Friday, August 11, 2006

What are they trying to hide?

We expect our City’s department heads to have some relevant expertise. We should ensure that they have the capacity to provide adequate oversight and direction. This is why an earlier Council set a policy regarding minimum qualifications for department heads. Apparently, they are supposed to have at least a master degree in the field and 7 years relevant public experience.

Many of the watchdogs have wondered about the sudden rise of Jennifer Smith to Director of Finance. She appears to have no direct qualifications. Why was she placed at the head of finance? Was there ever a public search for candidates?

The City is about to embark on a funky financing journey. I would feel more comfortable knowing that someone worthy is advising the Council. We all know that Council needs a lot of help.

When Dalager gave Smith a proclamation stating she had served with great distinction (or something like that) a searing image of the President came to mind. “Brownie, you’re doing a heck of a job.” Since then I have been determined to find out if Smith is at least minimally qualified. And it looks like I won't have to wait much longer

There are also questions about other department heads:

1) We have a Fire Chief who was on campaign teams for a majority of the council before getting appointed,

2) a parks and rec director who is supposedly qualified to also be a public works director,

3) a planning director who supposedly worked for Ecke before becoming director, and

4) after you read the following email the City Attorney’s service is also in question.

I did a records request for Smith’s application 5 months ago. The request was rejected. Others have made the same request over the last few months. The City cannot legally keep us from this information.

Why should I be surprised that the City isn’t following the law!

I recently called in some reinforcements. On my behalf, the General Council for Calaware sent the City Attorney and Clerk a sharp email. I thought you might like to be in the loop. I paste that email below. If you read the whole thing through you might think that the City Clerk should be added to the list too, but I suspect she was just following directions.


From: Terry Francke

Date: August 10, 2006

Subject: Access to Employment Applications

Dear City Clerk Cervone and City Attorney Sabine,

I'm informed by the attached message that for a little over five months, several area residents have been attempting unsuccessfully to get from the City of Encinitas copies of records that are, pursuant to the only case law on point, unquestionably public and not exempt from disclosure under the California Public Records Act.

As you well know and could have easily discovered within the first hour of the 10-day post-request period that the Act permits for such research, the California Court of Appeal for the Third District, dealing with requests for information about a public hospital employee, had this to say:

The trial court ordered defendant to disclose: "Such portions of [the employee's] personnel file as are necessary to disclose his professional qualifications ... or at [defendant's] option, she may, by way of compliance with this injunction, create and provide to [plaintiffs] a resume of [the auditor's] professional qualifications."

Defendant claims the order results in disclosure of the auditor's personnel file and is an unwarranted invasion of his privacy. We disagree. As we understand the order, plaintiffs would obtain information as to the education, training, experience, awards, previous positions and publications of the auditor. Such information is routinely presented in both professional and social settings, is relatively innocuous and implicates no applicable privacy or public policy exemption. (§ 6254, subd. (c), 6255.)

Eskaton Monterey Hospital v. Myers (1982) 134 Cal.App.3d 788, 794. There is no other case law contradicting or limiting this conclusion, nor in fact addressing the issue at all.

The force of this settled precedent is only amplified by the 2004 passage of Proposition 59, amending the California Constitution to provide, among other things, that laws providing access to state and local government records must be interpreted broadly, and limiting laws interpreted narrowly.

Quite apart from these legal points, to assert the "privacy" of public employment fitness information strips the notion of privacy of its meaning, announcing the principle that the public is not entitled to know whether appointed public executives have any job-related qualifications, and if so, what they are. One would have thought that with so much discussion in the past year of the dubiously relevant credentials of some high federal appointees, you would have found it awkward, to say the least, to maintain that such matters are not appropriate for public scrutiny. Taking this position, of course, tends only to cast doubt on the qualifications of the employees in question, and thereby does them no justice, one assumes.

I do not know whether the e-mailed response by you, Ms. Cervone, to Mr. Cummins on March 14—"Once I looked at the California Public Records Act, it clearly states that personnel records are confidential"—derives its blissfully amateurish error from your own lack of training, from your office's policy of reading exemptions overbroadly (to say nothing of superficially) in contravention of the California Constitution, or from the failure to consult you, Mr. Sabine. I suspect all three to be the case, because nothing else explains the lack of a prompt correction of the error, unless perhaps a contemptuous confidence that the requesters would simply go away. It has now been three weeks, according to the chronology below, since the Eskaton case was expressly brought to your attention, Mr. Sabine, by someone who had to do the city's homework for it.

