Thursday, April 3, 2003

Judge orders cities to keep salaries secret

From the San Mateo Daily News, Redwood City Daily News, Palo Alto Daily News

By CHRISTINA BELLANTONI
DAILY NEWS STAFF WRITER

In a ruling that could echo throughout California, a judge ruled yesterday that all salaries of all government employees in California are now secret.

San Mateo County Superior Court Judge Rosemary Pfeiffer granted a temporary restraining order preventing a group of Peninsula cities from releasing names and salary information to the Daily News. Pfeiffer also ruled the information should be private.

The newspaper is appealing, and a legal expert said he was both "shocked and astonished" by the decision.

The issue hit court when a group of labor unions asked a judge to stop city governments from releasing the names and salaries of city employees to the Daily News after the newspaper requested the information.

Teamsters and two chapters of the American Federation of State, County and Municipal Employees sought the restraining order against Atherton, Burlingame, Foster City, San Carlos and Belmont. Under Pfeiffer's ruling, the public no longer has access to salary information for employees at any of the hundreds of cities in California.

If John Q Taxpayer strolls into City Hall to ask for salaries of any employee, from the city manager to the employee that does street cleaning, he'll be denied, even though his tax dollars pay those salaries. Pfeiffer's decision is binding, and applies statewide unless an appellate court decides otherwise, legal experts say.

Jim Ewert, general counsel with the California Newspaper Publishers Association, told the Daily News last night he was "shocked."

Though nearly a dozen cases have tested the California Public Records Act, not one court had found a privacy interest in the information, Ewert said.

"I'm astonished," Ewert said.

The salary of anyone who earns taxpayer money is "very public," Ewert said.

Not according to Pfeiffer, who ruled that "the court finds a reasonable expectation of privacy in the employees based on the confidentiality policies of the city."

The Daily News will appeal the decision, Publisher Dave Price said.

"We're going to fight it every step of the way, as high as we need to go," Price said, indicating the newspaper will take the case to the California Supreme Court if necessary.

The newspaper expects it will prevail, Price said, noting the paper will then seek to recover attorney fees from the cities and unions.

"We're going to seek attorney's fees from the city treasuries and union dues," Price said. "We will win on this."

In court yesterday, union lawyers, city attorneys and Daily News attorney James Chadwick squared off.

Andrew Baker, an Oakland attorney representing the unions, argued that government employees have an expectation of privacy when it comes to their own salaries. That right, Baker argued, outweighs the public's right to know.

Chadwick said the information is public in California, other states and also regarding federal employees.

The city attorneys told the judge they each have policies prohibiting the release of government employees' salaries.

But these cities many times have given the names and salaries of their employees to the Daily News in the past.

For example, in December 2000 the Daily News was given information that stated Atherton building official Mike Hood earned $8,452 per month. It was published in a Dec. 27 article.

In addition, the cities of Palo Alto, Los Altos Hills, Menlo Park, Monte Sereno and Redwood City have all complied with the same request, handing over employee names and salaries. The information has been published in the Daily News.

Pfeiffer also wrote in her ruling the paper "failed to articulate or show the public interest in the disclosure of information linked to individuals."

Chadwick argued in court that the California Public Records Act states a person doesn't need to have a reason to seek public record.

Chadwick said the law is clear that the government can't ask those who request the information why they want it. If the cities had the right to deny information based on the reasons a requester gives, Chadwick said, then the cities could pick and choose who gets public information, thus editing the news.

In February the Daily News sent Public Records Act requests to 16 cities, asking specifically for names, titles and wages of all city employees for the calendar year 2002. The lump-sum figure requested includes all compensation paid to these employees during the year, including regular hours, overtime and bonuses.

The newspaper is seeking the salaries at a time when many city governments are making decisions about where the budget ax must fall.

Terry Francke of the California First Amendment Coalition affirms the names and salaries of municipal employees are public and not protected.

Francke explained the information is public because the employees are paid with tax dollars, and the contract of every city employee is a matter of public record.

When the matter is appealed, it will be the first time an appellate court will hear it. If the court determines it's right for publication, it will be precedent setting, according to Ewert.

Ewert said that until an appeals court issues a published opinion, Pfeiffer's ruling can't be used as precedent for other newspapers seeking the same information. Superior Court opinions can't be used as legal authority, Ewert said.

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