Every wilful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision is made for the punishment of such delinquency, is punishable as a misdemeanor.
The potential here is astounding. You see, there is “no special provision…made for the punishment of” a failure to comply with CPRA. This is in contrast to, e.g., the Brown Act, which does contain a clause making certain kinds of violations misdemeanors.1 However, the duty to comply with CPRA is “enjoined by law upon” public officers. For instance, the California Constitution at Article I, section 3(b) states pretty unequivocally that:
In order to ensure public access to the meetings of public bodies and the writings of public officials and agencies, as specified in paragraph (1), each local agency is hereby required to comply with the California Public Records Act …
Now, this law requires2 that the failure to act be wilful. But, of course, that’s where we have Chad Molnar dead to rights. If you didn’t read the whole story, you can at least read the smoking gun, in which Chad Molnar actually states explicitly that he’s not going to comply with CPRA and that he doesn’t think he has to comply. And note that this is not just him not complying with some vague part of the law, proof of violation of which would require a fact-finder, but him not complying with objectively clear, explicitly mandated, response deadlines. He just flat-out says he’s not going to respond as required. It’s hard to imagine a more wilful violation than that.
So anyway, as soon as possible, I hope this weekend, I’m going to write up a complaint and figure out what to do with it. Perhaps I’ll try the neighborhood prosecutor in Venice. They do handle misdemeanors, after all. This probably won’t work so well, and then I’ll send it to Jackie Lacey’s Public Integrity Division. I’ll keep you up-to-date. And if you’re still interested, turn the page for even more wildly uninformed speculation.3
First of all, note that this lovely law is not limited to public officials or employees, but includes “person[s] holding any public trust.” This might well include people associated with Business Improvement Districts, and wouldn’t that be fabulous?! The issues are a little complex. Business Improvement Districts are authorized by the California Streets and Highways Code at section 36600 et seq. In particular, at section 36612 we read first that every business improvement district is to be run by a so-called owners’ association, and also that:
An owners’ association is a private entity and may not be considered a public entity for any purpose, nor may its board members or staff be considered to be public officials for any purpose.
So BID staff and board members aren’t public officials or employees. However, the section goes on to state:
Notwithstanding this section, an owners’ association shall comply with the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code), at all times when matters within the subject matter of the district are heard, discussed, or deliberated, and with the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), for all records relating to activities of the district.
Now, as mentioned above, GC 1222 specifically includes “person[s] holding any public trust.,” and if this is not meant to include people other than public officer[s], or person[s] holding any public … employment,” then one has to wonder what it’s doing there. It’s at least plausible that what it’s doing there is including people who hold a public trust but are neither public officers nor employees.
So the question is whether the fact that BID employees and board members are required by statute to comply with the Brown Act and CPRA makes them persons holding a public trust. I think that it does. After all, both laws make reference to the public’s business, and the purpose of both laws is to protect the rights and interests of the public. And BID folks are the custodians of the records by means of which the public’s business is conducted and, as custodians, it doesn’t seem far-fetched to say that they’re entrusted with the custodianship of these records. And won’t that be a lovely day when they start locking up BIDdies e.g. for their contorted, unethical document-destroying shenanigans? As always, I have no idea whether this theory is correct, but I’m pretty sure it’s plausible.4
And finally, note that the law makes the wilful omission to perform an actual misdemeanor. Well, the much-abused California Penal Code section 837(1) states that:
A private person may arrest another … [f]or a public offense committed or attempted in his presence.
And a misdemeanor is certainly a public offense. So I think this must mean that it’s OK for interested parties to arrest Chad Molnar for wilfully refusing to respond adequately to CPRA requests. And, as we have learned from our friends at the Hollywood BIDs, that must mean that it’s OK for us to jump on him and handcuff him!5
So the hope is that this law can be used to enforce CPRA compliance on City employees in some circumstances. If it works it will obviously be way more effective than the traditional method of filing a petition in Superior Court and then thumb-twiddling for the next two years or so. Also, and even more importantly, this will introduce a strong element of personal responsibility into the process. Right now, City employees or officials ignore CPRA and the worst thing that can happen is that the City gets sued, the City Attorney defends, no one gets in trouble when the City loses, and the City employee probably gets kudos and promotions for protecting their boss against exposure in the press. Just imagine how different this story would be if the City employee got locked up on a misdemeanor charge! Fun times! Stay tuned!
Image of Chad Molnar is a crop of this image from Mike Bonin’s website, which Chad seems to think is not in the public domain but everyone else thinks that it is. Anyway, it’s a public record and here it is, friends.
- Sadly, it seems that no one has ever been prosecuted for Brown Act violations…yet!
- And, as much as I might enjoy the lack of such a requirement on a personal level, I actually do have to admit that if one is going to actually physically lock City employees up in jail for violations, sound public policy and justice both mandate that violations must be intentional.
- Mike, do you mean to say that there’s additional wildly uninformed speculation after the break or that the additional speculation after the break is even more wildly uninformed? Yes.
- As always, by “plausible” I mean something on the continuum between the “I told it to a lawyer I know at a cocktail party and he or she didn’t actually laugh out loud” standard and the “I told it in a professional setting to a lawyer I paid in actual money and he or she said that it probably wouldn’t be dismissed outright as frivolous” standard.
- Don’t actually do this, OK? Just enjoy fantasizing about it.