MOORLACH UPDATE — Misconduct — June 2, 2016

It’s been a very busy three days in Sacramento, as the Senate spends its short week addressing hundreds of bills on the Floor. While in this setting a couple of articles provide reverberations on a few legislative efforts that I have tried, but were rebuffed.

In the first piece below, Fox & Hounds and the Metropolitan News-Enterprise provide a friendly debate on how to address Caltrans and road repairs (see MOORLACH UPDATE — California Coastal Commission — May 24, 2016 may 24, 2016 john moorlach).

The Daily Journal provides its perspective on SB 1286 in the second piece below (see MOORLACH UPDATE — Open-Government Bill — May 28, 2016 may 28, 2016 john moorlach).

This is followed by two editorials, the first from the LA Times and the second (the fourth piece below) in the San Diego Free Press.

Response to Will Kempton on Transportation Taxes

Jon Coupal
By Jon CoupalPresident of the Howard Jarvis Taxpayers Association

Last week’s column presented the case for strong opposition to any new transportation taxes in California. But on Thursday, the Executive Director of Transportation California, Will Kempton,published a response in Fox and Hounds, which repeated the need for higher taxes.

Will Kempton is a respected transportation expert who agrees with the central premise of my original column. That is, that California’s transportation crisis can no longer be ignored. California has a transportation and road repair maintenance backlog that some estimate will total $58 billion over the next ten years. It is also true that, thanks to alternative vehicles and more fuel efficient cars (and never mind the infamous “gas tax swap”) that fuel tax revenues have become more volatile year-over-year.

So, now that we’ve agreed on the need, how do we deal with it? Mr. Kempton argues that we have no choice but to raise taxes. Not only do we disagree, but it is abundantly clear that practically all of this backlog can be funded using existing General Fund resources. Consider:

  • Nearly $1 billion a year of truck weight fees are being diverted from road repair to paying off transportation bond debt. Total: $10 billion over ten years.
  • Nearly $9 billion in bonds for high speed rail can be diverted for road construction. (And if voter approval is deemed necessary, that measure passes in a heartbeat).
  • Currently, California spends only 20 percent of its $10 billion General Fund transportation budget on road maintenance. Especially with General Fund revenue at record levels, a boost to 50 percent does not seem excessive: Total: $30 billion over ten years.
  • Currently, $500 million in $3 billion worth of cap-and-trade funding goes to road maintenance. Doubling that amount adds $5 billion over ten years.

The grand total of these reforms is $54 billion over ten years. Granted, not all of these things can be done overnight and the first two items will likely require statewide voter approval. But the Legislature still has plenty of time to qualify a constitutional amendment for the November ballot. And obviously, placing a greater General Fund emphasis on transportation projects will require that we figure out how to prioritize our resources better in the face of a record $122 billion budget.

Let’s be honest. It is really the word “prioritize” that is at issue here. Some of these reforms will be easier to implement than others, but unless we engage them head on, which hasn’t happened in the Legislature, how can we ever hope to solve this problem? Taxpayers should refuse to accept the incessant call for higher taxes when relatively simple reforms that could add tens of billions of dollars of funding to our roads, without raising taxes, are ignored. How can we discuss a punitive and regressive gas tax increase when common-sense legislation by State Senator John Moorlach to privatize a small portion of CalTrans projects, or to establish a pilot project to have county transportation agencies assume projects from CalTrans, are quickly rejected in their first policy committee?

We agree with Kempton that the status quo is no longer acceptable. But there are a myriad of fiscal and policy changes that are viable and should be discussed and implemented. And until legislative Democrats, the transportation community, labor and environmentalists are willing to even come to the table, why should the burden be on California motorists to pay higher taxes?

Police misconduct transparency bill held in state senate

By L.J. Williamson

To the plaudits of law enforcement unions and the dismay of transparency advocates, a bill that would have made public the investigation and discipline records of police officers with proven findings of misconduct was held in the state senate appropriations committee.

Records related to dishonesty on the job or serious use of force would also have been made public under the bill, SB 1286 would also have given civilian police oversight bodies, such as offices of independent review or police commissions, full access to personnel records of such officers, with confidentiality provisions and personal information redacted.

The appropriations committee dealing with the bill on Friday "didn’t vote for it, didn’t vote against it, they just left it on suspense," explained Jim Ewert, general counsel for the California Newspaper Publishers Association, a co-sponsor of the bill. "The way I like to characterize it is killing it without any fingerprints."

