In a move believed to be unprecedented, Yolo County Superior Court Judge Stephen Mock has ordered the Davis Professional Firefighters Association to pay $23,345 in attorney fees, based on the union’s intervention into the Vanguard‘s successful lawsuit against the city of Davis to compel the city to release more of the still heavily-redacted 2008 Davis Fire Report.
He added, “DPFA asserted that all information that was redacted from the Aaronson report should be exempt from disclosure.” He added, “Other than its objections to petitioner’s declarations, DPFA does not otherwise argue that the relief sought by petitioner fails to satisfy the three requirements in Code of Civil Procedure 1021.5.”
“This is an important result,” said Paul Nicholas Boylan, the Vanguard‘s attorney. Mr. Boylan is an expert in free speech and government transparency issues.
“I am unaware of any other case that resulted in a fee award against a union that intervened in an action to obtain public information,”Mr. Boylan said.
Under the terms of the California Public Records act, about the only “stick” a plaintiff possesses is the ability to receive compensation for attorney’s fees if they prevail. Likewise, if an action is deemed to be frivolous, the petitioner could be liable for paying the defense’s fees.
While it remains our belief that the public records act lacks the necessary teeth to enforce compliance by government agencies, at the same time, this provision does allow attorneys to take on such cases pro bono, knowing that they could collect fees in the end.
When the Vanguard won its settlement with the City of Davis to get more material released from the 2009 Davis Fire Study, the city eventually agreed to pay $11,000 in attorney fees.
However, the City of Davis was not the only party to this suit. The Davis firefighters union asked to intervene and were granted that right. However, that entry was not costless. Well after the city and the Vanguard had agreed to settlement terms, and the Vanguard had received a copy of the less-redacted report, the attorney for the firefighters chose to continue to intervene.
Once the city had agreed to release the less-redacted report to the Vanguard, the firefighters, who had attempted to keep the entire report withheld from the public, strategically modified their position. Now they would agree to dismiss their complaint in intervention if the Vanguard waived its claim to attorney’s fees and if the Vanguard agreed to self-censor.
Critical among their demands was the demand that the Vanguard could report on the contents but was not to use the name Bobby Weist in its report – it had to refer to Mr. Weist as the Union President. This demand was completely absurd in that few people in the community, certainly among the regular readers, would not know whom that referred to.
But worse yet, it showed the union’s hand. They were not interested in protecting the witnesses who were subject to the abuse and the hostile work environment covered in the report. Rather, the firefighters union used the money and resources of rank and file dues payers to attempt to shield President Bobby Weist from public scrutiny.
While the city had ostensibly held back portions of the report, attempting to protect all fire employees, the union was concerned only with Mr. Weist.
After some negotiations and a several day delay over the weekend, the firefighters union eventually realized that they would not be able to prevent the release of information showing that the Union President was promoted over several individuals who were objectively more qualified to be captain, and that the reason for this preferential treatment was likely due to his position with the union.
The intervention by the firefighters union clearly extended the length of the legal action. In recognition of the added time, the Vanguard requested that the firefighters union, much as the city itself did, pay for additional attorney fees.
Scott Burns, attorney for the union, argued in their response, “PFFA intervened for the sole purpose of protecting the confidentiality of its members. It unequivocally articulated its position that the redactions made by the City for the purpose of protecting the confidential interview data had to be retained in any potential settlement of the case. It never varied from that position.”
He argued, “The only parties to have substantially altered their positions were the City and Vanguard.”
The DPFA’s claim that their only reason for intervention was protecting the confidentiality of its members is directly contradicted by the settlement offer verbally communicated to the Vanguard‘s attorney.
As Mr. Boylan argued in response, “…the record shows that PFFA failed to achieve its major intervention goals. PFFA wants the Court to believe that it intervened only to protect the identities of its witness members.”
“This just isn’t true,” Mr. Boylan argued. “PFFA intervened to prevent the release of any more information from the Aaronson Report, arguing that the prior release of a summary was enough to satisfy the public interest in the information. PFFA specifically intervened to suppress the release of excerpts of witness statement.”
