Public Records and a Side of Fries

Sandbagging a records request is a common dodge

by Sullivan

• • • • • • • • • • • • May 2023 • • • • • • • • • • • • 

H Have you ever felt like you have walked into a Monty Python or Saturday Night Live skit? You walk into a San Francisco government department to request a record, and — they hand you an ad for pet insurance. It could happen to you, and the Sunshine Ordinance Task Force (SOTF) is totally fine with this.

This is the second article in this get your popcorn series. The first is “Is the Sunshine Ordinance Task Force Ethically Challenged?”

Though each story can also be standalone. When we last left, the Sunshine Ordinance Task Force was tying itself in a “conflict of interest” knot to avoid making anything transparent and anyone accountable. Today, we flashback to the beginning of this story. It is so funny, it is sad.

I made what I thought was a simple “Immediate Disclosure Request” request to the San Francisco Department of Public Works for records on any person who had made an inquiry about starting a Green Benefit District (GBD) over two years, later reduced to 1 year. I also asked about any activities that Public Works had on GBD during the same period. The period was outside any of the prior requests I had made about GBDs. I was following up. I expected the request would produce zero - too very few records because I saw no public activity. I used an “Immediate Disclosure Request” because this section of the Sunshine Ordinance emphasizes the word “responsive” as in “shall produce any and all responsive public records” (AC §Sec. 67.25 (d))

That wording is lacking in the regular public record request section of the Sunshine Ordinance.

So just so you know how crazy this story is going to get, on the people inquiring about GBDs, I got only four responsive records (two were copies of the other two records) of one person asking about GBDs out of 1886 records that had nothing to do with GBDs including commercial advertisements. I got these four records a little over a year after my original record request. On the “any activities that Public Works had on GBD during the same time period” part of my request, I was told there were no records seven months after my record request.

You are not required to state the reason for your record request (Sunshine Ordinance §Sec. 67.25 (c)) Green Benefit Districts are a part of the San Francisco Administrative Code that allows for the creation of property owners assessed (taxed) “Benefit Districts” by establishing semi-nonprofit government entities. In the past, the city was pushing and funding GBD formation committees in non-transparent ways through (at the time) the Director of the Department of Public Works, Mohammed Nuru. What could possibly go wrong with that equation?

The Department of Public Works “custodian of records” is Mr. David Steinberg. All Department of Public Works employees must notify him of any record request, and he wants all record requests to go through a web app called NextRequest. This is partly the city trying to control the release of information. Mr. Steinberg follows his own public record request laws, which can deviate greatly from the SF Sunshine Ordinance and the California Public Record Act (CPRA). My request to find out if the city was still funding startup GBDs could have been asked as a simple question — that is allowed by the SF Sunshine Ordinance. The SF Sunshine Ordinance provides for requests to be answered orally, as information, or as a record.

Mr. Steinberg doesn’t allow any public record request that ends in a question mark or appears to be a question, even if there are responsive public records to the request. So, with him, you can get into wording your questions as statements as if you were part of a game show. Example of a public record request by someone in the news media regarding parklets that was thrown out by Mr. Steinberg.

It was clear from the beginning that Mr. Steinberg was playing games with the request. He said he found over 13,000 responsive records to my request and that it would take him over 4 years to produce. Records are digital now, so ¯\_(ツ)_/¯  He asked me to narrow my request, which I tried multiple times. Now, it was supposedly reduced to 7,500 emails. This back-and-forth went on for a bit. I asked him to “provide in writing within seven days following receipt of a request, a statement as to the existence, quantity, form and nature of records relating to a particular subject or questions with enough specificity to enable a requester to identify records in order to make a request” Sunshine Ordinance §Sec. 67.21 (c). This was done to help him and me reduce the number of records. He claimed that given the total amount of records that would be generated each time I made a suggestion suffices for giving a statement for me to narrow my request. “You will note, however, that we have already essentially provided to you such information when we notified you of the approximate number of emails responsive to your request.” Of course, this is not enough specificity to both narrow the request as he asks, nor does it comply with the law.

Not getting any help but intentional runarounds, I decided to find out how he was doing his searches. I made another public record request for search manuals and training on how public record searches were being done.

While I was getting this search information, Mr. Steinberg produced three records outside the dates of my original request and closed my record request stating: “In this case, the records are two year’s worth of emails, and Public Works finds that the public interest served by not disclosing the documents requests clearly outweighs the public interest in disclosing the records in light of the presence and availability of staff during the COVID restrictions to adequately and efficiently produce the requested documents and files. This determination also is based on the following: the voluminous nature of the request, your unwillingness to work with us to create reasonable search parameters that would allow us to deliver records to you in a timely manner.”

