Civic Openness in Negotiations Ordinances Hold Elected Officials Accountable

Orange County Supervisor Moorlach has opened a can of worms for all Californians. My guess is that few know that union negotiations are held in total secret and agreements are made WITHOUT telling the Board or the public. He reminded us of a couple of sentences in a newspaper article from eight years ago:

“Eight years ago, then Orange County Register reporter Norberto Santana opened his piece, “The Art of the O.C. Deal (Orange County Register, August 6, 2006),” with the following observation: “When people see the board of supervisors vote on a labor deal, what they don’t know is that most often, an agreement has already been reached in private. And it’s perfectly legal.”

In other words these bargaining unit agreement are binding on the taxpayers and not known or approved by elected officials. Any wonder the unions own government—not only aren’t citizens allowed to know but in most cases elected officials are not told till after the fact.

“Can you imagine a private sector business allowing a third-party to negotiate contracts on its behalf with no say in the process? Of course not. Yet, when dealing with labor negotiations, the general public, whose tax money is being spent, allows their elected officials to negotiate without any real say in the process.”

Unions pension public sector

Civic Openness in Negotiations Ordinances Hold Elected Officials Accountable

ByJohn Moorlach, Union Watch, 6/18/14

Eight years ago, then Orange County Register reporter Norberto Santana opened his piece, “The Art of the O.C. Deal (Orange County Register, August 6, 2006),” with the following observation: “When people see the board of supervisors vote on a labor deal, what they don’t know is that most often, an agreement has already been reached in private. And it’s perfectly legal.”

The root cause of fiscal distress for many municipalities is the negotiated bargaining unit agreements. The promise of future benefits could not be feasibly be paid. And most would have told you so if they were asked about the sustainability of the deal points. But when the public is not aware of the contract details until after they are agreed to, it is too late. Shouldn’t the experience of this obvious flaw in the process give those who come after a strong reason to open the negotiation process? Yes, it should.

Can you imagine a private sector business allowing a third-party to negotiate contracts on its behalf with no say in the process? Of course not. Yet, when dealing with labor negotiations, the general public, whose tax money is being spent, allows their elected officials to negotiate without any real say in the process.

As a county supervisor, one of the most serious responsibilities that I have been entrusted with is negotiating with employee organizations representing more than 17,000 county employees. To put this in context, salary and employee benefits represents 35.2 percent of the County’s $5.4 billion budget.

These negotiations, which happen behind closed doors, are shrouded in secrecy, with the general public only being able to give input after a deal is already agreed upon. For this reason, I have introduced the Civic Openness in Negotiations (COIN) ordinance for consideration by the Orange County Board of Supervisors at its June 17, 2014, meeting. The idea is not new. It was first adopted by the city of Costa Mesa.

The ordinance has five main components:

  1. Independent Negotiator – As is current policy, the County will hire an independent negotiator that is not impacted by any outcome in the negotiation process. Past practice had county staff, who were subject to the same provisions as the bargaining unit they were negotiating with, negotiate on behalf of the Board of Supervisors. Independent negotiators remove this conflict.
  2. Cost of Contracts – Current practice has the county budget office analyze the costs of any contract proposal. Under COIN, the independently elected Auditor-Controller will take on this responsibility. This ensures an equal playing ground for both labor organizations and the county as both will be given the ability to comment about the analysis.
  3. Offers and Counteroffers – This ordinance would require that all offers and counteroffers be disclosed to the public within 24 hours.
  4. Board Disclosure – Each member of the Board of Supervisors will be required to disclose any and all verbal, written, or electronic communications they have had with an official representative of a recognized employee organization.
  5. Contract Approval – This ordinance will require that, before the final proposed contract is placed on the Board agenda, the Memorandum of Understanding will be posted to the County website.

This ordinance is intended to not only make the negotiation process more transparent, but to allow the public to hold elected officials accountable for the actions they take in regard to taxpayer funds.

We universally agree on transparency and scrutiny. By implementing COIN, the negotiation process will improve for all the impacted parties.

*   *   *

About the Author: John M. W. Moorlach is a Republican member of the Orange County Board of Supervisors and represents the Second District on the board. He serves on the Orange County Transportation Authority, OC LAFCO, CalOptima, and Southern California Regional Airport Authority boards. Moorlach has the distinction of having predicted the largest municipal bond portfolio loss and bankruptcy in U.S. history while campaigning for the office of Orange County Treasurer-Tax Collector against incumbent Democrat Robert Citron in 1994. Citron resigned later that year. In 1995 Moorlach was appointed to fill the vacancy, was elected by the voters in 1996 to complete the unexpired term, and re-elected in 1998 and 2002, serving nearly twelve years. In 2006, he opted not to run for re-election as Treasurer-Tax Collector and instead ran for Orange County Supervisor, winning 70% of the vote. He is recognized as a leading expert on municipal bankruptcies.

 

CalSTRS gets $5 billion increase over seven years–$$ Meant for Children, Textbooks and Classroom

The bad news is that Brown and the Democrats (no Republicans was allowed to participate in the budget negotiations) have decided to take $5 billion from teachers, textbooks and the classroom, to shore up an unsustainable pension system that will collapse anyway. The worse news is that school districts are giving teachers “raises” to make up for the added contribution from the teachers to the pension system. This is to stop the teachers from getting a pay cut—due to larger pension contributions mandated by Sacramento.

In the end, just another example of unions taking care of themselves and the children are an afterthought.

“But the legislation, AB 1469, does not raise the Proposition 98 school-funding guarantee to help school districts pay the new CalSTRS rates. And a “poison pill” repeals the rate increase if a court ruling requires the state to reimburse districts.

The only apparent relief in the state budget package that might make more money available for teacher salaries is a cap on school district reserves linked to passage of Brown’s “rainy day” state budget reserve on the November ballot.” 

unions pensions public employee

CalSTRS gets $5 billion increase over seven years

Ed Mendel, CalPensions, 6/15/14

Full funding of the troubled California State Teachers Retirement System was approved by the Legislature last weekend, with most of the additional $5 billion coming from school districts that get no offsetting money from the state.

With only one “no“ vote, lawmakers approved Gov. Brown’s plan to phase in a massive rate increase over seven years, nearly doubling the $5.8 billion CalSTRS currently receives each year from school districts, teachers and the state.

A California Teachers Association lobbyist told a two-house legislative committee in February the politically powerful union wanted additional school funding from the state to cover the cost of the rate increase.

But the legislation, AB 1469, does not raise the Proposition 98 school-funding guarantee to help school districts pay the new CalSTRS rates. And a “poison pill” repeals the rate increase if a court ruling requires the state to reimburse districts.

The only apparent relief in the state budget package that might make more money available for teacher salaries is a cap on school district reserves linked to passage of Brown’s “rainy day” state budget reserve on the November ballot.

The reserve cap was backed by the California Teachers Association but opposed by management groups on the other side of the labor bargaining table, the Association of California School Administrators and the California School Boards Association.

“The governor’s proposed increases in CalSTRS alone will phase in higher employer contribution rates for the next years, going from 8 percent (of pay) to 19 percent,” the management groups said in a joint statement before passage of the budget.

“This is more than the increased level of funding many districts will receive via the new funding formula and will have major implications as boards are finalizing budgets,” the two groups said.