Mr. Boylan argues, “These goals were utterly defeated. The publication of the Open Report frustrated PFFA’s primary desire to prevent any new information being released.”
In his declaration, Union President Bobby Weist puts the blame of their intervention on City Attorney Harriet Steiner.
Mr. Weist writes that after the Vanguard had filed its public records request, in April 2012, “[Harriet Steiner] told me that the Vanguard had filed a public records lawsuit seeking an unredacted copy of the Aaronson report. She informed me that newer members of the City Council were pressuring her to give up the complete report.”
He added, “She also informed me that some of the redactions made were for the purpose of protecting the confidential identities and statements of PFFA members who had been interviewed. She told me that it was possible the City would release that confidential information unless the union intervened in the lawsuit to protect it.”
Mr. Weist continued: “Because of what Ms. Steiner told me, PFFA decided to intervene in the lawsuit. We did so because this would not only allow the union to brief the issues of confidentiality, but as a party to the lawsuit would give us the opportunity to protect our members’ privacy interests in the event the City and the People’s Vanguard chose to settle the lawsuit.”
Bobby Weist would attack the report, noting “Even a cursory reading of the report that had already been publicly disclosed showed that it contains a substantial amount of gossip, innuendo, and unsupported allegations and conclusions.”
“Judge Mock’s order was exceptionally well-written and well-reasoned,” Mr. Boylan noted. “It not only applied the law in a prudent judicial manner, Judge Mock’s opinion clarified the law, holding that a union intervening in an action to stop the release of information will be treated no differently than a public agency that tries to prevent the public from accessing public records or information.”
He added, “In any litigation where a member of the public or the press petitions to compel a governmental agency to release information, if the petitioner prevails then the petitioner is entitled to recoup his or her attorney’s fees. Fee awards to the prevailing party are essential to enforcing the public’s rights to access information because it provides a powerful incentive for public agencies to think twice before deciding to keep information secret. If they bet wrong, they have to pay.”
“Prior to this case, unions felt free to intervene in actions for the purpose of keeping information secret without any consequence if they lost,” Paul Boylan argued. “Now they know that, if they try to keep information from the public, and they lose, they will also be required to reimburse petitioners for the time and effort it took to obtain the information.”
“When the City of Davis released information the union wanted to suppress, the Vanguard prevailed. When Judge Mock ordered the union to pay the Vanguard’s attorney’s fees, he significantly strengthened the public’s interest in government transparency. As an advocate for the public’s right to know, I could not be more pleased with this result.”
The irony is that the firefighters union could have settled their obligation at a mere $5000 for attorney fees.
The firefighters union will likely have spent tens of thousands of dollars in an effort to prevent the Vanguard from obtaining an additional $5000.
Once again, the rank and file firefighters will pay tens of thousands from their dues to protect union president Bobby Weist from his own indiscretions.
The Vanguard will take additional steps to determine just how much the city has had to pay to cover up for the conduct of Bobby Weist and Former Chief Rose Conroy, the bulk of the content of which remains heavily under wraps.
The clear loser in this is the Davis taxpayer, who is not only out a bundle in consultant and legal costs, but has little to show for it.
—David M. Greenwald reporting
Congratulation, David. This is a sure sign that the Vanguard can play an important role in the community’s right to open government and that its legal partners eventually can get their due for helping out.
This bodes well for the future of your work on this type of reporting and may encourage the Enterprise and other media to do a better journalism job themselves.
Well done!
Another debacle with the City Attorney at the root.
David, it’s public. How much did she bill to litigate her own advice ? Among other problems, that’s what she did in DACHA.
We were waiting for this ruling before making that request.
I am disturbed by the idea that members of the City Council would be calling for the entire report to be released, but our attorney would work around that by contacting the union representing the city employees who were being investigated to advise them to intervene to block the City Council’s wishes.
