As the Galt City Council prepares to discuss the Delta Greens project on Tuesday night, some citizens are asking Councilwoman Barbara Payne to not vote on any issues related to the upscale senior housing.
Residents Rick Walters and Dan Jimenez are calling out Payne for what they consider to be too close of a relationship with the developer. The group started advocating for her to not vote on the Delta Greens projects after e-mails between her and the project's engineer surfaced online two weeks ago.
"The sneakiness of the e-mails shows they have made up their mind, and they are going to go through with this," Walters said. "It's disgusting to me, and I don't like it."
The case raises several questions: At what point does the relationship between a council member and an applicant exclude the member from voting? Should the e-mails of public officials be public? And should more local agencies adopt "sunshine laws" to clarify - and expand - just what should be made public?
Vocal Delta Greens opponent Mike Eaton requested in January all correspondence between the council members and those working with developers Chun Mei Dodge and Mike Gutteridge. But he did not receive all of the e-mails until July after he threatened to sue, Eaton said.
The e-mails in question were ones sent from Payne's personal e-mail account to the project's engineer, Jerry Slinkard.
Steven Rudolph, the city attorney, has maintained that the documents were not public because they were sent from a private e-mail address.
In the past, Payne had only listed her personal e-mail account on her business card because it was a simpler address, she said. To avoid costly litigation, she said she voluntarily turned over the e-mails.
The e-mails include Payne giving advice and notices on upcoming project developments to Slinkard.
In one e-mail from December, Payne told Slinkard to push the project through before the next election because the council members could change.
"You may think that I am too much of a worrier, but I know there are mean opponents out there that don't intend to sit still," Payne wrote to Slinkard. "You must push this work as hard and fast as possible."
But Payne said she does not believe she has to abstain from voting because of her advocacy for the project. She said council members are continuously talking with people in the community about projects coming to Galt.
"The whole issue is confusing," Payne said. "If you think a senior project would be good for the community, and you aren't getting personal benefit out of it, I don't see anything wrong with being helpful and supportive."
Do Payne's e-mails cross the line?
Being impartial is an important part of being an elected leader, Jimenez said, and he feels like Payne's e-mails prove she is completely in support of the project. Jimenez is a citizen who often attends council meetings and speaks out against the project.
"How can she say she is impartial?" he said. "When you start getting in bed with one group or another, you lose the trust of the office you were elected to."
Because of the e-mails, Walters said he is interested in starting a Grand Jury investigation into Payne's ties with the Delta Greens advocates, including Protect Galt's Future, a political action committee.
Jimenez has worried about what sway developers in Galt have over the council, and he said the e-mails proves he had reason for concern.
Slinkard did not return calls for comment.
During her e-mail communication with Slinkard, Payne said she never thought there would be a conflict with receiving the e-mails. She voluntarily gave up the e-mails in part because she felt like she had nothing to hide.
"There is no law against the number of e-mails you get from a group," Payne said. "Let me put it out there and if there is something that is questionable, then I want to know."
She is always open to talking to everybody, she said, and has made an effort to be reachable by always responding to e-mail and having office hours at city hall.
She said the main reason the whole issue has received so much attention is because it is connected with Delta Greens, she said.
"If people are trying to prove a point, they will take whatever they have and interpret in a way that suits their cause," she said.
Payne said she has consulted with the city's attorney and said she does not believe she has to abstain from voting. She said she has no financial or political stake in this project because she has no plans for higher office and is not looking for future campaign donations.
As of now, she said she has not heard any specific reasons as to why she should abstain.
"If there is information that comes out, that indicates I should, I'll do the right thing," Payne said.
City officials' e-mails - and the public's right to know
As technology has played a larger role in city government, questions still remain about when e-mails fall under the Public Records Act.
In a letter to Eaton, Rudolph said the key qualifications for what qualifies as a public record are that the record must "relate to the conduct of the public's business; and … be prepared, owned, used or retained by the local agency."
Because the e-mails were in Payne's possession, Rudolph argued that the city of Galt never owned the documents.
But Eaton does not buy the city's argument.
"We don't want the grocery lists or the notes to the wife," Eaton said. "It's the topic, not where it occurs that makes it a public record."
Eaton's attorney, Charity Kenyon, sent a letter June 2 telling the city he was considering a lawsuit because the records had only partially been turned over. Kenyon is Eaton's wife and is the News-Sentinel's media law attorney.
The city had given Eaton the e-mails from Slinkard to council members but did not include the council member's responses. The city met with Eaton to see how to avoid a lawsuit.
Eaton said he would not proceed with a suit if the city turned over the e-mails and if it adopted a sunshine ordinance. Such ordinances usually go beyond the state's public records law and provide specific guidelines on issues not addressed in state law, like personal e-mails.
The city did not respond to the request for an ordinance, but did turn over the e-mails voluntarily in July.
But Eaton said he still believes other documents exist that are related to the project that he did not receive, and he has submitted additional requests. He said he has received copies of at least some of these e-mails the city did not turn over through a source outside the city.
"Until the city adopts and abides by a sunshine ordinance, there will be litigation," Eaton said. "Our disagreement is with the city on the meaning of the law. It is unlikely we are going to resolve it outside the courtroom."
