California Supreme Court Clears the Cobwebs
California Public Records Act (CPRA) gave the public access to government documents and records in 1968, "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." (§ 6250.) But it was originally designed to deal with paper documents. Today, much of governments activities take place in the digital realm, and may take place outside the office, often using private e-mail and other digital means.
Here, we hold that when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act.”
So when Ted Smith requested disclosure of 32 categories of public records from the City of San Jose, and other agencies, and officials in June 2009, he was disappointed when e-mails and text messages "sent or received on private electronic devices used by" and "on the personal accounts" of the mayor, city council members, and their staffs were not disclosed. He sued the City, arguing that CPRA defines "public records" as all communications about official business, regardless of how they are created, communicated, or stored. The City maintained that such messages "are not public records because they are not within the public entity's custody or control." The trial court agreed with Smith and ordered disclosure, but on appeal the higher court stayed the disclosure.
Now, in a unanimous decision filed on March 2, 2017, the Supreme Court has reversed the Court of Appeal: "Here, we hold that when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act."
Reacting to the decision, Angela Calvillo, Clerk of the Board of Supervisors responded that "This is nothing new for the Members of the Board. Since the lower courts decision, I personally brief the Members, (including the new Members and their Legislative Staff) and I can tell you they understand and operate as city employees if they use their personal account to communicate official business the content may be subject to disclosure…"
Board Clerk Calvillo is to be commended, but City Attorney Dennis Herrera, who provides guidance for the other 40,000 full and part-time City employees has been less forthcoming. Sunshine activists have long been disturbed by Herrera's obstinate blocking of public access to records. John Coté, Communications Director for his offices, responded meekly, "We are aware of this opinion and we're reviewing it. We will be communicating to city employees about it in an appropriate manner."
A particular bone of contention between the City Attorney's Office and the Sunshine Ordinance Task Force has been the City's contention that older e-mails stored off-site are too burdensome to access, and therefore need not be disclosed. Herrera's Good Government Guide opines, "… departments need not search their back-up electronic files in response to a public records request. Back-up files serve the limited purpose of providing a means of recovery in cases of disaster, departmental system failure, or unauthorized deletion. They are not available for departmental use except in these limited situations. Electronic records such as e-mails that an employee has properly deleted under the department's records retention and destruction policy but that remain in back-up files are analogous to paper records that the department has lawfully discarded in the trash but may be found in a City-owned dumpster. Neither the Public Records Act nor the Sunshine Ordinance requires the City to search the trash for such records, whether paper or electronic."
David Snyder, Executive Director of the First Amendment Coalition agreed, "Smith v. City of San Jose helps clarify the definition of "owned, used or retained" under the CPRA. Specifically, it applies that definition to e-mails sent via personal (i.e., nongovernmental) e-mail, concluding that such records are indeed "owned, used or retained" by the government agency, even though the records are no longer literally within government possession, in the sense that they are not held on government-owned servers.
"Analogizing to the physical world, it stands to reason that if records are removed from city offices and taken, for example, to the private home of a city employee or to an off-site storage facility, they would and should still be considered to be "owned, used or retained" by the city and, thus, subject to the disclosure requirements of the CPRA."
It would be "appropriate" now for Herrera to revisit his "Good Government" model.
Sunshine: Uphill Battle to Keep 'em Honest
San Francisco leads the nation with its revolutionary open government laws. Its unique people's court—the Sunshine Task Force—is an approach to resolving problems ordinary folks have with a burgeoning bureaucracy—access to documents and meetings. It all looks good on paper, but the reality has been shown, after almost 20 years, to have too many loopholes that officials have routinely exploited.
Activists aim to get a package of sunshine-law amendments on the local ballot that would, among other things, increase the independence and effectiveness of the city's 11-member open-government watchdog commission and lessen the ability of public officials to sabotage the commission's work as happened in 2012.
|Retiring Chair Allyson Washburn accepts an award from Dr. Derek Kerr, San Franciscans for Sunshine, at her last meeting with the Sunshine Task Force.|
|As the nominee from the League of Women Voters, she remained on the Task Force as a "holdover" when the Board of Supervisors refused to reappoint her. This happened because the League stood steadfastly behind her, refusing to nominate anyone else.|
|She currently chairs the effort to adopt the proposed amendments proposed by San Franciscans for Sunshine.
