In February 2017, California State Assemblymember Rob Bonta of Oakland introduced AB-1479, which would have amended the California Public Records Act to allow judges to assess civil penalties of between $1,000 and $5,000 to punish flagrant CPRA violations. The bill sailed through the Assembly and almost made it through the Senate until a shitstorm of opposition, including from many Los Angeles BIDs, some of whom cited this blog as part of their parade of horribles, hired high-powered lobbyists Gonzalez, Hunter, Quintana, & Cruz and thereby sank the most important part of the bill, leaving only a tragic and fairly useless husk.
According to a staffer of Bonta’s who is in charge of this bill it’s essentially irredeemable this term, but they’re going to try again next year. Also, she was kind enough to send me a huge selection of letters received, pro and con, including a bunch from many of our Los Angeles BID friends. If we can’t beat them, well, at least we can publish their ravings and then mock them, right? The whole collection is available on Archive.Org. You should definitely read through it if you’re interested. The support letters are fabulous, but I don’t have time to discuss them here.
And turn the page for a more comprehensive description of exactly what happened, of how the BIDs, as usual, missed the whole point, and an exceedingly, painstakingly, obsessively, mockingly detailed analysis of this characteristically delusional, narcissistic, crackle-pated nonsense from our own Ms. Kerry Morrison.1
According to the analysis published in April 2017, the bill would allow a court, if it found
…that an agency or custodian improperly withheld a public record that was clearly subject to disclosure, unreasonably delayed providing the contents of a record subject to disclosure in whole or in part, assessed an unreasonable or unauthorized fee upon a requester, or otherwise did not act in good faith to comply with the Act, to assess a
civil penalty against the agency in an amount not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000)
This version passed through the Assembly with only one vote against with some minor amendments. When it hit the Senate in July the opposition had grown significantly, although no BIDs were yet involved. By July the bill had been amended to, I suppose, allay the opposition’s fears that they were going to have to pay out zillions of dollars in civil penalties for no reason2 by adding a preponderance of the evidence standard of proof and some language requiring violations to be knowing and willful. Interestingly, the Senate version at this point added a clause directing assessed penalties to be paid to the requester instead of to the General fund. According to Senate Judiciary Committee analysis, it now would
… allow a court to assess a civil penalty between $1,000 and $5,000 against the agency and awarded to the requester if the court finds by preponderance of the evidence that an agency, knowingly and willfully without substantial justification, failed to respond to a request for records, improperly withheld records that were clearly subject to public disclosure, unreasonably delayed providing the contents of a record subject to disclosure in whole or in part, or improperly assessed a fee upon a requester that exceeded the direct cost of duplication, or otherwise did not act in good faith to comply with these provisions.
But by yesterday, after the BIDs and others weighed in with their weirdo opposition (of which there is much, much more information to follow), the bill was essentially gutted to remove all traces of a civil penalty, and what’s left in it is barely worth describing. You can read it in the Senate Floor Analysis if you like to stare at train wrecks.
The BIDs’ opposition mostly focused on how much money they already have to pay when they get sued for violating the law. And they bitched and moaned about how they don’t have the staff to handle incessant requests. Of course, we’ve discussed this kind of nonsense previously. The fact is that BIDs are contractually obligated to hire enough staff to meet their contractual obligations. Thus, one wonders, why do they think it’s OK or even relevant to admit in public that they don’t do so? 3
They were also worried that allowing the wronged requester to collect the Civil penalties would incentivize bad acting on the parts of, I suppose, people like me. This, of course, misses the whole point. While I suppose it would be nice to get paid a few thousand dollars for bringing a successful CPRA suit, it is only a few thousand dollars. The real reason that this civil penalty thing would have been invaluable is that it gives something to ask a judge for when agencies delay production unreasonably.
A huge problem with CPRA as it’s presently constituted is that if an agency doesn’t hand over requested records promptly but they do hand them over eventually, there’s really no way to sue them. The CPRA evidently4 only allows judges to order agencies to do stuff in the future. It does not allow judges to declare that what agencies have done in the past was a violation. Judges also seem to require a demand letter before a petition is filed.
Thus recalcitrant agencies are incentivized to ignore requests until they receive a demand, which, by the way, costs money to send usually, and then hand over the stuff. They can’t be sued for this right now and this way requesters without the resources to retain lawyers are out of luck. Just for instance, this is the perennial strategy of the Larchmont Village BID. But if there were a civil penalty available for unreasonable delay this would all be different. If this were the case there’d be something concrete in the future to ask a judge to order.
