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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 you get handed 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?”
https://westsideobserver.com/23/4-Is-the-sunshine-task-force-ethically-challenged.php
is the middle of this developing story. 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 a two-year
time period, later reduced to 1 year.i
I also asked about any activities that Public Works had on GBD during
the same time period. The time period was outside any of my prior
request I had made about GBDs. I was just 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))ii
. The 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
4 responsive records (2 were copies of the other 2 records) of one
person asking about GBDs out of 1886 records that had nothing to do
with GBDs including commercial advertisements. I got these 4 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 7 months after
my record request.
You are not required to state the
reason for your record request (Sunshine Ordinance Sec. 67.25 (c))iii.
Green Benefit Districts are a part of the San Francisco
Administrative Code that allows for the creation of property owners
accessed (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
the at the time Director of Department of Public Works Mohammed
Nuru,. What could possibly go wrong with that equation?
The Department of Public Works,
“custodian of record” 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 set of 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 which is not disallowed by the SF Sunshine Ordinance. The SF
Sunshine Ordinance provides requests can be answered orally, as
information, or as a record.iv
Mr. Steinberg doesn't allow any public record request that ends in
a question 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 are part of a game show.
Example of public record request by someone in the news media asking
about parklets which was thrown out by Mr. Steinberg.
https://sfneighborhoods.net/docs/articles/recordfries/nextrequest21-46questionexample.pdf
It was pretty clear from the
beginning 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 e-mails. 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)v,
to help him and me reduce the number of records. To which he claimed
that giving a 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
did 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 3 records outside the dates of my
original request and closed my record request stating “In this
case, the records are two years' 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 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.”
https://sfgov.org/sunshine/sites/default/files/sotf_110321_minutes.pdf
Mr. Steinberg claimed he would only have enough time to produce 20
records a week and would take at least 2 years. Mr. Steinberg's
primary job is to reply to public record requests. During the
hearing, SOTF Member Schmidt stated he 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 4 responsive records were
produced at the end of the record production. At various times, he
claimed it would take him 2 to 4 years to produce the records. From
the time he started producing records, it took him just a little over
6 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” hiding 4 responsive records. I tried early on to
limit some records 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 finding “responsive” records. I decided
to let the horse run for all he wanted.
This 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. It
is a weakness in the San Francisco Sunshine Ordinance. Luckily, the
CPRA states 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)vi.
The two laws can be read as one law, and which ever has the stronger
provision should be what is enforced.
Now I think
that since the citizen of San Francisco voted to put the San
Francisco Sunshine Ordinance in 1999 into the city's administrative
code, they were demanding a higher standard of disclosure
requirements and transparency from their city. That the SOTF would be
fighting against any obstructing of public record disclosure. At
least with the current iterations of SOTF, the task force rarely
enforces an agency to make records public within 5 days, as mandated
by San Francisco 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 time producing
them and the member of the public has been waiting months for their
record request to be complied with, but SOTF seems to lose interest
in any enforcement of public record laws post their order of
determination. City officials like Mr. Steinberg understand they can
violate public access laws with no repercussions.
In this public record request, Mr. Steinberg threw everything he could make up in
violating 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 in the weeds, but I will touch on them in the next
article. The next article is about what SOTF does when I submit
complaints about Mr. Steinberg's obstruction and ask 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.
iiSunshine Ordinance Sec, 67.25 Immediacy of Response (d)
“Notwithstanding any provisions of California Law or this
ordinance, in response to a request for information describing any
category of non-exempt public information, when so requested, the
City and County shall produce any and all responsive public records
as soon as reasonably possible on an incremental or "rolling"
basis such that responsive records are produced as soon as possible
by the end of the same business day that they are reviewed and
collected. This section is intended to prohibit the withholding of
public records that are responsive to a records request until all
potentially responsive documents have been reviewed and collected.
Failure to comply with this provision is a violation of this
Article.”
iiiSunshine Ordinance Sec. 67.25 (c) “The person seeking the information need not
state his or her reason
for making the request or the use to which the information will
be put, and requesters shall not be routinely asked to make such a
disclosure.”
ivSunshine Ordinance Sec. 67.22 Release of Oral Public Information, Sec. 67.20
Definitions (b) “"Public Information" shall mean
the content of "public records" as defined in the
California Public Records Act (Government Code Section 6252),
whether provided in documentary form or in an oral communication.
