Showdown: Dennis Herrera v. Sunshine Ordinance Task Force
•••••••••• September 27, 2022 ••••••••••
The City’s first Sunshine Ordinance was enacted in 1993. In 1999, 58% of voters approved an amended version. Now enshrined in Section 67 of the Administrative Code it opens spectacularly; “Government’s duty is to serve the public, reaching its decisions in full view of the public...The people do not cede…the right to decide what the people should know about the operations of local government.”
While government officials profess allegiance to transparency, they also resist disclosing information about the inner workings (and failings) of their domains. So, a way to ensure compliance with the Sunshine Ordinance was needed. The Ordinance created a Sunshine Ordinance Task Force (SOTF) to promote public access to government records and meetings, adjudicate related disputes, and advise the Board of Supervisors on improving transparency. It’s comprised of 11 volunteer members, 3 of whom are nominated by the Nor-Cal chapter of the Society of Professional Journalists (SPJ). All SOTF applicants are interviewed and appointed by the Board of Supervisors.
Since its inception, the SOTF has been a thorn in City Hall’s backside. Why? Well, there’s a gap between what citizens and City Hall view as transparency. Engaged citizens and journalists seek more information than officialdom likes to share. Tension and disputes are predictable. When the SOTF has interpreted the Sunshine Ordinance strictly, it has infuriated wayward City officials. Regrettably, such points of friction have previously triggered City Hall to retaliate against the “People’s Court.” Another point of friction is casting sparks.
Herrera’s “Brute Cudgel” Charge
As reported by the Examiner’s Jeff Elder, a showdown between SFPUC chief Dennis Herrera and the SOTF is escalating. On September 7th, the SOTF unanimously reproached Herrera for failing to maintain his official calendar, early in his tenure at the SFPUC. A similar violation occurred in 2020 when he was City Attorney. At the time, Herrera had vowed to fix the problem in exchange for dropping a second complaint. Department heads must keep and disclose informative business calendars per the Sunshine Ordinance. In 2015 the Board of Supervisors even voted to include themselves under the calendar requirement, despite opposition from then-Supervisor London Breed.
Interestingly, both of Herrera’s calendar lapses were exposed by sunshine advocate and stickler “Anonymoose” (aka Anonymous), recipient of a 2022 James Madison Freedom of Information award from SPJ-NorCal. His current sunshine complaint # 21153 can be viewed here.
Herrera’s apparent recidivism, despite his know-how as City Attorney, Supervisor of Records, and author of the Good Government Guide factored into the SOTF’s careful deliberations (at 3:20:00). SOTF members unanimously declared his omission a “willful violation” - a form of official misconduct. Accordingly, the case, bolstered by a “robust” letter from the SOTF, will be referred to the Ethics Commission. The gesture is mostly symbolic. The Ethics Commission has dismissed all, save one, willful sunshine violation cases submitted by the SOTF.
Herrera’s “brute cudgel” metaphor revives old City Hall tropes about the SOTF. They portray a legally toothless, all-volunteer SOTF as a bloodthirsty ogre victimizing City officials. The deployment of menacing imagery has previously prefaced retaliation against SOTF members. Bruce Brugmann, formerly co-publisher of the SF Bay Guardian, was a founding member of the SOTF. He recalls how an exasperated Mayor Willie Brown sought to boot him off the Task Force. Mayor Brown’s animus impelled him to stay.”
Herrera is furiously protesting the SOTF’s determination that he willfully failed to maintain his office calendar. In a September 13th letter to the SOTF – copied to the Ethics Commission, City Attorney, and Board of Supervisors – Herrera insisted his lapse was unintentional, due to the hectic pace of his first 2 days on the job. Therefore, he argued, the SOTF should not refer his inadvertent slip to the Ethics Commission as a willful violation. It was a reasonable objection. But, after raising other procedural objections, Herrera ended his letter ominously; “The Sunshine Ordinance was never intended to be a brute cudgel to redefine every oversight or omission, regardless of how minor, into an intentional obstruction.”
