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In response to a Monterey Bay Partisan editorial, the best-known First Amendment lawyer in California says the Monterey County District Attorney’s investigation into alleged Brown Act violations by the Board of Supervisors amounts to a sham or, in other words,  a truth-defying Catch-22.

Terry Francke of Californians Aware said in an email to the Partisan that county officials set the rules for the inquiry and the DA’s Office went along, unfortunately and unnecessarily.

“To me, the most curious aspect of the DA’s ‘investigation’ is the contention that the investigator had no more right than anyone else to obtain access to the minutes or other records documenting or relating to the board’s disputed closed sessions,” Francke offered. “The investigation was undertaken at the invitation of County Counsel, and if that invitation did not waive any privilege of confidentiality, I”m not sure why not. Actually, one might have expected the DA to insist on such a waiver as a precondition to his involvement.”

The District Attorney’s Office announced this week that it had found no evidence to support allegations that the supervisors had violated the state’s open meeting law by holding closed-door policy discussions during repeated personnel review sessions with five top county managers, including County Counsel Charles McKee. Though one press account reported that the DA had “exonerated” county officials, Chief Assistant DA Terry Spitz said his investigation didn’t answer the question of illegality since he was not provided access to information beyond what the supervisors and county officials told him. The investigation began after information leaked from one of dozens of such performance review sessions showed that the supervisors had spent considerable time secretly discussing Salinas River water rights issues during what was purported to be a performance review of county water manager David Chardavoyne.

“One can’t ask for a clean bill of health while declining to disrobe for the doctor.”

Though some of the confidential personnel sessions were attended by county advisory board members, Spitz said Wednesday they weren’t interviewed because it wasn’t felt they could add anything to the supervisors’ denials of wrongdoing.

Francke wrote that without access to documentation regarding the meetings, “an inquiry requested by the county counsel seems more like a professional courtesy rather than an independent exercise of law enforcement. And the chutzpah of the invitation itself, intending to withhold the central evidence, is a bit breathtaking.  One can’t ask for a clean bill of health while declining to disrobe for the doctor.”

Francke, who has been involved in countless public records cases, opined that no privilege attached to records of the contested meetings and he challenged the authority of an appellate court ruling to the contrary.

“Courts have repeatedly held that in California, privileges to keep information from being disclosed in an official proceeding are found exclusively in the Evidence Code, as codified by the Legislature, not in some appellate decision purporting to interpret the Brown Act.  And the Kleitman case, cited for the existence of such a privilege, is greatly if not entirely undermined by the subsequent passage of Proposition 59 in 2004.  That measure among other things made it a constitutional requirement to interpret limitations on access to meetings and information narrowly, and affirmative access rights broadly.  Thus the notion in (the) Kleitman (case)  that the Brown Act makes direct inquiry into closed session behavior taboo because of privilege, as well as the notion in the other case underpinning the supervisors’ position—that closed sessions for performance evaluation must be broadly interpreted to include not only the quality of the employee’s work but its results and their future direction—stand the constitutional canon of construction on it head.”

Francke noted that the supervisors had selectively wielded privilege, which often can amount to a waiver of any privilege.

“They could have stood their ground, citing Kleitman, and refused to submit to the DA’s interviews. Instead they cooperated in that unsworn process, but then relied on the Kleitman shield from disclosure to withhold the most telling evidence of what they had said and done in the closed sessions: their own contemporaneous records.”

The attorney was so struck by the county’s position that he sent along an excerpt from the book Catch-22.

 Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

“‘That’s some catch, that Catch-22,'” he observed.

“‘It’s the best there is,'” Doc Daneeka agreed.


Francke’s official biography:

Since 1980 Terry Francke has been helping journalists, citizens and public officials understand and use their First Amendment, open government and public information rights.

Francke and his daughter, Emily, founded Californians Aware in the spring of 2004. The idea setting this nonprofit, nonpartisan public interest norganization apart is that working with public-spirited citizens, journalists and government officials and employees at the same time can effect a change in the overall landscape, and improve the public trust while also making openness more convenient for those at the gates.