If you both wish to defend your position in court and take the professional responsibility, at least, for the attorney fees the city would be ordered to pay upon an order to disclose, you can easily so signal by either a reply to that effect or by silence—by any response, that is, other than a notification to the requesters identified below that the requested records are immediately available for inspection and copying.

Terry Francke

General Counsel

Californians Aware


  1. Calaware should open an office in Encinitas. They could support their whole staff with lawsuits against this Council's administration.

  2. Word on the street is that Smith actually does have relevant degrees! I would still like that documented.

    Word is also that the public works director is a great administrator, so hopefully he meets the required qualifications.

  3. Maybe they aren't trying to hide things so much as just trying to make your life as hard as possible. Next time go into the city with a trenchcoat, mustache and sunglasses. Tell them your name is Paul Icky Jr.

  4. get a life and let them to their jobs. This is really pissing me off when we go after individuals!

    Wathdog is one thing but come on, can you really go through your whole life as a grumpy camper?

    These folks are public servants and I suppose that makes them targets for knuckleheads.

    Encinitas as city is a great place, has great parks and programs and great civic infrastructure.

    By the way, Mr. Cotton put his ass on the line for us in the military as well. What a curropt individual he must be to first serve his country and then the city of Encinitas.

    What they are doing on the enviromental stuff is first rate and standard setting.

    We should be thankful to have such a competant and qualified city staff.

  5. There is something very funny about misspelling the word competent. Carry on.

  6. Which Planning person supposedly worked for Ecke?

  7. The word on the street that I hear is that the workers in the Public Works Deparment welcomed Phil Cotton at first. They were chafing under the stern taskmaster Lin Wurbs. Public service employees never like being held to high standards. But the warm welcome soon turned to resentment. I am told that Phil Cotton is sarcastic and contemptuous in meetings and has made unilateral decisions that have alienated employees. Since I don't work there, I'm less concerned about this if he is qualified and competent. Is he? If he is, it still sounds like he doesn't have the personality characteristics to be the city manager, if that is what he is in line for.

    The post with the misspelled word "competent" sounds like an insider at the city. Now that would hardly be an unbiased point of view.

  8. Thanks Kevin; you are really hitting the mark. Fantastic postings the last couple of days!

    I know someone, close, who served his country with distinction, and he is getting the shaft by Council.

    That is irrelevant anyway. Duke Cunningham served his country with distinction and now he is serving time for being a corrupt (also misspelled by CG, or "city insider")public servant.

    Guerin is corrupt for betraying many people, including Sheila Cameron, the clown stuff, calling Maggie ugly and petty. She should step down before the next Council Meeting!

    Great letter in today's Coast News about Christy Guerin's ties to lobbyists, through Bilbray, from a director of the Coastal Commission. No wonder Christy Guerin hates the Coastal Commission.

    Of course the jury is still out on Phil Cotton. Everyone who works for the City should be willing to have their current resumes be open to public disclosure. We are very concerned that Phil Cotton has been a yes-man for the powers that be, like the poor anonymous speller.

    We've got a life, anonymous. Why don't you get some ethics, and open your puffy eyes.

  9. I love Calaware!

    Wonderful letter!

    That Terry sure has some spunk. Yes, Sabine & Morrison, his defacto sidekick, who is not a City Attorney, but works for one, Sabine, who represents all sorts of cities in SD County, use the Brown Act, which is supposed to be the Public Info Act, for its loopholes, and nothing more.

    Hey, City Hall is not a Country Club. I'll get grumpy every darn day, to do what it takes to shed light on the lack of integrity, and the blatant corruption at City Hall. Why don't these "good folks," voluntarily make their resumes available? That's a very good question.

    I would looooooooove to sign on to a class action lawsuit forcing the City to come clean.

  10. Good work Kevin!
    I work in the private sector and every job in our company has strict qualifications. A few years ago, the company found out that one of the employees fudged his resume and although he had worked there for six months, he was shown the door.
    If my childs teacher did not have the required qualifications I would be upset.
    If my doctor was lacking credentials that he claimed I would call the police.
    Why is an important city job any different?
    To anonymous that doesn'n care, I hope your proctoligist is actualy trained as a tree pruner.

  11. Watchdogs and watchcats are way cool.

    Hooray for whistleblowers. They have courage and determination.

  12. oh my gosh,

    you misspelled doesn'n, actualy, and proctoligist all in one sentence.

    There is something about misspelling Proctologist that is a real pain in the ass.

    carry on.

    No seriously, lighten up on the spelling comments. No spell checker here and most of us are just firing away at the keyboard with suspect typing skills.

    watchdogs, bulldogs and whistle blowers that's cool and I can handle it.

    But be kind, and apologize if you blow it an they have the right credentials and education.