"Public Information" shall not include "computer
software" developed by the City and County of San Francisco as
defined in the California Public Records Act (Government Code
Section 6254.9).”
vSunshine Ordinance Sec. 67.21 (c) “A custodian of a public record
shall assist a requester in identifying the existence, form, and
nature of any records or information maintained by, available to, or
in the custody of the custodian, whether or not the contents of
those records are exempt from disclosure and shall, when requested
to do so, 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 under (b). A custodian of any public record,
when not in possession of the record requested, shall assist a
requester in directing a request to the proper office or staff
person.”
viCPRA 6253 (e) “Except as otherwise prohibited by law, a state or
local agency may adopt requirements for itself that allow for
faster, more efficient, or greater access to records than prescribed
by the minimum standards set forth in this chapter.”
This article is a continuation of the story “Public Records
and a Side of Fries”https://westsideobserver.com/23/5-Can-the-Sunshine-Task-Force-enforce-the-sunshine-laws.php
These articles are to give the public an inside look at what happens when you
try to hold government accountable and the state of government transparency in
San Francisco. It is a big problem in San Francisco.
I file 5 additional complaints against the Department of
Public Works, Mr. Steinberg post the Sunshine Ordinance Task Force (SOTF) of
finding him in violation of the Sunshine Ordinance by not making records
public. Mr. Steinberg continued to delay and obstruct.
We will focus on two complaints since this story is more
about what the SOTF Compliance and Amendment Committee did once they received
the complaints. One of the primary responsibilities of SOTF Compliance and
Amendment Committee is to make sure that government officials comply with the
Sunshine Ordinance and other public access laws after the full SOTF has found
them in violation. If they find continued violations, they are to move it to
the full SOTF for possible further actions. Once records are determined to be
public by order of SOTF, the custodian of records is to make them public in 5
days. This is a “shall” requirement stated in the
Sunshine Ordinance § 67.21 (e).
Mr. Steinberg did not start producing records until 30 days after the SOTF order violating Sunshine
Ordinance § 67.21 (e). After the SOTF
order of determination, Mr. Steinberg stated there were 8,586 responsive
records found. In the end, Mr. Steinberg produced 1886 records, including 234
commercial ads, and after a year from the original request produced only 4
records that were responsive to the record request. This violates Sunshine
Ordinance § 67.25 (d) which states
that records are to be “responsive records” to a request. I used this provision
to make my record request because it uses the words “responsive records” that
other provisions do not. All the above violates the California Public
Record Act (CPRA)§6253 (d) which does
not allow government officials “to delay or obstruct”.
I think the above are serious violations of government transparency laws. Just as serious as a
government official withholding records or not producing records within 10 days
of a record request or 14 days if an extension is determined. SOTF takes these
initial violations seriously. SOTF does not take continued delay and
obstruction seriously to the point many people never get the records they
request or have to wait a year as I did. Here is one such story.
I submitted all complaints and supporting documents at least 2 weeks before my hearing.
A person making a
complaint can only see the hearing documentation called “packets” or
“attachments” 3 business days before a hearing. I realized shortly before the
hearing 2 records were missing from the hearing packets. The most important
were complaints about the 30 days of additional delay before starting to get
records, the 1882 non-responsive records, examples of 237 commercial
advertisements received, and other violations as I have outlined above.
The first item of the
SOTF Compliance and Amendment Committee (SOTF CAC) agenda is 1. “Call to Order,
Roll Call, and Agenda Changes”. I attempted to make a public comment and alert
them that there were records and complaints missing and their importance. The
committee did not ask for public comment on agenda item 1. The hearing was
being conducted online. The clerk recognized me for public comment on agenda
item 2 and noted to the committee that I had attempted to make public comment
on item 1. After I made my comments, SOTF CAC Chair LaHood stated that she could
understand my confusion about the SOTF CAC not having a public comment on item
1. She stated a public comment period was not required on agenda item 1 Call to
Order, Roll Call, and Agenda Changes. It was not a time to point out missing
documents in agenda item packets. This is not true.