A Brown school funding formula enacted last year gives more money to schools with the neediest students. After deep cuts during the recession, school districts are receiving more money from an improving economy and a voter-approved tax increase.

CalSTRS has been trying for about a decade to get a rate increase. Unlike most California public pension systems, CalSTRS lacks the power to increase annual rates paid by employers, needing legislation instead.

Much of the CalSTRS funding gap, now being painfully closed by squeezing school funding, is due to state and teacher contribution cuts and benefit increases enacted around 2000, when a booming stock market gave CalSTRS a brief funding surplus.

The state contribution was cut from 4.6 percent of pay to 2 percent. For 10 years, a quarter of the teacher contribution, 2 percent of pay, was diverted to a new individual investment plan. A half dozen small benefit increases included a longevity bonus.

CalSTRS would have 88 percent of the projected assets needed to pay future pension obligations if it had had continued to operate under the contribution and benefit structure in place in 1990, a Milliman actuarial report said last year.

Now CalSTRS is only 67 percent funded. A Milliman actuarial report in April showed CalSTRS received $5.8 billion from the state, school districts and teachers last year, while spending $11.3 billion on pensions and administrative costs.

Nearly half of CalSTRS costs were paid from investment earnings. Without a rate increase, CalSTRS was expected to burn through its $184 billion portfolio in 30 years, even if earnings average what critics say is an overly optimistic target, 7.5 percent a year.

Prompt action by the Legislature on the funding plan proposed by Brown last month is expected to ease or avoid the problem of reporting a huge CalSTRS debt under new accounting rules.

The CalSTRS board was told last September that under the new rules a $71 billion debt or “unfunded liability” (now $74 billion) could soar to a $166.9 billion “net pension liability,” an estimate now outdated by earnings and other factors.

It was not clear whether the big new pension debt would be reported by the state or the school districts or both. But there was concern that school district credit ratings might be lowered, increasing borrowing costs.

Under the new Governmental Accounting Standards Board rules, if projected assets using the expected return on investments fall short of covering pension obligations, a lower risk-free bond rate is used for the remainder, driving up the total reported debt.

The new legislation is a major shift of CalSTRS costs to school districts, community colleges and other employers, more than doubling their contribution while the state and teachers get much smaller rate increases.

The CalSTRS contribution from school districts and other employers increases, in seven annual steps, from the current 8.25 percent of pay to 19.1 percent of pay by July 2020.

The legislation reduces the initial school district rate increase proposed by Brown and some of the following step increases, but not the seven-year total. The change eases the impact on districts that already have budgets for the new fiscal year beginning July 1.

Teachers, currently contributing 8 percent of pay, get the smallest CalSTRS rate increase. In three-steps, the rate for most teachers will reach 10.25 in July 2016. For new hires with lower pensions under a Brown reform, the rate peaks at 9.205 percent in 2016.

Lawyers have told CalSTRS that a series of state court decisions mean the pension offered teachers on the date of hire becomes a “vested right” that cannot be cut, unless offset by a new benefit of comparable value.

The legislation provides a new benefit to offset the rate increase by declaring that an annual cost-of-living adjustment of 2 percent, now a routine practice that could be suspended, is vested in years when the rate increase is paid.

The state contribution to CalSTRS, currently a combined total of 5.5 percent of pay to two separate funds, increases in three annual steps to a total of 8.8 percent of pay in July 2016.

The state contribution to an inflation-protection account, which has a large surplus and keeps the pensions of retirees from falling below 85 percent of their original purchasing power, remains unchanged at 2.5 percent of pay.

But the state contribution to the main CalSTRS pension fund with the huge shortfall, now about 3 percent of pay, will increase in three steps to bring the total state contribution to 8.8 percent of pay.

The non-partisan Legislative Analyst’s Office has suggested that CalSTRS be given the power to set employer rates, like other public pension funds. The new legislation does give CalSTRS some rate-setting power, but it’s tightly limited.

CalSTRS can increase the employer rate after 2020 if needed for full funding by 2046, but only by a little more than 1 percent of pay. CalSTRS can increase the state rate after 2016, but only to eliminate debt for benefits in effect prior to 1990.

 

California Can’t Convince Drivers to Trade in Clunkers for Cash

It is obvious that those promoting cash for clunkers in California are economic illiterates and failures in math. The clunkers program, expensive for taxpayers, brings little change to the climate. Plus, the cost of the program provides no economic benefit to the community or the State. Yet, Democrats continue to do this so some people can buy cars at the expense of productive Californians.

“After the low participation rates of the first year, the program was temporarily suspended, and remains so until the guidelines are rewritten for the program and it launches again in 2015.

Yet lawmakers simultaneously extended the program’s funding until 2024, and called for the incentive amount, which is currently at $2,000 or $2,500 for low-income participants, to be increased.”

Why is California in a Depression—illegal aliens being able to buy cars—with your money.

Autoroute_A10_Orléans_Ouest

California Can’t Convince Drivers to Trade in Clunkers for Cash

Bre Payton. Daily Signal, 6/15/14

California is paying drivers to get their air-polluting cars off the road—and will throw in some cash to get a newer, more fuel-efficient model.

But during its first year, only 21 Californians have actually gotten a new vehicle from this cash-for-clunkers-esque program.

Government employees even sent out more than 12,000 letters notifying people they were eligible for a portion of $3 million set aside for vehicle replacement. The complicated process and low cash incentives, however, turned many away from getting these benefits.

After the low participation rates of the first year, the program was temporarily suspended, and remains so until the guidelines are rewritten for the program and it launches again in 2015.

Yet lawmakers simultaneously extended the program’s funding until 2024, and called for the incentive amount, which is currently at $2,000 or $2,500 for low-income participants, to be increased.

This little-known pilot program focused in Southern California is part of the Enhanced Fleet Modernization Program run by the California Air Resources Board, which aims at improving air quality by getting high-polluting cars off the road.

By encouraging people to get a newer car sooner, you can speed up one’s decision to get a new car, and consequently they stop driving an older car that’s putting out more environmentally-damaging emissions, said John Swanton, communications director for the state Air Resources Board.

Older vehicles disproportionately pollute California’s air. Over half the pollution is caused by an estimated 10 percent to 15 percent of the oldest cars on the road.

Free-market transportation experts don’t think this approach is the most effective, though.

“I think these programs are misbegotten anyway since they are only slightly hastening the inevitable,” said Randall O’Toole, senior fellow at the Cato Institute. “Old cars wear out, and the new cars that replace them are more fuel efficient.”

If passed, Senate bill 913 will require the Air Resources Board to post program participation goals on its website, and inform the General Assembly of progress toward these goals.

“There are a number of higher-polluting vehicles that can be removed from our roads and help meet the air quality emissions goals,” said Jeff Macedo, communications director for California Sen. Anthony Cannella, who co-authored the legislation.

The modernization program gets $30 million from the state each year. Most of these funds go toward the 3-year-old car retirement portion of the program, which has been more successful than the replacement initiative.

Since its enactment in 2010, the state has given $1,000 ($1,500 for low-income participants) to more than 86,000 Californians to retire vehicles that fail a smog check.

The environmental benefits of this program are questionable, however.

More than 60 percent of the vehicles retired were unregistered. This figure suggests many of the scrapped cars were not being driven on the road anyway, thus scrapping them may not have helped the environment as much as projected.

