|City Officials Threaten to
Embarrass Council Member Over Unpaid Judgment
April 2, 2004
Fighting the Richmond secrecy machine is not new. Both former Council member Donna Powers and I took the City of Richmond to court over access to public information in the early 1990’s. We both lost our court cases on technicalities, with laws and courts that should be protecting the public but are actually doing the opposite.
Prior to her election to the City Council in 1991, Powers sued the City of Richmond (Powers v. City of Richmond) for financial information that had been denied to her. Ultimately, the California Supreme Court ruled against her, ironically citing the no-appeal provision in the California Public Records Act (CPRA) designed to protect inquiring citizens against delay tactics and the deep pockets of government. Powers ultimately got her revenge by authoring a more liberal public information ordinance (RMC 2.40) that gave Richmonders better access to public records than the state Public Records Act.
In 1994, I sued the City of Richmond (Butt v. City of Richmond) for failure to provide, among other things, information about Chevron’s treatment under a proposed utility user tax increase. Some things never change! The venture started off well, with the court initially granting me an alternative writ of mandate, temporary restraining order against the City, and injunction for inspection of previously withheld documents and oral information under both the California Public Records Act and Richmond Public Information ordinance. Ultimately, most of the information I had requested was provided by the City. Some critical items about the utility user tax and Chevron were not provided and have not been to this day.
Then things took a strange twist. Both the City of Richmond and I claimed victory, and we both asked for attorneys fees. The court awarded fees to the City because, it said, I had asked for too much information. I appealed to the California Court of Appeal, but called it quits after they upheld the trial court. My mistake was, I suppose, in asking too many questions. I think we all regret, however, that more questions had been asked about the City’s finances over the last several years.
The court’s decision was particularly puzzling because the Richmond ordinance allows questions in addition to documents and requires release of “oral public information,” described as “facts about or known about the City,” and “information concerning the City’s policies, positions on public issues, plans or intentions, or reactions to events,” which may be requested by phone or in person through “one or more brief factual questions.’ It also shortens the CPRA response time from ten days to one day or less.
The City, remarkably, argued to the court that its own ordinance was superseded by the CPRA.
Although I lost on the issue of attorneys fees, I won on several other aspects of the case. Citing Powers v. City of Richmond, the City argued that my appeal should have been denied. The court disagreed, ruling that Powers applied only to a records production request and not to a sanctions action. The court also ruled against Richmond in holding that local agencies can adopt requirements allowing greater access than the CPRA, and it ruled that my requests were timely.
Where I failed to convince the court was in the amount and type of materials I requested. The court found that my demands were too “voluminous and vaguely defined,” consisting of “interrogatories, demands and opinions.”
Although I did not prevail on the attorney fees issue, Richmond never pursued it. I don’t even know how much the amount was, and the court did not release the sanctions part of its decision for publication, possibly an indication of the weakness of that particular aspect of the decision (Butt v. City of Richmond, 52 Cal. Rptr.2nd 232,__Cal.App.4th __, 96 daily Journal D.A.R. 4760, 1st Dist. April 24, 1996). I later read that it was “almost $4,000” in the “Legal Notes” in the League of California Cities magazine Western City. The somewhat gloating Western City article was later picked up in the June 26, 1996, Richmond Post.
In any event, I never got a bill from the City. I never paid anything, and I don’t intend to. I consider what I did as a public service, and if the City wants to come after me for $4,000, bring ‘em on. Now, a high City official wants to make a political issue of it. According to him, my “debt” is part of nearly $1 million in outstanding judgments uncollected by the City attorney’s office.
Western City ultimately apologized to me for the tone of the article, with the editor writing: “…I felt hesitant to stifle Mr. Woods [the author] too greatly in the expression of his views. In retrospect, I should have been more aggressive and for that, I sincerely apologize.”
