Mayor Garcia And JetBlue LB Lobbyist Used Private E-Mail Backchannel To Communicate...And Here's Why That Matters

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(Dec. 4, 2016. 3:15 p.m.) -- Internal City Hall records obtained by LBREPORT.com under the CA Public Records Act show that Matt Knabe, a LB-registered lobbyist whose publicly disclosed clients include JetBlue, used a commercial email backchannel to communicate with Long Beach Mayor Robert Garcia on a JetBlue-related matter.

The email was among a relatively few records released by the Mayor's office involving communications/activities by two Mayoral staffers (Taylor and now-exited Brezenoff) but didn't include any documents showing direct involvement by the Mayor or any communications directly attributable to him on the company customs facility/international flights.

The email that the Mayor's office released from Mr. Knabe dealt with a non-controversial matter: JetBlue's assistance to victims of the Orlando mass shooting. Here's why the use of a commercial backchannel to communicate with the Mayor matters on much bigger issues.

[Scroll down for further.]

Mayor Garcia told his Chief of Staff that he (Garcia) has "nothing" in response to LBREPORT.com's request under the Public Records Act to see communications over the past 18 months regarding a LB Airport customs facility/international flights and JetBlue [LBREPORT.com coverage here.] But we can see in emails from the offices of multiple LB Councilmembers that the Mayor is listed as a co-recipient on multiple communications on this issue.

As of today (Dec. 4), the Mayor's stance makes no sense and the whereabouts of his records on this issue remain a mystery to us.

However we now know that Mayor Garcia and LB's JetBlue lobbyist have been using Garcia's commercial email backchannel to communicate. That means it's safe to assume that other City Hall insiders, lobbyists and probably LB Councilmembers, have done so as well. Here's why that matters.

The CA Public Records Act clearly applies to communications to and from an @.gov domain that are stored in a system of government records. Sacramento legislators have for years failed to update the Public Records Act to expressly apply to communications by government officials using non-government databases like commercial email accounts. Predictably, some cynical local officials have exploited this and taken the anti-transparency stance that their communications on public business, which would be disclosable public records if done via a @.gov address, aren't disclosable public records if done using a private (commercial) email account.

The use of non.gov email domains by public officials to circumvent the Public Records Act is a major issue that has disturbed open government advocates (including the First Amendment Coalition) and some CA media outlets including LBREPORT.com editorially.

A few years ago, an open-government-minded San Jose taxpayer pressed the email disclosure issue with his City Hall, and on December 7 at 9 a.m., the CA Supreme Court will hear oral arguments in City of San Jose et al. v. Superior Court of Santa Clara County (Ted Smith, Real Party in Interest), S218066. The High Court will confront the issue of whether written communications pertaining to city business, including email and text messages, which (a) are sent or received by public officials and employees on their private electronic devices using their private accounts, (b) are not stored on city servers, and (c) are not directly accessible by the city, are "public records" within the meaning of the California Public Records Act.

We know that JetBlue lobbyist Knabe uses a commercial email backchannel to communicate with LB Mayor Garcia. We wouldn't be surprised if other City Hall lobbyists, insiders, and possibly some LB Councilmembers use the Mayor's email backchannel to communicate on city matters, perhaps thinking their words and his words can avoid disclosure under the Public Records Act so long as they avoid :cc'ing their words to any .gov email addresses. (Garcia's office released Mr. Knabe's non-controversial email because he'd cc'd it to two Garcia office staffers.)

At this point, the public and the press can't see what Mayor Garcia, JetBlue's lobbyist, the usual suspects and possibly some Councilmembers may have said or done or discussed doing regarding our city's Airport and a company-sought customs facility and international flights if they did so using the Mayor's email backchannel. And yes, this lack of public openness and oversight extends to countless other city issues as well.

An ugly Council action on email transparency and other reforms (which involved Garcia although he wasn't alone) took place about three and half years ago. The statewide Public Records Act lets local governments require greater transparency than minimal state law, and in April 2013 then-Councilwoman Gerrie Schipske proposed to discuss doing so. From LBREPORT.com's Amnesia File:

(April 20, 2013) -- Seven Long Beach City Council members sat silent and blocked an effort by Councilwoman Gerrie Schipske to discuss her agendized proposal to ban campaign contributions by contractors and others with business before the Council and to require disclosure of Councilmembers' emails that currently evade Public Record disclosure when officeholders use a non-City Hall website, email domain or social network.
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 Elections 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.

...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...

Past is prologue, and as of Dec. 4, 2016, we have no responsive records from four of nine LB Council offices (Mungo, Gonzalez, Andrews and Pearce [incl. predecessor Lowenthal]) or from Mayor Garcia whose chief of staff says Garcia told him that he has "nothing" on the Airport/customs facility/international flights/JetBlue subject matter.

On Dec. 2, Assistant City Attorney Mais told us there's a "stack of records" from some Council offices (he hadn't examined them closely) awaiting processing and release by the city's records coordinator in the coming days.

LBREPORT.com's position is very simple and pro-transparency:

If Mayor Garcia has records on his personal device(s) or in his personal commercial email backchannel of communications regarding the proposed LB Airport customs facility / international flights / JetBlue within the past 18 months, he should release them immediately.
If Mayor Garcia has records in his @.gov account (that he told his Chief of Staff he doesn't have) we recommend that the Mayor check a second time because we believe he has a legal duty to release those materials without further delay.

If some LB electeds want us to shut up about this, rest assured we won't until the CA Supreme Court requires cities statewide to apply the Public Records Act to their electeds/staff communications on city business OR LB's Mayor and Council adopt an ordinance requiring LB electeds and staff to treat communications on the public's business, including those using commercial channels and databases, as public records that the public has a right to know.