Currently, there is no cost-effectiveness mandate on the program. The retirement portion of the program is estimated to cost $19,000 for every ton of pollution it reduces, while the replacement portion of the program is estimated to cost as much as $43,000 per ton.

“This is another example of a feel-good government program that fails miserably when measured for its effectiveness,” Jon Coupal, president of the Howard Jarvis Taxpayers Association, said of the replacement portion of the program. “The overhead costs of programs like this always exceed the benefits confirmed from them.”

 

Lengthy Permitting Times, High Costs..Stop Oakland From Building Needed Housing

Oakland has a need for more housing. They can use both market rated as well an affordable housing. The developers are willing to create this housing—BUT. The time it takes to get the permits are so long that the cost of the project goes up. All of the fees, unions and cost of set asides to be allowed to build are so high, few are willing to chance the investment. Hence Oakland must be rated as the worst place in the Bay Area, the worse place in California, to build.

We should not forget that illegal aliens are pushing costs higher, since they are bidding for affordable and low cost housing at the same time people impoverished must go after the same apartments.

“Contrary to what people might think, these projects are really hard to build,” said John Protopappas, founder and CEO of Madison Park. Hurdles for developers include difficulty securing financing, lower rents and housing prices compared with surrounding cities and high development costs.”

house california

Why are no developers building in Oakland’s hot housing market?

Blanca Torres, San Francisco Business Times, 6/18/14

As developer Madison Park Financial wraps up work on Lampwork Lofts, Oakland will be left with no major market-rate housing — condos or apartments — under construction.

Apartment booms are underway in nearby cities like San Francisco with more than 5,000 units under construction and in Emeryville, Oakland’s tiny neighbor to the north, where about 360 apartment units are under construction.

Oakland has a pipeline of more than 4,500 approved market-rate residential units. A huge chunk of the approved total, about 3,200, includes housing at Brooklyn Basin, a 64-acre redevelopment waterfront project that broke ground earlier this year on site preparation but is years away from delivering units.

Meanwhile, Oakland apartment rents ballooned by 29 percent during the past two years to an average of $2,187 per month during the first quarter of 2014 compared with $1,698 per month during the same period in 2012, according to RealFacts. Meanwhile, new condo inventory is close to going extinct.

So why aren’t developers putting shovels in the ground?

“Contrary to what people might think, these projects are really hard to build,” said John Protopappas, founder and CEO of Madison Park. Hurdles for developers include difficulty securing financing, lower rents and housing prices compared with surrounding cities and high development costs.

Protopappas emerged as Oakland’s “lone builder” in 2012 when he started construction on 79 units for the third phase of Bakery Lofts, which were completed last year, and continued the following year by kicking off Lampwork Lofts in 2013, which just started leasing units.

By the end of the year, three more Oakland housing projects could start construction. Next month, Protopappas plans to break ground on 101 units at 1032 39th St., a site that straddles Oakland and Emeryville.

Signature Development Group plans to break ground in July on 104 apartments as part of the Hive, a mixed-use project in Uptown. The apartments would likely hit the market in late 2015 or early 2016.

“The market’s good now and we’re still seeing demand spilling over from San Francisco,” said Jamie Choy, Signature’s project manager for the Hive. “What it will be like a year from now, we don’t know. But we don’t think we’ve hit the peak of that spillover yet.”

Another developer, Nautilus Group, bought three sites in Temescal last year totaling close to 260 units with the goal of starting a 44-unit project this year, but the permitting process is taking longer and is mroe complicated than the developer expected.

“I wish I had the projects done right now, there’s so much demand,” said Randy Miller, president of Nautilus. “By the time economy warms up, people are ready to move, people need housing, but supply takes three or four years to catch up with demand.”

Even if more projects get going this year, a city of more than 400,000 people should attract more development during a hot housing market, Protopappas said.

Protopappas has been building apartments in Oakland for more than 30 years, so it helps that he knows the system and can raise capital from “patient investors,” he said.

Other developers have told me that even though rents have risen in Oakland, they may not be high enough to justify construction or that developers would rather build in San Francisco or the Peninsula, where the profit margin is higher on new construction.

Besides the difficulty and uncertainty of getting projects entitled — which Proptopappas recognizes also happens in other cities — “it’s hard to get a construction loan and it’s hard to get equity,” for an Oakland project.

Being Oakland’s lone builder does have its perks: Madison Park’s projects are the only option for new market-rate apartments and have leased up quickly. Lampwork Lofts will be more than 50 percent leased by the time residents move into their units in July.

“(Development) is difficult,” he said. “The only thing saving is us is the fact that the market is so strong.”

 

Obama Economic Policies Inflate Price of Chicken, Fish and Beef—Michelle Loves This

Michelle Obama must have broken out a bottle of the best White House champagne last night. Her policies, instituted by her husband has caused massive increases in the price of food. The rich don’t care—they can afford 10, 15 or 20% increases. It is the poor and middle class, the targets of the Obama’s that are harmed. The children of these families have parents deciding to buy lower quality food, less food and cutting back on necessities to live a good life. The Obama’s are using economic policy to made people poor so that cannot afford fish, beef or chicken. Shame on us for allowing this to happen to our nation.

Two months ago I paid $.99 a pound for chicken at Von’s (Safeway). Yesterday the cost was $1.29 a pound—a 30% increase in two months.

““The index for meats, poultry, fish and eggs has risen 7.7 percent over the span [last year],” says the BLS. “The index for food at home increased 0.7 percent, its largest increase since July 2011. Five of the six major grocery store food group indexes increased in May. The index for meats, poultry, fish, and eggs rose 1.4 percent in May after a 1.5 increase in April, with virtually all its major components increasing,” BLS states

UNandUSFish

Price Index for Meats, Poultry, Fish & Eggs Rockets to All-Time High

By Ali Meyer,CNSNews.com, 6/17/14

The seasonally-adjusted price index for meats, poultry, fish, and eggs hit an all-time high in May, according to data from the Bureau of Labor Statistics (BLS).

In January 1967, when the BLS started tracking this measure, the index for meats, poultry, fish, and eggs was 38.1. As of last May, it was 234.572. By this January, it hit 240.006. By April, it hit 249.362. And, in May, it climbed to a record 252.832.

“The index for meats, poultry, fish and eggs has risen 7.7 percent over the span [last year],” says the BLS. “The index for food at home increased 0.7 percent, its largest increase since July 2011. Five of the six major grocery store food group indexes increased in May. The index for meats, poultry, fish, and eggs rose 1.4 percent in May after a 1.5 increase in April, with virtually all its major components increasing,” BLS states.

In addition to this food index, the price for fresh whole chickens hit its all-time high in the United States in May.

In January 1980, when the BLS started tracking the price of this commodity, fresh whole chickens cost $0.70 per pound. By this May 2014, fresh whole chickens cost $1.56 per pound.

A decade ago, in May 2004, a pound of fresh chicken cost $1.04. Since then, the price has gone up 50%.

Each month, the BLS employs data collectors to visit thousands of retail stores all over the United States to obtain information on the prices of thousands of items to measure changes for the Consumer Price Index (CPI).

The CPI is simply the average change over time in prices paid by consumers for a market basket of goods and services.

