Why The Obligation to Give More Than Internet Public Notice

By: Dr. John E. Warren, Publisher

San Diego Voice & Viewpoint Newspaper

It appears that with the growth of Social Media, a number of government agencies and organizations have decided that if they put notice of an event, rulemaking, bid or official notice on social media, that such action is sufficient notice to the public.

Nothing is further from the truth for the following reasons: First, less than 50 percent of the public is on the internet. This was made clear during the pandemic when school children had to go to libraries, or restaurants; wherever they could find WiFi in order to do school assignments because of a lack of internet access at home. In San Diego County less than 50 percent of households are on the internet. Second, and even more important, is the “Due Process” requirement of “Notice” and “Opportunity”. Simply put, this means that all public dollars spent, at any level of government, whether local, state or national, are dollars that come from the collection of taxes and as such, the public, which is “we” the people, have a right to know how those dollars are being spent.

This matter is so important that the California Government Code provides specific provisions for presenting public notice in “newspapers of general circulation”. Such notice, as with “rulemaking” for governmental agencies that have the authority to make policy, must give the taxpayers the opportunity to be aware of proposed expenditures. There is no requirement that said agency or governmental entity has to track the response, they only must give notice and such notice must be in a generally acceptable manner, i.e., newsprint first. All others can be added.

In the case of Federal agencies, Departments, Boards or Commissions, proposed rules must be published in the Federal Register, which is now online but still printed as a document. These rules at the federal level, are found in the Administrative Procedures Act under Title 5 of the United States Code at sessions 553,554, and 555. Each State, like the Federal Government, has an Administrative Procedures Act. In the case of California, it’s found under the California Government Code.

This means that when CalTrans’s Office of Civil Rights decided recently that they would no longer provide public notice to California’s legally adjudicated Black newspapers because they (CalTrans) did not get the desired response from the Black communities, an embarrassing mistake was made in that the very Office responsible for ensuring that the laws of the State of California, including “Due Process” requirements of “Notice and Opportunity” to either respond or ignore, were being violated by the very people responsible for ensuring the informing of all the community as taxpayers. At no point does the legal concept of “due process” require a response. It only guarantees the right to respond if one chooses to do so.

Caltrans is not the only one violating this requirement of giving notice as prescribed by law. Cities such as the City of San Diego are equally as guilty. Consider the City of San Diego is about to engage in a campaign to recruit and hire a new police chief. The notice for this recruitment, just as other jobs the city has issued, is being sent to recruitment firms known as “headhunters”. No local notice or publicizing of the job or the requirements among the very people who pay the taxes to fund the jobs offered and retained by the city itself.

There will be an effort to hire a new Personnel Director for the City of San Diego, a new Fire Chief as well. The notice for these positions are only being put online. Remember, less than 50 percent of the community is on the internet.

There is no rule precluding the advertising of either positions, public notices or proposed policies on the internet, but laws have not changed allowing the internet to replace the prescribed publication of notices without a requirement of a specific response. Likewise, agencies can not rewrite their own public notice process to exclude print media because they find it cheaper to place such information on the internet. The internet can be a supplement to public notice but not a replacement in lieu of State or Federal Due Process requirements.

It should be remembered that much of the complaint that the public is apathetic is due to a lack of notice and information, not a lack of interest.

We expect to see the Office of Civil Rights within Caltrans reverse its wrongfully arrived at decision to treat the giving of public notice involving the expenditure of government funds as some quantity-based marketing of information, rather than the actual public notice all communications from that Department should represent in spending the public’s dollars.