KCRA 3 News
By Ashley Zavala
SACRAMENTO, Calif. —The California Legislature has been using non-disclosure agreements to keep most information secret about the planning and construction of a $1.2 billion taxpayer-funded building that will house the offices of state lawmakers, the governor and lieutenant governor.
Following a three-month long investigation and a series of Legislative Open Records Act requests, KCRA 3 learned project leaders required more than 2,000 people to sign the NDAs, including several current and former state lawmakers, government officials, dozens of state employees and hundreds of other consultants, contractors, architects, construction and utility workers.
For the last six years, the NDAs have served as legally binding contracts, ordering those involved in the Capitol Annex project to keep confidential a broad range of information while threatening legal action against those who don't. Various legal experts told KCRA 3 they were alarmed by the development noting taxpayers and voters are entitled to the information. While it is legal, some state lawmakers and experts said the use of NDAs like this should be banned.
With the information protected under NDAs, the estimated price tag of the project swelled from $440 million to $1.2 Billion.
It's been three years since the Legislature provided an update on the project. The small group leading the effort, the Joint Rules Committee, has used environmental litigation as an excuse to keep taxpayers in the dark about the project overall.
The committee most recently refused to provide KCRA 3 bid information to prove that the millions it secretly spent on Italian stonework was the most affordable option for taxpayers. The stonework is just one small aspect of the project. How exactly project leaders are spending taxpayer money overall is mostly unknown.
In November of 2018, the Joint Rules Committee, the California Department of Finance and the Department of General Services established a memorandum of understanding on the planning and construction of the capitol annex project.
The Joint Rules Committee at the time was led by then Democratic Assemblyman Ken Cooley, while the Departments of Finance and General Services were under the governor at the time, Jerry Brown.
Cooley would not respond to a month's worth of repeated requests for comment. A spokesman for Brown said he had no recollection of this and was not aware of any direct involvement.
The memo also established the non-disclosure agreement that would eventually be signed by thousands of people on the public project. It's on the final page of the memo, titled "Attachment D."
The agreement orders those who sign it to "maintain in strict confidence any documents, diagrams, information, information storage media, and data" related to the project. It went on to threaten that any failure to comply will subject the signee to "liability, including but not limited to damages." You can read the memo and the NDA for yourself here, the NDA is on page 22.
A total of 2,093 people signed the NDA, according to a list Joint Rules provided to KCRA 3 through a Legislative Open Records Act Request.
The list includes three current state lawmakers: Joint Rules Chair Assemblymember Blanca Pacheco, Vice Chair State Sen. John Laird, and former chair Assemblyman James Ramos. Ramos did not comment.
"Legislators are sometimes asked to sign confidentiality agreements for various reasons, including the safety and security of public spaces, staff, and visitor," Pacheco said in a statement. "I signed the agreement because security and safety are core considerations in my role as a legislator. While I believe transparency is critical to maintaining public trust and did not sign this agreement lightly, it was necessary in this instance to protect sensitive information related to the project's security."
Laird echoed this.
"The badly needed Capitol Annex replacement effort is like any other large, complex, and security conscious construction project," he said in a statement. "Between competitive bidding for hundreds of types of services and materials, and the important security considerations of California’s highest profile government building, non-disclosure agreements ensure no unnecessary release of information. This protects both the competitive bidding process, and enhances security considerations"
But legal experts noted, if security and sensitive bid information was the concern, that language could have been specifically included in the agreement instead of the broad contract being used now.
"Why is there an NDA that has basically blanketed the whole project?" Chris Micheli questioned, a long-time capitol observer and McGeorge School of Law Professor. "This broad, sweeping non-disclosure doesn't make much sense to me at this stage."
"We’re not talking national security, we’re not talking nuclear codes," said David Loy, the legal director for the First Amendment Coalition. "This is public money on a public building. It’s exactly the kind of thing the public has a right to know."
Former Assemblyman Cooley and the previous vice chairman of the Rules Committee, former State Sen. Bob Hertzberg also signed, according to the list.
"I don't remember signing it, but it doesn't seem odd to me," Hertzberg told KCRA 3 in an interview, echoing the need to protect security and sensitive bid information.