The City wasn’t so fortunate in the next public information fight, this time with the Bay Guardian. In 2000, the city of Richmond paid $231,885 in court-ordered attorneys' fees to the San Francisco Bay Guardian, an amount experts say is the most ever paid by a California public agency for unlawfully withholding records. The payment ended a seven-year court battle in which Richmond officials fought bitterly, at considerable taxpayer expense, to keep the city's police discipline records secret. For details, see http://www.sfbg.com/News/34/45/45oghric.html.
Public information is still an issue in California, and hopefully, State Constitutional Amendment 1, on the November 2004 ballot, will increase this access. For more information, see http://www.sfbg.com/38/24/cover_foi_sca1.html.
Chevron and the utility user tax are once again an issue in Richmond, particularly since ChevronTexaco stiffed the City over $1 million last year. Some things never change. My exchange in the August 22, 1994, City Council Meeting, with former City Manager Floyd Johnson that, among other things, motivated my lawsuit appears below. Floyd has been fired by the last three public agencies he worked for, but I’m still here.
Tom Butt: I’ve been following this issue for several months. About five weeks ago, I wrote the city manager a letter. I had a total of 44 questions about the utility user tax and the way it is being applied. A week ago, I faxed a copy of my letter reminding him that I had received no reply, and, as a matter of fact, I haven’t had the courtesy of any response. Not a phone call; not a letter; no documents; no apologies; no agendas; no copies of the ordinance; no nothing. So, I’m here to --- I’ll pass out copies of this letter.
I really don’t know what to think. My impression tonight is that, at worst, we have here a concerted effort to conceal information. At best, it’s a total lack of responsiveness for the City administration.
One of the issues that I have spent a great deal of time studying is the one that’s been brought up here tonight, and that’s the fair and equitable distribution of taxes among taxpayers. It’s been my contention for some time that Chevron has not historically – and I don’t know what’s happening now because I can’t get a copy of it --- but it’s my impression that both historically and in the future Chevron will not be paying a tax on the same basis as the rest of the citizens of Richmond will. For many years, they were the only entity that had an exception from the tax – a lid on it, a cap as it were.
Until I se something to prove otherwise, I want to state for the record tonight that there is a conspiracy among this City Council and this staff to burden residents and Richmond businesses with an unfairly proportioned tax. And it’s my contention that this utility tax increase may not, in fact, even be required to balance this budget if Chevron were paying tax on the same basis as the rest of us in Richmond are paying it on.
I may be proven wrong. I hope I am, but I really would like to get an answer to my 44 questions before this process is completed and voted on
Floyd Johnson: Madam mayor, I feel compelled to respond to this because it’s been indicated that we are not complying, one , with a public records request, and that’s not true because I think if you look at an actual copy of what Mr. Butt gave to me, it’s not a public records request. It is 44 questions, all prefaced by his contentions, his premises, his beliefs. We, madam mayor, your staff, have responded to a similar document that we received from Mr. Butt some three months ago outlining those same questions. Until such a time as we give him the responses to which he totally agrees, he will never claim that he gets a response from this city that’s acceptable to him. So, I make no apologies for the fact that I don’t use my time or my staff time to engage in memo writing exercises that will be to no avail other than to satisfy whatever agenda that Mr. Butt has.
As to his contentions that there have been deals cut with Chevron, that Chevron has received some inordinate break related to their rate of paying utility users taxes, we have said to the City, to Chevron, to citizens, we will continue to monitor that. Yes, I went to them because they are going to be the ones most greatly affected if the two percent increase goes into effect.
The fact that Mr. Butt has continues to say, publicly, that he believes that Chevron is getting some special kind of deal from this city, I don’t believe has been borne out by an investigation that has been done prior to my coming here. So, I will attempt to respond to any citizen if, in fact, the response is going to be received as objective as we try to put it forth, But I cannot respond to everybody’s 44-page treatises if, in fact, there are merely a repetition of the same kinds of questions and issues that have been raised before.