    Fair enough?

  13. I think the frustration is the city's' history of being uncooperative when it comes to giving the public the information it has legal access too. This is still America, right?

    I'm not usually a spelling cop, sorry about that but it made me laugh.

  14. Qualiffiiiiied?!August 11, 2006 11:21 PM

    This is a blog, not a thesis or a legal document. Wooo Kares aboubt spelllin? If the message is clear, does it really matter?

    Great Job Kevin-

    I can not wait to see the resumes!

    Are they qualified or will we end up like San Diego?.. AND, Don’t ask Danny Slingblade; He would know qualified unless it/they have Toro tattooed on it/them.

  15. Whoops, my mistake. I misspelled “would not”. Danny Slingblade Dalager “would not” know qualified unless it has Toro tattooed on it. Hopefully, you understand.

  16. Whoops, my mistake. I misspelled “would not”. Danny Slingblade Dalager “would not” know qualified unless it has Toro tattooed on it. Hopefully, you understand.

  17. Councils to blameAugust 11, 2006 11:37 PM

    Blame the current Council. They direct the City Manager who is the boss and in charge of hiring and firing of Staff. If you don’t like what happening, vote out Dalager. He to blame for not questioning the directors qualifications

  18. Would a public works employee ever be happy unless he became a firefighter?

  19. Few taking their marks for Encinitas City Council race

    By: ADAM KAYE - Staff Writer

    ENCINITAS ---- There hasn't exactly been a stampede to fill the open seat created by Christy Guerin's announcement three weeks ago that she was out of November's City Council race.

    So far, only one challenger ---- Cardiff activist Teresa Barth ---- has turned in candidacy papers in the vote-for-two election, Encinitas City Clerk Deborah Cervone said Friday.

    Incumbent Councilman Dan Dalager has filed his paperwork to run for a second term.

    We are pathetic. No one loves Encinitas enough besides Teresa and Maggie. No bitching after November. We don't have the right, if we cant even come up with a few qualified candidates to beat Slingblade.

  20. I'm going to take Dalager for a ride on my hog if he wins. I know he won’t do anything to have the sheriffs enforce the law against no mufflers!!! Go Dalager!!!!

  21. anonymous II,

    You must have inside information. Only a few people are privy to information about the department heads' qualifications, because the city has not been following the law. Are you on the Council?

    Do you include the City Clerk and City Attorney in your blanket statements? Their misaction described in this post doesn't support your statement about their competence and desire to serve the public good. You didn't address that. Maybe you know first hand that they were just following their boss(es)' orders. Do you blame the Council instead?

    What was my post about?
    Primarily, it is about how this city does not follow the law when it is convenient for them. The recent series of lawsuits against the city demonstrate that the public is over that kind of behavior. Some of those lawsuits were over poor environmental behavior by the City.

    Only secondarily, the post is about checking up on the directors. I don't know anyone that would blindly trust this Council to do a good job of ensuring we have a competent and public serving staff. When Dan was first elected I went to him several times to show him some documents that led to some serious questions about the quality of some staff's work. Dan wouldn't even make eye contact with the documents and instead interrupted me to tell a story. Each time the story was about how staff made some huge blunder or acted extremely poorly! It is totally messed up, but I think his point was that we shouldn't try to expect much from government employees and I guess that means poor performance is acceptable and no reaction from him is necessary. He gave absolutely no indication that he would provide oversight.

    When a lot of rumors started flying about some of the directors I wasn't going to believe that this Council had provided adequate oversight. I tried to get the facts for myself, and I didn't blog about this issue until yesterday's post. The City denied the public's requests for information (It turned out that I wasn't the only one asking). It did heighten my curiosity when they did that. I would have brought this issue to a head earlier, but I do have a life and other things came up that distracted me.

    I hope we get a new Council soon so that we can go back to our lives full time and the City can go back to putting the public's interest first.

  22. I totally support Kevin's claims, as I, too, have attempted on many an occasion to get the documentation on Jenifer Smith's qualifications. Kevin was kind enough not to include me in his posting, however, I will step up to the plate. I have many e-mail's from the City, stating all the reasons why they won't give me the information I requested. I also have e-mail's about closed sessions. Furthermore, I e-mailed Jennifer and asked her to provide her qualifications, no personal information, just qualifications. No answer, as of three weeks ago when I e-mailed her. So, folks, what are they hiding? I have no idea, however, it seems to me that if all of the Directors had the qualifications that are REQUIRED by the City, they would be happy to show us that the directors had them. If nothing more than to keep us off their backs.