"I guarantee you, this was not driven by political people or staff people," he said. "It’s driven by the lawyers who want to make sure all the T’s were crossed and I’s were dotted and that the legislature is appropriately protected."
The list of signees includes dozens of employees with the Department of General Services, several with the California Highway Patrol, Cal Fire, and legislative staff. The chief administrative officer of the Assembly Lia Lopez, and her counterpart in the State Senate, Erika Contreras, also signed them.
Two employees of the governor's office also signed the NDA, including the deputy director of operations, Sabrina Joyce and the director of operations, Erin Suhr.
The rest of the list includes hundreds of workers with Turner Construction Company, ACCO Engineering, Concrete North, Geocon Consultants, and various other vendors working on the construction of the project.
You can see the full list for yourself here.
In a statement, Nick Miller, a spokesman for Assembly Speaker Robert Rivas said, "The previous Speaker was in charge when these Capitol Annex decisions and non-disclosure agreements were approved.”
State Senate President Pro Tem Mike McGuire, who is a member of the Joint Rules Committee, did not comment.
When reached for comment, Gov. Gavin Newsom's office referred KCRA 3 to the leaders of the project, the Joint Rules Committee.
Joint Rules did not respond to several questions about the NDAs, including if it has sought legal damages against anyone yet for violating the terms.
When asked who is ultimately responsible for the use of NDAs on the project, multiple sources pointed to former Assemblyman Ken Cooley.
Cooley was the face of the project as the Joint Rules Chairman from 2017 to 2022. Cooley, who represented a part of Sacramento County, lost his 2022 election to Republican Josh Hoover. Cooley's critics have pointed to the handling and swelling of the annex project cost estimate as reasons behind voter refusal to reelect him.
Cooley did not respond to repeated requests for comment for this story.
Multiple lawmakers told KCRA 3 Cooley was at an event last month where lawmakers signed a piece of the eventual new capitol annex.
"He has a strong passion for this project," Hoover said, who posted a photo on X from the event that shows Cooley in the background. "He was there to answer questions with legislators, he talked about different aspects of the project, design features and why they made certain decisions."
Project leaders have told KCRA 3 the Legislature has hired an "owner's representative" to oversee and manage day-to-day aspects of the project, including help with decision-making.
Joint Rules has not yet responded to a Legislative Open Records Request asking who it is and other information related to the role. Officials have also not clarified what role Cooley plays in the project now.
"It is absolutely not normal, it's unheard of" said Dick Cowan in response to the use of NDAs. Cowan is the former chairman of the Historical State Capitol Commission, who resigned from his post as planning for the project first began. Cowan is part of a group that has sued the Legislature and state administration over the project's alleged environmental law violations.
Cowan told KCRA 3 the use of NDAs partly pushed the group to sue three years ago, because information about the project was nearly impossible to access. Cowan noted other projects that are underway and currently overseen by Gov. Newsom's administration, have public information readily available. That includes the Jesse Unruh state office building, which is across the street from the state capitol.
"One could say had the interested public been able to call a designer or builder or professional facilities person and ask these routine questions about the project, the lawsuits may not have been required," Cowan said. "When answers weren't forthcoming, the lawsuits allowed us to ask the courts, are the parties playing fair?"
Three years into the lawsuit filed by the group called Save Our Capitol, the Legislature voted to exempt itself from the state's environmental laws in June.
In a recent appellate court hearing in Sacramento, Save Our Capitol challenged two issues regarding the project. That includes an appeal a lower court's decision that ruled a recent environmental impact report on the project met the state's standards. The other revolves around the process lawmakers took to exempt the project from state environmental laws, by quickly passing the legislation in a budget trailer bill. Budget trailer bills typically do not get the various hearings and time for public review as typical legislation, and it allows proposed laws to go into effect immediately. The group argues current state law does not allow changes to the state capitol through a budget trailer bill.
When approached outside of the appellate court building in Sacramento, the Department of Justice Attorneys representing the project refused to reiterate the argument they had just made in front of justices on behalf of the Legislature.
When asked if they couldn't speak on camera because they had signed NDAs, Deborah Wordham, an attorney with the California Department of Justice told KCRA 3, "You're reading way too much into it. We are counsel of record, you can speak with the Joint Rules Committee."