I would be interested to see who contacted whom first. I lean toward Harriet the benefit of the doubt here. I can imagine Bobby Weist contacting Harriet in alarm about the release of the full report and Harriet telling him that it appeared that the it would be and that the only way the Union could prevent that would be to intervene on its own behalf – that she would be following the wishes of the Council.
It would seem unacceptable if Harriet contacted the Union to let them know what was likely to happen and advised them to intervene (which is what Bobby Weist implies). I am hesitant to jump to conclusions and place fault with Harriet. This is what Bobby Weist already attempted to do and the Judge has already discounted that. Weist was offering a defense and lost.
I’m glad to hear that the Vanguard’s attorney fees were covered. I think the Union can afford it.
[i]”I am disturbed by the idea that members of the City Council would be calling for the entire report to be released, but our attorney would work around that by contacting the union …”[/i]
In this entire episode, the most disturbing fact is that a majority of the City Council — correct me if I am wrong but I think it was Asmundson, Souza and Saylor — voted to block the report itself from being released such that no one on the City Council could read one word from Mr. Aaronson’s report which was ordered by the city manager in the wake of the problems found by the Yolo County Grand Jury.
That absurd action raises some serious questions: Why did the majority on that Council not wnat to see the Aaronson report that the public paid for? Could it possibly have anything to do with the corrupting influence of campaign contributions from Local 3494 to those members of the Council? Was the loyalty of those members of the Council much greater to Bobby Weist and his union than it was to the taxpayers and voters of Davis? Did these members of the Council, who voted for huge pay raises for the firefighters and gave them undue benefits which would bankrupt the City and never questioned the highly questionable leadership of Chief Rose Conroy, fear that if they allowed the public (and themselves for that matter) to see the Aaronson report, that Mr. Weist would spill the beans on them, making it clear to the public that he had corrupted them and that he could easily ruin their reputations?
One thing I know about human nature: people generally will act in their own self-interest over time. So when you see a majority on the City Council taking actions which are clearly against the public interest the right question is ‘what is in it for them?’
We know that unions are set up for selfish purposes: to get more money and to require less effort from their members. We elect people to the City Council and other places to act as counterweights: effectively to request more work for less money from the unions. A fair negotiation should lead to a common ground somewhere in between.
The problem in the City of Davis, the DJUSD, Yolo County and the state of California is that so many of our elected officials get elected by kowtowing to the public employees (including teachers) that there never is or can be an effective counterweight. That is what has Davis and these other government bodies in so much trouble, today.
I’m very pleased to see this outcome. I, too, was very appalled at the council’s action. Rifkin has it right regarding the vote. One has to wonder why the members did not exercise their right and obligation to read the full report.
I agree, Rich. But this article was purely about Bobby Weist’s attempt to block the release of the report after hearing that the new City Council members were pushing for the full release and his allegation that our City Attorney had contacted him to advise him to have the Union intervene. I just don’t think that Harriet would do that, but I can see Bobby contacting Harriet with a desparate demand that she fight the release and her telling him that the Union would need to intervene on their own behalf if they wanted the release of the report stopped.
i’m very concerned with teh comments that weist made, but people should be cautious of them as weist is a known liar. in fact, if you read closely in this case, the union lied about what they were fighting for here.
There is an extremely good special news report ([url]http://www.reuters.com/article/2012/11/13/us-bernardino-bankrupt-idUSBRE8AC0HP20121113[/url]) — I think it’s Pulitzer Prize winning-good — online today from Reuters regarding the bankruptcy of the City of San Bernardino. It’s written by Tim Reid, Cezary Podkul and Ryan McNeill.
Although the crisis is presently worse in that sad city than it is in Davis, all of the mistakes we have made and the corruption in our elections are components of everything that has gone on in San Bernardino and led them to this point. The main thing which separates our communities at this point is that the collapse of the housing bubble in Davis was much less severe than it was in San Berardino. But make no mistake, we are still on the road to bankruptcy. Until we fix our pension plans, our retiree health plans, our medical cash-outs and our salary structure and some more smaller things, we will be on that road to perdition.
