Despite ban, some Stockton City Council members text on the dais. Will no-phones rule change?

More than a decade ago, Stockton City Council barred councilmembers from using cellphones at meetings, arguing it’s harmful “to good government and transparency.”

However, after a recent California Public Records Act request filed by The Record revealed that five councilmembers sent emails and text messages during the July 9 meeting, it’s unclear how strictly the policy is being enforced.

The cellphone use occurred one month after the San Joaquin County Civil Grand Jury found that some council members “regularly” use their phones during confidential city council meetings, and highlighted a prominent case last year of information leaking from one such meeting.

While regular council meetings aren’t confidential, the council in 2013 banned members from using devices at meetings — except to view the meeting agenda — after community members voiced concerns about councilmembers not giving their full attention to constituents.

The Brown Act, California's chief open meetings law, doesn’t prohibit councilmembers from sending emails or texts during meetings, but if communications are sent to a majority of the members of a legislative body, it could inadvertently violate the law.

Those communications also become part of the public record.

Requests for records followed cellphone use

The Record filed a public records request on June 21 that sought all emails and texts, both sent and received, by District 1 Councilwoman Michele Padilla during the June 18 meeting. Padilla appeared to use her cellphone at least 11 times over the course of the two-and-a-half-hour open session.

When asked several questions about the no cellphone policy after the meeting, Padilla repeatedly said, “No comment.”

"In this particular case, I was using my smartphone for (the) purposes of a calculator," she said days later in an email to city officials who handled the request.

In the city of Stockton's response, officials stated that there were no responsive records. City officials searched Padilla's emails while the councilwoman searched her own devices for texts.

The newspaper filed a second public records request on July 12 for emails and texts related to public business council may have exchanged during the July 9 meeting.

The city's response included eight texts sent by councilmembers Dan Wright, Kimberly Warmsley, and Michael Blower and multiple emails sent by Padilla — some to city staff and some to community members.

Mayor Kevin Lincoln and District 5 Councilman Brando Villapudua did not send or receive any city-related messages on personal communications devices during the July 9 meeting, according to city officials. District 4 Councilwoman Susan Lenz was absent from the open session.

What did the councilmembers' emails and texts say?

One text message was sent to Warmsley by a Fox40 reporter, who told the vice mayor at the beginning of the meeting that she was sitting at the media table.

"Hey there," Warmsley wrote back.

Warmsley also notified Interim City Clerk Katherine Roland that a community member was at the meeting when people were being called to the podium during public comment.

San Joaquin County Supervisor Tom Patti asked Blower to confirm after the meeting if funding for a miniature golf course at Swenson Park was approved.

"It just passed," Blower replied shortly after 9:02 p.m.

Blower also responded to a text from a representative of the Greater Stockton Chamber of Commerce, who asked what agenda item included a $20,000 allocation for the Stockton Takes Action Against Retail Theft program, and a community member who wished him a happy birthday.

Near the end of the meeting, Wright responded to a text message from a community organizer who wrote, "Thank you."

"We have a system problem. I'm disappointed in my colleagues, but it was predictable," Wright responded.

Wright later said the exchange was regarding his lone no vote on proposed amendments to the city's warehouse ordinance.

Padilla replied to a constituent who emailed her regarding a negative public comment that was made about her handling of homelessness in her district and her leadership on the Ad-Hoc Homelessness Committee.

"Unfortunate that when other colleagues become jealous, they have to go to measures that are unfavorable rather than doing the work they were elected for," Padilla said. "More to follow. I'm not the leak!"

Padilla also emailed city staff to ask when funds were allocated for the renovation of the Stockton Animal Shelter.

Who's responsible for enforcing the policy?

As the presiding officer of the city council meetings, the mayor is responsible for enforcing "strict order and decorum at all meetings," including the no-phones rule, the council policy manual says.

In an interview after the July 9 meeting, Lincoln said he did not observe any council member using their phone.

He added that the council's current policies are under review by the legislation committee and deferred further questions to the city attorney.

