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All five top candidates say that private emails and text messages related to city business will be made public in their administrations. But the two current office holders have some work to do.
When you see San Diego’s next mayor twiddling his thumbs on his cell phone, know that you’ll likely be able to see what he’s talking about.
All five of the city’s top mayoral candidates have pledged to make their emails and text messages related to city business public record, even if they come from private accounts or cell phones. The same promise of openness goes for all city employees’ messages about public business from their private accounts, the candidates told Voice of San Diego.
The candidates said they’ll enforce their pledges in different ways, including creating a public records task force, clarifying the city’s laws and financially penalizing those who fail to comply.
But the two candidates who are currently elected officials have a ways to go before their deeds match their words. Councilmen David Alvarez and Kevin Faulconer both failed to follow the state’s public records law when answering a VOSD request for their private emails. Alvarez and Faulconer blew past the deadline for responding; and Faulconer didn’t turn over an email about city business from his private account even though at least one existed.
Transparency and open government often become buzzwords in any campaign, but the issue has taken on greater significance after former Mayor Bob Filner’s brief tenure. On the campaign trail last year, Filner promised substantial improvements in transparency. Once in office Filner broke numerous open government promises and at times went to great lengths to shield information from public view. Alvarez, a Democrat, and Faulconer, a Republican, have talked about government transparency multiple times on the campaign trail.
Private email accounts and text messages have become part of how some San Diego officials conduct city business. Former Mayor Jerry Sanders’ chief of staff used her private email when brokering a labor deal on the proposed Convention Center expansion. And the city refused to disclose Filner’s text messages during his sexual harassment scandal.
State courts haven’t ruled definitively that local governments have to turn over private emails or text messages related to public business, but a recent decision in Santa Clara County sided with a resident who wanted those messages from elected officials in San Jose. The city has appealed the case.
Terry Francke, who heads open government watchdog Californians Aware, said a state constitutional amendment in 2004 guaranteed the public’s right to see what public officials write, including emails and text messages.
“The policy is clear,” Francke said.
Both Alvarez and Faulconer failed to comply with one of the most basic provisions of the public records law in response to a VOSD request for private emails related to city business from a week in March 2012 and one in August 2013. Both councilmen failed to disclose the requested emails within 10 days as required by law.
Alvarez eventually turned over two email strings from his private account: One involved an official with the Urban Corps nonprofit and the other was an interview request from Voice of San Diego on bi-national affairs.
Faulconer’s response was three days late, too.
This failure to respond within the time allowed under the law goes against a specific pledge Faulconer has made on his campaign website:
Faulconer chief of staff Matt Awbrey later said Faulconer didn’t have any emails that fell within the parameters of the request.
“There are no documents responsive to your request,” he said.
That isn’t true.
In March 2012, Faulconer’s then-chief of staff Katie Hansen emailed U-T San Diego CEO John Lynch about the city approval process for a U-T’s proposed news crawl and LED video screen.
“I have copied the Councilmember on this email so you can have his personal email address,” Hansen wrote to Lynch, copying Faulconer’s Gmail account.
The San Diego Reader made that email public in May 2012.
Faulconer’s failure to turn over the email goes against something else he said recently: The city should err on the side of disclosure.
Faulconer’s campaign spokesman Tony Manolatos said the councilman didn’t turn over the Lynch email because he deletes his personal email regularly.
“Kevin has kept a clean inbox and he does not conduct city business over email,” Manolatos said.
Faulconer also relied on informal advice from City Attorney Jan Goldsmith, Manolatos said. Goldsmith’s office used to contend that private emails related to public business were not disclosable under the public records law, but more recently switched its position, Manolatos said.
But Paul Cooper, a Goldsmith deputy, said the city attorney’s office never said private emails were exempt. Cooper said rules surrounding private emails can be confusing, but the city attorney’s position hasn’t changed.
“The consistent advice has been you cannot get around the [public records law] by using personal cell phones or personal computers to conduct public business,” Cooper said.
We have the full Q-and-A responses on this issue from Alvarez, Faulconer, former City Attorney Mike Aguirre, Save Our Heritage Organisation Executive Director Bruce Coons and former Assemblyman Nathan Fletcher.
Candidate: David Alvarez
How he’ll ensure elected officials and city employees make their private emails and text messages on city business public: Ask city attorney’s office for a clear policy on disclosure and retention.
Quoted: “Personal email accounts and cell phones should not be used to circumvent open and transparent government.”
Candidate: Mike Aguirre
How he’ll ensure elected officials and city employees make their private emails and text messages on city business public: Talk to the media and city tech staffers.
Quoted: “The mayor’s office will meet with the media and work out a protocol with reporters who regularly cover City Hall, and with the technical staff that administers city communications systems.”
Candidate: Bruce Coons
How he’ll ensure elected officials and city employees make their private emails and text messages on city business public: Create financial penalties for failing to turn over documents.
Quoted: “When public officials use their personal accounts for public business and refuse to disclose the communications, the taxpayers end up having to pay to clean up the mess (i.e., by paying the city attorney to defend the withholding, and when the city loses in court by paying the plaintiff’s legal expenses).”
Candidate: Kevin Faulconer
How he’ll ensure elected officials and city employees make their private emails and text messages on city business public: Set policy that all public business is done on public accounts; appoint a transparency task force.
Quoted: “If a message is created using a personal device or software, you would use the following test: personal messages that are unrelated to city business would remain private and messages related to public business covered under the Public Records Act would be subject to public records requests.”
Candidate: Nathan Fletcher
How he’ll ensure elected officials and city employees make their private emails and text messages on city business public: Set policy that all public business is done on public accounts.
Quoted: “Like any workplace policy the city’s management sets for employees, I’d make my expectations clear to employees, with the understanding that violation of any administrative policy could lead to disciplinary action.”