The grassroots group San Franciscans for Sunshine has drafted a series of revisions to the city's open-meeting and public-records laws known collectively as the Sunshine Ordinance (Administrative Code Chapter 67) and hopes to put the measure to the voters by collecting upward of 9,500 valid signatures..
Besides giving the commission more power and autonomy, the initiative would bring the Sunshine Ordinance into the 21st century on the technology side, mandating live televising or videostreaming of all policy-body meetings in City Hall and tightening requirements for retention, storage and accessibility of electronic records. The initiative would also prescribe a $500 to $5,000 fine for willful violations of the ordinance.
The measure's text appears on the home page of the SFS website, SanFranciscansForSunshine.org. It is the product of more than a decade of work by the commission, called the Sunshine Ordinance Task Force, drawing on the body's own experiences and input from dozens of citizens.
The SFS steering committee (disclosure: this writer is on it) comprises current and former task force members and other sunshine activists, most notably Bruce B. Brugmann, the retired Bay Guardian editor who shepherded the original ordinance through the Board of Supervisors in 1993 and helped lead a successful initiative campaign to strengthen it in 1999.
But remaining loopholes in the law and persistent refusal of entities and officials who can enforce it to do so signal people in City Hall that they can violate it without consequence, sunshine advocates say.
… task force members who vote to find willful violations of the ordinance risk political retaliation. In September 2011, the task force found unanimously that Board of Supervisors President David Chiu and Supervisors Eric Mar, Malia Cohen and Scott Wiener had violated local and state open-meeting laws by ramming through a Parkmerced redevelopment contract with 14 pages of amendments that Chiu had slipped in at the last minute.”
On top of that, task force members who vote to find willful violations of the ordinance risk political retaliation. In September 2011, the task force found unanimously that Board of Supervisors President David Chiu and Supervisors Eric Mar, Malia Cohen and Scott Wiener had violated local and state open-meeting laws by ramming through a Parkmerced redevelopment contract with 14 pages of amendments that Chiu had slipped in at the last minute.
The following spring, Chiu, Wiener and Supervisor Mark Farrell orchestrated a purge of the task force resulting in appointments of five neophytes and a former member, David Pilpel, well known for trying to curry favor among elected city officials and department heads.
|Sunshine Task Force prior to the Board of Supervisors' purge: Suzanne Manneh, Allyson Washburn, Vice Chair Bruce Wolfe with guide dog Lady (below), Jay Costa, Richard Knee, Jerry Threet (City Atty), Chair Hope Johnson and Administrator Andrea Ausberry
At the same time, the board failed to appoint anyone with a physical handicap – even though incumbent Bruce Wolfe met that criterion – prompting a deputy city attorney to caution that in light of a requirement in the ordinance that the task force at all times have a physically handicapped member, any actions taken without such a person seated could pose legal risks to the task force and its individual members. The task force had to take a five-month hiatus, exacerbating an already thick backlog of complaint cases.
In 2014, the board's Rules Committee, which conducts initial vetting of board and commission applicants, recommended reappointment of Pilpel and two other Anglos to the task force and then deferred action on other appointments, saying there wasn't enough racial/ethnic diversity among the remaining applicants.
Subsequent scathing commentaries in the Westside Observer and the San Francisco Chronicle embarrassed the committee into ending its stall.
The appointments process this year went relatively smoothly, but unless the system is changed, there is no safeguard against recurrence of the 2012 outrage. SFS's initiative proposes a remedy: expanding to nine from four the number of task force members who must be nominated by outside organizations and requiring the board to appoint all nominees absent clear and convincing evidence that specific individuals are not qualified to serve on the body, which would be renamed the Sunshine Commission.
Also, commissioners' terms would be staggered beginning in 2019. Currently, most of the terms start and end in even-numbered years. The length of all terms would remain at two years.
Equally important, the initiative would empower the commission to appoint its own executive director/legal counsel and a clerk. Currently, legal and clerical aides are assigned by the city attorney and the Board of Supervisors clerk, respectively, and that has created problems.
