Stop Passing Notes! 

Dean Glaser hit the nail on the head. It was back in April and the Fortuna city councilman was responding to a Journal California Public Records Act request seeking all emails and text messages sent and received by him and his cohorts during a pair of council meetings.

"I never had my phone used at all during those specified dates and times," Glaser wrote to City Manager Mark Wheetley, who had distributed our request to councilmembers, asking them to preserve any texts or emails sent on the specified dates and times. "Meetings are for business — not text sending or receiving. How this idiot is coming up with a scandal surprises me big time!"

While I might take issue with his descriptor of yours truly, I agree that elected officials shouldn't be texting or emailing from the dais at public meetings. Those meetings are at the core of an elected official's duties, and I want — no, expect — them to pay attention, listen to staff reports and public testimony as they make decisions on our behalf. Additionally, I want to make sure that any input they are receiving on those decisions is received in the full light of day. And if they are busy texting about the latest Game of Thrones plot twist instead of listening to testimony on an agenda item, I think the public has a right to know what was so important as to demand their attention.

Earlier this year, someone told me that they had noticed members of elected boards in Humboldt County using cell phones and tablets frequently during public meetings and had come to believe they may be using them to send emails or text messages to communicate with people outside the scope of the public meeting. Upon reflection, I realized that I, too, had seen electeds using their electronic devices during meetings. I asked around to some folks who frequent such meetings and they agreed, yes, it's fairly common.

There are plenty of innocent explanations. The officials could be using them to take notes or follow along with staff reports, or to reference notes they'd made before the meeting. All of this would, of course, be perfectly acceptable. But we wanted to see if this was the case.

So we sent off virtually identical requests to the Humboldt County Board of Supervisors and city councils in Arcata, Eureka and Fortuna, looking for emails and texts sent and received by supervisors and councilmembers — on both their private and public accounts — during two meetings, one that had something controversial on the agenda and one we randomly selected. All the agencies turned over the requested documents except Eureka. (More on that later.)

The responses we got were interesting. Fortuna responded within the required 10-day timeframe and had a couple texts to turn over from Councilmember Tiara Brown, in addition to Glaser's "idiot" blast. During the council's March 22 meeting, in which the council directed staff to draft an ordinance prohibiting commercial cannabis businesses within city limits, Brown sent a couple of text messages to City Clerk Linda McGill. The second read: "Has there been any direction about commercial grows working the city? Did I miss it?" McGill responded: "We don't want any I believe."

Arcata also responded promptly to our request, turning over a small batch of documents that mostly just included incoming emails to councilmembers. There were two exceptions, both from then Councilmember Wheetley. He responded to a text message about 10 minutes into the council's Jan. 4 meeting to tell someone he was in said meeting and put the conversation off until the next day. Later in the same meeting, he sent Police Chief Tom Chapman a text to ask if Proposition 64 addresses butane. Chapman responded that it doesn't, but pointed the councilman to Assembly Bill 2679, which does.

From the county, we received a large stack of emails, most of which consisted of email blasts that landed in all supervisors' accounts or incoming emails from constituents. But four supervisors — Rex Bohn, Virginia Bass, Estelle Fennell and Ryan Sundberg — also sent emails during the meetings in question.

Frankly, none seemed terribly interesting. Bohn and Bass sent one apiece, both on the subject of the board considering reappointing then Planning Commissioner Lee Ulansey, but neither contained anything of substance. Fennell, meanwhile, sent an email to Clerk of the Board Kathy Hayes asking where a human rights commissioner is from, one to Health and Human Services Director Connie Beck to compliment her on a testimonial Beck had forwarded from a department social worker and one to Public Works in response to an email she got from a constituent that morning reporting flooding and road closures in the Palomino Estates. Sundberg forwarded the McKinleyville Community Services District director an "FYI" about an upcoming workshop, responded to a constituent's question about ADA requirements for "cultivation rooms" and told someone from the California Association of Councils and Government it was "no big deal" that she'd yet to process his forum registration payment.

While I don't see any "scandal" here, to use Glaser's word (at least in what was disclosed ... folks should remember the CPRA works largely on the honor system), I do think the topic is of interest. Call me old fashioned, but I don't want my elected officials privately asking staff members questions during open meetings — if there's something so important and germane to the issue that it can't wait, it should be asked in open session so the public can hear the answer. I also don't want my electeds responding to constituent emails that can be handled later during a public meeting, when their attention should be on the topics at hand and the speakers addressing them. (The exception here, I think, is Fennell making sure Public Works was aware of a constituent's flooding emergency.)

If there is a scandal, I believe it's in the way Eureka handled our request. Eureka City Attorney Cyndy Day-Wilson responded to say she'd reviewed records related to our request and found zero pages to be "disclosable." (Interestingly, a few days after denying our request, Day-Wilson put a proposed Code of Ethics before the council that included the line, "Councilmembers ... shall not use their electronic devices to conduct city business during meetings.")

After a bit of back and forth, Day-Wilson indicated the city had found emails and texts responsive to our request but didn't deem them public records because they are "personal in nature, and contain no more than incidental mentions of agency business."

We found two large problems with this. First, we have a hard time wrapping our heads around the notion that texts or emails sent by a councilmember from the dais during a public meeting shouldn't inherently be a public record. Second, we have a hard time simply taking the city's word for it at this point. After all, this is the same city and city attorney who insisted there were no records responsive to our request for correspondences about the clearing of the PalCo Marsh until we threatened litigation, at which point they produced more than 11,000 pages, and the same folks who insisted a video of a controversial arrest on a public street was a "confidential personnel record" until four judges told them it wasn't. That's not the best track record of erring on the side of public disclosure and, frankly, it's a sad statement that we don't trust Humboldt County's largest city to make these determinations in line with the public's best interest and the law.

So, reluctantly, we went to court, filing a petition in July asking a judge to review the emails and text messages in question and determine if they are, in fact, public documents. Further, we argued that even if most of the information in the texts and emails is deemed private, the public would have an interest in seeing copies with all the personal information redacted, to at least get an idea of how much time councilmembers are spending on the dais dealing with their private affairs.

Earlier this month, after hearing arguments on Aug. 7, Humboldt County Superior Court Judge Timothy Cissna denied the Journal's request, finding that the city followed the procedure set out in existing case law for reviewing the documents in question. But Cissna acknowledged that it is a "difficult line to be drawn," that there's a lack of "specific guidance" in the law for handling such requests and no official determination of how to treat "private" messages elected officials may send on "public time." (View Cissna's ruling here, the Journal's initial motion here, the city's opposition here and the Journal's reply here.)

Attorney Paul Nicholas Boylan, who represented the Journal in the case, said Cissna's ruling is fair.

"The written order is a model for a well-written, well-reasoned judicial opinion," Boylan said. "And it is honest. Judge Cissna openly recognizes that both he and other courts lack the statutory or appellate guidance on these kinds of records access issues and that appellate review of his order is not just likely, but necessary to provide that guidance. I agree."

So do we, which is why we'll be appealing Cissna's ruling. We believe the public has a fundamental and necessary right to monitor the performance of those we elect to make decisions on our behalf. And if a councilmember is passing notes — public or private — while ostensibly carrying out the most important function of his or her office, we think the public should get to see them.

Thadeus Greenson is the Journal's news editor. Reach him at 442-1400, extension 321, or [email protected]. Follow him on Twitter @thadeusgreenson.