Tuesday, July 12, 2011

City Still Belongs to Citizens

This just in from Cummins' attorney:

We just received the order from the court of appeal denying the City's petition for an extraordinary writ and lifting the stay.

A few events to remember
  • Staff gets bound reports that say "FINAL" on their cover. They are dated March, 2010.
  • Encinitas City Engineer Kipp Hefner writes Calaware on June 16th, 2010:
I received your request to view the Pavement Management Report.  Right now it is in only draft form and is not available to the public.  It will become available to the public when the report is finalized.   

  • City Manager says the document is just a draft and the public is too stupid to look at "draft" documents.
  • Calaware asks for legal clarification, because their initial justification sounded good but was actually really flaky.
  • Staff continue to speak about the draft exemption clause as the justification; city attorney quietly waffles the justification to, the "It benefits the public for us to keep the document secret" justification.
  • Cummins asks the Mayor to explain why it benefits the public's interest to keep such documents a secret. Mayor refuses to answer.
  • Cummins writes a published editorial warning that a lawsuit might follow if a solid explanation is not presented.
  • Tony Kranz calls the city out on its attempted B.S. spin job. He tells the council publicly that the document was done long ago and should be released.
  • Council doesn't budge.
  • Cummins files suit, knowing that nobody likes someone who sues their hometown.
  • The effort forces the city's hand and the released "Final" road report shows why the city wanted to keep the document from ever coming out.
  • Final Road Report was dated March 2010. It was due by September 2009
  • Judge Casslerly tells city to release the draft report and correspondence with the consultant. 
  • City files an appeal
  • After it files, THEN the council officially votes to file an appeal.
  • Appeals court tells the city to release the report and the communications with the consultant.


  1. I am glad we have people like this to remind the city who they work for.

  2. The vote to appeal was 4-1. Barth did not support the appeal.

  3. How could the City appeal a vote without the City Council giving some form of authorization. Does the City Manager have the authority to make such a call?

  4. A technicality. The city filed an intent to appeal, then voted 4 to 1 to appeal. The city then filed the appeal.

    It kind of makes one wonder why the rush. Was it out of desperation?

  5. Cardi is correct, but technically the city never filed an appeal either.

    The City filed a "Notice of Appeal" of the court's ruling pursuant to Government Code section 6259(c). This was an action taken by the city without first getting a vote to do so an no there was no immediate reason for the city to rush into it.

    This is a little complicated (and arcane), but there is no right to "appeal" a ruling in a public records act case. The statute (and case law) are clear and specific, the only appellate review of such a ruling is by filing for a writ of mandate in the appellate court. So technically the city's attorneys were kinda screwed up. That was left out too.


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