Originally, the deputy city attorney assigned to the task force attended all meetings of the task force and its committees and stayed for their duration. Purportedly due to budget constraints, the deputy CA has for about the last decade been attending meetings of the full task force only and must leave at 9 p.m. (meetings usually start at 4 p.m.).
The initiative would give the commission more say in the hours and duties of its staff personnel. It would also enable the commission to exercise quality control in terms of its aides' competence. The administrator now assigned to the task force, Victor Young, is highly regarded by task force members but a number of them give low marks to the currently assigned deputy CA. And a number of Young's predecessors were clearly in over their heads.
Currently the Sunshine Ordinance Task Force includes an attorney and a journalist nominated by the Society of Professional Journalists, a journalist nominated by New America Media and a member of the public nominated by the League of Women Voters. The other seven members are directly appointed by the Board of Supervisors.
A ballot initiative sponsored by San Franciscans for Sunshine would rename the body the Sunshine Commission; would, beginning in 2018, increase to nine the number of members nominated by outside public-interest groups; and would mandate that the board appoint all nominees absent clear and convincing evidence that specific nominees are unqualified to serve on the commission. The nominating roles:
Society of Professional Journalist NorCal would continue nominating an attorney and a journalist, and would take over New America Media's authority to nominate a journalist from a racial/ethnic minority or L/G/B/T/Q community. Both organizations are requesting this change.
• The First Amendment Coalition would nominate an attorney.
• The Media Alliance and the Pacific Media Workers Guild would each nominate a journalist.
• The League of Women Voters of San Francisco would continue nominating a member of the public.
• The Freedom of the Press Foundation would nominate a member of the public with information-technology expertise.
• The Coalition for San Francisco Neighborhoods would nominate a member of the public.
• The Board of Supervisors would directly appoint two members of the public, at least one of whom must have a physical disability.
The measure has support from the League of Women Voters of San Francisco; the First Amendment Coalition, a San Rafael-based free-speech and sunshine advocacy organization; and the Pacific Media Workers Guild (NewsGuild-CWA Local 39521). SFS is seeking additional endorsements.
Richard Knee is a freelance journalist who served on the Sunshine Ordinance Task Force from 2002-14.
The Sunshine Ordinance Is Broken
The Board of Supervisors cannot be trusted to oversee their own transparency
Sixteen years ago voters adopted “the strongest local open government laws in the state”— the Sunshine Ordinance. But bit by bit the Board of Supervisors, the City Attorney and the Ethics Commission have underfunded, understaffed and dismantled the Task Force that is charged with enforcing the voters’ mandate.
The moment of truth came in 2012 regarding the approval of the Parkmerced project. It was the first time a complaint was brought against the Board of Supervisors’ President and several members. Whether you agree with the Task Force’s decision,finding the Supervisors in violation, the Board’s retaliation was wrong—refusing to reappoint any of the members who voted their conscience. They were ‘purged’ from the Task Force and ‘friendly’ advocates were appointed. Even the required disability advocate was not reappointed, making it impossible to convene the Task Force for over five months and exacerbating an already severe backlog of issues before the body. Oddly enough the only noticeable qualification seemed to be membership in the Alice B. Toklas Democratic Club, or a relationship with Supervisor Scott Wiener.
This ‘purge’ behavior—subverting the voters’ will—needs to be fixed. The Supervisors are not above the laws to which all other boards and commissions are held.
Amendments to the Ordinance must be on the ballot this November when the electorate is most likely to pass them. The Westside Observer will continue to cover open government. More: westsideobserver.com/news/sunshine.html
New Complaint Procedures Defeat Sunshine
The City’s official check on open government compliance, the Sunshine Ordinance Task Force, has been considering changes to their “Public Complaint Procedure.” The group’s Chair, Allyson Washburn, said at the last meeting that she wants final decisions about the complaint procedure at the October 7 meeting.
It has never been easy for a member of the public to bring, and win, a complaint at the SOTF, but even more so after Supervisor Scott Wiener made sure, several years ago, that not a single member of an excellent, but independent, Task Force was re-appointed after he and several other supervisors were found by the then-existing SOTF to be in violation of the law in their handling of Parkmerced-related legislation.