SOTF Bylaws Sections
5 and 11 require a public
comment period on each agenda item, which echos Sunshine Ordinance §
67.16.
If evidence or complaints are missing that may necessitate an agenda change,
when is the proper time to note this other than agenda item 1 which includes
“Agenda Changes” in its title? That question was never answered. Clearly,
though, SOTF CAC Chair LaHood was the person confused and did not know the SOTF
bylaws and Sunshine Ordinance she was supposed to follow.
After my notifying of missing documents, Chair LaHood said: “One of our committee members will be
leading those two cases and we'll have a chance to discuss if there are any
issues with what was included in the packet and whether we are able to proceed
with our discussion today so we will get to those later.” Now to me, “we” and
whether “to proceed with our discussion” was referring to the committee members
and that they would take the lead. After all, they were in charge of the
meeting. This was fine with me, but it didn’t happen.
I had two hearings scheduled, one after another, both with
missing documents. Not at any point was there a discussion about the missing
documents. Petitioner has only a limited amount of time to make their opening
comments. So, I spent most of my time trying to make my case. At the second
hearing realizing there would not be any discussion of missing complaint and
evidence documents, I again mentioned that key documents were missing. You can
only spend so much time repeating yourself and they had acknowledged prior that
they understood. It ended up they had a different agenda and the missing
documents and complaints did not matter to them. They didn’t care.
Mr. Steinberg’s explanation of why he did not comply with
SOTF’s order of determination in 5 days but took 30 days to start producing
records was he was working on it during that time. “Again, if the point of this
hearing is to, determine if I've complied with the order determination, I would
just say first of all, Mr. Sullivan's wrong, in saying that I didn't work on
the request for three weeks after the hearing. I worked on it a lot and you can
see you go to NextRequest, or I can print out for you all the back and forth
with him on, what I had my, IT team do multiple email searches that was working
on the request. I didn't start releasing things until November 30th. That's
correct because I was trying to come up with reasonable search terms that I
could get him documents he actually wants.”
Sunshine Ordinance § 67.21
(e) “Upon the
determination that the record is public, the Sunshine Task Force shall immediately order
the custodian of the public record to comply with the person's request. 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.”
The law does not state 30 days to work on it and produce “documents he actually wants”,
like 237 ads and 1645 other irrelevant records. Violating Sunshine
Ordinance § 67.21 (e) did not seem to matter to the committee.
I stated he looked at every record to redact information so he could easily see responsive and
non-responsive records like ads. When Chair LaHood asked Mr. Steinberg about
the ratio of responsive records to non-responsive records. He responded, “I
don't know how many there were advertisements and stuff, but it really doesn't
take a lot more time, than sending it to him, versus moving it into the queue
that says non-responsive. I have to look at it in order to determine whether
it's, it's a letter, or it's an advertisement, or anything else. So, it's
really very little time was wasted by delivering to him some of those things
that he didn't want. And I understand he had to look through additional files,
but in terms of time, I still had to look at them anyway. So, I don't know if that
helps.”
True, no waste of time for him to send non-responsive
records versus leaving them out because his goal was to delay actual responsive
records. After the SOTF order of determination, he stated that there were 8,586
responsive records to my request. In the end, he only produced 1886 records. I
guess at some point he determined his game of delay and obstruction was wasting
his time.
Chair LaHood states: “You know, even though you're on
opposite sides and we want, you know, we're trying to do our job and we're
trying to help members of the public get records they're looking for and, you
know, Mr. Steinberg, I think is trying to help to respond to requests and help
people get the information they need. In this particular situation, maybe our
committee can provide some mediation services here because I think you would
both rather spend your time getting the records you need or fulfilling records
requests, and getting responsive answers, and being responsive, and delivering
records rather than spending more and more time. I'm in successive compliance
meetings, even though I know you really like us and this is a lot of fun. I
think it would be in everyone's best interest to take the situation and let's
learn from it. I think based on Mr. Steinberg's recommendations, I think Mr.
Sullivan is learning how to craft more concise requests in being very specific
about what he does and doesn't want perhaps Mr. Steinberg can also learn from
Mr. Sullivan.”