The BLS found that there was a 0.7% change in the prices for the food at home index in May, which tracks foods like meats, poultry, fish, eggs and dairy, as well as many others.

 

Environmentalists KILL California Water Bill

California has a drought that is natural. Our lack of water is government made. For instance, our water is used for “restoration” purposes, delta smelt, fairy shrimp and salmon instead of for people, keep and create jobs and to assure a decent quality of life. Government has created policies killing off hundreds of thousands of acres of prime agriculture land, killing jobs and forcing the cost of living to soar.

A bill was presented in Congress to provide some relief—and Democrats from Northern California—all self-proclaimed leaders of the environmental movement, working with non-California Republicans, killed an opportunity to save jobs.

“Congressman David Valadao (R-Hanford), who sits on the House Appropriations Committee, says a “manager’s amendment pulled it out.” Why? Valadao says they got a lot of bipartisan pushback.

Some of that pushback came from northern California liberals like Jared Huffman (D-San Rafael), George Miller (D-Martinez), and John Garamendi (D-Walnut Grove). Garamendi says as a member of the minority party, they’ve been relying on Op-eds in California papers to give them some clout.”

Courtesy Smabs Sputzer, Flickr

Courtesy Smabs Sputzer, Flickr

The life — and death — of a surprise drought measure

Kitty Felde, KPCC, 6/18/14

Bipartisan opposition sank the surprise drought provision.

There are lots of ways to get what you want on Capitol Hill.

Central Valley lawmakers want more water for farmers in their district. And this week, they tried some creative lawmaking to break the logjam over legislation.

The House passed a drought relief bill back in February. It was backed by the entire California Republican delegation – plus Fresno Democrat Jim Costa. The measure sets aside decades-old water agreements and environmental protections and increases reservoir storage.

The Senate passed a very different measure in May, authored by California Democrat Dianne Feinstein. Environmentalists aren’t entirely happy with Feinstein’s bill either, but fellow Californian Barbara Boxer – a co-sponsor of the Senate drought bill – says they got “almost everything they wanted.”

House Republicans called it “a starting point,” but say it fails to address “our state’s long-term needs.”

In a situation such as this, the next move should be a conference committee where differences are pounded out and a compromise is reached. However, this summer has been spent behind closed doors, as staffers and lawmakers try to come up with a strategy.

One such strategy came to light this week: insert language in a spending bill.

Congress has been working hard on appropriations bills for everything from the Pentagon to the Internal Revenue Service. Tucked away on page 19 of the energy and water appropriations measure, language appeared that would allow 90 percent of the money set aside for the California Bay Delta Restoration to be used to “acquire water from willing sellers for the purpose of supplementing water made available to water service and repayment contractors anywhere within the Central Valley Project service area.” Patricia Schifferle of the environmental group Pacific Advocates translates: “It’s going to redirect decades of required mitigation money to a select group of south of the Delta exporters, including Westlands.”

The Westlands Water District spent $600,000 last year on lobbying in Washington. A company executive made the trip to Washington recently, participating in meetings on Capitol Hill.

But Wednesday morning, as the bill was being “marked up” – the opportunity for members to add amendments and adjust the language before voting – that paragraph on page 19 was eliminated.

Congressman David Valadao (R-Hanford), who sits on the House Appropriations Committee, says a “manager’s amendment pulled it out.” Why? Valadao says they got a lot of bipartisan pushback.

Some of that pushback came from northern California liberals like Jared Huffman (D-San Rafael), George Miller (D-Martinez), and John Garamendi (D-Walnut Grove). Garamendi says as a member of the minority party, they’ve been relying on Op-eds in California papers to give them some clout.

But some pushback came from GOP members from other parts of the country. There’s supposed to be a ban on congressional earmarks – legislation that favors a particular part of the country.

So the California water language died a quiet death.

Fresno Democrat Jim Costa says drought conversations have been on hold, pending the expected election Thursday of fellow Central Valley lawmaker Kevin McCarthy as the new House Majority Leader.

But don’t expect the issue to disappear. Valadao promises, “we’re going to look for other opportunities.”

Illegal Aliens in California, Thanks to Obamacare CAN Receive FREE Medi-Cal—Having Problems signing up.

Obamacare is VERY clear, you must be an American citizen or here legally to be able to sign up for the expensive, low quality health care. Of course that is just the headline—in fact ANY illegal alien, if they lie (they all lie) can sign up under a program called “Deferred Action for Childhood Arrivals.” In other words every single Obama shipped in young illegal alien automatically qualifies for “free” health care—that YOU pay for.

Why are illegal aliens now flooding into this nation? Because Obama is giving airplane tickets to your community and Democrats are giving away health care—why not?

healthcare obamacare

‘Deferred Action’ Residents Face Obstacles to Signing Up for Medi-Cal

California Healthline, 6/18/14

An estimated 125,000 California residents ages 15 to 30 who qualify for Medi-Cal through the Deferred Action for Childhood Arrivals initiative face several challenges to obtaining health coverage, New America Media/Philippine Daily Inquirer reports (Sundaram, New America Media/Philippine Daily Inquirer, 6/18).

Medi-Cal is California’s Medicaid program.

Background on DACA

In 2012, President Obama developed DACA, which grants undocumented children legal status and authorization to work in the United States for two-year periods.

To be eligible for the program, children must:

  • Have arrived in the U.S. before age 16;
  • Be under age 31 as of June 2012; and
  • Have continually lived in the U.S since 2007.

Although Medicaid expansion under the Affordable Care Act bars coverage for undocumented immigrants, a caveat in California allows those with “deferred action status” to gain coverage (California Healthline, 4/3).

Details of Challenges

Despite qualifying for Medi-Cal, many Californians in the DACA program face challenges to obtaining health coverage, such as:

  • Difficult paperwork requirements, including a 35-page form and a form requiring a Social Security number and tax filing status;
  • County Medi-Cal workers being unaware of DACA beneficiaries’ eligibility; and
  • Problems with CalHEERS, the state’s new online enrollment portal.

Suzie Shupe, executive director of California Coverage and Health Initiatives, said that parents filing a Medi-Cal application for their children who qualify for DACA often are nervous to turn in their personal information.

Shupe added, “We’ve heard reports from several counties that information has not gotten out to them,” adding, “It’s more than just a problem here and there.”

Frank Mecca, executive director of County Welfare Director’s Association of California, said the CalHEERS portal “does not recognize the DACA status and is only providing restricted Medi-Cal benefits rather than full-scope benefits.”

In addition, there is a backlog of 900,000 Medi-Cal applications, and officials are unsure about how many of the unprocessed applications have been filed by DACA beneficiaries, New America Media/Philippine Daily Inquirer reports.

State Response

California Department of Health Care Services spokesperson Anthony Cava acknowledged that technological issues have contributed to delays in Medi-Cal coverage for DACA beneficiaries. He added that the agency is “working actively” to improve the CalHEERS portal (New America Media/Philippine Daily Inquirer, 6/18).

 

Creating a private right of action for victims of criminal aliens–Sue Government/Politicos

This may be the answer to the corruption and law braking of the President of the United States. Victims of illegal aliens—those that have lost jobs, kids in crowded classrooms, seniors in crowded hospitals, victims of crimes, taxpayers and others harmed directly by illegal aliens and the Presidents’ protection of foreign criminals We all need to sue, as victims of the illegal aliens—in every way they have victimized our nation—from gridlock on the roads to terrorists and gang members entering out communities.