It has never been easy for a member of the public to bring, and win, a complaint at the SOTF, but even more so after Supervisor Scott Wiener made sure, several years ago, that not a single member of an excellent, but independent, Task Force was re-appointed…”
After a period of many months during which the SOTF was unable to meet because the Supervisors had also refused to reappoint the only handicapped member, and the law requires that there be at all times such a member present, new members were appointed. Unfortunately, the SOTF has not dealt publicly with how to catch up on the resultant backlog of cases by, for example, discussing the problem at a meeting. Or by scheduling additional meetings until caught up, say meeting twice a month instead of only once a month. Or by stricter, prompter, and clearer enforcement of the law, so that violators are not encouraged to repeat by enjoying endless delays on hearings, multiple hearings at various subcommittees, and unclear Orders of Determination that fail to spell out precisely what action(s) caused what violations. Or by insisting that the level of support from other city departments be as is called for in the Sunshine Ordinance: a “full-time staff person” from the Clerk of the Board of Supervisors and “an attorney from within the City Attorney’s Office … [who] “shall serve solely as a legal advisor and advocate to the Task Force.” Or by referring all failures to comply, with SOTF orders to comply with the law, to the “district attorney or the attorney general” within 5 days (Sunshine Sec. 67.21(e)).
No, it appears the SOTF’s solution to the backlog will be to squash complaints via proposed changes to its Complaint Procedure, by discouraging, preventing, and even tossing out complaints from the public that come in over the transom. These proposed changes would throw major obstacles in the path of anyone complaining about violations of the law, and give a great deal of powerful new discretionary actions to an already over-worked and under-staffed “staff” rather than the Task Force or even its chair.
The new rules would allow the SOTF “staff” not to accept complaints at all, unless the staff determines that certain minimum criteria have been met. The complaint would be reviewed, by staff, to determine whether it is under the jurisdiction of the SOTF, a function done previously by the full SOTF. And among the worst proposed changes, “With approval of the Chair of the SOTF, the [staff would] ensure that complaints are not duplicative of previous complaints or subject matter.” Would repeat City violators get off scot-free? Almost any complaint could be considered “duplicative” of some other complaint filed in its 20-year history. And allowing “similar” complaints to be “combined” could lead to enormous confusion.
Citizen activist and retired attorney Allen Grossman1 sent the Task Force a list of problems with the proposed changes.
The SOTF should shine a light on, and help fix, problems with open government, taking more seriously its role as guardian of Sunshine for the public and those who come before it hoping for a measure of justice.
Peter Warfield, Director, Library Users Assn.
The Sunshine Vendetta
Efforts by certain city legislators to keep the city's Sunshine Ordinance Task Force as ineffective an open-government watchdog as possible continue.
The Board of Supervisors is stalling on eight appointments to the 11-member panel, and of the three they have picked, all incumbents, two have often angered sunshine advocates by siding with city agencies or officials accused by members of the public of open-meeting or public-records violations.
What's in play is retaliation for a finding by the task force in September 2011 that board President David Chiu and Supervisors Scott Wiener, Malia Cohen and Eric Mar had violated local and state open-meeting laws by ramming through a Parkmerced redevelopment contract with 14 pages of amendments that Chiu had slipped in at the last minute.
…the mayor and the Board of Supervisors … made sure that the panel gets minimal funding, staffing and resources, and the board has refused to fill two long-standing vacancies, making it difficult at times to muster a quorum…”
Launching a smear campaign aimed ultimately at purging the eight task force members who had unanimously voted to find the violation, Wiener surreptitiously asked the Budget and Legislative Analyst to survey all city departments on how much it cost to comply with sunshine laws, and how many hours their personnel spent at task force hearings on sunshine-related complaints.
Wiener and his allies hoped the B&L analyst's survey would cast the task force in a bad light. It didn't.
When the board was considering task force appointments in May 2012, Wiener mislabeled the survey as an "audit," said it had shown the task force's operation as inefficient, and accused the task force of saying, "How dare you? How dare you expose us to sunshine?"
First, an audit is an outsider's thorough look at an entity's operations and its net cost or benefit during a given time span, including funding sources and amounts, and expenditure amounts and uses. No such scrutiny of the task force has taken place.