A number of other states allow public access to such records without difficulties, Ewert said, "yet California continues its policy of secrecy. … It’s a sad day."

George Hofstetter, president of the Association for Los Angeles Deputy Sheriffs, approved of the committee’s action. "The legislature correctly acknowledged law enforcement officers are entitled to the same privacy protections as all other employees, and current procedures allowing records to be revealed upon adequate showing to a judge are sufficient," he said in a statement.

"There is an amazing amount of power with public safety employees’ unions. They play a pretty big role in campaigns," said Sen. John Moorlach, R-Costa Mesa, a co-author of the bill. "More transparency is a better service to our public safety and front line officers. Our public safety agencies hurt themselves by not giving as full disclosure as possible."

Peter Bibring, senior staff attorney at ACLU of Southern California, a sponsor of the bill, said secrecy around peace officer records is one of the most fundamental structural obstacles to police reform in California.

"Obviously this is a serious disappointment. During the course of this, officers made arguments about safety and privacy, but this bill would have left police officers with greater confidentiality than any other public employee in California," Bibring said. "The opposition wasn’t really about safety or privacy. It was a fear of transparency. Law enforcement did not want to tell the public how they are handling proven misconduct."

Sen. Mark Leno, D-San Francisco, the bill’s author, said in a statement that secrecy around confirmed allegations of police misconduct undermines trust in law enforcement and jeopardizes safety. "I am disappointed that the Legislature did not have an opportunity to weigh in on this critical legislation. Without SB 1286, confirmed allegations of police misconduct will continue to be obscured from public view," Leno said.

"You would think that California would be the leader, not one that lagged behind most in transparency in police misconduct, said Ben Meiselas of Geragos & Geragos APC. "The way it was killed in such an unceremonious, lack-of-transparency way was the ultimate irony. The senate endorsing the idea that the public can only have access to these records is through litigation is completely counterintuitive to what it means to be a Californian."

Op-Ed

Does the public have a right to know a cop’s history?

By Connor Freidersdorf

If a police officer pulls you over for a burned out taillight, he can quickly learn your name, home address, place of birth, sex and eye color; every minor traffic infraction on your record; your criminal history at the local, state and federal levels; whether you’re on probation or parole; and whether there are any warrants out for your arrest.

With a bit more effort, he can feed your vehicle information into a license plate reader database to generate a partial list of places you’ve driven around town. If he merely suspects you in a robbery or a rape or a murder, he can announce that to the media. If he arrests you for drunk driving or buying illegal narcotics or soliciting a prostitute, he can send your name and photo to the newspaper even before your trial. If it turns out that you’re not guilty, law enforcement officials are not compelled to correct the record.

But if you’re pulled over by a police officer who treats you rudely, gives you a citation without cause, makes a crude remark to your spouse or needlessly pats you down in a way that you find invasive, it is exceedingly difficult in California to obtain information on that cop’s professional history – much harder than in Texas, Kentucky and many other states, according to civil liberties advocates who believe the public has a right to know when a public servant engages in racial profiling, or sexual misconduct, or even kills in the line of duty.

That’s right: If a police officer kills you, there’s no guarantee that your next of kin will be able to determine if that same cop has killed someone — or five someones — in the line of duty before. In fact, police departments are currently banned from releasing information related to police discipline even if a citizen specifically seeks it through a public records request. Barring unusual leaks or unusually aggressive investigative journalism, cops who’ve repeatedly shown that they’re bad at their jobs can effectively conceal their records.

There are state legislators who find that unacceptable. Senators Mark Leno of San Francisco, Holly Mitchell of Los Angeles andJohn Moorlach of Costa Mesa, along with Assembly member Shirley Weber of San Diego, have sponsored a bill that would give the public a right to know about officer-involved shootings and confirmed cases of serious misconduct – that is to say, cases where police departments concluded that cops betrayed the public trust.

But powerful law enforcement unions staunchly oppose opening personnel files to records requests.

And right before Memorial Day weekend, the law-enforcement transparency bill died without so much as a vote of the full legislature, meaning the public cannot hold their representatives accountable for their positions.

“This was not union thuggery in the legislature,” Mike Durant, president of the Peace Officers Research Assn. of California, told the Wall Street Journal. "This was many different law-enforcement organizations sitting down with the senators and talking about our concerns.”

But the ACLU characterized those concerns as maintaining a "blue wall of silence."