We should think like the Left—lawsuits against the police chief that does not obey the oath of office to uphold our laws. Sue the Governor that assists illegal aliens, against Federal law to hold jobs and to get drivers licenses. How about a lawsuit against the School Board that crowds our schools or the businesses that hire illegal aliens? Flood the courts with lawsuits and force staff members, officials and those elected to pay personally for their violation of laws. What do you think? Would you sue?

20111203 court law

Suing for Deportation

Creating a private right of action for victims of criminal aliens

By Dan Cadman, Center for Immigration Studies, June 2014

Followers of immigration matters know all too well that under the Obama administration enforcement has been stymied, benefit programs created out of thin air, and the statutory and constitutional responsibilities of the executive branch to fully and fairly administer the law abandoned or flagrantly ignored. This report offers a potential answer to this problem; namely, amending the immigration statute to permit individuals who have suffered harm from aliens, such as crime victims or their families, to petition a federal judge to order the alien’s deportation, thus overcoming an administration’s negligent exercise of prosecutorial discretion.

Jon Feere, legal policy analyst at the Center, has most recently written about this abandonment in his Backgrounder “Why Hillary Clinton and John Kerry Share Responsibility for Criminal Alien Releases”,1 in which he makes the point that the Secretary of State has an affirmative obligation to cease issuing visas to countries that refuse or inordinately delay taking back their criminal citizens and nationals; a responsibility they did not/have not undertaken, a consequence of which is that criminals from several nations end up being released into the streets of American communities. However, as Mr. Feere has also noted,2 Department of Homeland Security (DHS) Secretary Jeh Johnson, in recent testimony before the House Judiciary Committee, acknowledged that neither he nor his predecessor Janet Napolitano ever formally asked the State Department to suspend visas to any country, so there is clearly a shared failure between DHS and the State Department.

Jonathan Turley, a law professor at George Washington University, made the point of executive branch recalcitrance forcefully in testimony before a House of Representatives Committee on the Judiciary hearing held in December 2013.3 Turley, a self-professed social liberal who voted for president Obama, stated:

I believe that President Barack Obama has crossed the constitutional line between discretionary enforcement and defiance of federal law. …

The recent nonenforcement policies add a particularly menacing element to this pattern. They effectively reduce the legislative process to a series of options for presidential selection ranging from negation to full enforcement. The Framers warned us of such a system and we accept it — either by acclaim or acquiescence — at our peril. …

The current claims of executive power will outlast this president and members must consider the implications of the precedent that they are now creating through inaction and silence. What if a future president decided that he or she did not like some environmental laws or anti-discrimination laws? …

The current threat to legislative authority in our system is comprehensive — spanning from misappropriation of funds to the circumvention of appointments to negation of legislative provisions.

Turley describes the present state of affairs as a “constitutional crisis with sweeping implications for our system of
government”.

The Problems of Standing, Jurisdiction, and Lack of Redress

Stark proof of the failure of administration officials to faithfully execute the laws came into sharp relief in 2011, when the union that represents Immigration and Customs Enforcement (ICE) agents and officers held a referendum that resulted in a vote of no-confidence in then-director John Morton and one of his assistants due to the comprehensive dismantling of effective interior immigration enforcement under his — and the administration’s — leadership.4

By August 2012, the frustrations bubbled over to the point that 10 ICE officers filed a lawsuit against then-Homeland Security Secretary Janet Napolitano, Morton, and Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services, DHS’s immigration benefits-granting agency, to stop the flagrant abuse of law and duty.5

A year later, the presiding judge dismissed the lawsuit, finding that he lacked jurisdiction to hear the case, despite the fact that he agreed with them that the underlying actions of the executive branch that had forced them to sue were illegal, saying in his ruling of dismissal that “Plaintiffs were likely to succeed on the merits of their claim that the Department of Homeland Security has implemented a program contrary to congressional mandate.”6

One of the difficulties in attempting to rein in an out-of-control executive is that ordinary citizens are also generally held to lack standing to sue in court over matters of immigration policy and execution. The online version of Black’s Law Dictionary defines the concept of “standing” quite simply. It is “a right of people to challenge the conduct of another person in a court”.7 The Free Legal Dictionary goes into more detail, stating that standing is:

The legally protectable stake or interest that an individual has in a dispute that entitles him to bring the controversy before the court to obtain judicial relief.

Standing, sometimes referred to as standing to sue, is the name of the federal law doctrine that focuses on whether a prospective plaintiff can show that some personal legal interest has been invaded by the defendant. It is not enough that a person is merely interested as a member of the general public in the resolution of the dispute. The person must have a personal stake in the outcome of the controversy.8

Tellingly, Turley noted in his testimony that the administration is keenly aware of these issues of standing and jurisdiction: “[The administration] appears to be relying on the expectation that no one will be able to secure standing to challenge such decisions in court.”9

There is something pernicious about a notion of standing so limited that it construes United States citizens as having no definable, tangible personal interest in the future of their country, a future that will be inhabited by their children and their children’s children. I can think of no more important personal interest to every American.

Even officers sworn to uphold the law find themselves boxed out of court while we as a citizenry watch our constitutionally guaranteed and all-important separation of powers slip away under the Obama administration.

The perverse consequence of such exclusory concepts of standing and jurisdiction is that, while ordinary Americans are said to lack standing, illegal and criminal aliens are deemed to have standing — and can litigate over and over again individually and collectively (often by means of organizations that represent them on a pro bono basis) in order to overcome denials of benefits or orders of removal that are adverse to them while at the same time chipping endlessly away at the foundations of the immigration laws — laws that define American sovereignty and help protect communities from the adverse cumulative effects of illegal immigration and crimes committed by aliens.

The administration’s flagrant and willful abdication of its responsibility to faithfully execute the immigration laws has become even more clear since the court’s dismissal of the officers’ lawsuit, as evidenced by a couple of extraordinary reports published by the Center for Immigration Studies that have revealed ICE’s systematic 2003 release of, or failure to take into custody, more than criminal 100,000 aliens, including tens of thousands of alien criminals convicted of murder, sexual offenses, gang crimes, narcotics trafficking, and weapons offenses, among other felonies.10

Meanwhile, the administration continues to react with callous indifference to the pain and suffering of the surviving family members and victims of these criminals, while continuing to maintain an alien advocate position within ICE despite its having been specifically de-funded by Congress.11

Remedy

What, if anything, can be done to restore a modicum of balance to the system and provide an avenue of relief and redress for the common man?

Interestingly, in the United Kingdom, no such question would arise, because under British law prosecutions may be brought by private parties,12 separate and apart from those brought by the Crown Prosecution Service,13 even (or, perhaps, especially) against government officials who might otherwise feel that they can violate the law and their duties with impunity.14

Although the American legal system is derived from English common law, our system has never provided for private criminal prosecutions for violations of federal statutes. There are, however, private rights of civil action under federal law.

