If we can’t get rid of the California Rule, can we at least ditch the name?

The California Rule is the misleading moniker we’ve given to our state’s most troublesome legal precedent: that public employees are entitled to whatever pension benefits were in place when they started work. Pension benefits in California are so monumental that they might as well be set in the stone of El Capitan—they can never be cut, unless they are replaced with another benefit of equal value.

You can say that such an ironclad guarantee is good for public workers. But you can’t say that it’s Californian. In virtually every other context of life here, our state is defined by its lack of guarantees. The California Rule on pensions is really the California Exception.

For all its wonders, California is a place where you can count on almost nothing—not even the ground beneath you will stand still. As the American essayist and anarchist Edward Abbey once observed, “There is science, logic, reason; there is thought verified by experience. And then there is California.”

While the Golden State is famous for producing myriad regulations and laws, the complexity and overwhelming number of such rules mean that there are few clear rules to follow. The California Rule itself has contributed to this problem. By requiring always-escalating retirement benefits that force cuts in essential public services, the California Rule has effectively made a lie out of every significant guarantee in the state constitution, from balanced budgets to speedy trials, to our children’s right to a properly funded education.

Like Snoop Dogg and Billie Jean King, the California Rule was born in Long Beach. In 1951, the city government there tried to reduce the pensions of police officers and firefighters while also making them contribute much more to their pension fund. Four years later, the California Supreme Court declared that unconstitutional.

The California Rule has been constructed on top of that precedent in the decades since, as state courts have turned down other plans to alter public pensions.

The California Rule got its name because most of the rest of America doesn’t follow it. In other, saner places, only pension benefits already earned, by the work people have actually done, are protected. But California is one of only 12 states that have protected the right to earn future pension benefits for work not yet performed. In other words, whatever benefits were in place on the date you were hired, you get to retain forever; employers who want to reduce some benefits must replace them with new benefits of the same value or greater.

The pension benefits protected by the California Rule have become increasingly outsized and fiscally damaging in recent decades, as public employee unions have become the state’s most powerful interests.

Proposition 13 also interacted with the California Rule in dangerous ways, creating perverse incentives for local government officials to make unsustainably large pension promises to their employees.

California’s killer combination of escalating retirement benefits and limits on taxation help explain why the state’s schools are underfunded, university tuition fees are ever rising, health and welfare programs fall short of need, courts can’t produce timely justice, and prisons are perennially overcrowded.

In these and other ways, the California Rule violates the state constitution’s most basic promises of self-government. The rule mocks the people’s right to information—since true pension costs have long been hidden by laws and accounting practices. And it even abrogates the constitutional requirement that California’s people are sovereign under our direct democracy. Citizens in San Jose and San Diego have voted to save their public services by altering pensions, only to be told by the courts that the California Rule matters more than their ballots.

The rule also reduces even our most well-intentioned leaders to liars; they may talk about the need to embrace sustainability and fight inequality, but they are powerless to change the state’s most unsustainable and unequal rule.

Politicians often ask us to protect services with tax increases, but, because of the California Rule, nearly every significant local or state tax increase of the past two decades has partly gone towards rising retirement costs.

The California Rule has been in the news recently for two reasons. First, teachers’ strikes in Oakland and Los Angeles have spotlighted how rising pension costs for retirees are consuming money that should go to compensating today’s teachers. Second, the California Supreme Court has begun looking at legal cases that challenge some pension benefits—including the California Rule itself.

Former Gov. Jerry Brown, who appointed four of the seven justices, has predicted that the rule might be done away with. But don’t bet on it.

I attended the court’s hearing of the first such case (in a surprisingly empty courtroom given the stakes), and the justices, when they questioned the lawyers, poked every conceivable hole in the rule. The justices also had a road map to overturning the California Rule: a smart and brave opinion from a state appeals court that found public employees are only really guaranteed a “reasonable” pension, not the ever-escalating ones provided by the California Rule.

But when it came time to make a ruling, the justices chickened out, leaving the California Rule itself in place.

If the high court doesn’t find some courage and overturn it, the California Rule will result in statewide disaster. At best, this will be a steady, decades-long degrading of services, as more and more tax dollars that should go to today’s citizens is diverted to cover the retirements of former workers.