This is just turning everything on its head. My unwillingness to work with him to create reasonable search parameters? There was no difference in his staffing levels during Covid restrictions. A government official deciding what the public's interest is in government transparency?

The courts have upheld that there is no volume record limit. In Getz v. County of El Dorado, the Third District Court of Appeal overturned a trial court decision and found that the County of El Dorado was required to disclose over 40,000 records in response to a request made under the California Public Records Act (“CPRA”). If there was such a limit, city agencies could just inflate numbers to not produce records that are actually responsive to a request, as Mr. Steinberg is doing here.

I asked the Sunshine Ordinance Task Force (SOTF) administrator “to assist any person in gaining access to public meetings or public information” Sunshine Ordinance §Sec. 67.31, by requiring Mr. Steinberg to reopen the public record request even though, to my knowledge, this has never worked. It did not work here. I had to file a complaint with SOTF.

SOTF heard the complaint six months later. SOTF found that “Public Works violated CPRA, §Section 6253(b) by withholding all records in their entirety and orders the Respondent to resume production of records to the Petitioner and Administrative Code (Sunshine Ordinance, §Section 67.26) for withholding all records in their entirety.”

Mr. Steinberg claimed he would only have enough time to produce 20 records a week and would take at least two years. Mr. Steinberg’s primary job is to reply to public record requests. During the hearing, SOTF Member Schmidt said Steinberg should start producing records immediately and that I could narrow my request once I started seeing the records.

Sunshine Ordinance §Sec. 67.21 (e) “If the custodian refuses or fails to comply with any such order within 5 days, the Sunshine Task Force shall notify the district attorney or the attorney general who may take whatever measures she or he deems necessary to insure compliance with the provisions of this ordinance.”

Mr. Steinberg started producing public records 30 days after the SOTF order. I again tried to narrow my request only for Mr. Steinberg to say there were 8,586 items found. In the end, Mr. Steinberg produced 1886 records, including 234 commercial ads. The four responsive records were produced at the end of the record production. At various times, he claimed it would take him two to four years to produce the records. From the time he started producing records, it took him just a little over six months. What happened to the claim of 8,586 records, now only 1886? I guess he just ran out of steam and realized he was doing all this made-up “work” to hide four responsive records.

I tried to limit some records early, like saying "no ads," but it did not matter. He continued to produce ads and other records that had no mention of Green Benefit Districts. Mr. Steinberg looks at all public records before he makes them public. It was obvious from the start that Mr. Steinberg was making up “responsive” records. I decided to let the horse run for all he wanted.

I have an example of one of the responsive records on GBDs on my website. The other three are basically copies of this email exchange.

Burying responsive records in an avalanche of irrelevant or junk records is not uncommon. It goes against the core purpose of public access laws and government transparency. The CPRA has a very strong clause in it in:

§Sec. 6253 (d) “Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.” There is no echo of this in the San Francisco Sunshine Ordinance, a weakness in the law. Luckily, the CPRA says that it is the bare minimum for compliance.

Both laws state something similar to:

Sunshine Ordinance §Sec 67.21 (k) “Release of documentary public information, whether for inspection of the original or by providing a copy, shall be governed by the California Public Records Act (Government Code §Section 6250 et seq.) in particulars not addressed by this ordinance and in accordance with the enhanced disclosure requirements provided in this ordinance.” CPRA 6253 (e).

The two laws can be read as one law, and whichever has the stronger provision should be what is enforced.

Since the voters of San Francisco adopted the Sunshine Ordinance in 1999 into the city’s administrative code, they demanded a higher standard of disclosure requirements and transparency from their city. It mandated that the Task Force would be fighting against any obstructing of public record disclosure. At least with the current iterations of SOTF, the task force rarely forces an agency to make records public within five days, as mandated by Sunshine Ordinance §Sec. 67.21 (e). Both the CPRA and San Francisco Sunshine Ordinance have a 10-day deadline for a public record request, with a 14-day extension in certain situations. You would think that SOTF would be interested in their Orders of Determination being followed after they have spent valuable time producing them. A member of the public who may be waiting months for their requested records. Still, SOTF loses interest in enforcing public record laws after their Order of Determination. City officials like Mr. Steinberg understand they can violate public access laws without repercussions.