Francke previously served 14 years as executve director and general counsel for the California First Amendment Coalition, after a 10-year post as legal counsel for the California Newspaper Publishers Association.

Over all these periods Francke has fielded tens of thousands of phoned and e-mailed queries on press and citizen rights; written the most widely used guidebooks to the law governing open meetings, open courts and public records in California; served as an advisory panel member to the National Center on Courts and the Media; taught journalism law at the Department of Communication at Stanford University; and served as an expert contributor to the 1994 major revisions to the Ralph M. Brown Act and Propositioin 59 of 2004, making open government a basic right of citizens under the California Constitution.

Francke is a 1967 graduate of the University of Notre Dame and a 1979 graduate of McGeorge School of Law, University of the Pacific. Prior to his legal career, Francke worked as a weekly newspaper editor and in military and local government public affairs positions.



 UnknownI made two calls Wednesday to Terry Spitz, the longtime chief assistant district attorney for Monterey County.

The first was to wish him well in his retirement, which begins this week, and to thank him for always having been so professional and pleasant in his many dealings with the local press. Believe it or not, all public officials aren’t always such a pleasure to deal with. Spitz also has a tremendous legal mind, making him a great resource to everyone in the courthouse.

Then I read news accounts of the DA’s Office ending its investigation into allegations that the county Board of Supervisors had systematically violated the state’s open meetings law by repeatedly conducting policy discussions with top county managers in closed-door meetings disguised as confidential performance reviews.

A news release from the DA’s Office on Tuesday had announced that the investigation had concluded without uncovering any evidence of wrongdoing. It mentioned that the DA’s Office had interviewed the five county supervisors and the county managers who had undergone those performance reviews. Among the managers  interviewed, of course, was County Counsel Charles McKee, who had given the supervisors the go-ahead to hold such meetings in the first place.

None of those county officials believed any laws had been broken, the news release said. We’ll have to assume that McKee didn’t break from the pack.

Here’s why I called Spitz the second time. He was in charge of the investigation, and the release didn’t mention anything about others who were at those meetings. At least one member of the board of the county’s Water Resources Agency attended at least one of the review sessions with David Chardavoyne, chief executive of that agency. At least one member of the county’s advisory board on Natividad Medical Center attended one or more performance review sessions involving the supervisors and Harry Weis, chief executive of the county hospital.

One of those sessions with Chardavoyne was the Nov. 5, 2013, meeting that led to allegations that the supervisors were breaking the rules. A powerpoint presentation for that meeting later leaked out and seemed to show that the supes and Chardavoyne had held a lengthy discussion of major policy changes involving Salinas River water rights. Farm interests were surprised, and not pleased, to hear about that secret discussion. Private personnel evaluations are supposed to be about performance. Public policy issues are supposed to be held in public.

So what did members of the Water Resources Agency board and the Natividad board have to say about what went on in those closed-door meetings?

Who knows.

They weren’t interviewed, Spitz told me Wednesday.

How come, I asked.

Because, he explained, the supervisors and the managers had all been questioned and each had the same account: The meetings had stayed within legal bounds.

“Why didn’t you question the other board members?” I asked.

“We didn’t see the need,” he replied.

I do not enjoy arguing with Spitz. I really don’t, and I suspect the decision to let it go at that was not his. But what this amounts to is interviewing the suspects and their underlings without talking to independent witnesses who were, A., not being asked to incriminate themselves and, B., not being asked to potentially tattle on their bosses.

Spitz said the confidentiality that attaches to personnel reviews prevented his office from reviewing records from the suspect meetings, and he wasn’t sure how many people other than the supervisors were present at the meetings in question, dozens of meetings over the course of the year.

Spitz told the Monterey Herald on Tuesday that his investigation could be revived if additional information becomes available. He also said that while there is no real evidence of wrongdoing, the “political question” of whether the supervisors broke the law has not been answered. I won’t argue with that though I do expect to hear some in the county, such as McKee, declare that they have been exonerated.

Fortunately for those who are concerned about public policy and the various ways politicians keep the public out of the loop, litigation over the meetings continues. The Save Our Peninsula Committee goes to trial against the county in August. Here’s hoping the judge doesn’t restrict testimony to the suspects.