Worst case, a big recession or a huge stock market decline could combine with the California Rule to create an epic fiscal calamity. With pension funds falling short, cash-strapped governments would have to put even more money into shoring up retirement benefits as required by the California Rule, leaving little money for anything else. Hundreds of schools would close, local governments would go bankrupt, and new taxes and budget cuts to cover funding gaps would further undermine the economy. The public could erupt in fury at pensions and even pensioners, and some governments might dare to abandon payments to pensions funds, putting the public retirement system at risk.

Let’s end the California Rule now before a full-blown crisis hits so that a more flexible, resilient, and less costly system of retirement can be developed, because self-inflicted disaster should be the exception, not the rule, in California.

The post Why California’s Pensions Only Deepen Inequality appeared first on Zócalo Public Square.

California could use a concert hall like Hamburg’s Elbphilharmonie.

The signature structure of 21st century Germany sits atop an old pier above a dramatic bend in the Elbe River. Its creative design features performance space for the philharmonic, a dramatically curved escalator, and a dozen different public spaces for people to gather and enjoy spectacular city views.

But what California needs more than this stunning new piece of architecture is the scandal that built it. Originally planned in 2007 as a 186 million Euro project, financed with 77 million Euros from taxpayers, the Elbphilharmonie was so dogged by delays and overspending that its final price tag approached 1 billion Euros, with taxpayers paying 789 million.

The good news: The concert hall, as a fiscal embarrassment, inspired a furious public reaction that in turn produced one of the world’s most advanced government transparency laws.

And that law, unlike the hall, can be transported to California, where our transparency rules mostly produce frustration.

In California, the onus—and much of the expense—of getting access to government papers and people is put on citizens, who have little leverage to force governments to comply. Our open records laws often force citizens to identify records and bear the burden and expense of requesting documents, fighting for access, and obtaining copies. And because of deep mistrust between California’s people and our governments, our open meetings laws involve putting restrictions on the power and discretion of our government representatives—we dictate when they can meet, when they can talk to each other, when they can email one another.

As a result, California’s law, by limiting the power both of citizens and their government officials, actually empower wealthy players outside government, especially developers and unions, because they are not limited by the same restrictions as government officials.

Hamburg’s transparency law works differently because it empowers everybody, both citizens and government officials. The law sets a default of openness by requiring government officials to make their documents—contracts, memos, deliberations—viewable on the internet, almost as soon as they produce them. Citizens in Hamburg—or anyone really, anywhere in the world— can access records simply by going online and searching through an online portal.

I learned about Hamburg transparency on a recent visit to the port city, where I was the guest of local journalist Angelika Gardiner and farmer Manfred Brandt, who let me sleep in his barn. I’d gotten to know the two of them in recent years while serving as co-president of the Global Forum on Modern Direct Democracy, a network of journalists, scholars, activists, and election around the world.

For those who work in the Rathaus, the seat of Hamburg’s state government, transparency is automatic and immediate. Photo courtesy of Wikimedia Commons.

Twenty years ago, Gardiner, Brandt, and other citizens began using direct democracy to reshape the constitution of Hamburg, which is both a city and one of Germany’s 16 states, giving it a special double status. They wanted to bring transparency to Hamburg government, which used opaque public-private contracts for many building projects. Germany’s federal freedom of information law, which like California laws put the onus on citizens to identify and seek records, wasn’t very effective.

Elbphilharmonie’s cost problems offered an opening. In 2011, using photos of the construction site with the slogan “Transparency Creates Trust,” several groups—from Transparency International to the Chaos Computer Club to Brandt and Gardiner’s More Democracy—drafted a ballot initiative to establish a transparency law. Their idea was to create an information register online where the government would have to publish all its documents; citizens could then search it anonymously, free of charge.

Modeling the sort of government they sought, they used a public Wiki to develop their ballot initiative for transparency. A retired supreme court judge helped complete a legally sound draft on an unpaid voluntary basis. Such an open drafting process is uncommon in California’s more corporate initiative process, which is dominated by wealthy individuals, massive interest groups, and professional political firms.

The initiative was a sensation. After the groups gathered 15,000 signatures to put their measure on the ballot, the Hamburg parliament, bowing to the inevitable, adopted their proposal before a public vote could be held. The law went into effect five years ago this month, in October 2012.

It took until 2014 to get everything online, but the Transparenzportal is now a treasure trove—contracts, reports, plans, grant awards, proposed resolutions, spatial data, permits, even payments and benefits for senior officials are available for your perusal.

