Virginia Coalition for Open Government

Transparency News 5/8/15

Friday, May 8, 2015

State and Local Stories

The 12 men and women who found former Virginia governor Robert F. McDonnell (R) and his wife, Maureen, guilty of public corruption were a close-to-even blend of Democrats, Republicans and independents who worked an eclectic mix of jobs, spanned a wide age range and all promised they could ignore the media attention that would come to surround the case, according to surveys that were made public this week. The surveys — added to the court file Wednesday after The Washington Post waged a protracted legal battle to push for their release — offer the most comprehensive look yet at the jurors who decided the McDonnells’ fate, showing how each person answered the 99 questions meant to determine if they could handle the case objectively. U.S. District Judge James R. Spencer had initially declined to release the documents in such a way that a particular juror could be connected to a particular questionnaire, only doing so after The Washington Post took the matter to the U.S. Court of Appeals for the 4th Circuit, which told him to reconsider.
Washington Post

When Culpeper County Commonwealth’s Attorney Megan Revis Frederick asked the opinion of a veteran prosecutor and received the answer that warned her to tread lightly, it was too late to heed that advice, if she chose to do so.’ Frederick sought the opinion of Fairfax County Commonwealth’s Attorney Ray Morrogh regarding a letter to Frederick from Richmond attorney Andrew Meyer who represents Culpeper Police Detective Matthew Haymaker. Acquiring copies of the correspondence between Morrogh and Frederick proved difficult. Following a request to Frederick by the Culpeper Times for correspondence between her office and Morrogh’s under the Virginia Freedom of Information Act (FOIA), Frederick’s Deputy Commonwealth’s Attorney Angela Catlett denied the request on Apr. 24, citing Virginia Code section 2.2-3705.1. On April 29, Michael Matheson, a private Richmond-based attorney with the Thompson McMullan law firm, responded by email citing three subsections of the code as being applicable exclusions. Matheson never answered questions after the Times confirmed it had received the requested correspondence from the Fairfax County Commonwealth’s Attorney. “As you have confirmed, it is my understanding that you have obtained all the requested documents from the Commonwealth’s Attorney’s Office for the County of Fairfax,” Matheson wrote in his May 1 email. “Ms Frederick has no additional records responsive to your request. Therefore your request is now moot.”
Culpeper Times

A meeting between Mayor Kenny Wright and Sheriff Bill Watson scheduled for Thursday lasted just minutes. In a letter to the sheriff on Wednesday, Wright asked to meet in private with Watson and some staff Thursday to discuss cutting $1 million from the Sheriff's Office budget. Council members Bill Moody and Elizabeth Psimas said such a meeting should be public as a continuation of budget discussions. When Wright arrived for the meeting Thursday afternoon, Moody and reporters from two television stations were already in the City Council conference room. "When the mayor got there, he sent everybody packing," Moody said later. "I said, 'What do you have to hide?' " Watson said after the meeting. The sheriff left without talking to Wright or city staff. "I wanted it all open to the public so it wouldn't be just the mayor's version."
Virginian-Pilot

Altavista officials confirmed Thursday a town police officer who resigned last month was one of the employees placed on leave because of a Virginia State Police criminal investigation. Thursday was the first time a town official confirmed with The News & Advance either of the employees’ names. Town Manager Waverly Coggsdale III repeatedly refused to explain why the [employee’s] phone was taken or name either of the employees, calling them “personnel issues,” which are exempt from public record laws.
News & Advance
 
 
National Stories

Judicial Watch announced that it has filed seven Freedom of Information Act lawsuits against the State Department in the U.S. District Court for the District of Columbia to obtain the release of documents about the Clinton email scandal, including emails of her top aide Huma Abedin and records about the Benghazi and Clinton Foundation scandals.  JW filed one of the lawsuits yesterday and six today.  Last week, Judicial Watch also filed a lawsuit for records on Hillary Clinton’s use of an iPad and iPhone.  
Judicial Watch

On May 5, 2015, the Michigan Court of Appeals issued its decision in Arabo v Michigan Gaming Control Board [majority decision][concurring opinion] in which the court rejected the arguments of the State and lower court that there is no remedy for excessive charges under Michigan's Freedom of Information Act, known as FOIA.  The case centered on a request for legal authorizations for casino countermeasures and casino player exclusion rules and laws authorized by the Michigan Gaming Control Board for the 'Big 3' Detroit casinos under the Gaming Board's regulatory control. The Gaming Board, in response, demanded a fee of over $4,000.00 claiming to need 103 hours of staff time to locate its own rules and regulations before it would even begin to fulfill the request. The Michigan Attorney General's office, as counsel to the Gaming Board, argued that the lower court was correct there was no remedy whatsoever to the requester for this excessive fee demand. The Court, collectively, disagreed and held explicitly, for the first time ever, a viable claim for declaratory or injunctive relief exists under Michigan law for excessive fees. 
Outside Legal Counsel