This quote is from the special report. It could have been written about Davis or Woodland or Yolo County or virtually any city in our state which was corrupted by its employees the way Bobby Weist corrupted our city councils for a decade: [quote] Little by little, over many years, the salaries and retirement benefits of San Bernardino’s city workers — and especially its police and firemen — grew richer and richer, even as the city lost its major employers and gradually got poorer and poorer.
Unions poured money into city council elections, and [b]the city council poured money into union pay and pensions[/b]. The California Public Employees’ Retirement System (Calpers), which manages pension plans for San Bernardino and many other cities, encouraged ever-sweeter benefits. Investment bankers sold clever bond deals to pay for them. Meanwhile, state law made it impossible to raise local property taxes and difficult to boost any other kind.
No single deal or decision involving benefits and wages over the years killed the city. But cumulatively, they built a pension-fueled financial time-bomb that finally exploded. [/quote] What is so fascinating about the corruption in Davis is how it was all the handiwork of one man: Bobby Weist. In San Bernardino, the corruption came from its fire union and its police union. The Davis Police Officers Assoc., by contrast, has never directly tried to corrupt the Davis City Council. Virtually no city employees in Davis, other than Weist’s minions, give any money or help at all to any City Council candidates. What has happened here is that the firefighters did all the fighting, and the other employees, including the police, rode their coattails (although, it should be said, the firefighters, by a long shot, got the best deals, the best pay, the best benefits and so on from our corrupted City Council).
This story of unions having corrupted cities like Davis and San Bernardino is the same story at the state level, too. Only there, it is much worse.
I received a scoop from a friend of mine who was for years a staffer for a very important state senator (not one who has represented Davis in the legislature) who told me what the firefighters are now working on for the 2013-14 legislative session. It is truly scary. And our own Mariko Yamada may have her dirty, corrupt little hands all over this one.
Here is the background: When a city or county files bankruptcy in California — a slower, longer and more expensive process now than it was before Yamada and friends passed a bankruptcy “reform” bill called AB506 — it has to propose a plan to return to solvency. Three of the most important legal components of their plan will be 1) to re-write the terms of their debt obligations, so they can make smaller payments over a longer period of time to their creditors or even erase unpaid debts completely which are unsecured and 2) to re-write their labor contracts, reducing salaries, benefits, pension obligations and so on, so they can provide services and pay their employees and 3) to re-write their retiree benefits’ plans, so they can pay less for retiree healthcare and any other obligations they have with retirees.
What my source told me is that next year the unions, led by the firefighters, are going to propose a law which makes it illegal to re-write labor contracts in bankruptcy and to reduce retiree benefits in bankruptcy. There are a few states, run by unions, of course, which have this provision. The unions will argue that California needs it to.
I asked my source specifically what role Yamada, our corrupt member of the Assembly has in this plan for 2013-14, and I was told “she is in the thick of it.”
Good job, Davis voters, you reelected that woman! How very smart of you.
If cities cannot re-write labor contracts and retiree obligations in bankruptcy, they will have to then just lay off most of their junior employees and no longer provide police or fire protection, no longer maintain streets or parks, etc. Nice, Mariko. How very nice of you. On top of it all, you get another two years in the legislature, becasue the voters of Davis are too stupid to understand your corrupt game. Nice.
Rich wrote:
> If cities cannot re-write labor contracts and retiree
> obligations in bankruptcy, they will have to then just
> lay off most of their junior employees and no longer
> provide police or fire protection…
The “retired” 50 something firefighters don’t care about the cities, they just care about the $10-$20K a month pension they are suposed to get for the rest of their lives…
Again, I have no problems with the Davis public unions. Their leadership’s job is to ask, and the Davis voters choose City Council members who are supposed to moderate such requests and turn them down if necessary. Bobby did his job, and has made millions and millions extra for his membership.
Saylor and friends who need the union money for political careers are the ones who gave away the city treasury.
