Council incumbents Robert Garcia, Suja Lowenthal, Gary DeLong, Patrick O'Donnell, James Johnson, Al Austin and Steven Neal (Dee Andrews was absent) refused to second Schipske's motion to send the measures to the Council's Eections Oversight Committee (O'Donnell, Lowenthal, Andrews) for discussion and a report within 90 days.

Councilwoman Schipske sought public discussion in Committee of measures to:

• Ban political contributions from contractors and those having business before the City Council; and

• Require elected officials to disclose non-public communications about public business; and

• Require Councilmembers to disclose any communications being received during Council meetings from lobbyists; and

• Request a recommendation from the Committee on each within 90 days.

In presenting the item, Councilwoman Schipske noted that the City of San Jose has already adopted the Public Record requirements on Council emails that she proposes, and said federal courts have upheld the restrictions on campaign contributions that she proposed. Councilwoman Schipske made her motion (which didn't require Council enacting, simply Committee discussion and a report); Mayor Foster invited a second...and stone silence resulted. After several seconds, the Mayor ruled that her measure died for a lack of a second.

"How sad," Councilwoman Schipske said, adding that she believes City Hall's current policies would likely invite lawsuits. Mayor Foster initially sought to move on without public testimony on the blocked item, but retired Deputy City Attorney Jim McCabe came to the public speakers podium and the Mayor allowed him to speak. Mr. McCabe commended Councilwoman Schipske for bringing item forward...and commented that in his view, the item would have to be brought to the voters.

For quick audio access to hear the item in full (total time under six minutes), click here

At the end of the Council meeting, another member of the public came to the public speakers' podium and expressed surprise that no Councilmember would allow Committee discussion of the changes proposed by Councilwoman Schipske.

As previously reported by LBREPORT.com, a "Deep Throat" source on City Hall's 14th floor [an individual not affiliated with Schipske's office] told us prior to the Council session that some Council offices and lobbyists were "freaking out" over Schipske's proposals.

The increasing use of non-City Hall domains by CA elected officials, which avoids Public Records Act disclosure of their communications, has been a matter of concern for open government advocates including the First Amendment Coalition. In August 2009, First Amendment Coalition Executive Director Peter Scheer wrote in an essay titled "Government officials use personal email and texting to avoid public access laws. Why not use technology to enhance accountability instead of to subvert it?":

All public officials favor open government in principle. Who would dare say otherwise? In reality, however, they are in a perpetual search, guided by clever lawyers, for new ways to circumvent disclosure requirements -- at best, because they view requests for records as a nuisance, and at worst, because they have something to hide (which can range from the merely embarrassing to the indictable).

The latest device for openness avoidance is the use of personal email accounts (and, increasingly, text messaging too) for government communications. Mayors, city council members, agency executives and school superintendents have been told that if they do government business on their gmail or yahoo accounts -- anything but their official .gov email -- their communications, no matter how focused on government matters, will never see the light of day...

Lawyers for local government say that email and text messages sent or received on a private account, no matter their content, are not "public records" because they are not ". . . owned, used, or retained by" a government agency, as the Public Records Act requires. Electronic communications are "owned, used, or retained by" government only if they reside on a government server, they say. Despite the superficial plausibility of this reasoning, it is, indeed, only superficially plausible.

A government agency doesn’t do anything except through people -- employees, elected officials, consultants, whatever -- who are the government’s agents. Without getting too deep into legalese here, the point is that the actions of the government’s agents are imputed to the government, and the government is responsible for those actions. An arrest by a police officer, a mayor’s promise to a campaign contributor, a public school teacher’s grading of a student paper -- all are actions of and by the government entity that these people represent.

The same is true for written communications about government matters that these people create or receive, regardless of the technology used or the account status. The communications are "owned," "used" and "retained" by government because they are owned, used and retained by persons in their capacity as agents of the government.

Here’s an analogy. Suppose the mayor of your town, at a private meeting in her private home, signs a written agreement with a contractor to expand the local airport. The agreement is a paper document in the mayor’s house, miles away from her office at city hall. There is no doubt that this document is a public record that belongs to the town because it is "owned," "used" and "retained" by the mayor as the town’s agent. Nothing changes if the document sits, not on the mayor’s kitchen table, but in the digital in-box of her personal email account at msn.com. Either way, it’s indisputably a public record that belongs to the town...

Councilwoman Schipske's proposal was the first agendized effort by any Long Beach Councilmember to change City policy on the issue. It proposed referral to the Council's Elections Oversight Committee for discussion and a recommendation back to the Council within 90 days.

The last time the Elections Oversight Committee met on any item was on Sept. 27, 2011, when it then-consisted of Councilmembers Robert Garica (chair), Gary DeLong (vice chair) and Gerrie Schipske (member). On April 2, 2013, Mayor Foster reshuffled Council committee memberships...and the Elections Oversight Committee is now comprised of Councilmembers Patrick O'Donnell (chair), Suja Lowenthal (vice chair) and Dee Andrews (member).

Referral to a Council Committee for discussion is optional,.not mandatory, in enacting an ordinance.

Councilwoman Schipske (who was one of the first U.S. elected officials to use a non-taxpayer-paid blog to communicate with her constituents), says she routinely duplicates communications on GerrieSchispek.com on city matters to the City of LB's domain (.gov) in order to make them disclosable public records. Her website states: "Please note that this is not a City of Long Beach website and is not paid for nor maintained by taxpayer funds. If you contact Gerrie Schipske through this site on any matter pertaining to the City of Long Beach, a copy of your contact will be forwarded to her official city email as an official public record."

Other LB elected officials (including some who tout their support for transparency and openness) use non-City Hall websites for their officeholder positions that effectively avoid Public Records Act access to their emails and texts on city matters conducted through those websites or other non-City Hall domains.