In that case a finding that the agency had unreasonably delayed would put them on the hook not only for the (relatively unimportant) civil penalty, but also for the requester’s legal fees. As the bill stands now this glaring loophole still stands. A civil penalty would be essential, then, even if it topped out at one dollar. The amount is far, far less important than the availability of the cause of action.
Note also that a civil penalty is far from the only way of solving this problem. For instance, in Virginia the law requires public agencies to actually petition a court for permission to take longer than the statutory deadlines for providing records.5 This would be far, far more excellent than getting a paltry thousand dollars!
And that’s enough of the amateur legal analysis. Let’s move on to the mockery! Here are the LA area BIDs who wrote opposition letters, or at least the ones I got copies of from Bonta’s office. Note that all of them make essentially the same argument about my work, which is that I’m trying to do them in, that I’m a CPRA abuser, whatever that is, and that they don’t have the money to respond and that they had to hire a lawyer, which is expensive.6
And now, the moment you’ve all been waiting for! Line-by-line analysis7 of the inimitable Ms. Kerry Morrison’s letter! As is her wont, Kerry Morrison has not been satisfied to just copy/paste the same lobbyist-written crapola that the rest of the BIDs sent in. She has added her own uniquely narcissistic twists to it! Read on, friends!
◆ The Hollywood Property Owners Alliance, the nonprofit organization which manages the Hollywood Entertainment District Business Improvement District, is seeking your assistance to amend the proposed AB 1479 (Bonta). We ask that this bill be opposed unless amended.
◇ This much is true enough, I suppose. They’re asking that the bill be amended. Even Satan can’t lie all the time, so how can we expect that his disciples would be able to?
◆ This bill imposes additional burdens on private non-profit organizations that are subject to the California Public Records Act (“CPRA”) Despite the intended objective to promote government transparency, there is an unintended consequence. The civil penalty provision creates an incentive for serial public records requestors to seek such penalties and, in the case of the small nonprofit organizations that manage business improvement districts (BIDs), this poses a very real threat to the survival of BIDs in this state.
◇ It’s worth remembering what’s at stake here. The law already puts CPRA-violators on the hook for legal fees. The BIDs themselves say that those can run into six figures, although I’m not actually convinced that that’s true. The bill would add potential, not guaranteed, additional penalties of between $1,000 and $5,000. If that much, around 1% of legal fees, poses a very real threat to the survival of BIDs in this state, then there’s not something wrong with the law, there’s something wrong with the BIDs. If a 1% increase in potential liability is going to drive you out of business you ought not to be in business in the first place. This is leaving aside the fact that the penalty would only have been assessed if the BIDs didn’t live up to their legal obligations.
◆ The proposed legislation seeks to impose the threat of civil penalties ranging from $1,000 to $5,000 to a public agency if the court finds, by a preponderance of the evidence, that the agency has: failed to respond to a request; improperly withheld a public record; unreasonably delayed providing a record; improperly assessed a fee upon a requestor; or did not act in good faith.
◇ The devil can cite Scripture for his purpose.
An evil soul producing holy witness
Is like a villain with a smiling cheek,
A goodly apple rotten at the heart.8
◆ In the case of Hollywood, which has been subject to the CPRA since 1999, 15 years went by with perhaps just one or two requests from the public.
◇ No one ever asked us to live up to our legal and contractual obligations before so we shouldn’t have to do it now. Also, isn’t it cute how she conflates her damnable BID with Hollywood itself? She does this habitually. It’s disgusting, but on such a small scale that it’s hardly worth writing about.9
◆ Then, beginning in October 2014, one individual, intent on bringing our organization to its demise, submitted 144 requests over the course of 22 months.
◇ Kerry Morrison is famous for accusing me of trying to destroy her BIDs by making too many CPRA requests. Her theory is that I mean the requests themselves to bring her down. What she’s missing, possibly intentionally, probably delusionally, is that CPRA is only a means to an end here. Through CPRA I gather evidence and information which I am using and will continue to use to destroy her BIDs through entirely legal means. Of course, this kind of thing is precisely what the CPRA is meant for. Despite what they so fervently wish for, BIDs don’t get to spend public money without some public oversight and the consequences thereof.
◆ His actions (which are celebrated on his website) seems to have stimulated a second requestor who appears to be following in his footsteps.
◇ God forbid that someone would use CPRA to find out stuff about a government agency10 and then write about it on a website. It’s almost as if freedom of speech, and of the press, were enshrined in some set of basic principles governing this country. Go figure. And the idea that political commentary might inspire others to take action? Things are really getting out of hand here in Hollywood!