I want to point out here that SOTF’s job is to apply all the
Sunshine Ordinance and other public access laws. By doing so, it would result
in responsive records in a timely matter. During the hearing, I pointed out
that if Mr. Steinberg had produced the 4 responsive records in 10 days or less,
as he is required to by law, then none of our time would be wasted. When I
pointed out there were only 4 responsive records, Mr. Steinberg said, “Oh, you
found four. I thought there were only two.” He knew what records were
responsive and what were not. He may have been right about there only being two
records, as two were just copies of the other two. He may have sent them twice.
Previously, I had heard the argument from Mr. Steinberg
echoed by SOTF members about my inability to craft a more concise request, so I
challenged SOTF members to make specific improvements to my original request.
Chair LaHood did not make any and asked, “Let's ask Mr. Steinberg. Mr.
Steinberg, Mr. Sullivan wants to work more effectively with you. What would be
the best way for him to submit requests to you?”
Mr. Steinberg had no specific suggestions for making my
public record request better. He was fine with the back and forth and his
response. Why wouldn’t he be? In his answer he stated: “The best thing that any
requester can do to get what they want and get in a timely manner is to tell,
you know, ideally tell you exactly what if there's a specific document. Tell me
what the document is. Unfortunately, in cases like this, it's I want anything
that shows or anything that is about and those are really difficult. I honestly
don't. I mean, I think we really did try to do a good job of coming up with
something that would find the things he was looking for. I mean, I got creative
like, I mean the more information he gives me, the better.”
At the end, Chair LaHood indicated that she thought the
matter should be closed, but asked me for any further thoughts and if I thought
there were responsive records missing.
My response: “Yes, I am worried about this happening in the
future, but I don't have any more documents that I need right at this point.”
During the public comment period, a
member of the public gave an impassionate public comment: “Good evening,
commissioner members. This is …… and I would like to make a comment about when
the public, the requester, asks for records and the treatment that we receive.
And the timely manner, it always falls on the burden of the requester. And I
find it very entitling that someone can say about your perception of how
something should be worded. To look at a perception of how someone asks is,
what gives you that, right? So again, really selective privileged? I can't
imagine. I know it because it's happened to me. I've been sitting in these
rooms for now. Let's see, Nia …. It's going on five years and still have not
received my records based on what I submitted. Something is wrong. Or I did not
word this correctly. Or three times, I've had to prove that something was
contracted to the … it is insane, when all the public is trying to do is to
protect others. They're advocating. They're asking for preference. They're
asking for proof and I don't know why it has to be so difficult and such a
burden. And then on the other side, they can have loopholes. They can flood you
with records. They can delay five years. The delay that you go through. What is
your hope? The trauma that is caused by doing this back and forth, it's not
healthy. So, I find this a violation of service by the Sunshine Ordinance Task
Force that stands for us. Thank you. I yield the rest of my time.”
This individual has never gotten
their records. I believe this person has given up.
The SOTF CAC moved to
close my complaints without any real consideration of post SOTF order of
determination complaints. There were only 3 votes.
In San Francisco’s
Administrative Code, Article IV, Section 4.104 (b), the city requires the
commission and SOTF “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.” This is
interpreted as requiring SOTF 6-vote
majority in the affirmative on substantive matters such as complaints with
total members set at 11 regardless of whether all seats are appointed or
members at a hearing. This is also in SOTF’s Bylaws, Article IV, Section 7, “The
affirmative vote of a majority of the members of the Task Force (six) shall be
required for the approval of all substantive matters.” Further, SOTF’s
Bylaws, Article VI (d) “Compliance & Amendments Committee. The Compliance and Amendments Committee may
monitor compliance with the Orders of Determination adopted by the Task Force,
monitor changes in state law and court decisions affecting access to public
meetings and records, and make recommendations to the Task Force regarding
amendments to the Sunshine Ordinance. In addition, the Compliance and
Amendments Committee shall schedule hearings on complaints to review
jurisdiction and the merits of the complaint in order to provide
recommendations to the Full Task Force.”
All this says to me, that the SOTF CAC should have fully heard my complaints and moved them on to the
Full Task Force with recommendations and a vote of a majority of the Full Task
Force. That closing complaints on 3 votes violates the city’s administrative
code and SOTF’s own bylaws.
