Encinitas City Council Rejects California Constitution

In 2004 the voters approved, by a landslide majority, a change to the California constitution in the form of Prop 59.  Prop 59 was proposed, in part, to obliterate the deliberative process privilege, that local governments would claim allows them to withhold information from the public.

For these reasons, it is considered that Prop. 59 has eliminated the “deliberative process privilege” that was previously used by local governments to deny access to public documents and information (link). 

In approving a recent legal challenge, the Encinitas City Council (5-0) decided to take on that dubious distinction of challenging the reason behind Prop 59. Even Arnold knew he shouldn't fight Prop 59.

Parts of the Prop 59 ballot statements read:

The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.


(b) (1) The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny...

A YES vote on this measure means: Californians would have a constitutional right of access to government information. A government entity would have to demonstrate to a somewhat greater extent why information requested by the public should be kept private.

California’s government—all three branches, statewide and local—should be as transparent as possible to the public it asks for funding, power, and trust. But too often officials and judges choose secrecy over disclosure. Proposition 59 would make transparency a constitutional duty owed to the people, to whom officials are accountable.

No one wanted to step up to oppose Prop 59 and someone had to be found to write the con arguments to the ballot statement. Why didn't Mayor James Bond step up to the plate? He would have been perfect. On behalf of the City and City Council Mayor Bond writes to the Court:

Based upon my many years in public office, I believe that, in this instance, the deliberative process privilege protects the integrity of the City’s decision-making process by confirming that City officials should be judged on by what they decide not on matters they consider before making up their minds.

Wow! Is this what the city council approved for part of their legal argument? It is what was sent to the court. 

Dear City Council, 

The issue in court is whether or not the city acted lawfully. There wasn't any policy decision to judge. It was a roads condition report that reports out the data on the condition of the city's streets, and does some analysis (which should have been predetermined, so as to not be manipulated). MOST IMPORTANTLY, the report had been completed for months!


There doesn't appear to be anything else left to "deliberate" other than how to spin/hide the $17 millions dollars the city had gotten behind on preventative maintenance, or do you usually pay your contractors in full before their work has been fully inspected?

Kevin Cummins

Note: My earnest requests for the document started in June 2010 and the FINAL report IS DATED March 2010. Gee.