When reached again for comment on July 25, after The Record received the council members' electronic communications, Lincoln sent a written statement through public information officer Dana Sovinec.

"It is important that councilmembers follow council policy 4.06.010(2) while on the dais. I will remind council during our meetings that council policy 4.06.010(2) prohibits the use of electronic devices including cellphones and tablets, for any purpose other than accessing agenda materials," Lincoln stated. "Councilmembers should refrain from using electronic devices unless it is for this purpose."

As far as the potential repercussions for violating a council policy, such as the no-cellphone policy, city spokesperson Connie Cochran said it would be up to the council to determine if there was a violation and what actions would be appropriate to address the issue.

What do councilmembers have to say about the policy?

Some councilmembers are in support of revising the no-cellphone policy.

Warmsley said "a lot" of the polices in the council policy manual are outdated.

She added that she has texted her children during meetings about mundane tasks such as making sure to do their homework, get dinner, or take out the trash.

"I think that's within reason because we're still individuals," Warmsley said. "When it gets to a point where it's distracting is if somebody's having a full-fledged dissertation about a topic or subject matter that's being presented. That's another story."

Warmsley said she believes councilmembers should be allowed to use cellphones while on the dais under certain circumstances, including emergency situations and family matters, but there must be regulations.

"It's absolutely inappropriate during closed session because of the leaks and the mistrust behind the Brown Act," Warmsley said.

Wright took a similar stance and noted that having access to electronics is helpful for research.

"I don't think we should be discussing policy under consideration on the dais with anyone but other councilmembers. Existing (Fair Political Practices Commission) rules and council policy pretty much dictate that, but one of the things I've told people in the past is I do research on demand," Wright said. "Sometimes somebody will make a comment and I won't know if it's true so I'll do the research to see if it is, and I'll quote the source."

Wright also shared that community members sometimes text him during meetings to say they appreciated — or didn't appreciate — his vote.

"It doesn't change anything going forward," Wright said of such exchanges. "The fear ... is there are conversations going on that change votes on the dais. Is anyone taking direction from someone? And that should never happen."

When does a councilmember's communications become public record?

In 2017, the California Supreme Court ruled that emails and texts sent by government officials on their personal devices or accounts are a matter of public record and must be disclosed to the public upon request if they are related to public business.

"If a public official is texting on their phone about having dinner with a friend, that's not a public record, even if they're doing it on city time," said David Loy, legal director of the First Amendment Coalition, a nonprofit educational and advocacy organization that seeks to advance free speech and government transparency in California.

"It's only subject to the Public Records Act if it pertains to public business or agency business," Loy said.

While government agencies are required to provide a response to these requests, Loy said that the California Supreme Court's decision in the City of San Jose versus Santa Clara Superior Court case allows agencies to devise their own systems for handling them.

"There's no one-size-fits-all way ... in essence, it's on an honor system," Loy explained.

While councilmembers are legally required to turn over any emails or texts on their personal devices that relate to city business, no one else is required to review their personal devices, so they can decide what they do or don't disclose to the public if they aren't using city-owned devices.

"The court said that if elected officials are acting in good faith, they're allowed to conduct their own searches on their own devices and segregate public records from personal records as long as they're properly trained to do so, and then provide an affidavit or a declaration," Loy said.

In Stockton, when a request for a councilmember's electronic communications is made, Cochran said the councilmember is instructed to search their own devices for texts while city staff searches through their emails. However, staff is available to help if they need assistance with deciphering records or taking screenshots.

"Now everybody's pretty proficient with cellphones and emails and things like that, so generally they all know how to search," Cochran said.

Record reporter Hannah Workman covers news in Stockton and San Joaquin County. She can be reached at hworkman@recordnet.com or on Twitter @byhannahworkman. Support local news, subscribe to The Stockton Record at https://www.recordnet.com/subscribenow .

This article originally appeared on The Record: Despite ban, some Stockton City Council members text on the dais. Will no-phones rule change?