  23. Sabine VS Frankie who?August 25, 2006 3:51 PM

    August 24, 2006

    Terry Francke receives SPJ's Pulliam Award

    Terry Francke, General Counsel of Californians Aware, and Peter Scheer, Executive Director of California First Amendment Coalition (CFAC) have been named winners of this year's Pulliam Award.

    The Pulliam, presented by the Society of Professional Journalists, is given in recognition of Mr. Francke and Mr.Scheer's efforts on behalf of the First Amendment.

    Founded in 1918, the Society of Professional Journalists (SPJ) is considered one of the premier journalism organizations in the United States.

    The Award will be presented at the SPJ's national conference on August 26 at the Chicago Hyatt Regency.

    The Pulliam Award, which is accompanied by a $10,000 prize, is given in the memory of Eugene S. Pulliam, a staunch believer in the First Amendment and publisher of the Indianapolis Star and Indianapolis News from 1975 to 1999.

    In announcing the Award, SPJ cited Francke's commitment to the protection of California's open meetings law. SPJ's press release acknowledges that during his 14-year tenure as General Counsel of CFAC, Francke "was the key mover" behind Proposition 59, the 2004 constitutional amendment approved by 83% of the voters, which "makes public access to records and governmental meetings a civil right of every Californian." Just ten years earlier, he produced the original draft that became the significant 1994 amendments to the Ralph M. Brown Act.

    SPJ also cites the accomplishment of Francke and his daughter Emily in founding Californians Aware, created two years ago to aid state and local officials "gain a better understanding of how open government laws affect them." CalAware is a non-profit that unites public officials, private citizens, journalists and attorneys in promoting open government and First Amendment rights.

    Throughout his more than quarter-century career, first as legal counsel at California Newspaper Publishers Association, then CFAC, and now at Californians Aware, Francke has fielded tens of thousands of telephoned and e-mailed queries on press and citizen rights, which has made him California's most-quoted expert on access to governmental information. He has written the most widely used guidebooks to the laws 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 in the Department of Communication at Stanford University; and supported litigation protecting access to governmental records and meetings through his expert testimony and amicus briefs.

    Last year Francke published his first book for CalAware, Open Meetings in California, an authoritative and comprehensive guide to open meetings laws, which has received wide acclaim from all sectors. This year he drafted what has become AB 2927 by Assemblyman Mark Leno (D-San Francisco), a bill requiring state agencies to include on their Internet homepage: information about how to request records; the mailing address, telephone number, and e-mail address of the agency staff to whom requests for inspection or copying of records should be directed; and an online form for submitting a records request. The bill also allows a person, whose request for records has been denied, to seek a review by the Attorney General's Office, which will then issue a formal opinion within 20 days on whether the documents are disclosable. AB 2927 was unanimously approved by the Assembly and, with no formal opposition remaining, is now awaiting Senate concurrence.

    Next month will see the publication of Francke's newest book, the CalAware Guide to Journalism Law in California, which includes issues as access to public meetings and records, court proceedings and judicial records, the effect of HIPAA on patient information, subpoenas and pretrial discovery, and avoiding liability for intrusion, libel, and trespass. There is also a chapter on the rights of high school and college journalists.

    Applauding SPJ's recognition of Francke, CalAware President Rich McKee said, "Just as he has been to countless others, Terry has been my mentor and my motivator. Not only is he available as a wealth of legal knowledge to be tapped whenever necessary, Terry serves as government's conscience and a reminder to all that an informed and involved citizenry is essential to maintaining popular control in a representative democracy."

  24. After seriously dragging their feet the City threw us a bone. The made all the department heads write up bios and they sent it to everyone who had been doing the record requests.

    What a waste of staff time.

    Funny thing is, the City said they still think it was legal to withhold the information, yet they released some of the information they said we would never be allowed to see... huh? Remeber, they withheld documents until we got serious about taking legal action. (why should you have to threaten legal action?)

    Maybe they had to say something like that, otherwise they would be admitting that they illegally withheld informtion.

    I requested something simple and in their records. The job applications (redacted). They still have not provide that to us.

    Calaware has requested blank job applications to see what information is on the application but not in the bios. (Why not just give us the redacted applications instead of having the directors craft bios?)

    I had been waiting to see how that played out before updating the blogosphere. The City has not responded to Calaware and it has been weeks.

    Oh, some of you cared about the qualifications. Looks like most, but not all, of the directors meet the minimum qualifications. Smith claims in her bio that she has a masters degree that included some finance training.

    I am unconvinced that many of the directors would come out on top if we had done national searches for job candidates. Not the bottom, but not the top.

    But, I don't think this is why the City decided to stonewall us on our requests. There is something else...



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