Second, neither the task force nor any of its members said, "How dare you?" The task force did, however, send a letter objecting to Wiener's attempt to keep the survey secret while it was in progress, and as to the survey's content, which included questions that task force members thought were vague or vacuous.
Third and perhaps most important, the survey revealed that the task force's operation and the 1993 ordinance that created it (Administrative Code Sections 67.1 et sequitur) result in very small out-of-pocket costs and, in fact, produce certain significant, if difficult-to-quantify, benefits. Some key findings:
• Compliance with state and local sunshine laws carried "identified" costs of about $4.27 million to the city in calendar 2011, of which nearly $3.28 million stemmed from adhering to state laws. So the Sunshine Ordinance added $997,676 to the cost.
Since San Francisco's population was then a bit over 805,000, the latter cost amount worked out to about $1.24 per resident per year.
What's more, $4.27 million was just above 0.6 percent of the city's $6.83 billion budget for fiscal 2011-12.
• "[I]t is likely that without the (task force), some portion of complaints would be directed to other public bodies, such as the courts, which would in turn incur costs."
In other words, the task force has saved the city hundreds of thousands of dollars in court expenses. And there's no telling how many millions of dollars the local and state sunshine laws have saved the city by enabling the exposure or prevention of backroom deals.
Whatever inefficiencies exist with the task force can be laid at the feet of the mayor and the Board of Supervisors. They've made sure that the panel gets minimal funding, staffing and resources, and the board has refused to fill two long-standing vacancies, making it difficult at times to muster a quorum since task force members are volunteers with outside responsibilities such as family and work.
Two years ago, the board's failure to appoint a physically-disabled member forced the task force to take a five-month hiatus, exacerbating a backlog of complaints filed by members of the public.
Because of the difficulty in mustering a quorum, the task force has been unable to hold as many special meetings as its members would like in order to reduce the complaints backlog.
Even worse are the resulting delays to complainants trying to obtain disclosable public records.
The process of appointing task force members for the 2014-16 term looks farcical. And ominous.
At the May 15 meeting of the board's Rules Committee, which conducts initial vetting of applicants for city policy bodies, the two supervisors present, chair Norman Yee and Katy Tang, (David Campos was absent) complained that there wasn't enough racial/ethnic diversity among the 13 candidates.
That didn't deter them from recommending the reappointments of Todd David, Louise Fischer and David Pilpel, all Anglos.
Before the full board five days later Yee complained again, this time that lack of a regular schedule and frequent switching of meeting dates were making attendance difficult for task force members.
Either Yee had no clue of the facts or he was lying. The task force normally meets the first Wednesday of each month and its subcommittees usually meet during the third week of the month. Meeting postponements and cancellations are the result, not the cause, of difficulties in mustering a quorum, due to the vacancies – which now number three.
In gushing over David, Fischer and Pilpel at the board's May 20 meeting, Wiener offered no evidence or detail of their alleged accomplishments and ignored the fact that David has missed six task force meetings since March 2013, including those of last January, February and April. Until the board fills the other seats, the five remaining incumbents – Chris Hyland, Bruce Oka, David Sims, Allyson Washburn and yours truly – stay on as "holdover" members.
How all this plays out and how long it will take are anybody's guess. A key determinant is whether certain supervisors will abandon their vendetta. The Rules Committee is tentatively scheduled on June 5 to resume considering task force applicants.
Now, about that audit: good idea. Wiener or any other official would serve the city well by initiating it.
Richard Knee has served on the Sunshine Ordinance Task Force since July 2002 and is not seeking reappointment. He is a freelance journalist based in San Francisco.
Court to Ethics' St. Croix: Cough Up the Records
In a stunning defeat for the SF Ethics Department's Director John St. Croix, the longest holdout against the City's 14-year old voter-approved Sunshine Ordinance, Judge Ernest Goldsmith ordered the disclosure of 24 documents withheld from Allen Grossman, a long-time activist for open government, who argued that Sunshine Ordinance Sec. 67.24 requires disclosure of city attorney's advice regarding public-records.
St. Croix held that his communications with the City Attorney are protected from public scrutiny under attorney-client confidentiality privilege provisions "on the advice of the City Attorney's Office." St. Croix has long held that Ethics is exempt from most open government laws that are routinely observed by other City offices, including the California Public Records Act and the Sunshine Ordinance.