The law guarantees “immediate” access, which usually means documents must be published within a week of their creation. About 60 percent of the documents involve permits and decisions around buildings of some sort. In the last two years, the portal has been accessed nearly 23 million times.

The transparency has not been total. Smaller contracts (those less than 100,000 Euros) aren’t always published online. An expansive exemption for personal privacy requires redaction of some information that would seem relevant—at least to this cynical Californian—for holding local officials accountable. And some companies that do business with Hamburg have fought disclosure, arguing that the aggressive transparency forces them unnecessarily to disclose trade secrets.

But an evaluation of the law, required after five years, concluded that things are working as intended. Among the most intriguing findings: Hamburg’s government officials, who once worried about transparency’s costs, are now some of its biggest fans. Indeed, while citizens do use the law (and large majorities in surveys say the transparency has enhanced political participation), some of the most aggressive users of the transparency are Hamburg officials trying to figure out what people in other departments are doing. In this way, the transparency law may be most effective as a force for efficiency within the government, breaking down bureaucratic silos. The links hand now knows what the recht hand is doing.

That’s the lesson of Hamburg: With ordinary people so consumed with their own work and lives, the best check on government abuses and corruption are city officials themselves.

On a visit to the Rathaus, I asked Andreas Dressel, who leads the governing Social Democrats in the Hamburg parliament, how the transparency law might be adapted for a California city. “The best thing to do is to translate it into English—and put it right directly into your law,” he said proudly, and added, while noting the Trump administration’s chaos, “You need it not just in California but for the entire United States.”

Dressel may have been exaggerating, but the merits of a switch to Hamburg-style transparency are apparent. A law that makes disclosure an automatic online default should be more effective than California’s records and meetings laws, which are all but designed to create conflict between public demands for access and government desire for secrecy.

Such transparency would jumpstart the nascent open data movement, which has seen the state and some cities put up data sets so that tech-savvy citizens can help solve government problems. And it’s not hard to see how a transparency law might make government responses to crises faster and more effective.

In San Diego, officials in different city and county departments failed to communicate effectively for months earlier this year as a deadly hepatitis epidemic spread, according to the nonprofit Voice of San Diego. If officials could have seen their separate work and information online, it’s quite possible that a fuller response—which included a declaration of emergency—might have come earlier and saved lives. So far 17 people have died.

Of course, such transparency would be opposed by government contractors, public employee unions, and the local governments over which they exert too much control. But it is for situations like this that we have direct democracy in California. And in Hamburg.

The post The Delicious Transparency of the Hamburgers appeared first on Zócalo Public Square.

But today, it is little more than a gag rule.

Over the past six decades, the Brown Act—famous for its guarantee of a 72-hour notice for public meetings—has become a civic Frankenstein, threatening the very public participation it was intended to protect.

The act’s requirements of advance notice before local officials hold a meeting has mutated into strict limitations on the ability of local officials to have any kind of frank conversation with one another, even over email. Brown Act requirements that we, the public, be allowed to weigh in at meetings have been turned against us, by way of a standardized three-minute-per-speaker limit at the microphone that encourages rapid rants and discourages real conversation between local officials and the citizens they represent.

And by effectively prohibiting deeper exchanges among officials and citizens, the Brown Act has empowered professionals outside the civic space—lawyers, labor unions, and especially developers—to fill the conversation void.

At a recent UC Irvine conference on the Brown Act in which I participated, speakers discussed how local elected officials and their staff members, wary of talking to or even emailing each other and violating the Brown Act rules against unannounced meetings, often communicate with each other through developers, who are much freer to meet and talk.

This is one reason why allegations that developers have too much power are routine in California communities. But it is also why proposed reforms to limit the influence of developers—Los Angeles Mayor Eric Garcetti just announced a ban on meetings between city planning commissioners and developers—never last. Under California’s Brown Act, developers are often the most practical conduit for local officials to get information to their colleagues.

“The Brown Act gives developers superior access, because it cuts [local government] staff off from talking to the decision makers in the same way,” said one California local official, quoted in a conference paper.

The problem with the Brown Act is not that the law has changed. It’s that the law has stayed too much the same, while California governance has changed radically.

