Newspapers Attack Law Against Leaks

Southern California news organizations charge that a proposed Orange County ordinance making it a crime to disclose details from closed board sessions has “severe constitutional defects.”

Such a local law “would establish a climate of fear and intimidate whistle-blowers who might otherwise speak out on public issues,” Glen A. Smith, an attorney for The Times and other newspapers, wrote in a June 3 letter to the Board of Supervisors.

The ordinance, proposed by Supervisor James W. Silva, is scheduled for debate today.

A violation would be a misdemeanor punishable by a maximum of six months in jail and a $1,000 fine.

No other county in California has such an ordinance. But several Orange County cities, including Costa Mesa and Santa Ana, have passed similar laws.

Smith said the proposed ordinance would be invalid because the Brown Act, California’s open-meetings law, already prohibits people from making disclosures about closed sessions.

What is dangerous about the proposal, Smith said, is the potential for vindictive political prosecution against foes.

“The ordinance would also criminalize the disclosure of communications that are covered by the attorney-client privilege,” Smith said.

He said such control would be unprecedented.

Silva said he wants the law adopted because he has been upset at disclosures of conversations made during closed meetings of supervisors, in which legal opinions were given by and discussed with an attorney for the county.

In one such case, a confidential legal opinion was reported in newspapers and made available over the Internet. The opinion justified the county’s use of John Wayne Airport funds to help plan for a new international airport at the El Toro Marine base.

Silva is one of the supporters of the El Toro project.

“Everyone agrees that there’s a need for confidentiality in closed sessions; otherwise you feel betrayed,” Silva said.

Supervisors had voted 3 to 2 against making the John Wayne Airport opinion public, over the objections of Supervisors Todd Spitzer and Thomas W. Wilson.

Silva did not name which supervisor or county staff member he suspects of leaking the information, but he contended that the leaks are becoming frequent enough to mandate a clear penalty.

He asserted that people who sit on boards of public agencies across the state continually complain of reading newspaper accounts of what goes on in closed sessions.

“It seems that there’s always a sniveling, conniving little weasel who always discloses what transpired at the meeting,” Silva said. “And they do so at the expense of taxpayers and the board.”

Spitzer, who opposes the proposed ordinance, said government should instead spend its time ensuring the public’s right to know what’s going on in the county.

“Local government’s duty is to disclose the public’s business, not to hide behind closed doors,” Spitzer said. “Our duty is to protect the public’s right to access, not our own backsides.”

County Counsel Laurence M. Watson has said no provision in the Brown Act refers to leaks of information.

But in a memorandum to supervisors, James F. Meade, assistant county counsel, said the state attorney general has concluded that unauthorized disclosures of attorney-client communications is against the law, though no specific punishment is detailed.

Board Chairman Charles V. Smith said he favors the concept of Silva’s ordinance but not the jail term, which he called overly harsh.

“I’m still looking at [the proposal], and I haven’t reviewed everything,” Smith said.

“I do support the concept,” he said. “We have had the Brown Act in place, [but] there’s been no teeth in the law.”

The Brown Act, Smith said, “says you shall discuss these items in closed session, but it doesn’t say, ‘Thou shalt not go out and tell the whole world about what was discussed.’ ”

The law requires that all meetings of public agencies be open to the public, but it provides for certain exceptions, when agencies can opt to close their doors. The exceptions include personnel matters and possible litigation.

The news organizations opposed to the ordinance consist of The Times, the Orange County Register and more than two dozen weekly and community newspapers.

The newspapers are joined in their opposition by the California First Amendment Coalition, a group of journalists, educators and community groups that support open government.