In this public record request, Mr. Steinberg threw everything he could make up to violate the San Francisco Sunshine Ordinance and CPRA. In this article, I did not go into all the violations because it would be getting too much into the weeds, but I will touch on them in the next article. The next article is about what SOTF did when I submitted complaints about Mr. Steinberg’s obstruction and asked them to enforce the Sunshine Ordinance. It is comical but sad. They do not even seem to know their own by-laws, let alone the public access laws they are supposed to defend.

Sullivan runs the website sfneighborhoods.net committed to impowering citizens to promote transparency, democratic equality and to increase participation in their neighborhoods and government.

The Sunshine Ordinance Task Force can be contacted at sotf@sfgov.org. SOTF holds its meetings on the first Wednesday of each month. Agendas are posted at least 72 hours before at https://sfgov.org/sunshine/meetings/20

Sullivan runs the website sfneighborhoods.net/ committed to giving power to citizens to promote transparency, democratic equality and to increase participation in their neighborhoods and government.

May 2023

Is the Sunshine Ordinance Task Force Ethically Challenged?

Hold the Sunshine Task Force to the highest standard

by Sullivan

Can a City Commissioner vote on whether they have a "conflict of interest?" The Sunshine Ordinance Task Force (SOTF), whose mission is to champion and defend public access laws, has decided to test these and other questions.

Like many good movies, we will start in the middle, flash backward, and then forward. I will tell this story over a series of articles. The story has yet to play out. Two complaints are before the Ethics Commission. Bring the popcorn.

SOTF received two complaints, one against the SOTF Compliance and Amendments Committee and the other against the full SOTF. The full SOTF complaint is about how they write their agenda items. Both complaints have yet to be made public, but an agenda item refers to them both.

On SOTF's December 7, 2022 agenda:

6. A. Complaints Involving the SOTF:

Development of procedures for handling a pending complaint naming a committee of the Sunshine Ordinance Task Force as the respondent, and potential consideration of standing procedures when an SOTF committee is named as a party to a complaint. (Discussion and Action)

 B. Complaints Involving the SOTF:

Development of procedures for handling a pending complaint naming the entire Sunshine Ordinance Task Force as the respondent, and potential consideration of standing procedures when the entire SOTF is named as a party to a complaint. (Discussion and Action)

6. A “a pending complaint naming a committee of the Sunshine Ordinance Task Force as the respondent” is the SOTF Compliance and Amendments Committee.

Task Force discussion

Members referred to these two complaints during the discussion without naming the SOTF committee, the people involved, or disclosing the details of the complaints. Member Schmidt noted he did not know any details of the complaints. It was unclear whether other members had any knowledge about of them either.

So, what did SOTF members do without seeing the complaints that they were taking action on?

“Action: Moved by Chair Yankee, seconded by Member Wolfe to not hear the complaints filed against the SOTF and /or its committees due to a conflict of interests and instructing the SOTF Administrator to refer the complainants to Administrative Code 67.35 (d) for information on how they may institute proceedings for enforcement with other entities….”

The motion PASSED by the following vote:
Ayes: 6 - Yankee, Wolfe, LaHood, Stein, Hyland, Wong 
Noes: 2 - Schmidt, Padmanabhan
Absent: 1 – Hill

Note — SOTF’s action states "the complaints" which presumes the two "a pending complaints" (sic) in the agenda description.

Apparently, SOTF thinks you can determine if you have a “conflict of interest” by simply voting on whether you have a “conflict of interest” or not and doing this by not seeing the complaints you are taking action on. If that vote had failed, would it mean the people who voted that they had a "conflict of interests" magically did not have a conflict?

City and state laws outline “conflicts of interest” and what you are supposed to do if you have a “conflict of interest." It is not voting on whether you have a “conflict of interest” or not. If you have a "conflict of interest," you are supposed to state what it is and recuse yourself from any discussion or vote on the matter. The San Francisco ethics laws outline this. It is a little ironic to vote if you have a “conflict of interest” on something when the ethics laws state you are not supposed to take part in any discussion or vote on matters where you have a “conflict of interest”.

How can the six “Ayes” SOTF members know whether they have a "conflict of interest" if they have not seen the complaints and understand the issues and the people involved? It is possible that the six SOTF members who voted “Aye” read the two complaints. SOTF violated several SF Sunshine and the Brown Act laws if that is the case. Except for attorney-client privilege, SOTF must make all records on matters for discussion on an agenda item available to the public before the meeting.