St. Croix has long held that Ethics is exempt from most open government laws that are routinely observed by other City offices, including the California Public Records Act and the Sunshine Ordinance."
The court ruled that Mr. Grossman, not Ethics, was right on the law, and we acknowledge his heroic stand against an illegal evasion of the public's right to know.
This is the second time Mr. Grossman has prevailed in court against St. Croix; perhaps this latest defeat will serve as his "teachable moment." We aren't holding our breath.
Editor's Note: Allen Grossman's attorney, Michael Ng has just been advised by the City Attorney that the St. Croix intends to appeal the decision. Atta boy -- a captain should always go down with his ship.
Serving Two Masters
It’s only fair that the Board of Supervisors admit the obvious: open government laws do not apply to the Board of Supervisors. It is exempt from Sunshine laws because it appoints the board that enforces them.
As the new, unwitting appointees to the Sunshine Ordinance Task Force (SOTF) are sworn in, they are legally bound to enforce the laws they oversee. Little do they know that they will also serve a conflicting set of unwritten laws imposed by the Board of Supervisors.
The environment of impunity at City Hall, the result of the Ethics Commission’s refusal to pursue Sunshine violations, pales in comparison to the hostile take-over last month of the SOTF by the Supervisors. The removal of Bruce Wolfe, Jay Costa and Hanley Chan, three seasoned veterans of the struggle to bring full disclosure to City Hall, and the refusal to reappoint Allyson Washburn, the League of Women Voters’ nominee, and Suzanne Manneh, the New American Media’s nominee — both highly qualified and knowledgeable members who are willing to serve — has effectively killed the voter-mandated Task Force.
Who knew there were unwritten laws for Sunshine? Doesn't the public have a right to know what they are? We've long known that City Hall's "support" of Sunshine is mere lip service, but so far there has not been a coordinated effort to subvert the law — at least not to our knowledge. "
Who knew there were unwritten laws for Sunshine? Doesn’t the public have a right to know what they are? We’ve long known that City Hall’s “support” of Sunshine is mere lip service, but so far there has not been a coordinated effort to subvert the law — at least not to our knowledge.
The Task Force is already months behind in its hearings and out of compliance with its mandate through no fault of its own. The Board of Supervisors created this mess and must fix it immediately.
What Price Sunshine?
Supervisor Scott Weiner’s request to determine the “costs of compliance with Sunshine” is a fool’s errand. Especially the way he’s going about it. Wiener ordered a “Survey of the Costs of Compliance with the City Sunshine Ordinance.” All City departments received the 5-page “Survey” with directions to return it to the Board’s Budget Analyst by February 3, 2012.
Quantifying expenses has been discussed exhaustively at meetings of the Sunshine Ordinance Task Force for many years, yet Supervisor Weiner did not even contact the Task Force to design a useful survey.”
It’s apparent that whoever designed the survey has little familiarity with the Sunshine Ordinance, a measure passed by the voters in 1999, and that’s not uncommon at City Hall. Few City workers know which requests are specifically required by “Sunshine” and which are required by the umbrella legislation, the California Public Records Act (CPRA). Most requests for information are required by CPRA, while the Sunshine Ordinance tweaks the response times, stops bureaucratic recalcitrance evoked “in the public interest,” a favorite abuse of Willie Brown’s administration, and provides a hearing mechanism for failure to respond.
Quantifying expenses has been discussed exhaustively at meetings of the Sunshine Ordinance Task Force for many years, yet Supervisor Weiner did not even contact the Task Force to design a useful survey. A valid cost analysis could be useful—not that we would ever want to go back to the bad old days.
So now legislative analysts are going through hundreds of pages of departmental responses to a faulty survey. From what we’ve seen, not a single department is clear on the concept. All requests are lumped together, whether a response is mandated by State law (CPRA) or City law (Sunshine). If Weiner wanted to find the cost of open government, his order should have spelled it out. CPRA costs should not be accrued to Sunshine. And we still wonder what purpose this expensive survey serves?
We would hope that City Budget Analyst Harvey Rose has a little round file at the end of his desk and that he files this waste of time and resources accordingly.