Back in the 1950s, when the Brown Act was passed, local governments largely ruled via broadly applied laws, policies, and plans. But in subsequent decades, a combination of court decisions, state laws, and ballot initiatives like Prop 13 have limited the power of governments to control their own revenues, and to make and enforce laws.

So to retain some self-determination, local governments have worked around the law, ignoring plans and policies they once followed, and instead embracing ad-hoc decision-making, considering proposals on a case-by-case basis. The most important tool for today’s local governments is not the ordinance or the general plan but rather the closed-door negotiations that produce labor contracts and developer agreements. In the latter, developers typically receive exemptions from present and future rules in exchange for benefits they give to the city.

In this era of government by negotiation, the Brown Act is unhelpful when it’s not beside the point. First, the act’s limits on meetings end up restricting the ability of elected officials to participate fully in such negotiations; such talks end up being conducted by staff or outsider lawyers.

Second, the Brown Act covers public meetings, and doesn’t get the public into closed negotiations. All too often the public hears about negotiations only once deals are done, and brought to a council or a board for approval.

At those late stages, public comments—especially public comments that are limited to just a few minutes—don’t matter very much. And the elected officials to whom they are complaining may have been left out of the talks. So California citizens typically and understandably respond either by checking out of the process entirely or by opposing their local politicians fervently and uncompromisingly. In this way, the Brown Act encourages the worst sort of NIMBYism.

The good news: There are many methods for encouraging earlier and deeper public participation in the deal-making that governs our local communities. Proven approaches to dialogue and idea-gathering should be tried. I personally like participatory budgeting—by which residents of some California cities decide directly how some municipal money is spent—and believe the same model could be applied to planning decisions. Regular citizens could be brought into negotiations and allowed to help decide the particulars of exemptions and community benefits in developer agreements.

The bad news is that such ideas require conversation between elected officials and citizens that would run afoul of the inflexible Brown Act. Indeed, some of the more innovative local government experiments in California—notably the neighborhood councils in the city of Los Angeles—have found their influence and ability to communicate limited by the meetings restrictions of the Brown Act.

At the UC Irvine conference, many ideas were raised for amending the Brown Act. The state’s Little Hoover Commission has also suggested several changes in the law. But the act has created a regime so antithetical to the goal of public participation that it might be better to scrap it and start over—with a new framework providing local governments with more flexibility as long as they pursue policies that enhance public participation in decisions.

The National Civic League has a model participation ordinance that suggests what such a law could look like. Such an ordinance might work even without repealing the Brown Act. Instead, the ordinance could be allowed to supersede the Brown Act rules, exempting from the act’s edicts any process that enhances public participation and civic conversation.

Who could oppose such sensible changes? Answer: Some civic and media organizations are suspicious that reform would limit access. And they claim local officials and lawyers are being overly cautious in limiting conversations because of fear of Brown Act violations. But local governments maintain the caution is well-advised, given how easy it is to sue for violations of the act, and thus block important projects.

While the debate over the Brown Act continues, the everyday reality of California public meetings grows ever more absurd. On a recent Saturday at my local school board, our city’s mayor—one of only a handful of people in attendance—rose to ask questions about the board’s management of a newly passed school bond, the largest in our small district’s history.

The mayor is a public works lawyer with long experience with bonds, and her questions were fair and straightforward. But the board members wouldn’t answer them. Instead, they tried to cut her off after just three minutes, noting that’s the limit on public comment. When one board member sought to answer the mayor’s questions, the school superintendent interrupted to say that any exchange could be a violation of the Brown Act.

Any law that won’t let a mayor and a school board talk about their city’s most important construction project—and at a public meeting—is a bad law. Until our local governments move past the Brown Act, Californians will find it hard to have the kinds of conversations that local democracy requires.

The post How California’s Open Meetings Law Became a Gag Rule appeared first on Zócalo Public Square.

I’m going to let you in on confidential marriage, an only-in-California concoction that is little known but deeply relevant to today’s debates about marriage.

Confidential marriage is in most respects the same as any old legal marriage—solemnized and binding. But confidential marriage licenses, unlike regular marriage licenses, are not part of the public record. And confidential marriage is limited to couples who are already living together (although no proof of cohabitation is required).

In this marrying month of June, with the U.S. Supreme Court about to rule on same-sex marriage in California, now is the right time to ask: How and why did Californians get this strange marriage option? And what does it mean for us today?