Some private rights of action are “implied”, but they are quite narrow.15 Congress has, however, specifically provided for private rights of action by statute in certain areas of jurisprudence where no implied rights exist. For instance, Title 7 of the U.S. Code outlines the right of private persons to seek damages for violations of commodity trading rules.16 Even the federal racketeering statutes, which are primarily oriented toward criminal prosecution, provide for private rights of action.17

As presently written, immigration law overtly precludes private rights of action. The pertinent provision states in pertinent part:

(D) No private right
No cause or claim may be asserted under this paragraph against any official of the United States or of any State to compel the release, removal, or consideration for release or removal of any alien.18

It can be said with near certainty, though, that when the above provision was written to prohibit private rights of action, no one, least of all Congress, could have envisioned a president and administration of any political party so thoroughly trampling the constitutionally mandated separation of powers, or so completely eviscerating the duly constituted legal system governing immigration enforcement and removal.

Under such circumstances, it may be time for Congress to re-think the wisdom of the prohibition, which relies on an assumption that a president will fulfill his duty to faithfully execute the laws of the United States, an assumption that can no longer be trusted when, as Professor Turley so vividly points out:

From Internet gambling to educational waivers to immigration deportations to health care decisions, the Obama administration has been unilaterally ordering major changes in federal law with the notable exclusion of Congress. Many of these changes have been defended as discretionary acts or mere interpretations of existing law. However, they fit an undeniable pattern of circumventing Congress in the creation of new major standards, exceptions, or outright
nullifications.19

Creation of a limited private right of action could be possible by amending the language of the existing provision. How might such an amendment be crafted so that it serves an appropriate purpose of opening the door to standing — and, therefore, redress — by those most adversely affected by the administration’s clear breach of its constitutional duty to uphold the law, while not subjecting the existing statutory scheme for immigration enforcement to a multiplicity of frivolous and time-wasting federal lawsuits?

First, any provision permitting a private right of action should not be geared toward monetary fines or penalties. There is already a robust tort system in place to handle such claims — although they, too, are probably inadequate in many instances since lawsuits are expensive for the aggrieved citizen and illegal aliens are unlikely to possess any financial resources worth taking should the suit be successful.

Second, the provision should specify that the action should not be geared toward government officials — again, there is a system available for such lawsuits pursuant to the Federal Tort Claims Act (flawed though it may be) — but, rather, toward the alien. It might, for example, provide that any individual, or surviving family member of an individual, who has experienced harm in his person or property, could bring a private right of action to initiate removal proceedings (which, it is important to recall, are civil in nature) against the alien who caused the harm.

Third, such private removal proceedings should be conducted outside the ordinary venue of immigration courts, which are presided over by Justice Department employees of the Executive Office for Immigration Review (EOIR). This is key, since under the Obama administration, the attorney general would almost certainly issue an order prohibiting EOIR’s immigration judge corps from presiding over such proceedings. Therefore, the provision might specify that they be held in federal district court instead, perhaps in front of a magistrate judge. There is already a precedent for orders of removal to be issued by the federal judiciary instead of EOIR’s cadre of immigration judges, which states:

(c)  Judicial removal
(1) Authority
Notwithstanding any other provision of this chapter, a United States district court shall have jurisdiction to enter a judicial order of removal at the time of sentencing against an alien who is deportable, if such an order has been requested by the United States Attorney with the concurrence of the Commissioner and if the court chooses to exercise such
jurisdiction.20

Fourth, the provision should specify that removals in proceedings undertaken by means of a private right of action may only be ordered on the basis of existing laws and regulations governing the grounds for exclusion or deportation.

Conclusion

Granting a statutory private right of action for individuals to seek the removal of aliens who have harmed them establishes an avenue of relief and redress that does not currently exist in law. It also ensures that when the executive branch fails in its duty to appropriately institute removal proceedings, especially against dangerous and violent criminal aliens, those individuals among the citizenry who have been most adversely affected by the aliens’ presence in the United States will have standing to ensure that the wheels of justice go forward.

It is well to remember that, under this president, we are not speaking of an aberrant one-time-only or statistically insignificant dereliction of duty: we are speaking of tens of thousands of criminal aliens against whom the administration has failed to act.

If even a tenth of the number of individuals harmed were to avail themselves of the avenue of a private right of action, it would have an impact far beyond the numbers. It would also potentially save other individuals from being victimized by alien recidivists who might otherwise be released both by local law enforcement organizations determined not to cooperate with ICE, and ICE itself. And it is entirely possible that, with the opening of an avenue of redress for ordinary citizens who have experienced harm, pro bono organizations would come forward to assist those citizens with the legal advice and counsel that they will need to proceed — just as is happening with aliens right now.

Finally, it must be remembered that a private right of action to institute removal proceedings under existing federal laws and regulations subjects no alien to extralegal processes; deprives no alien of due process of law; and imposes no sanction or penalty other than that to which he is already susceptible — and would be subjected to, had we an executive who comported himself pursuant to constitutional principles instead of imperial decree.

End Notes

1 Jon Feere,
“Why Hillary Clinton and John Kerry Share Responsibility for Criminal Alien Releases”
, Center for Immigration Studies, May 2014.

2 Jon Feere, “DHS Secretary Johnson Not Doing Everything in His Power to Prevent the Release of Criminal Aliens”, Center for Immigration Studies, May 2014.

3 “The President’s Constitutional Duty to Faithfully Execute the Laws”, hearing before the House of Representatives, Committee on the Judiciary, testimony of Professor Jonathan Turley, Shapiro Professor of Public Interest Law, George Washington University, December 3, 2013.

4 National ICE Council 118, American Federation of Government Employees, “Vote of No Confidence in ICE Director John Morton and ICE ODPP Assistant Director Phyllis Coven”, June 25, 2010.

5 See the January 2013 amended complaint in the case of Crane, et al v. Napolitano et al., Civil Action No. 3:12-cv-03247-O, United States District Court for the Northern District Of Texas, Dallas Division.

6 See the dismissal order in Crane v. Napolitano.

7“What Is Standing?” The Law Dictionary, Featuring Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed.

8“Standing”, The Free Dictionary by Farlex, The Legal Dictionary.

9 Turley, op. cit.

10 Jessica M. Vaughan, “Catch and Release: Interior immigration enforcement in 2013”, Center for Immigration Studies, March 2014, and Jessica M. Vaughan, “ICE Document Details 36,000 Criminal Alien Releases in 2013”, Center for Immigration Studies, May 2014.

11 For examples of the government’s callous disregard of citizens harmed by criminal aliens, as well as additional discussion of the ICE alien advocate position, see my CIS blogs “Public Advocacy, Victims, and Skewed Moral Compasses: U.S. government refuses to give U.S. citizen maimed by illegal alien information requested under FOIA”, March 24, 2014, and “Another Look at Victims and Humane Treatment under the Law”, March 27, 2014.

12 See, for instance, McCue and Partners, LLP, “A Guide to Private Prosecution Procedure in England and Wales”, September 2011.

13 The Crown Prosecution Service itself maintains an online reference manual outlining private prosecutions in principle and practice.

14 An example of such a private prosecution against a Scotland Yard official was described in an October 18, 2013, online article in the The Independent: “Private citizen wins right to prosecute Met police worker”.

15 An excellent, albeit somewhat dated, article describing in some detail private rights of action under American jurisprudence: Donna L. Goldstein, “Implied Private Rights of Action Under Federal Statutes: Congressional Intent, Judicial Deference, or Mutual Abdication?” Fordham Law Review, Volume 50, Issue 4, Article 5, 1982.