Kenyon's firm represented the Tracy Press in a case where they sued over e-mails exchanged between a councilwoman and a project applicant. The Tracy Press lost in the lower courts, and the appeal case was dismissed because of a technicality.
To avoid any future problems, Payne said she has changed her business card to have the e-mails go to her city of Galt account.
After receiving the letter threatening litigation from Eaton's attorney, Payne said she did not want the city involved in a costly lawsuit.
"I think it's an attack to further their cause, which is, one, to stop the Delta Greens project from going in, and two, to give Charity … an opportunity to prove her case she lost in Tracy,"
The issue has yet to come up in Lodi, City Attorney Steve Schwabauer said. He said the city has no policy except to follow the state's Public Records Act. He said he does not know what he would advise the city to do if it was in Galt's situation, because he has not analyzed the issue.
"I think it's an issue upon which people can come to different conclusions," Schwabauer said.
The California First Amendment Coalition believes there is no doubt that even e-mails sent to personal accounts can be considered public documents, said Peter Scheer, the coalition's executive director.
He said the city needs to instruct all its employees and council members to receive city-related e-mails on only their city accounts.
"If it's e-mails on a proposed real estate development requiring government approval and regulation, then it is a public document, end of story," Scheer said.
A divisive projectDelta Greens has sparked heated debates over the years about how Galt should grow, and it has often split the Galt City Council.
The project on Twin Cities Road near the city's wastewater treatment plant would be an upscale senior housing development with about 2,500 to 2,800 stand-alone homes. The developer, Lewis Development Inc., has not yet presented any plans to the city.
The proposed location for the senior project is not included in the city's limits or the city's sphere of influence - which designates where the city plans to grow in the future.
Supporters want the project area included in that sphere to enable eventual development of the project.
After a six-year process, the city has sent its General Plan - which acts as a planning bible for several decades - to the Sacramento Local Agency Formation Commission for final approval, without the project included.
On Tuesday, Delta Greens advocates plan to ask the city to pull back the General Plan from the LAFCo and amend the city's sphere of influence to include the Delta Greens property.
But Councilmen Darryl Clare, Andrew Meredith and Donald Haines have already said they would not vote in favor of anything that delays the General Plan.
The supporters are concerned about a regional plan called the South Sacramento Habitat Conservation Plan, which is scheduled to be completed in 2011.
Delta Greens' supporters are concerned that once the countywide habitat plan is approved, the city will not be able to grow past its sphere of influence, which does not include the Delta Greens property.
Pros and cons: E-mails - public or private?Here are some of the main arguments the city has made on why e-mails sent to personal accounts are not public:
- It's not public if the city doesn't possess it. The key qualifications for what qualifies as a public record are that the record must "relate to the conduct of the public's business; and … be prepared, owned, used or retained by the local agency," City Attorney Steve Rudolph wrote in a letter.
E-mails sent to a council member's personal account cannot be public because the city of Galt never owned the documents.
- Practically, it's hard to monitor personal computer use. "Cities cannot search through all the private computers of their public officials and employees (including computers shared with family members) in order to respond to Public Records Act requests. Further, there is no legal authority for such searches," Rudolph said.
- People might not write the council if they think there e-mails could become public. "The production of personal e-mails may discourage private citizens who wish to communicate with their representatives."
Here are some of the main arguments open record advocates have made on why e-mails sent to personal accounts are public:
- It does not matter where the e-mail is sent. What matters is the content. "We don't want the grocery lists or the notes to the wife," said Mike Eaton, who requested e-mails from the city. "It's the topic, not where it occurs that makes it a public record."
- Providing e-mails about city business to the public is within the spirit of why public records laws exist. "It's a fundamental principal that the public's business needs to be done in the public," Eaton said.
- If a council member received a letter at home about city-related business, there is no question it would be a public document. "The letter was sent to that person because he or she is a government official, and it was read by the person in his or her capacity as a government official," said Peter Scheer, the California First Amendment Coalition's executive director.
Do you think e-mails about city business should be public record?"I have a personal account, and I'll get correspondence from citizens. I really don't know. This is such a convoluted and complex issue. I know you folks and others have gone in and requested documentation and e-mails, and the city clerk or city attorney has asked me for them and I've forwarded them on. But I don't know enough about the law to know what's right or wrong."
- Lodi Councilman Bob Johnson
"They are stored on my city account, and I can get them
forwarded to my home computer, but I don't store them there. … If
it's about city business, I would think it's public record."
- Lodi Mayor Larry Hansen
"It depends. If it becomes an issue of controversy, perhaps. …
If you are conducting business on your personal computer and if
there's a question of doubt in the public's mind that you have been
more involved in a project than others, then the public has the
right to know what you've done on it. I think that's fair."
- Galt Councilman Donald Haines
"I do believe that stuff should be all open and readily
available to the public. A lot of cities don't have in place a
mechanism to redirect mail to make it accessible. It depends on the
integrity of the individual to turn over the records. In the
future, I think you will see a centralized system, where (e-mail)
is redirected to a city server or something like that. Any
communications that we are receiving, especially on a project, all
should be available to the public."
- Galt Councilman Andrew Meredith