Documents for discussion must be available to the public

San Francisco Sunshine Ordinance Sec 67.9 (a) “Agendas of meetings and any other documents on file with the clerk of the policy body, when intended for distribution to all, or a majority of all, of the members of a policy body in connection with a matter anticipated for discussion or consideration at a public meeting shall be made available to the public. To the extent possible, such documents shall also be made available through the policy body's Internet site. However, this disclosure need not include any material exempt from public disclosure under this ordinance.”

So, SOTF may have violated other provisions of the Sunshine Ordinance and the Brown Act by referring to specific complaints in the agenda item and discussion but not making them public. Or is there a big loophole in the law that allows a policy body to "kind of" talk about documents and matters and then take action that affects them, letting no one see what is being affected? Does SOTF care about transparency? About the intent of public access laws? Are they setting a good example?

What is a Conflict of Interest?

City and state ethics laws on “conflict of interest” can be simply categorized as financial, relationship, and personal. Having a “conflict of interest” is a situation where a public official's decisions are influenced by their personal interests that are established in law. For example, a public official with a financial interest in a decision can move something forward or block a matter. A public official could move to accept a contract or block other contracts so that it gives the contract where they have an interest in an advantage.

Both city and state ethics laws say a person must state what their conflict of interest is. When a city official or a group of city officials like SOTF members say they have a "conflict of interests" but do not state the conflicts, it leaves the door open to possibilities. There is no transparency. If you peel back the layers of the origins of the Compliance and Amendments Committee complaint, they revolve around benefit districts, city contracts with non-profits, the Department of Public Works money, and taxpayer assessments. The potential for financial or relationship ethics law violations is there. The SOTF members who voted "Aye" to a "conflict of interests" without stating it are basically saying I need to be investigated.

The “conflict of interest” stated must be defined in the laws. There is no vague or general “conflict of interest” defined in the laws. It would be problematic to allow an undefined "conflict of interest." Allowing officials to say they have a “conflict of interest” but not what it is can hide officials with actual “conflict of interest” from following ethics laws or can provide cover if they are caught. Also, it would allow officials to dodge any vote they do not want to take simply by stating they have a "conflict of interest." Many scenarios can occur when you create loopholes in procedures and laws. Loopholes make procedures meaningless and laws less enforceable or unenforceable.

There is no "conflict of interest" law just because you sit on a commission with another person who is under scrutiny.
In this vote, the most obvious violation of “conflict of interest” law is that the two Compliance and Amendments Committee members, Committee Chair Lila LaHood and Member Jennifer Wong, voted not to have SOTF hear the complaint against them. Chair LaHood was primarily responsible for conducting the meeting cited in the complaint. It is questionable if Member Wong had any obligation to intervene or violated any law. 

San Francisco Administrative Code (AC) SEC. 3.210. VOTING ON OWN CHARACTER OR CONDUCT.
   (a)   Prohibition. No officer or employee of the City and County shall knowingly vote on or attempt to influence a governmental decision involving his or her own character or conduct, or his or her appointment to any office, position, or employment.

AC Sec. 3.210 (a) is applicable here. We know they are city officers, and they voted on a government decision that prevented SOTF from hearing a complaint about their “own character or conduct." Did they know the complaint was against them? It is most likely the two of them knew that the complaint was against them because I tried to resolve some issues in the complaint with them. There were multiple exchanges of e-mails. One or both of them probably read the complaint.

Misleading Agenda 

SOTF Chair Yankee knew that the complaint was against the Compliance and Amendments Committee. As Chair, he has the power to set the agenda, the wording of agenda items, and the records attached to an agenda item. By wording an agenda item "a pending complaint naming a committee of SOTF," but intentionally failing to attach or otherwise make the complaint public, and allowing those two SOTF members to vote on what would be the action on a complaint against them, did he violate AC SEC. 3.236. AIDING AND ABETTING. “No person shall knowingly and intentionally provide assistance to or otherwise aid or abet any other person in violating any of the provisions of this Chapter."

The meeting provision language of the San Francisco Sunshine Ordinance and The Brown Act are written to the meeting body and not a person. The laws establish minimum standards for how meetings are to be conducted. Since the Chair conducts meetings, it is most likely the Chair violated the meeting provision of the San Francisco Sunshine Ordinance and The Brown Act.

Complaints against a Task Force member

At their November 2022 meeting, SOTF members voted unanimously that they could hear complaints against one SOTF member. The action was a general policy statement. There was no mention of any "conflict of interest."