16 See 7 U.S.C. Section 25.

17 See 18 U.S.C. Section 1964(c).

18 See 8 U.S.C. Section 1231(a)(4)(D).

19 Turley, op. cit.

20 See 8 U.S.C. Section 1228(c). Note, however, that through enumeration error, there are currently two subsections (c) extant in the law. The relevant subsection is the second iteration.

 

Union Boss takes $40 Million (Not a Typo) From Los Angeles Citizens—Refuses to Say How $$ Was Spent

A Los Angeles union took $40 million from ratepayers for the Los Angeles Department of Water and Power. They spent the money, now refuse to show how the money was spent. Supposedly it was for training and retraining. If so, who was trained, where, who got paid, how much. Or was this just a slush fund paying off a politically powerful donor—who used forced dues to buy elected officials?

The City, courts, the taxpayers have asked for the information. Instead of answers the union boss told everyone to shove it, none of your business. If we had a real Director of Water and Power, or a real Mayor—not someone who owes the unions—the IBEW union would no longer be allowed in the building and the money from the workers checks would not go to this openly corrupt union. Who will stand up for the people? Not government.

“Union Bo$$ d’Arcy’s failure to comply with Controller Ron Galperin’s subpoena for the financial records of these two nonprofit Institutes has also raised the issue of corruption as Angelenos are wondering what is he hiding from the Ratepayers, the media, and the voters.”

budget

 

Where’s Our $40 Million?

Written by Jack Humphreville, City Watch LA, 6/16/14

LA WATCHDOG-IBEW Union Bo$$ d’Arcy is planning a massive demonstration at 11 a.m. on Tuesday in front of DWP’s downtown headquarters to protest City’s Hall’s “assault on collective bargaining” and “war on workers” and is urging other unions throughout the City to support his call to arms.

But this so called assault is nothing more than a diversion from the real issue: the lack of transparency of the Joint Safety and Training Institutes and the failure of Union Bo$$ d’Arcy to disclose how over $40 million of Ratepayer money has been spent over the last fourteen years.

Union Bo$$ d’Arcy’s failure to comply with Controller Ron Galperin’s subpoena for the financial records of these two nonprofit Institutes has also raised the issue of corruption as Angelenos are wondering what is he hiding from the Ratepayers, the media, and the voters.

While the stated purpose of these two Institutes was to fund IBEW Local 18’s efforts to improve the safety and training of workers of our Department of Water and Power, the real purpose was to absorb IBEW salaries and overhead as its revenue from membership dues was hit as a result of the downsizing of the Department’s work force in 2000.  This diversion of Ratepayer money allowed Union Bo$$ d’Arcy to continue to pour money into his political slush fund through which he was able to buy considerable influence with Mayor Villaraigosa and the City Council.

This political swat is evident as our City Council has been on the sidelines since September when Los Angeles Times reporter Jack Dolan exposed in a front page article the shenanigans involving the two Institutes and their utter lack of transparency and accountability.

But the City Council’s silence is not unsurprising as at least ten of its fifteen members have benefitted from Union Bo$$ d’Arcy’s campaign contributions.

So it is no surprise that the voters do not trust the City Council and why a simple majority of voters would not have approved the half cent increase in our sales tax to a job killing 9 ½ %, to say nothing about the two-thirds needed to approve this new levy.

And it is no surprise that Mayor Eric Garcetti decided not to endorse the increase in our sales tax that was designed to repair the one third of our streets that are in a failed or near failed condition.  After all, why would he want to damage his reputation and credibility by endorsing a losing proposition supported by a City Council that does not have the trust, confidence, and respect of the voters?

And why would the other City unions want to tarnish their reputations and join in this bogus protest of the decidedly labor friendly City Hall when the less than transparent Union Bo$$ d’Arcy has his own personal agenda that certainly does not pass the smell test and may have attracted the attention of the District Attorney and even the Internal Revenue Service?

If the Herb Wesson led City Council and the Energy and Environment Committee chaired by Felipe Fuentes want to begin the long process of earning our trust, confidence, and respect, they must also answer the same question we have for Union Bo$$ d’Arcy.

Where’s our $40 million?

Police “License Plate Readers” Inaccurate—Could Cause Violence Against Public

The government used a license plate reader to use “swat team” tactics on a 50 year old woman. She was arrested, handcuffed, yelled at and threatened by gun toting cops. All of this because a license plate reader used by government made a mistake. The good news is that she made no unwanted moves, otherwise she would be dead. This was a disaster in the making—because government is more interested in revenues and invasion of privacy than protecting the safety of the public.

It is time to outlaw license plate readers—they are dangerous, invasive and part of the effort to have government watch our every move. We need to take back government.

“Documents obtained by The Center for Investigative Reporting show that a leading maker of license-plate readers wants to merge the vehicle identification technology with other sources of identifying information, alarming privacy advocates. Vigilant Solutions is pushing a system that eventually could help fuse public records, license plates and facial recognition databases for police in the field.

This is another issue that unites the Progressives with conservatives.

Photo courtesy BenFrantzDale, flickr.

Photo courtesy BenFrantzDale, flickr.

 

Plans to Expand Scope of License-Plate Readers Alarm Privacy Advocates

By Ali Winston, Center for Investigative Reporting, 6/17/14

Denise Green had just dropped off her sister at the 24th Street Mission BART station after picking her up from the hospital.

Green, who was driving a 1992 red Lexus, noticed a San Francisco police car with its lights on pull up behind her as she passed through the intersection of Mission Street and Highland Avenue. Green pulled over to let the patrol car pass.

She was stunned when officers yelled, “Put your hands up!”

Sgt. Ja Han Kim ordered her to step out of the car, and as Green complied, she turned and saw several officers with their guns trained on her.

“Don’t look at us!” one of them said.

“Turn around!” the officers shouted, forcing Green to her knees.

They handcuffed her and searched her Lexus. Green overheard officers standing near her license plate shouting numbers to each other.

“It’s not a seven?” one said.

“No, three five zero,” another officer replied.

Green, a Muni driver and 50-year-old San Francisco resident, had been pulled over and detained because her car was mistakenly identified as a stolen vehicle by an automatic license-plate reader the city had installed on its police cars. The officers did not confirm her license plate with their dispatcher.

“It was a nightmare,” Green said of the traffic stop. “I had no idea what was going on or why they were treating me like a criminal – I just hope that never happens to anyone else.”

Five years later, as Green’s lawsuit over the incident goes to a civil trial this year, the use of license-plate readers has emerged as one of the biggest concerns among privacy advocates. Car-tracking technology is becoming ubiquitous in cities around the United States, and the types of data collected and analyzed with the help of license-plate readers is expanding into other realms of personal information.

Documents obtained by The Center for Investigative Reporting show that a leading maker of license-plate readers wants to merge the vehicle identification technology with other sources of identifying information, alarming privacy advocates. Vigilant Solutions is pushing a system that eventually could help fuse public records, license plates and facial recognition databases for police in the field.

The Livermore, California, company released its own facial recognition software last year for use in stationary and mobile devices. The technology uses algorithms to determine whether a person’s face matches that of somebody already in a law enforcement database. Like license-plate readers, facial recognition technology has been criticized for incorrectly identifying people.