Confidential marriage got on the books in February 1878 as a way for churches and pastors to legitimize couples who were already living together out of wedlock. The state had lots of common-law marriages between people who—often because they lived in remote areas away from churches and courthouses—couldn’t sanctify their unions. Pastors, who got the exclusive right to solemnize confidential marriages, saw it as getting couples right with God. The state liked it because it clarified inheritance rights for children. Couples liked it because no one could find out they’d been living in sin.

“The confidential marriage statute is a bit of Victoriana, designed as were so many expressions of that era, to preserve the illusion if not the fact of respectability,” according to a 1984 state report on those early beginnings.

The institution remained unchanged—and little used—until the 1970s, when legislators made it easier to perform confidential marriages, expanding the type of people authorized to sanctify such unions beyond the clergy. Californians liked that confidential marriages didn’t require blood and rubella tests—or the resulting waits. Conservatives, appalled by the spread of cohabitation, thought confidential marriage might encourage couples to enter the holy institution secretly while keeping up appearances with marriage-skeptic friends.

All of this led to a surge in confidential marriages. In 1972, the first year of state recordkeeping, about 1,200 confidential marriages took place. In 1982, 58,000 couples entered into confidential marriages, approaching one-third of all marriages in California. Wedding chapels in Lake Tahoe and San Bernardino County took business from competitors in Reno and Las Vegas by touting the speed, privacy, and lack of blood tests. (“One Stop Instant Weddings” was a common billboard ad.) When brides and grooms asked about the requirement that the couple have been living together as husband and wife, clerks in El Dorado County would reply, “Honey, if you’ve ever been to bed together, you qualify.”

The growth of confidential marriage spurred reports of abuses. More than 100 bigamists in San Diego were said to have used confidential marriage licenses to avoid detection. Sailors on leave in Los Angeles, dead and underage people in Orange County, and all sorts of other sketchy types were getting married confidentially—and often disappearing.

In 1984, a legislative effort to eliminate confidential marriage came up one vote short in a key Assembly committee. But subsequently, new laws got enacted to make confidential marriage more like regular marriage, apart from the fact that confidential marriage licenses can only be obtained with a court order or by one of the spouses. After the state stopped requiring blood and rubella tests for public licenses, the numbers of confidential marriages dropped.

Still, for some, such as paparazzi-evading celebrities, confidential marriages remain appealing. In recent years, about one out of five marriage licenses issued (41,816 out of 223,265 in fiscal year 2011-12) was confidential, according to California Department of Public Health estimates.

Confidential marriage could see another boost if the U.S. Supreme Court comes out for same-sex marriage. Wary of societal prejudice, some gay couples may prefer to marry without bigoted family members or bosses being able to find out.

But the real power of confidential marriage could come into play if the court leaves Prop 8 in place—or issues a ruling that leaves the question of same-sex marriage open in California. In that case, I would submit that—as a temporary measure until full marriage equality arrives—a fitting compromise would be for the state and its voters to grant same-sex couples a constitutional exemption to marry confidentially. That would give the title “marriage” to gay unions—but allow conservatives to say that it is not the same as traditional marriage. (Conservatives who resist this compromise as a “redefinition” of marriage should be reminded that confidential marriage is itself a redefinition they supported.)

Such a prospect may sound to some readers like a matrimonial “separate but equal.” But in many ways, such marriages are separate—but better. For those who want their marriage publicly known, nothing requires couples to keep a confidential marriage confidential; you can televise your ceremony if you want. Confidential marriage licenses are a few bucks cheaper ($85 in L.A. versus $90 for a public license). Cloaking a public record makes it a little bit harder for you to be targeted by marketers or, for that matter, identity thieves. And confidential marriage is kind of cool in that it connects today’s couples to a noble, historic institution that served people who wanted to define family on their own terms.

Indeed, California might be wise to sell confidential marriage around the country as a special benefit you can’t get anywhere else (though, to be fair, Michigan has a less confidential form of secret marriage). Privacy-loving people might come here from out of state to marry and honeymoon, and our economy could use the boost. And if more couples settle here and start families, so much the better. California is getting older, and needs more children.

Heck, maybe we all should embrace confidential marriage. Yes, there’s something clean and handy about public records. But isn’t mystery what keeps marriage alive?

The post Go Ahead<span class="colon">:</span> Keep Your Marriage Secret appeared first on Zócalo Public Square.