After the "conflict of interests" vote, I tried to get SOTF to reconsider. Via e-mail, I pointed out that the agenda item and action were specific to two complaints that were not attached to the agenda item or made public. How could they know they had a “conflict of interests”? By e-mail to each SOTF member, I pointed out that as city officials, they could get consultations from the Ethics Commission. I pointed out that the proper way to handle SOTF member "conflicts of interest" was to state what it was once a member knew they had a “conflict of interest” and to recuse themselves from the discussion and any vote on the matter. Also, some “conflicts of interest” had reporting requirements to the Ethics Commission. If enough task force members had a “conflict of interest” and recused themselves that the quorum dropped below the required minimum, then the matter could not be heard before that body and would have to be heard before a different body.

SOTF members were allowed to reconsider their December 7, 2022 vote on this matter at their next meeting on February 1, 2023,   Item 12.

There was no action. The SOTF members knowingly stood by their December 7, 2022 vote of “conflict of interests” without question. “Knowingly” or “willful” is important in any ethics complaint. "Conflict of interest" falls under the jurisdiction of the San Francisco Ethics Commission.

The Conflict of Interest question remains unanswered

Maybe SOTF is right? Maybe all boards and commissions, including the Board of Supervisors, can do what they have done. The Ethics Commission now has a chance to weigh in with its findings and a ruling.

I believe SOTF did not follow the intent of laws and procedures. If the Ethics Commission rules it is OK for officials to vote on whether they have a “conflict of interest” or not, it should be written into law. If the Ethics Commission rules that officials can determine that they have a conflict of interest with no knowledge of what they are making that determination on, it should be written into law. If the Ethics Commission rules that an official does not have to state what their “conflict of interest” is, it should be written into law. If any of the above is allowed, it will diminish government transparency and accountability, and erode of our democracy.

I give SOTF Chair Yankee kudos for listening to my points and scheduling the chance for SOTF to reconsider their "conflict of interests" vote. After the February 1, 2023 chance to reconsider the matter was over, Member Schmidt thanked me for trying to keep SOTF accountable.

Fundamental to democracy and accountability is transparency. The Sunshine Ordinance Task Force is one of the entities to enforce transparency. In the past, SOTF Chairs have stated that SOTF should be exemplary in transparency and following all open government laws and procedures. I believe SOTF is failing and is a facade. The facade is that because San Francisco has its own Sunshine Ordinance, which has greater requirements for transparency and a task force to enforce it, our city government is supposed to be more transparent than those cities that do not. There is little evidence that San Francisco is more transparent than other cities. Recent scandals would say we need more transparency to hold government officials accountable. The open government and ethics laws are there. They need to be followed and enforced.

The Sunshine Ordinance Task Force can be contacted at sotf@sfgov.org. SOTF holds its meetings on the first Wednesday of each month. Agendas are posted at least 72 hours before at https://sfgov.org/sunshine/meetings/20

Sullivan runs the website sfneighborhoods.net/ committed to giving power to citizens to promote transparency, democratic equality and to increase participation in their neighborhoods and government.

April 2023

The Deck is Stacked Against the People’s Right to Know

Need Help Getting a Record from City Hall?

by Sullivan

After Sergei Severinov and his immigrant family were harassed, intimidated, insulted with racial slurs, abused and racially profiled by San Francisco Police Department (SFPD), he filed multiple complaints with the Office of Citizens Complaints and the Department of Police Accountability over several years. Finally, fed-up with the victimization of SFPD, he decided to find out what records SFPD keeps on him and his family. He sought help from the Sunshine Ordinance Task Force (SOTF) and in particular, all records of interaction with SFPD. He believes he has the right to do so under the California Public Records Act and the San Francisco Sunshine Ordinance.

The government is supposed to work transparently for the people, but does it? The people break even if the Task Force has all eleven of its members and follows all its procedures. Often that does not occur.

If your complaint is straightforward, you will probably do OK at SOTF, but there are many pitfalls that can turn against the complainant and favor the respondent.

Sergei Severinov’s complaint against the SF Police Department. [File #22014]

Mr. Severinov already had a determination that the records were public. Still, the Police Dept would not release his documents. Severinov brought the complaint before the SOTF to consider enforcement fully believing he had the right to see his own records.

But the SOTF can only make determinations. It has no enforcement powers ... “the Sunshine Task Force shall immediately order the custodian of the public record to comply with the person’s request.” Suppose the records are not released after five days. In that case, the Task Force “shall notify the district attorney or the attorney general who may take whatever measures she or he deems necessary to insure compliance ...”

That rarely — to the point of never — happens. Despite the SOTF’s determination that the records are public, the public may never see them.