Vigilant also is the market leader in license-plate data collection. The company runs the Law Enforcement Archive and Reporting Network database, which stores more than 2.5 billion records and adds roughly 70 million new license-plate scans monthly. The company offers law enforcement free access to its license-plate data through another database, the National Vehicle Location Service.

Vigilant has faced criticism from the public, privacy advocates and lawmakers in California for working behind the scenes to rally police and sheriff’s departments to its side – including prohibiting law enforcement officials from talking to the media about its products without its approval.

A Vigilant PowerPoint presentation about its products, obtained by CIR, contains a section on the “near future” for the company. That includes a fusion of public records, license-plate data and facial recognition, according to the slide. Another technology, dubbed MOAB, would help law enforcement find vehicles using a “probabilistic assessment” of a vehicle’s location based on historical data and public records.

Another slide prepared for Texas law enforcement shows how a combined data program could work. It would pull mug shots from the local Department of Motor Vehicles database and notify law enforcement with an alert if “a vehicle is associated with someone with a known criminal history.” The slide also describes “facial images embedded into” the license-plate record. Another describes how Vigilant’s FaceSearch application works on mobile devices.

Amy Widdowson, a Vigilant spokeswoman, said the slides reviewed by CIR were of a prototype program that did not actually include facial recognition technology.

As for specific references to merging license-plate data with facial recognition and public records, Widdowson said the slide “is merely showing that law enforcement can combine data from public records with LPR (license-plate reader) data to reduce their search area for a suspect.”

Last week, Vigilant announced a new product it called Mobile Companion, which the company said was “driven by a desire” to combine license-plate data with facial recognition technology “into a very nice and easy-to-use mobile application.”

Privacy advocates said combining historical plate-reader data with public records and facial recognition technology runs contrary to law enforcement’s argument that license plates are not considered personally identifying information.

Jennifer Lynch, a senior staff attorney at the Electronic Frontier Foundation, which is suing the Los Angeles County Sheriff’s Department and Los Angeles Police Department for information about their collection and use of license-plate data, said Vigilant’s plans could represent a sea change in the technology.

Noting that Vigilant already offers analytical software that traces the movements of a vehicle through the public and private plate-reader data it retains, Lynch said the company’s plans could pose a threat to individual privacy.

By combining the location data from license-plate readers with public records such as court files and property records ­– as well as photographs of individuals from criminal or DMV databases – into one search tool, which in turn could be used with facial recognition software, license-plate readers could move into uncharted territory.

A plate reader could tag a passing car and the names of people associated with the vehicle and keep a log of where that person traveled. That data potentially could be stored for months or years.

“When you’re combining data from multiple sources, it becomes incredibly revealing,” Lynch said.

Facial recognition technology is making rapid advances. The National Security Agency is reportedly mining intercepted communications, the Internet and foreign government databases for images used to identify individuals of interest to the intelligence agency. Along with its own in-house facial recognition program, the NSA also uses software made by a Google subsidiary, PittPatt.

For her part, Green filed a civil suit against the San Francisco Police Department. The case is expected to go to trial this winter after the 9th Circuit Court of Appeals overturned a lower court’s decision to dismiss her claim. At the time of the incident, San Francisco police used license-plate readers manufactured by PIPS Technology, a subsidiary of Federal Signal Corp., not technology from Vigilant Solutions.

San Francisco officials declined to comment on the pending litigation.

Green’s attorney, Michael Haddad, said the incident took a serious toll on her. “It was extremely terrifying, and Denise ended up having to miss a couple weeks of work and get counseling afterwards.”

But Haddad noted one significant fact in the documentation for the trial: The machines can have an error rate as high as 8 percent. “There’s some acknowledgment by the manufacturers,” he said, “that there’s a significant percentage of the time that they’re wrong.”

Managing Vigilant’s public image

Meanwhile, Vigilant has been working behind the scenes to shield its technology from public view and manage the public perception of its products.

An agreement between Vigilant and the Ontario Police Department in San Bernardino County, California, for example, prohibits the department from publishing material about Vigilant’s technology or cooperating with journalists who ask questions about the plate-reader system – without first obtaining the company’s consent.

“Agency agrees not to use proprietary materials or information in any manner that is disparaging,” according to the agreement. The police department agreed “not to voluntarily provide ANY information, including interviews, related to Vigilant, its products or its services to any member of the media without the express written consent of Vigilant.”

Terry Francke, a public records expert and general counsel for open-government groupCalifornians Aware, said such agreements violate the state Public Records Act. Information related to public contracts and services, Francke said, “are public records, and the government may not withhold them to comply with the contractor’s wishes.”

As it faced legislation this year that would curb its business, Vigilant and law enforcement joined forces even further. The California District Attorneys Association, California State Sheriffs’ Association and California Police Chiefs Association all submitted letters opposing legislation that would have curbed Vigilant’s practices.

The California legislation would have banned public and private entities from selling license-plate data, required privacy policies for agencies using the technology and prevented license-plate data from being the sole basis for search warrants. The legislation was watered down significantly from a previous version that would have restricted law enforcement’s retention of license-plate data to five years.

During its campaign, Vigilant canvassed its law enforcement customers for anecdotal evidence of successful investigations using license-plate readers to lobby against the bill, which was defeated May 29 in the state Senate, according to emails obtained through the Public Records Act.

A mass email on Feb. 2 from Brian Shockley, Vigilant Solutions’ vice president for marketing, to subscribers claimed that the now-defeated legislation, SB 893, “would completely eliminate the ability for Vigilant to collect and share its license plate reader data with you.”

The email also makes clear Vigilant’s aggressive stance toward government regulation of its business. Shockley wrote that “government should not be legislating away law enforcement’s right to this tool that is helping to solve major crimes and protect the public. The focus should not be on who collects the data or how long it is stored, the focus should be on proper access controls, proper use and protections against misuse.”

Widdowson, the Vigilant spokeswoman, said the email was sent to Vigilant law enforcement customers because the company “feels it is important to inform our law enforcement customers about pending legislation that can negatively impact their ability to protect and serve.”

Vigilant sells license-plate readers to over a dozen California agencies, including the California Highway Patrol, Orange County Sheriff’s Department, and the Sacramento Police and County Sheriff’s departments. For its business with law enforcement in the city of Alameda, Anaheim, Marin County, San Rafael and Sacramento, Vigilant won the contracts without going through a competitive bidding process.

In Utah, Vigilant and a subsidiary company, Digital Recognition Network, are suing the state in civil court to block regulations passed by the state Legislature last year on license-plate readers. In Massachusetts, Vigilant is lobbying heavily against pending legislation that would restrict law enforcement agencies’ retention of license-plate data to a matter of days.

Widdowson said concerns about how long data is kept is “a red herring,” declaring that the Legislature should instead focus on “access control and enforcing existing laws.” No law currently regulates the use of license-plate data in California for public or private entities.

State Sen. Jerry Hill, D-San Mateo, author of the California legislation, said law enforcement continued to lobby against the bill even after it was amended to restrict the use of license-plate data by private entities. He said that reflects on what he calls the “incestuous relationship” between license-plate reader companies and public safety agencies.

“Vigilant has been able to leverage public safety and California law enforcement for their own financial gain by holding out the ability to access their information at no charge,” Hill said. “That enticement is the reason law enforcement opposed the bill.”