◆ Our nonprofit organization which manages two BIDs has five staff people. At times, there were up to 30 pending requests at one time. The staff worked very hard to comply with the Act, working in good faith to retrieve records and respond to his unending requests.
◇ We have had a legal obligation to comply with the CPRA since 1999, yet we have failed to hire enough staff to meet our obligations. The solution is not to hire enough staff to actually conduct our business in a legal manner. The solution is to change the law so we don’t have to and also to intimidate people into waiving their rights for our convenience.
◆ At considerable expense, we hired a specialist attorney to help us navigate the intricacies of the CPRA law.
◇ We had to hire a lawyer to tell us how to evade the law rather than just following it. That seemed worth the money at the time but we’re still going to whine about it.
◆ Despite our efforts and conscientious responses, the requestor filed a lawsuit against our nonprofit corporation in December of 2016. We now find ourselves expending significant legal fees to respond to his writ of mandate for records that he alleges were not produced.
◇ It would have been cheaper to comply with the law in the first place, but somehow it’s preferable to break the law, spend tens of thousands of dollars defending a lawsuit, and whine about it constantly. By the way, the two main issues in the suit are the HPOA’s rewritten document retention policy and their their complete revision of their BID patrol contract to avoid scrutiny. That is, even they admit they didn’t produce records. The issue is whether they are required to produce them or not. They are.
◆ Please note that attorney’s fees alone in these cases can be substantial and the threat of having to pay a plaintiff his or her attorney’s fees on top of our own is a sufficient deterrent to not following the law.
◇ As I said above, this can’t actually be right. The proposed penalties are so small compared to the costs and fees that they can’t change the purely fiscal analysis at all. I have to assume that the specialist attorney who the BID hired [a]t considerable expense explained the real meaning of the bill to them, that they could then be sued for unreasonable delay as well as for claiming bogus exemptions. So why is Kerry Morrison ignoring this? Probably because she doesn’t want to admit that she’s nervous about being sued for delay as well as nonproduction. Bad optics, eh?
◆ Furthermore, our nonprofits have virtually zero recourse if the plaintiff’s position is upheld by the court. Adding a “profit incentive” to these lawsuits will cause CPRA litigation to swell and force extortion-type settlements.
◇ They have virtually zero recourse because their compliance with the CPRA is my constitutional freaking right. Why should they have any recourse? Why don’t they just follow the law?11 Again, if an extra $1,000 is going to force extortion-type settlements there’s something already wrong. The legal fees far outweigh the proposed penalties, and I haven’t noticed the HPOA offering any extortion-type settlements yet.
◆ We are not the only nonprofit organization who has been subject to the burdens placed by this one individual. At least 18 other nonprofit BID management organizations in the city of Los Angeles have also been barraged by his requests.
◇ Forget the fact that I request stuff from lots of BIDs. Obviously that’s not only necessary but expected. Focus on the fact that Kerry Morrison’s BID signed a contract with the City of Los Angeles agreeing to be subject to the CPRA. They signed this contract knowing full well that the very law which authorizes their existence requires them to be subject to the CPRA. And yet their compliance with the law and the contract is somehow a burden and my constitutionally protected requests a barrage? I don’t think they could possibly run their real businesses that way. Pay rent on our building just cause we signed a contract? But that’s such a freaking burden! Pay salaries to our employees because we said we would? A BURDEN!
◆ Some organizations are very small, with either a volunteer to run the BID, or a part-time employee. If this type of abuse is incentivized, this will result in the demise of the BIDs as we know them today.
◇ Notice how she’s managed to shift the conversation from the bill’s incentiving compliance to its putatively incentivizing abuse? Not mentioned at all is the fact that if her BID would just comply with the law like they promised to do there would be no lawsuits.
◆ Why are we concerned for the future of the BIDS? The funds that must be used to pay for legal fees and to defend against litigation are property owner assessments. These assessments are intended to be used for services to improve the district, including tree trimming, trash and graffiti removal, security patrols, marketing programs and the like. While everyone agrees that BIDs are of great value to communities, support for the self-imposition of property assessments will disappear if the assessments are supporting defense of CPRA litigation, lawyers and possibly civil penalties.
◇ Everybody loves us so we shouldn’t have to follow laws! By the way, I think she’s right about the fact that if BIDs voluntarily choose to ignore their legal obligations, like complying with CPRA, and consequently have legal and financial consequences, they might lose support among property owners. This is natural, because who wants to pay money because some uppity BID staffers think they’re too good to comply with the law? Why then, one wonders, doesn’t Ms. Kerry Morrison just comply with the law instead of whining about the potential consequences when she does not?
