Someone needs to hand state lawmakers a copy of the Ralph M. Brown Act. Passed in 1953 to keep local governments from doing the public’s business in secrecy, its message is nevertheless relevant for all California lawmakers. Per the landmark law’s preamble, “The people insist on remaining informed to retain control over the legislative bodies they have created.”
A news report last week alleges that while negotiating a law that raised the minimum wage to $20 an hour for fast-food workers and created a Fast Food Council to oversee working conditions, the Service Employees International Union required that participants sign non-disclosure agreements that legally forbade them from publicizing the negotiating details. The governor and lawmakers should have forbade any such requirement.
NDAs are common practice in private industry, as companies want to assure that sensitive and proprietary information remain under wraps. However, it’s highly unusual – though not illegal – to use NDAs in the legislative process. Lawmakers are doing the public’s business and NDAs serve only to keep the public in the dark. Sometimes, governments legitimately negotiate contract details during closed session, but it’s troubling to allow a powerful lobby to require them for legislative deal making.
The fast-food law has garnered public outrage following allegations by Bloomberg that Newsom “pushed for a carve-out” that benefits one of his campaign donors (exempting restaurants with on-site bakeries), the owner of 24 Panera franchises. Newsom adamantly denies the report and the owner said he never asked for a special exemption. Despite uncertainty over whether the law applies to it, Panera announced it would abide by the new law.
But despite that resolution, the fracas has provided scrutiny over how the law came about, given that it showcases the ugly legislative sausage-making process. “We may never know what exactly happened in the final negotiations … because the groups involved signed non-disclosure agreements,” according to a KCRA 3 report based on discussions with “multiple sources on all sides of the issue.”
The Sacramento station, which deserves kudos for breaking this news, quoted prominent Sacramento lobbyist Chris Micheli. He called the use of NDAs “unprecedented … when it comes to legislative negotiations,” which are supposed to be “done on behalf of the people of California.” Now the public cannot learn much about what happened behind closed doors because those involved in the people’s business are legally bound to keep quiet. That’s outrageous.
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KCRA 3 also reported that Assemblyman Vince Fong, R-Bakersfield, has since introduced a new bill (Assembly Bill 2654), that would ban and invalidate laws negotiated with NDAs. That’s a sensible approach, although it’s a longshot in the Democratic Legislature and with Newsom holding ultimate veto authority. “Taxpayers deserve more transparency,” Fong told the station. “Without transparency, trust in government erodes.” Well said.
The governor’s office responded that it doesn’t sign NDAs, yet why would Newsom oversee a legislative cabal where they are used? Obviously, parties involved in negotiations generally do so behind the scenes and those meetings aren’t public, but NDAs put participants in legal peril if they later speak out about what happened on matters of public consequence.
At least we see up-close how lawmakers and lobbies treat the legislative process as a source of plunder and how they routinely ignore the spirit of state transparency laws.