, Taser...), and the injuries sustained by the arrested party and officer, if any.

This recommendation may have been a response to the SJPD arresting numerous drunk persons, many of them Latino, in downtown San Jose. Later, the Task Force recommended that the SJPD and other local government agencies stop using a legal technicality to prevent the release of information:

Below, I am suggesting a new approach to the deliberative process issue. I continue to consider it critical that the city abandon its use of the deliberative process exemption, as Milpitas and San
Francisco have done, because the exemption undermines the very foundation of open government laws: The deliberative processes of government are precisely what citizens have a right and a need -- indeed, a responsibility -- to witness. If there is a vigorous debate among city staffers about the best approach to a controversial issue, that debate needs to be brought into the open so the residents of San Jose can participate in it--not cloaked by a dubious privilege.

The Task Force seems to believe the government is relying on technicalities to prevent full disclosure and is taking small steps to improve transparency. Seems simple enough so far, right? Later on, however, when the Task Force tries to extend transparency to police records, things get interesting. I wish I was a journalist covering the courthouse beat, but I have to tell you upfront I had a hard time figuring out exactly what happened. Although I read through some of these links, I am still a little confused, so take the rest of this post with a grain of salt.

First, let's give readers some basic legal background so they can understand the goals of the "Sunshine" Task Force. Ordinarily, a government agency may reject a citizen's request for information under a "balancing test": the "Balancing Test is a general exemption in the California Public Records Act (CPRA) that allows the City to withhold records only when 'the public interest served by nondisclosure clearly outweighs the public interest served by disclosure.'"

While the language seems clear, it is subject to wide interpretation. At the end of the day, some anonymous government employee gets to decide whether your request "clearly outweighs the public interest," and if s/he is against disclosure, s/he can reject your request under the "balancing test." (Although the balancing test was intended to balance the right to keep personal identifying information private vs. the public's right to a transparent government, in practice, it is often used to arbitrarily deny requests for information.)

It appears the "Sunshine" Task Force recommended only selective or minimal use of the arbitrary, subjective "balancing test" exemption. More specifically, the Task Force recommended replacing the subjective "balancing test" with other specific exemptions. In other words, either a public record fell under a specific exemption designated by the Task Force, or it didn't--and if it didn't, then the records had to be released. Problems arose when the Task Force extended its recommendations to police department records. Here is the specific section relating to police records:

Police records are already the subject of pervasive statutory exemptions (Government Code sections 6254(f) and 6254(k), Penal Code section 827 et seq., Government Code section 1040, etc.). They are also the subject of specific provisions of the proposed Sunshine Ordinance. There is no need for a balancing test.

The Task Force's recommendation is not to apply a balancing test when police records are involved. As I understand it, the recommendation, if implemented, would allow easy access to police records and statistics. For example--assuming the recommendation is accepted--if you request information asking for the number of people the SJPD arrested on September 2, 2009 on Market Street, the police must do its best to provide you with the information. It cannot rely on the "balancing test" and tell you to stick your request where the sun doesn't shine. (At the same time, the request is very broad, so the SJPD might charge you quite a bit of money for the staff research time or require you to be more specific. Most requests are usually very simple, like, "Provide me with all police reports from 2002 to 2009 relating to MY NAME.")

Why did the Task Force decide not to apply the balancing test exemption to police records? The Task Force reasoned that the law already provides plenty of exemptions that protect information relating to police records, so there is no need for additional layers of legal procedure. However, it appears that when the SJPD realized they might have to release records that included names of police officers or other information that would allow the public or a newspaper to verify their data, they probably raised holy hell.

After getting complaints from the police union, the City Council pushed back, saying it wanted to protect crime victims' personal information. This is a sensible concern, if applied to crime victims. After all, if I got mugged, I wouldn't want unfettered access to my name and contact information in a police report. The Task Force apparently agreed and created more restrictive guidelines for releasing information about crime victims; however, that wasn't good enough for the SJPD, who continued to push against open disclosure of records. The Council eventually sided with the police union, allowing them to use the arbitrary "balancing test" to deny access to police records.

Later on, it appears the Task Force tried to placate concerns about crime victims' privacy by emphasizing an additional factor: "the right to privacy afforded to victims by the California Constitution." However, the Council added two words to the Task Force's revised recommendation--"and others"--perhaps to further prevent access to records relating to police officers:

“…including the right of privacy afforded to victims and others by the California Constitution.”

Thus, it appears the Council allowed the SJPD to avoid releasing information relating to police officers (i.e., "and others") instead of addressing the original concern, which was to ask the SJPD to protect crime victims' information.

Thanks to the 6-5 decision rejecting some of the Task Force's recommendations, there's no sliver of sunshine when it comes to police records and statistics. Good night, and good luck.

Bonus I: Earlier this month, a court ordered Santa Clara County to pay a free speech group $500,000 for failing to disclose public records. See here.

Acting Santa Clara County Counsel Miguel Márquez "said that cost of the legal settlement is not expected to hurt programs in a county confronting massive budget shortfalls. 'I don’t think $500,000 in and of itself is going to impact programs.'”

Bonus II: Kudos to Bert Robinson, Assistant Managing Editor, San Jose Mercury News. He seems to be very active on the Task Force.

Update: follow-up with City Councilmember Pete Constant HERE.

Lockyer Calls Out State Legislature