Parkmerced Agreement Illegally Excluded Public
Lurking in the darkest corners of San Francisco's Parkmerced Development Agreement is the question of enforceability of the agreement's rent control provision. The elusive answer remains shadowed in odd mystery, and the Board of Supervisors has done little to shed much needed light on the controversial issue.
Can the City require replacement of existing rent controlled housing scheduled for demolition?
California's Costa-Hawkins Act prevents local regulations from requiring rent control on new construction. Rent control on the new apartments might make the project economically impractical.
But the City Attorney's Office position is that rent control is part of the contract, and there is no reason to believe the contract will be violated or challenged. Despite that assurance, the Board of Supervisors spent several hours discussing the enforceability question during its March 29, 2011 hearing on appeal of the Planning Commission's 4-3 vote approval of the environmental impact report.
The Board ultimately chose to continue their decision on the appeal to May 24th to allow time to consider the oddly mysterious legal standing of the City to enforce such a condition.
Meanwhile, the Parkmerced Development Agreement itself was assigned to the Board's Land Use Committee for May 16, 2011. Committee Chair Eric Mar opened the meeting by explaining that, because the item had been improperly noticed, no action could be taken—the item would be continued to the committee's May 24th hearing.
Supervisor Sean Elsbernd introduced "technical amendments" to the agreement. Discussion ensued, including enforceability of the rent control provision and Chair Mar's concern that energy consumption might need revision. Members of the public were provided copies of the revised agreement and were told it would be available online later that day.
The newly introduced amendments were then approved by the committee, notwithstanding Chair Mar's repeated declaration that no action would be taken on the agreement until May 24th.
One week later, on May 24th, two separate meetings were scheduled that involved approval of the Parkmerced project, one was the Land Use Committee's continued discussion at 9 am and the other was the regularly scheduled meeting of the full Board of Supervisors later that same day at 2 pm. The Land Use Committee was to make a referral on the agreement to the Board. The Board was then scheduled to vote on approval of both the Parkmerced environmental impact report and the Development Agreement itself.
At the May 24th Land Use Committee, a brief presentation of the amendments previously introduced at the May 16th hearing was provided. Then Supervisor David Chiu introduced fourteen pages of new amendments specifically directed at tenants' rights—the murky subject at issue for two months. These new amendments were not mentioned at the beginning of the hearing or at the meeting one week prior.
Supervisor Chiu said he and city attorney Charles Sullivan had stayed awake all night working on the amendments and Supervisor Cohen, a member of the committee, admitted she had only had about one hour to review the newly introduced amendments. Chair Mar expressed concern with a lack of transparency and that approval of the amendments would constitute a violation of Sunshine Ordinance public comment requirements.
The city attorney told the committee the agenda description of the Development Agreement was broad enough to encompass Chiu's amendments. The amendments were approved, leaving only a few hours for the public to review and comment on amendments to a contract provision the Board had allowed itself two months to review. Several hours later on the same day, the Development Agreement was approved by the full Board.
On June 20, 2011, an anonymous complaint was filed with the Sunshine Ordinance Task Force against Supervisor Mar for alleged violations of the Sunshine Ordinance.
The Sunshine Ordinance Task Force concluded that the last minute introduction of fourteen pages of amendments did not provide adequate time for members of the public to review and comment on them as required under Sunshine Ordinance Sections 67.15(a) and (b), and were substantive changes to the Development Agreement for which the agenda description for the meeting was not adequate under Sunshine Ordinance Section 67.7(b).
Supervisors Eric Mar, David Chiu, Scott Wiener, and Malia Cohen were found in violation of those sections of the ordinance. Each supervisor is required to adhere to state and local open government laws, and their acknowledgement of their own lack of review of important and controversial amendments was minimal at best.
The Parkmerced Development Agreement had been deferred two additional months for review and there was no reason that another week to allow transparency in the process would damage the agreement. This project is scheduled to take up to 30 years to complete and many residents will be displaced from their homes in the process.
Hope Johnson is Chair of the San Francisco Sunshine Ordinance Task Force.
City the Big Winner As Sunshine Proves Its Value
Kimo Crossman and Allen Grossman are the kind of citizens we admire. These
two advocates for open government have conducted their own war on backroom
deals that has taken years out of their lives—so far at their own expense.
