Did Fresno Mayor Ashley Swearengin break the law? The City of Fresno is refusing to release the public records that could answer that question.
During the past few months, the mayor has participated in the search for a replacement for outgoing Fresno State president John Welty. On May 3, the five-member Trustees’ Selection Committee for President of CSU Fresno met in closed session at the LAX Marriot Hotel with a 13-member advisory committee that included Swearengin and other Central Valley leaders.
Local media have described the secretive nature of the presidential selection process. “So far, the search for Welty’s successor has been kept hush-hush,” the Fresno Bee’s Michael Krikorian pointed out on May 21. “There was one public meeting, on the Fresno State campus in February, when the trustees’ search committee and a 13-member advisory committee including representatives from Fresno State and the community heard thoughts from interested people.” A Fresno Bee editorial went even further, calling it “a shameful poke in the eye to all who believe in transparent government.”
On May 6, in an attempt to bring transparency to the presidential search process, I filed a public records request for documents and correspondence by four city employees. The city employees, who were not members of the presidential search committee, are Georgeanne White, the mayor’s chief of staff; Kelli Furtado, the mayor’s deputy chief of staff; Cheryl Burns, the mayor’s special assistant; and Mark Scott, the city manager.
The request was limited in scope to the period of December 1, 2012 to May 6, 2013. Among the documents requested were any materials that made reference to: Fresno State search committee; Pete Mehas; Lynne Williams; CSU Chancellor; Tim White; advisory committee; president; Fresno State; Fresno Bee; Michael Krikorian; Jim Boren; and/or editorial.
Why those terms? The broadness of the request, e.g. Fresno Bee, guarantees that the city cannot issue a blanket denial, while the specificity of terms is likely to produce documents relevant to the presidential search committee. Michael Krikorian and Jim Boren have written publicly-available articles that reference the mayor. Therefore, it is almost guaranteed that these documents have been circulated internally by the mayor’s staff. Such documents also wouldn’t be covered by any public records exemption because these documents are already in the public domain, which automatically waives any exemption.
Nevertheless, Fresno City Attorney Douglas Sloan demonstrated his poor understanding of the law on May 15, when he issued a three-page response that refused to release any of the public records requested.
A few facts that are important to understand:
- The presidential search committee was an advisory committee.
- Swearengin and her mayoral staff are city employees, not state employees.
- A public records request cannot be denied based on the purpose of the request.
- An advisory Cal State presidential search committee is not an official duty or responsibility of the mayor.
Points 1 and 2 are self-evident. The third point, that the purpose of the records request cannot affect the denial, is supported by California Government Code Section 6257.5, which states:
6257.5. This chapter does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.
Even the City of Fresno acknowledges this important provision of the Government Code in a memo about the public records request process. For this specific public records request, the city could not issue a blanket denial for documents, such as Fresno Bee, Michael Krikorian or Jim Boren. Those terms are broader than the presidential search process.
The city is also on questionable legal grounds because the presidential search committee isn’t a part of the mayor’s official responsibilities. There’s no mention of a Cal State Fresno presidential search committee in Article IV of the Fresno City Charter, which establishes the mayor’s “powers and duties.” That means that while she was serving on the presidential search committee, Swearengin wasn’t acting in her official capacity as mayor. But, this last point is debatable. To avoid it altogether, the public records request didn’t request any materials from Swearengin.
And that exclusion intentionally put the mayor in a legal bind.
Public meetings cannot be semi-closed. The California Attorney General’s Office in a 2003 Brown Act manual explains the restrictions on semi-closed meetings:
In 46 Ops.Cal.Atty.Gen. 34, 35 (1965), this office also concluded that meetings could not be semi-closed. Thus, certain interested members of the public may not be admitted to a closed session while the remainder of the public is excluded. Nor would it be proper for an investigative committee of a grand jury performing its duties of investigating the county’s business to be admitted to a closed session. (Cal.Atty.Gen., Indexed Letter, No. IL 70-184 (October 9, 1970).) As a general rule, closed sessions may involve only the membership of the body in question plus any additional support staff which may be required (e.g., attorney required to provide legal advice; supervisor or witnesses may be required in connection with disciplinary proceeding; labor negotiator required for consultation). Persons without an official role in the meeting should not be present.
The AG’s office also points out that this confidentiality extends past the meeting.
Section 54963 provides that a person may not disclose confidential information that has been acquired by attending a proper closed session to a person not entitled to receive it, unless the disclosure is authorized by the legislative body.
In the Fresno State presidential search, the mayor should not have disclosed information about the May 3 selection meeting to “persons without an official role in the meeting.” Her mayoral staff are clearly not “additional support staff which may be required.” The AG’s manual even gives a clear example of staff that would be covered: “e.g., attorney required to provide legal advice.”
All of this means that it was inappropriate for the mayor to share any information about the Fresno State presidential selection with her mayoral staff. The public doesn’t know if she did because the city has refused to release the public documents that hold the answers.
Mayor Swearengin has previously called for a “transparent discussion” in her ongoing battle with the city’s police union. “County officials should join the City of Fresno in a transparent discussion regarding any and all ways to maximize law enforcement inefficiencies,” the mayor wrote in a letter critical of the police union. “The process should be open, fair, and honest.”
There’s a clear public interest in bringing to light the Cal State’s presidential search process. The Cal State system has a track record of providing false and misleading information to the public about its university presidents. In March 2012, Cal State spokeswoman Claudia Keith provided inaccurate information about the total compensation of Cal State LA president James Rosser. It was one of several conflicting claims about Cal State’s executive compensation. On May 21, 2012, Robert J. Nava, the vice-president of university advancement at San Francisco State University, admitted in a letter to state Senator Leland Yee, D-San Francisco, that the university foundation had made an error in its executive compensation figures on its 2009 tax return.
The public records denial taints the Cal State Board of Trustees’ Wednesday announcement that Joseph Castro, vice chancellor at University of California, San Francisco, has been named the new president of Fresno State University.