“Last year, 211 people were killed by police in California – more than in any other state,” the civil liberties organization declared, “yet state law will continue to shield from public view the full findings of investigations into each and every one of these and all future killings.”

Assembly Bill 1680 died too. That proposed law would have helped local police departments to buy body cameras, a technology that protects Californians from bad cops and good cops from prosecution when they have to make difficult decisions.

Meanwhile, Assemblyman Miguel Santiago of Los Angeles is pushing to erect yet another obstacle to public disclosures – a bill that would require at least three days’ notice before any audio or video recorded by a police officer, of a police officer, is released on the Internet. Evidently, his concern for privacy does not extend beyond people in uniform. Law enforcement is not required to provide any notice to California residents before releasing video footage in which they appear.

All this is exactly backward.

The typical Californian has precious little power over anyone, whereas the typical California police officer is armed with a gun and the discretion to use lethal force on behalf of the state. There is no profession where it is more important to identify incompetence, no profession where bad apples can so easily deprive innocents of liberty or even life.

There’s no denying that cops have a vital and dangerous job. But narrow exemptions already exist to shelter police officers who have specific reason to believe the release of video footage could harm their personal safety. And there is no evidence suggesting that transparency guidelines in other states expose cops to extra danger.

The legislature is failing the public on this matter. If it continues to put the agenda of a public employee union above its obligation to keep law enforcement accountable, the public ought to settle this matter at the ballot box, where a proposal to force transparency around police misconduct would likely be popular with voters.

Conor Friedersdorf is a contributing writer to Opinion, a staff writer at the Atlantic and founding editor of the Best of Journalism, a newsletter that curates exceptional nonfiction.

Officer Misconduct and Use

of Force: Blue Code of

Silence to Remain Under

California Law

Bill to open up police misconduct records dies in Senate Appropriations committee

By ACLU of San Diego and Imperial Counties

Senate Bill 1286, introduced by Senator Mark Leno (D-San Francisco) and coauthored by Senators Holly Mitchell (D-Los Angeles), John Moorlach (R-Costa Mesa), and Assemblymember Shirley Weber (D-San Diego), was held in the Senate Appropriations committee on May 27.

SB 1286 would have shined light on how departments handle confirmed instances of officer misconduct and serious uses of force. California, a national leader in upholding and expanding the rights of its residents, is surprisingly one of the most secretive states when it comes to releasing basic information about how departments investigate and address wrongdoing by peace officers, including racial profiling, sexual misconduct, and officer-involved shootings. On the other hand, states like Texas, Kentucky, Utah, and about a dozen others make these records public when a department finds that an officer engaged in misconduct.

“Today is a sad day for transparency, accountability, and justice in California,” said Peter Bibring, police practices director for the ACLU of California. “Last year, 211 people were killed by police in California – more than in any other state – yet state law will continue to shield from public view the full findings of investigations into each and every one of these and all future killings.”

As communities throughout the state and country continue to demand meaningful reforms, focus on community mistrust in current systems of accountability has heightened. A recent Pew Research Center poll found that only 30 percent of Americans and just 10 percent of Black Americans believe that police departments do a good job of holding officers accountable for misconduct.

“The committee’s decision is a slap in the face to the victims of police violence and brutality,” said Mar Velez, policy and organizing campaign manager with CURYJ. “One of the greatest disadvantages communities have when seeking justice in the face of officer misconduct and police brutality is access to information. While bad-acting police personnel enjoy an exorbitant amount of secrecy, communities are left in the dark.”

According to the Washington Post, unarmed Black men are a shocking seven times more likely to be killed by police gunfire than unarmed white men.

SB 1286 would have ensured that:

  • Californians have full access to records of investigations and discipline in police shootings and other serious uses of force by police, and cases where police departments have found that their own officers actually violated the rights of members of the public.
  • Californians who file complaints alleging misconduct were told how the department responded. If the complaint is rejected, they will be told why. If it is sustained, they will be told what corrective action is taken.
  • Civilian oversight bodies and local governments have access to the police department records they need to carry out their duties, while requiring those agencies to keep records confidential.
  • Officers’ privacy and safety is protected by allowing courts to withhold records if there is a risk or danger to an officer or someone else, or if disclosure would be an unwarranted invasion of officers’ privacy.

SB 1286 was co-sponsored by the ACLU of California, the California Newspaper Publishers Association, CURYJ, PICO California, and the Youth Justice Coalition.

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