Opening the Appointments Calendar Door in California
By Peter Scheer, Executive Director, CFAC
Two months ago Governor Schwarzenegger, responding to a request by CFAC, made public his calendar of appointments and meetings for his first year in office. It's not too soon to assess the impact of that surprise decision.
The Governor's action reversed a long-time policy of gubernatorial secrecy that had been blessed by the California Supreme Court in a 1991 decision, Times Mirror v. Superior Court. That much-criticized decision held that the Governor's calendar could be kept secret to protect the chief executive's "deliberative process." Of course, the very reason for seeking access to officials' calendars is to get a look at their "deliberative process"--to see who is influencing government policy and whether decisions are being made on their merits or for political reasons.
In the weeks following Schwarzenegger's release of his calendar, media organizations requested and received the appointments calendars of every California elected official holding statewide office:
* Attorney General Bill Lockyer,
* State Treasurer Phil Angelides,
* Controller Steve Westly,
* Insurance Commissioner John Garamendi,
* Lieutenant Governor Cruz Bustamante,
* Superintendent of Public Instruction Jack O'Connell, and
* State Board of Equalization members Betty Yee, Bill Leonard, Claude
Parrish, and John Chiang.
Even Secretary of State Kevin Shelley, though preoccupied with other matters, turned over his calendar to the San Francisco Chronicle and CFAC as one of his last official acts before leaving office.
This unprecedented drawing of drapes on government decision-making derives from Prop 59, passed overwhelmingly in last November's election. Although Prop 59 says nothing explicitly about the Times Mirror decision or the "deliberative process" privilege, its broad, open-government mandate has changed political expectations in a way that is, for the moment, more important than the legal status of exemptions to open-government laws.
Schwarzenegger's release of his calendar, in the wake of Prop 59, has created a new political norm that is irreversible -- regardless of what the courts might ultimately say about Prop 59.
The new norm is analogous to the ritual release by candidates for national and statewide office of their federal income tax returns. This practice, once the rare exception, is now the rule of contemporary politics--a legally-voluntary but politically-required act of compelled self-disclosure to voters.
One cannot imagine a serious candidate for president or governor declining, on grounds of confidentiality, to disclose his tax returns. That would be political suicide. Similarly, California's next governor will not have a choice about disclosing his (or her) appointments calendar. The next governor will have to release it, whatever happens to the Times Mirror case, or face the voters' wrath for refusing to do so.
Although Schwarzenegger deserves credit for tossing aside the discredited policy of previous governors, both Democrat and Republican (it was Governor George Deukmejian, a Republican, whose calendar was at issue in the Times Mirror case), his embrace of Prop 59 has been less than enthusiastic, his view of its legal meaning ambiguous at best.
Recently, his office denied a public records request filed by CFAC (and a similar request filed by the San Jose Mercury News) for the appointments calendars of the Governor's top aides, Chief of Staff Patricia Clarey and Senior Advisor Bonnie Reiss, for a one-week period, September 13-20, 2004, when Schwarzenegger was deciding which of the multitude of legislature-passed bills on his desk to sign and which to veto.
The stated reason for withholding these records: the deliberative process privilege.
This backpedaling from the clarity of Schwarzenegger's earlier endorsement of Prop 59 and the release of his own appointments calendar has, unfortunately, sent a mixed signal to officials further down the political food chain.
A Tulare County supervisor and the CEO of a public hospital in San Diego, for example, are among the lower level and local officials who, in recent weeks, have declined to disclose their calendars, claiming protection under the deliberative process privilege.
For such officials, asserting a need for secrecy in the face of the contrary action by the Governor and all eleven statewide constitutional officers, is the height of hubris. They are implicitly claiming to be more important than the governor, the attorney general, the state treasurer, and the other constitutional officers.
Voters will reasonably infer that these and other secrecy-obsessed local politicos are either dimwits or have something to hide. And at the end of the day, that new political reality -- an intolerance for grandiose claims of special privilege -- may be the true legacy of Prop 59.
