Does San Jose’s ‘sunshine’ policy have teeth?

For nearly ten years, San Jose’s “sunshine law” — an ordinance that promises the public greater access and information on its local government — has been a measure that the city prides itself on.

But stronger local measures toward increased transparency don’t ensure that San Jose officials face serious penalties for breaking their own rules when mandated requirements aren’t met.

Sunshine laws, which strengthen and extend the scope of two California state laws — the Brown Act and the Public Records Act — call for stricter rules on local government operations, such as requiring deadlines for posting public meeting agendas and reports, disclosing lobbying efforts and requiring city officials to release their calendars. 

While state law requires posting agendas 72 hours before a public meeting, San Jose takes it a step further. The city requires documents such as staff reports and meeting agendas must be released 10 days before City Council meetings, allowing the public and policymakers enough time to digest the complex topics.

Waiving the sunshine rules

Despite these rules, staff reports and agenda deadlines are consistently missed by the city’s standards because of an exception.

“Sunshine waivers” can be issued on such documents as long as they’re released within 72 hours of the meeting as mandated by the Brown Act. In addition, “supplemental” staff memos — which often contain critical policy details for the public and decision makers — can be released anytime, even hours before the council meeting. City Attorney Rick Doyle said that’s not a violation of the city’s stringent policy because the memos contain “new information.”

“I just think deadlines, they’re not always easy to meet,” Doyle said, adding that waivers ask for one or two days of “forgiveness,” but the City Council or the Rules and Open Government Committee, which oversees enforcement of the law, can “always say no.”

“If they see something that doesn’t smell right,” added Doyle, “that’s important and they will say no to a waiver.”

Doyle said state law does not mandate any requirement on staff memos or reports, but it’s just “good practice.”

Still, the eleventh-hour release of many informational memos on items up for a council vote has spurred frustration from some city lawmakers who say it burdens their staff with “a short turn around to analyze public policy implications,” according to councilmember Sylvia Arenas.

“It is difficult to have weekly City Council meetings that require so much support from staff, which continues to be understaffed,” added Arenas. “I understand the reason why there are last-minute memos. It’s an unfortunate trade-off of the times.”

But there are no penalties for being late, and an item on the agenda simply won’t be heard if a staff memo or document isn’t filed on time.

In other words, government watchdogs say the city’s sunshine policy has no teeth.

“It is expected that these rules and procedures have to be followed,” Doyle said. “There aren’t any penalties, other than the council doesn’t get to hear something. If the council says, ‘We’re not going to hear this or give you a waiver’ the message is: ‘You better get this in on time.’”

“Requirements are really crucial because a critical aspect of open government laws is timely access,” said David Snyder, executive director of the First Amendment Coalition. “If the public and the press don’t get information quickly, the information will often lose its value as a tool to enforce and increase transparency.”

It’s unclear how many times city officials have asked for “waivers” — or exceptions to the sunshine rules.

City Clerk Toni Taber said waivers are not recorded because they’re “super routine and not controversial.” Items that are added at the last minute, such as travel requests or special events occurring in a councilmember’s office, will receive a waiver, but Taber said “not many are done anymore.”

San Jose alone in granting exceptions

Not all cities in Santa Clara County allow sunshine waivers, said Gilroy’s deputy city clerk Suzanne Guzzetta.

“We don’t have a waiver,” said Guzzetta. “Not complying with the act is considered willful disobedience.”

Guzzetta said another “huge difference” between the two cities is that Gilroy has a commission made up of community members, unlike San Jose’s Rules and Open Government Committee, which is comprised of city councilmembers. That means San Jose’s sunshine waivers are approved by the same lawmakers who request them.

“One of the things people can do is bring complaints to this commission,” added Guzzetta.”It’s very important for transparency that items are available with enough time for the public to review them.”

History of open meeting violations

San Jose has a longstanding history of its public officials violating open government laws. Some local leaders have faced public scrutiny for violating the Brown Act on multiple occasions in recent years for meeting privately to discuss positions on matters that are decided at public meetings. The Brown Act prohibits city officials from discussing policy in private in an effort to curb backroom deals and shady negotiations.

Still, public officials who don’t comply with the law rarely face a penalty that rises to anything more than a slap on the wrist.

The lack of serious consequences for breaking sunshine rules or enforcement leaves many public information advocates believing that the ordinances do little to create more transparency.

“These kinds of ordinances are helpful, but they’re not huge game-changers in creating transparency,” added Snyder, who said that the public typically has to enforce sunshine laws by filing a lawsuit since there isn’t a state agency that ensures compliance.

While San Jose leaders who have violated state law haven’t been met with criminal charges, they’re still at risk of undermining the public’s trust and can be subject to lawsuits and fees.

“If you really want to make local transparency ordinances meaningful,” Snyder said, “you’d have to make the body that’s responsible for determining the compliance of those ordinances capable of actually forcing a city agency to comply.”

Contact Nadia Lopez at [email protected] or follow @n_llopez on Twitter.