They’ve been vilified by Ken Garcia in the Examiner and in articles in
the Chronicle as well as the SF Weekly for “abusing the system” by requesting
that the City turn over public information in the time required by law
and in the form they requested. They were called “nuisance,” “vexing gadfly.”
This time Kimo Crossman’s bird-dogging led to a savings of $3.5 million in transfer taxes from real estate interests of Morgan Stanley. This kind of information should be rewarded under the City’s 2006 Whistleblower Act, but Assessor Phil Ting has not been willing to part with the reward. This prompted Crossman to hire high-powered attorney Steve Gruel, known as a no-holds-barred courtroom brawler, to get Crossman what is coming to him. “This is a complete win-win situation. The City gains with a huge tax payment and Mr. Crossman’s hard work earns him an award,” said Attorney Gruel.
While Ting shared information willingly, some bureaucrats decide not to comply with Sunshine and the only recourse the public has is a potentially expensive legal battle. Since the passage of Prop G in 1999, no one has been willing to risk a trial. That is, until Allen Grossman sued the Ethics Commission and its Executive Director, John St. Croix. Sunshine won a major victory in January as St. Croix settled out of court on charges of suppressing public records without justification for his “summary dismissal of every violation by City officials, including the Mayor and the City Attorney, of open government laws referred to the Ethics Commission by the Sunshine Ordinance Task Force, a total of 14 such referrals over the past five years.”
The Sunshine Task Force depends on the Ethics Commission to enforce open government laws and can only make recommendations to the Director, an effort that has been severely crippled by St. Croix’s refusal to pursue a single violation or to make public the documents and records that would indicate his justification for the denial. St. Croix’s failure to comply with the original records requests cost the City (and taxpayers) $24,900 in fees to Grossman’s attorneys. Grossman also has access to the records. We hope he will share them.
Crossman and Grossman have spared neither time nor expense in pursuit of Sunshine scofflaws, and have been unfairly maligned in the press. We believe the City benifits from increased public information, Westside readers want to know, and so do we.
Herrera Should Get Serious About Sunshine
Our public-records laws are broken. When we need information from the City, it’s far from certain that we will get it. Many citizens are learning the hard way that the law may be on their side, but enforcement has been left to the good faith efforts of the Ethics Commission. The commission, relying on advice from the City Attorney, has dismissed every alleged violation since San Francisco voters passed Prop G (Sunshine) in 1999 by a 16 point margin. In truth, the enforcement of the law is based on decisions made behind the City Attorney’s closed doors.
No Department has more influence on the level of city entities’ compliance
with open government laws than the City Attorney’s Office,
and since we were invited to meet with City Attorney Herrera
(see “Guess Who’s Not Running for Mayor” on this page) we
decided to ask a few questions — especially after Herrera’s comment
about his department’s involvement in everything City Hall,
“...you name it—we’re involved in it.”
Our question was, what was the City Attorney going to do about the sad state of open government in the City with what some consider the most powerful sunshine laws on the books? Herrera’s response was typical political banter — he loves sunshine and provides his calendars, etc. This may or may not be true, but the ultimate responsibility for compliance rests on his shoulders. In fact, the City Attorney’s Office has itself been the subject of numerous complaints to the Sunshine Ordinance Task Force, the 11 member body responsible for monitoring open-government laws. And the task force has upheld many of those complaints as violations of the law.
City voters spoke clearly in 1999, despite the opposition of then-City Attorney Louise Renne, who publicly opposed the stronger laws. Herrera, Renne’s protégé, appears to have defeated the laws behind the scenes, so bureaucrats can ignore the laws with impunity. (Please read the Task Force Report for 2008 on their website: sfgov.org/sunshine).
The task force is empowered to interpret the laws and recommend enforcement, not the City Attorney. The taxpayers pay to maintain that body; but day to day, City entities receiving public records requests must rely on the City Attorney’s advice to determine whether a given piece of information must be disclosed. In the eyes of the law, seeking such advice constitutes a good-faith effort to comply with the sunshine laws.
The problem is that the City Attorney at times gives advice that seems to run counter to the task force’s interpretations, and there is no recourse, short of a lawsuit, without cooperation from the City Attorney. We encourage Mr. Herrera to step up to the plate.