SOTF Member Schmidt moved to notify the Attorney General under §67.21(e); seconded by Member Stein, the vote was 5 “Ayes,” 1 “No,” and 3 “Absent.” Member Wong, who had just been there before the vote was gone, but then reappeared to vote on the next motion on the same complaint.

There are two things very wrong with what happened.

You might think the motion would pass on a 5 to 1 vote, but not in San Francisco. The fat fingers of the City on the scales reverse many majority votes, u-turning victories into defeats. How does that happen?

“Unless otherwise required by this Charter, the affirmative vote of a majority of the members shall be required for the approval of any matter, except that the rules and regulations of the body may provide that, with respect to matters of procedure the body may act by the affirmative vote of a majority of the members present, so long as the members present constitute a quorum.” Administrative Code § 4.104 Boards and Commissions-Rules and Regulations (b).

A majority of the seats that make up a board or commission are required to pass any matter, regardless of whether all seats are full of actual people and how many members are present at the meeting. SOTF is an 11-member body. Most actions require 6 “Ayes” to pass. Currently, there are 2 vacant seats on SOTF. Those seats are defacto “No” votes against the public (the complainant), favoring the respondent (the City). Absent members from a meeting are also automatic “No” votes against a complainant.

In Mr. Severinov’s complaint, at the time of the vote, the quorum was at the bare minimum of 6 to hold the meeting — Mr. Severinov needed all 6 votes “Ayes” and already had 5 “No” votes against him. The single “No” vote meant he lost.

But wait, what about Member Wong, who the San Francisco League of Women Voters nominated? She was at the discussion and then disappeared during the vote — an automatic no-vote, recorded as absent. Is this allowed?

The same city code that states the majority in the affirmative rules goes on to say, “Each member present at a regular or special meeting shall vote “yes” or “no” when a question is put, unless excused from voting by a motion adopted by a majority of the members present.” That is echoed in the SOTF bylaws.

Upon return, Member Wong said she had to step away from the meeting because of a business call. She was not excused “from voting by a motion adopted by a majority of the members present.” If a member can leave during a vote and then return without voting on the motion but is allowed to vote on the subsequent motion on the same complaint, it seems a mockery of the shall vote “yes” or “no” rule. SOTF strictly adheres to the Administrative Code as the majority vote rule.

SOTF should have required her to vote on the motion. At the following public comment period, another member of the public and I protested, but it changed nothing. Unfortunately, these acts in favor of city officials happen frequently at SOTF.

The next motion on Mr. Severinov’s complaint was to refer the complaint to SOTF’s Compliance and Amendments Committee for future monitoring. Member Wong voted.

Funny thing, at the next meeting of SOTF on February 2, 2023, new SOTF member Hill asked to abstain from a vote. He was informed he had to vote “yes” or “no.” No one told him he could “leave the room.”

If the record request was to an elected official or department head and they fail to “discharge any duties imposed by the Sunshine Ordinance, the Brown Act or the Public Records Act shall be deemed official misconduct. Complaints involving allegations of willful violations of this ordinance, the Brown Act or the Public Records Act by elected officials or department heads of the City and County of San Francisco shall be handled by the Ethics Commission.” (§67.34)

Rarely are complaints sent to the Ethics Commission and I know of no enforcement of public access laws by the Ethics Commission.

The San Francisco Ethics Commission

The Ethics Commission is mentioned nine times in the Sunshine Ordinance and has a role to play in upholding the ordinance, but has never done so to the knowledge of this author. The City Attorney’s Office is the legal counsel for the Ethics Commission and reads Ethics and Sunshine laws so narrowly and enforces only egregious willful misconduct of elected officials and department heads.

It is no wonder that the City finds itself in scandals where the FBI and the IRS have to come in to investigate and prosecute. When the Ethics Commission or the City Attorney’s Office don't enforce misconduct, how can the public get records?

The Sunshine Ordinance Task Force

Too many people are unaware of the Sunshine Ordinance Task Force (SOTF). Its responsibility is to advise and implement “Sunshine” — Chapter 67 of the SF Administrative Code, and California state public access laws to government meetings and records. The SOTF is a policy body because it is a quasi-judicial body making determinations. Its members are volunteers composed of a lawyer, a few journalists, a consumer activist, and citizens interested in citizen access and participation in government. The members' attitude toward transparency and accountability varies, as do their understanding of the laws. Public access, due process laws, and court cases are a lot to know. The laws are not written in easy-to-understand language. They are laid out like a spaghetti fest with related things found in unexpected places.