◆ Finally, BID organizations, from the beginning, were never considered public agencies for CPRA purposes until a lawsuit in 1999.
◇ She cannot just leave this alone. Here’s what happened, if you don’t already know. Hollywood Boulevard property owner Aaron Epstein sued Kerry Morrison’s BID because Kerry Morrison wouldn’t let him come to the board meetings. He eventually won and a stunning opinion by appellate judge Walter Croskey made BIDs subject to the Brown Act and the CPRA. Back when she was still talking to me12 Kerry Morrison told me that the judges just didn’t get what BIDs were about and that’s why they ruled the way they did. At this point this is settled law. It’s not going to change. But Kerry Morrison is still angry about it. Move on, Kerry Morrison, and if you don’t have the staff to comply with CPRA get a freaking intern!
◆ And in acknowledging the unique nature of our organizations, the statute provides this definition: ‘”owners association’ means a private nonprofit entity that is under contract with a city to administer or implement improvements, maintenance, and activities specified in the management district plan.” (See Section 36612 of Streets & Highways Code.)
◇ I can’t actually tell what this is supposed to mean, so I’m going to ignore it. Maybe it means that since they’re “unique” they shouldn’t have to follow the law?
◆ On behalf of not only our nonprofit property owner’s association, but all the organizations that manage BIDs not only in Los Angeles, but throughout the state, we would ask that the bill be amended to restrict its application only to public (governmental) agencies.
◇ It’s interesting that she’s trying to get the bill amended to include a distinction between BIDs and government agencies. This, of all things, will never actually happen since the basis of the court’s ruling, discussed above, is that BIDs are, for practical purposes, public governmental agencies. The only possible solution to the BIDs’ problems here is the one that the Senate chose rather than the one Kerry Morrison asked for, which is to remove the language all together. In the spirit of not underestimating one’s opponents I suppose I can attribute this weird position to malice and subterfuge on Kerry Morrison’s part rather than to her having missed the point all together?
◆ Sincerely,
Kerry Morrison
Executive Director
◇ “Sincerely,” eh?
Image of Kerry Morrison wherewith this post is adorned is ©2017 MichaelKohlhaas.Org. It’s an artistic, creative, trans-freaking-formative reworking of this sad little number right here.
- Who, sadly, has been absent from these pages through most of 2017. But although she’s gone, she’s in no way forgotten. Wheels are turning behind the scenes — in fact she describes some of the wheels in the very letter I’m getting ready to mock here — and you can expect floods of news at some point, along with floods of new and egregious records!
- That *they* can understand, anyway.
- Also, they will seemingly never acknowledge that they’ve placed themselves in the position they’re in. If complying with the law is so difficult, one wonders, why don’t they just eschew the compulsory assessments that being a BID allows them to collect and switch to a normal business league model like Chambers of Commerce do everywhere? Poof! No more CPRA compliance required.
- This is according to a bunch of lawyers with whom I’ve discussed this issue.
- See §2.2-3704 in all its Jeffersonian Virginia-esque glory!
- Here’s the common language, more or less:
… there must also be recognition of the significant burden these requests have, in particular serial abuse of the CPRA. In the past 18 months, we have had one individual, with the intent to bring our organization – and all BIDs—to its demise, who has submitted 100 requests. Our non-profit has an administrative staff of 4 people and we have worked in good faith to respond to the records in a timely manner. In order to comply, we’ve also retained a specialized attorney to navigate the complexities of the CPRA law. We are not the only BID that has received hundreds of requests from this one individual. Many of these BIDs have very small budgets, some with only a volunteer or part-time administrator. Creating a new incentive with a civil penalty provision would create a real economic incentive for those that abuse CPRA to seek not only the penalty, but to also seek attorney’s fees and court costs. - Read “mockery.”
- Merchant of Venice I.3.
- Hardly doesn’t equal not, it turns out.
- Of course, calling a BID a government agency is fighting words in BIDlandia, but that doesn’t mean it’s not true.
- This is yet another example of the BIDs’ bizarre theory that they ought to be exempt from every possible kind of oversight and responsibility. I haven’t had time to write on this extensively, but a famous example is the fact that no one required BIDs to register their security guards with the Police Commission, as required by the law, for almost twenty years. This tacit policy began with Carol Schatz complaining that her BID patrol guards weren’t allowed to wear purple tee shirts. Another famous example is the over-the-top BID resistance to having to register as lobbyists in 2010. There are plenty more examples, some of which may contribute to the BIDs’ demise, Kerry. Stay tuned!
- Rather than hissing at me like a snake.
