Two years ago, the San Jose Mercury News reported that a lobbyist trying to influence a city council member’s vote on an issue while the council was in session accidentally texted information to the wrong lawmaker. It was part of a series of stories examining the cozy relationship between lobbyists and the council.

The San Jose City Council responded to the disclosure that lobbyists were texting and emailing its members in the middle of meetings—and the resulting brouhaha—by putting in place a pilot program to restrict that favored, timely access.

The measure didn’t stop the lawmakers and lobbyists from communicating during meetings; it just required the council members to reveal who they had been electronically chatting with. The policy also does not require that they reveal the details of their discussion, just the general subject matter.

After more than a year of testing, the city council unanimously approved a measure to make the policy permanent, receiving kudos for being in the forefront of what passes for government transparency. Peter Scheer, executive director of the First Amendment Coalition, told The Bay Citizen that the rules were “the first of its kind in California, if not the country.”  

But the restrictions only apply to communications received via official city accounts, so council members are free to continue communicating secretly using personal email or text accounts.

Although the pilot program was monitored for two years, the city did not keep track of how many times lobbyists and council members communicated during meetings, according to The Bay Citizen.  

An outright ban on texting and emailing during meetings was considered, but was questioned by civil libertarians who thought it would run afoul of the First Amendment and could otherwise be difficult to enforce.  

Barbara Peterson, president of the First Amendment Foundation, told the Associated Press that any laws limiting texting and emailing from lobbyists will be of limited value because they are easy to delete and can only be retrieved afterwards for a few days, probably not enough time to take the legal or bureaucratic steps necessary to get them.

–Ken Broder

To Learn More:

San Jose's Disclosure Rules Here to Stay (by Jennifer Gollan, The Bay Citizen)

Sunshine in the Forecast: City of San José Addresses Open Government and Public Records (Information Management)

San Jose Creates New Rules on Texting, E-Mail for City Council Members (by Bailey McCann, CivSource)

These Days, if U R A Lawmkr, Prhps U Shld Watch Who, Whn and Where U Txt Msg or E-Mail (Evelyn Nieves, Associated Press)