Place the blame where it is due: on the City Council. When you see Saylor’s name on a ballot again, remember what he did to damage the city’s budget, your parks, your pools, your greenbelts, your community programs.
David and Attorney: Congratulations on your win. I know these cases are very difficult to win, and the two of you did a fine job against the City and the Union, two very powerful and well-funded organizations.
Another attempt to divert the conversation by Mike.
Ryan: the piece was about union power and political influence. Their patron politician is Saylor, and it’s fair game to comment so that the strings are tied up and the public can read about the package. It’s fair to say the CC has to set the budgets, and it’s fair to say what Saylor did, with the help of Souza and others.
This same power group created the JPA water project, with the assistance of business interests who benefit from that new source of potable water coming right past their properties along the Road 102/Poleline corridor they want to develop.
It’s clearly a remaining Saylor sponsored policy, just like the policy to hide the adverse report about his union funders. Tie it together, Ryan, tie it together. It’s right in front of all who care to look. David’s case helps.
Rich: [i]”We elect people to the City Council and other places to act as counterweights (to union demands) … The problem … is there never is or can be an effective counterweight.”[/i]
Mike: [i]”The Davis public unions’ … job is to ask, and the Davis voters choose City Council members who are supposed to moderate such requests and turn them down if necessary. … Saylor and friends who need the union money for political careers are the ones who gave away the city treasury.”[/i]
I agree with Mike. A huge problem is electing representatives who give away the store.
But there is another problem within the problem. It has to do with campaign finance. The Saylorites did not just give away the money willynilly to anyone. They gave it to their campaign donors, their supporters. Local 3494 paid the most, so they got the most. The Council majority did this out of self-interest and clearly at the expense of the public interest.
That is the inevitable result of having dirty money financing campaigns. You can have unusual people — someone with courage like a Lois Wolk — who will do the right thing even if it does not benefit them. But most elected officials are a lot more like Mariko Yamada. And most of them cannot even see the fact that they are acting against the public interest. They don’t know what the public interest is. The money they get from special interests is intoxicating. They are too “drunk” to see the real damage they cause.
In California, we have one type of interest group with exceedingly large power as a result of their financing campaigns: the unions. Mainly it is the public employees, but it is also the building trades who get sweetheart deals from government contracts. We had the chance to fix this problem in California, to level the playing field. Unfortunately, the unions put up some $60 million and convinced the stupid voters to vote no on 32.
So our system will stay corrupted by the unions. And it is only going to get worse as the Republican Party disappears. It’s a shame that the Republican brand is as toxic as it is in our state. We could use a good opposition to the corrupt Democrats. But in the end, we stupidly elect people like Yamada and turn down moderates like John Munn. We get what laws the unions pay to have.
[i]”… the unions put up some $60 million …”[/i]
I don’t know the exact amount they spent. On Cal-Access, it says they had spent $59,108,744.54 from 1/1/2012 – 10/20/2012. (I doubt they spent any money prior to January 1. The open question is how much they spent from 10/21/2012 to 11/6/2012. That number has not yet been reported to or by the Secretary of State. If I had to guess, it’s probably in the range of $5 million more. So the total spending by the unions against 32 was likely $64 million or more.
The corporations that were pro-32 spent a little bit less. Cal-Access says $54,129,477.00 from 1/1/2012 – 10/20/2012. I would guess by 11/6 they had spent $60 million.
The truth is that if 32 had passed, it would have greatly hurt the power of the unions. (A moderate Democratic legislator told me that the teachers were so strongly against Prop 32 because they fear all education reforms, “even basic, common sense reforms.”) But the lie is that handicapping the unions would give control to “the right-wing” or to “evil corporations.” The obvious reason that would never be the case is because the electorate in California is liberal, and it is going to be more and more liberal as we become a brown state. The liberals in power would still be pro-union. But without so much money to buy influence, the unions would not be able to shove their agendas down the throats of the liberals in power when those agendas were clearly against the public interest.