Bullying the Sunshine Task Force
Herrera’s “brute cudgel” metaphor revives old City Hall tropes about the SOTF. They portray a legally toothless, all-volunteer SOTF as a bloodthirsty ogre victimizing City officials. The deployment of menacing imagery has previously prefaced retaliation against SOTF members. Bruce Brugmann, formerly co-publisher of the SF Bay Guardian, was a founding member of the SOTF. He recalls how an exasperated Mayor Willie Brown sought to boot him off the Task Force. Mayor Brown’s animus impelled him to stay.
In March 2011 New York Times article, Matt Dorsey, whom Mayor Breed recently appointed as District 6 Supervisor, smeared the SOTF on behalf of then-City Attorney Herrera; “Matt Dorsey, spokesman for the city attorney’s office, said in an e-mail, ‘The task force has degenerated into a rogue, lawless jury that beats up on city departments and tries to get conscientious public employees fired.’ Mr. Dorsey and other city public information managers said they spent an extraordinary amount of time and resources complying with the ordinance. They described the task force hearings as a tedious kangaroo court.”
All this was quite genteel compared to the Board of Supervisors’ 2012 purge of the SOTF. This reprisal followed the SOTF’s determination that several Supervisors - including current City Attorney David Chiu - had violated the Sunshine Ordinance by hastily approving the Parkmerced development deal. At the last minute, Supervisors had slipped a 14-page amendment into a legislative package without proper notice or public review. Journalist and former SOTF member, Rick Knee, recounted in the Fog City Journal how and why the vendetta arose.
In brief, 5 incumbent SOTF members were denied reappointment. The Board of Supervisors blocked nominees from the Society of Professional Journalists (including Westside Observer editor Doug Comstock), New America Media and the League of Women Voters. Thus frozen for months without a quorum, the SOTF struggled to address a backlog of sunshine complaints. In a 2014 opinion piece in the SF Chronicle, Geoff King and Tom Peele, who co-chaired SPJ’s Freedom of Information Committee, decried the Supervisors’ blockade, warning that the SOTF “is now under attack by City Hall.” Eventually, the Board selected 5 inexperienced newcomers and toadies to fill the long-vacant SOTF seats.
Simultaneously, then-Supervisor Scott Wiener, a former Deputy City Attorney, had covertly asked the Budget & Legislative Analyst to survey City departments to assess the cost of adhering to the Sunshine Ordinance and maintaining the SOTF. The intent was to show that the SOTF was a burden to taxpayers. The 2012 B&LA survey estimated that the transparency requirements of the Ordinance cost the City $998,000/year. That included $355,000 for the SOTF. However, even if the Sunshine Ordinance were rescinded, some of the above costs “would continue to exist under current State law.” Further, “without the SOTF, some portion of complaints would be directed to other public bodies, such as the courts, which would in turn incur costs.” So, Wiener’s hit-job went nowhere. At the time, the City was spending about $3.3 million annually to abide by State public records and open meeting laws. The Sunshine Ordinance simply enhanced them.
City Hall Cancels Critics
Ganging up on critics isn’t a relic of City Hall’s past. As the Westside Observer reported in 2020, a group of offended Supervisors tried to blacklist the Marina Times from receiving funds to publish City notices. They were retaliating against the paper’s editor, Susan Dyer Reynolds, who had blasted their policies and antics in articles and tweets. It took a stern letter from First Amendment attorney Karl Olson to settle the dispute in favor of the Marina Times and freedom of speech.
The accusatory tone of Dennis Herrera’s latest denunciation of the SOTF could foreshadow another cycle of retribution. Herrera is an ally of Mayor London Breed who has a long-standing aversion to transparency, the SOTF, and even to treating SOTF applicants respectfully. Journalists and sunshine advocates should be vigilant - and ready to protect our “People’s Court.”
Hat Tip: Thanks to Jeff Elder for thorough coverage of this conflict.
Dr. Derek Kerr is a San Francisco investigative reporter for the Westside Observer and a member of SPJ-NorCal. Contact: email@example.com
SEPTEMBER 27, 2022