SOTF is supposed to give members of the public a path to make records and information public or make sure public/private meetings are conducted in accordance with the law so that the public does not have to resort to the courts.

What is a Record?

City Officials often claim that records do not exist and that they do not have to create documents that do not exist. It is a common tactic to hide information from being made public.

The CPRA defines “writing.” “..any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.” [CPRA §6252 (g)]

That is a pretty expansive definition of “writing.”

In hiding information, you often have the “a” to “c” problem. Where “a” is the starting point, raw information or data, and “c” is the conclusion, but they are hiding the “b” — how you got to “c.” The how “b” is essential for accountability because city officials could make numbers up or spin conclusions in “c.”

Tuolumne River Trust v. SF Public Utilities — File No. 22918

The Tuolumne River Trust complains that SFPUC “submitted a document to the State Water Resources Control Board claiming that a requirement by the Board might lead the SFPUC to require 75% to 90% rationing from their customers. They have made claims like this before, but once we got ahold of the numbers and calculations used to produce their results, we found major flaws in their methodology.”

"SFPUC staff have a long history of manipulating numbers and facts to build their case against contributing instream flows to the Tuolumne River for environmental purposes,” the Trust maintains and provides examples in their complaint file.

The public record requested “all documents produced or used by the SFPUC to determine the rationing figures of 75% to 90% cited in CCSF’s Petition for Reconsideration.”

At first, the SFPUC claimed “attorney-client privilege,” but that justification requires that the attorney must have done the work and informed the client. That is not the case here.

Dropping “attorney-client privilege,” SFPUC gave the Trust the raw data and the concluding records but claims “no records” of calculations or methods and that they are under no obligation to create records that do not exist.

Existing or Created Records?

The agency does not have to create records that do not exist, but their claim is misused. Arguing that they put data into a computer model and it spits out the conclusions; there is no actual traditional “record” to produce. The records or information exist or they could not get from “a” to “c.”

Using CPRA definitions of “public records,” the calculations in the computer are a “form” of “representation” which includes a “combination thereof ... letters, words, … or symbols” and “any record thereby created, regardless of the manner in which the record has been stored” and is “information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” Furthermore, the CPRA clarifies in §6254.9 that the software itself is not a public record but (d) “Nothing in this section is intended to affect the public record status of information merely because it is stored in a computer. Public records stored in a computer shall be disclosed as required by this chapter.”

On February 1, 2023, by a public vote, SOTF “orders the release of any public records or public information that would help explain the water rationing calculation numbers as requested by the Complainant.”

The SFPUC used calculations and methods but wanted to keep them private.

City officials often use this argument of creating “a record that does not exist” to keep information hidden because it works. The truth is complex and confusing, while their argument is simple. To often the SOTF gets this wrong.

When is “create a record that does not exist” valid? If the Trust had requested that SFPUC use a different date range or contributing instream flows in combinations that the SFPUC did not do, that would create a record that did not exist. The SFPUC does not have to do research for the Tuolumne River Trust. The SFPUC creates the record when they do their research in “the conduct of the public’s business,” and all that is public record and information, even if it is merely letters, numbers, and symbols “thereby created, regardless of the manner in which the record has been stored.”

The Courts

Sunshine §67.35 Enforcement Provisions (a) “Any person may institute proceedings for injunctive relief, declaratory relief, or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this Ordinance ... .”

All well and good if you have the money to take the City to court. If your case goes to court, you will face the whole City Attorney’s Office. Nobody in the City is using their money to defend the City. The City uses taxpayers' money, including the complainant’s money if they are a taxpayer in San Francisco. If you win in court or partially win, the City must pay all your legal costs.

To institute proceedings in court, you must exhaust all administrative remedies, which can take months to years at current rates.

Seeing a complaint through to the courts would take a lot of perseverance, time, and money. One remedy would be if SOTF determines in favor of the complainant and against the City, or SOTF does not make a determination in 45 days, and the Ethics Commission does not enforce a SOTF determination in 5 days, the City would pay all legal costs of a complainant filing in a court regardless of winning or losing the court case.

The Journalist – Making Bad Conduct Public

Justice Louis Brandeis said “Sunshine is the best disinfectant.” But while the courts can demand change, it is a slow and costly process. Since the City has stacked the deck against transparency and accountability, a faster way is to inform the citizenry of official misconduct and systemic problems and let citizens demand change. “The people of San Francisco enact these amendments to assure that the people of the City remain in control of the government they have created.” We are not in control of our government.