A federal appeals court has ruled that the National Security Agency program to collect information on billions of telephone calls made or received by Americans is illegal. In an opinion issued Thursday, a three-judge panel from the New York-based 2nd Circuit U.S. Court of Appeals held that a law Congress passed allowing collection of information relevant to terrorism investigations does not authorize the so-called “bulk collection” of phone records on the scale of the NSA program. The judges did not address whether the program violated the Constitution.
Politico

A former editor of ours at Forbes magazine, the late Sheldon Zalaznick, used to talk about putting copy he read through a smell test. By that he meant that he was looking for facts and data that seemed to give off a scent that made him believe it was inaccurate or misleading. This was an ability he developed through years of reading articles about corporate finance. When he detected a fact he thought was dubious, he’d circle it with a red pen and send the copy back to the writer. He was almost always right.   Shelley was a model for us. After over a quarter of a century of reading and thinking about city and state governments, we frequently come across numbers that jump out to us as questionable. The alarming part is that these figures aren't frequently questioned by government officials who are using them for policy, management or members of the press who repeat them to the general public.
Governing

 
 
 
 
 
Editorials/Columns

As it stands, the [redistricting] process is overly secretive and hyperpartisan. The party in power, be it Democratic or Republican, draws lines that maximize the likelihood of preserving their majorities. The resulting maps routinely divide communities and go so far as to split neighborhoods. And lawmakers rely on advanced modeling software to predict demographic changes, which is critical since reapportionment only takes place once every 10 years.
Daily Press

Last week, Gov. Terry McAuliffe vetoed the [license plate reader] measure. He cited cases in which such data have proved useful, as if that were some sort of trump card. But nobody disputes the occasional utility of LPR data. The objection concerns the trampling of individual privacy in the name of such utility. Police departments also would find it useful if they had access to every citizens’ bank account. Such access could help them thwart many a criminal enterprise. Yet who would argue that the police should be able to monitor your personal finances, on the off chance that something incriminating might turn up? Perhaps, given his veto, McAuliffe might. Let’s hope nobody gives him the chance.
The ACLU has said it plans to sue to ensure that police departments obey the state’s data act. In other words, it wants law-enforcement agencies to . . . enforce the law within their departments, not just outside them. Imagine that. Here’s hoping the courts give them swift and clear instructions to do so. 
Times-Dispatch

Protecting any American's right to say anything anywhere protects more than a white supremacist's ridiculous ideas, or a radical imam's medieval worldview. It protects the right of citizens to shout at their leaders. To articulate the most crack-potty ideas and paranoiac fantasies, but to also pursue the most radical notions and alarming theories.
Virginian-Pilot

Frustratingly often, the people whom we trust to govern us according to our tenets of freedom and our U.S. Constitution are the very people who are most ignorant about those freedoms. The most recent such case comes from nearby Harrisonburg. Generally speaking, governments may regulate signage based on appearance — but not based on content. That’s because the First Amendment guarantees every American equal freedom to speak his or her mind. Carefully calibrated restrictions are possible — to ensure public safety, for instance — but they must be applied fairly across the board, not used as excuses to suppress speech that someone, somewhere, finds upsetting. The upsetting speech in Harrisonburg consisted of two pro-life signs erected by a church on the fence surrounding its property. One sign showed a fetus cradled in a pair of hands with a quote from Mother Teresa; the other quoted Jeremiah 1:5. Along with the overriding principle of free speech as enshrined in the First Amendment, some details of the Harrisonburg case suggest that allowable restrictions were not applied in this case.
Daily Progress

The Suffolk City Council heard some excellent advice from the city’s human resources director on Wednesday. Whether members will take that advice remains to be seen. During a presentation on how council might move forward with finding a permanent replacement for departing City Manager Selena Cuffee-Glenn, Nancy Olivo said her department would put together a “candidate profile” with input from council members. That profile would help identify the characteristics, skill sets and other important traits of the ideal candidate for the job, she said, and it would be used in marketing materials used to recruit candidates. The good advice — couched as a description of how some other localities handle the process — was for council not to rely only on the input of its members when developing that profile. Many municipal governing bodies take the opportunity to survey various community groups — citizens, business owners and others — to hear their thoughts on the type of person who should be hired, Olivo said. Such a survey of citizen sentiment serves to identify the perceived shortcomings of departing administrators and highlights areas in which responding citizens, businesses and other organizations believe the municipality to be deficient. Suffolk’s city council should take heed of Olivo’s carefully worded suggestion. But citizens might not want to wait by their mailboxes for the surveys to arrive, as council members gave absolutely no indication that they’d heard the advice, much less that they plan to follow it.
Suffolk News-Herald

As public employees move from workplace computers to private devices, they may believe they’ve left the old rules behind. That’s false. Just ask Hillary Clinton. She took much of her communication as secretary of state offline by using her personal email account. She said this was more convenient, but it also put her work out of reach of those who wanted to examine what should be considered public records. The State Department assured Congress this week that this practice has been discontinued. Clinton isn’t the only public official who uses private devices for public work, so government on all levels must make it clear that public work is the public’s business. The Washington Supreme Court decided in March to take a case that should clarify the matter for public workers in this state. On Monday, the Attorney General’s Office weighed in with an encouraging brief that places the Public Records Act above a potentially damaging privacy argument.
Spokesman-Review