To contact the Sunshine Ordinance Task Force go to sotf@sfgov.org. It meets on the first Wednesday of each month. Agendas are posted at least 72 hours before meetings

Contact your Supervisors—demand Change.

Sullivan runs the website sfneighborhoods.net committed to giving power to citizens to promote transparency, democratic equality and to increase participation in their neighborhoods and government.

March 2023

SUNSHINE DIMS IN GOLDEN STATE

Hostility to open government is subtle, but pervasive.

by Karl Olson

California’s Supreme Court has famously declared, “Openness in government is essential to the functioning of a democracy.”

     Sadly, many of the state’s bureaucrats, from the Governor down to city and county officials, seem determined to defy that command.

     To be sure, the hostility toward open government in our state is more subtle than the brand practiced by former President Trump. Trump branded the press the “enemy of the people” and did his best to trash the Freedom of Information Act. Indeed, one of the Trump officials arrested in the January 6 Capitol riots once handled FOIA requests under Trump.

     California officials, including Governor Newsom, are far more subtle, and most officials profess to believe in transparency. But while they talk the talk, they don’t walk the walk, and their instinct is often to deny Public Records Act requests.

     In the wake of National Sunshine Week March 14-20, there are many recent examples of state and local agencies defying the command of openness and invoking flimsy claims of exemption from the  Public Records Act.  Some examples:

• Governor Newsom claimed the so-called “deliberative process privilege” allowed him to avoid disclosing his office’s emails about the infamous “French Laundry” dinner with lobbyist Jason Kinney.
• The California Government Operations Agency claimed it could withhold emails about how it responded to questions from a journalist about the ouster of former Public Utilities Commission Executive Director Alice Stebbins.
• Newsom resisted disclosing a contract between the state and a company which was supposed to provide masks to stop the Coronavirus.
• The City of San Francisco is fighting disclosure of records related to the infamous police raid of a journalist after former Public Defender Jeff Adachi’s death.

The problem, at least in California, isn’t bad laws. The California Supreme Court has issued a series of strong pro-transparency rulings in the past 15 years, ordering the disclosure of named public employees’ salaries and holding that when government officials communicate on their so-called “private” electronic devices, their texts and emails must be disclosed when they deal with public business. But compliance with the high court’s 2017 ruling in that case has been spotty.

     Openness has perhaps never been more important. A $1.9 trillion stimulus is on the way. While the aid to individuals, especially the unemployed, and state and local governments will be welcome, the public must be able to have access to records which will show how that enormous amount of public money is spent. The Trump administration fought a losing battle against disclosure of the names and loan amounts of businesses which took part in the $521 billion Paycheck Protection Program.  It’s essential that the Biden Administration take a different approach to disclosure of records under FOIA, but it’s too early to tell whether the new President will in fact do so, and in fact even now the Small Business Administration is still fighting disclosure of PPP records.

     The California Supreme Court has explained that access to records enables the public and press to uncover “corruption, incompetence, inefficiency, prejudice and favoritism.” The “pay to play” scandal unfolding in San Francisco makes clear the extent of corruption in government, as did the scandals in Trump’s White House with former lobbyists running the agencies which supposedly regulated their former clients. Only a vigorous press and educated public can ensure a working democracy. Those are words to live by in the wake of National Sunshine Week.

Karl Olson is a San Francisco lawyer who specializes in Public Records Act litigation.

April 2021

California Supreme Court Clears the Cobwebs

by Doug Comstock

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.

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.

March 2017

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.

By Richard Knee

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.

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.

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.

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.

Revamping the Sunshine Commission

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.

Info/contact: sanfranciscansforsunshine.org

The Sunshine Ordinance Is Broken

Supervisors cannot be trusted to oversee their own transparency

by Doug Comstock

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

February 2016

New Complaint Procedures Defeat Sunshine

By Peter Warfield

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.

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.

1. westsideobserver.com/pdfs/Grossman.pdf

Peter Warfield, Director, Library Users Assn.

October 2015

The Sunshine Vendetta

By Richard Knee

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.

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.

June 2014

Court to Ethics' St. Croix: Cough Up the Records

by Doug Comstock

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.

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

by Doug Comstock

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.

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.

September 2012

What Price Sunshine?

Supervisor Weiner Just Doesn't Get It.

by Doug Comstock

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.

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.

March 2012

Parkmerced Agreement Illegally Excluded Public

By Hope Johnson, Chair, Sunshine Ordinance Task Force

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.

December 2011

City the Big Winner As Sunshine Proves Its Value

Kimo Crossman and Allen Grossman and 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.

April 2010

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 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.

June 2009