Two members of the SOTF
CAC that participated in this hearing are still on the SOTF CAC. Chair Lila
LaHood is the publisher of the San Francisco Public Press. She is
on SOTF as a journalist representative. Jennifer Wong is the appointee of the
League of Women Voters of San Francisco. Both, I would think, should be
concerned about not only making sure records are made public but that records
are given in a timely manner in accordance with the law. What good is it to
journalists and the public if the government can delay and obstruct for a year
or never get the records? The public cannot hold the government accountable
with the current state of public access to know what the government is doing.
This is part of why San Francisco has scandals.
Sunshine Ordinance §
67.30 (c) “The task force shall advise the
Board of Supervisors and provide information to other City
departments on appropriate ways in
which to implement this chapter.”
The Sunshine Ordinance Task Force regularly fails to enforce all provisions of the
Sunshine Ordinance and to provide city departments with appropriate ways to
implement all public access laws. I can’t be angry about Mr. Steinberg’s action
regarding my public record request because he is doing what is allowed by SOTF.
Laws are only good to the extent they are enforced or voluntarily adhered to. I
believe, Mr. Steinberg tried as many different “delay and obstruct” moves as he
could think of including what I have mentioned in this article and others like
“rule of reason” and balancing test which I haven’t. He was experimenting with
what he could get away with, knowing that I would challenge him. He is
absolutely right. He can delay and obstruct to the point that he claimed in the
hearing that I was “harassing” him. It turns everything on its head that asking
for public records is “harassing”. Right now with public access enforcement,
the public has little right to know in a timely manner, if at all.
A kangaroo court is a judicial or quasi-judicial proceeding
which disregards set procedures, disregards principles of law and justice that
result in abusive or otherwise unjust adjudication. The idea of the term of
“kangaroo court” probably originated from such bodies jumping around on which
procedures and laws would be applied or simply making them up on the spot. The
term did not originate in Australia, but here in the US. An 1841 article in The Daily Picayune, New
Orleans, quotes another publication, the Concordia Intelligencer,
reporting several lynchings instituted "on charges of the Kangaroo
court". The Picayune article also asks "What is a kangaroo
court?" The
Daily Picayune. August 24,
1841. p. 2. Newspapers.com.
I have heard government officials refer to the Sunshine
Ordinance Task Force (SOTF) as a Kangaroo court, but many government officials
dislike the idea of sunshine and having to deal with transparency laws.
Apparently, SOTF was not always a kangaroo court. 2011 seems
to be the high of SOTF fighting for the public right to know. These are all
stories for another time. Laws and rights erode over time if not constantly
defended, especially if the other side is powerful like the government.
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.
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.
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.
“Elected officials, commissions, boards, councils and other agencies of the City and County exist to conduct the people’s business. The people do not cede to these entities the right to decide what the people should know about the operations of local government. The right of the people to know what their government and those acting on behalf of their government are doing is fundamental to democracy, and with very few exceptions, that right supersedes any other policy interest government officials may use to prevent public access to information. 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.” San Francisco Sunshine Ordinance of 1999, Findings and Purpose, Administrative Code §67.
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.
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.
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 is the San Francisco League of Women Voters representative. 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 Ordinance §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 Government 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.
Ethics is about concepts of right and wrong behavior which differs from legal. Legal means an act is in accordance with laws. The “Ethics” Commission legal advice is by the San Francisco Office of the City Attorneys, which interprets laws and the city’s administrative code in favor of the city and narrowly against the public. To be fair, the San Francisco Office of the City Attorney's responsibility is to represent the city government and not the public. This is at cross purposes with being a government watchdog, ethics, transparency, and accountability. If a watchdog agency investigates and finds questionable actions, those actions or inactions could end up in court. The San Francisco Office of the City Attorney's interest is to keep the city out of court. Evidence of illegal or questionable actions may never see the light of day, but internal correction may be taken and the public never sees them. I think I know of one, but it is like looking through a frosted window. Everything is fuzzy. You can’t say for sure.
San Francisco Office of the City Attorneys is supposed to keep the city on the right side of the law. Given the city’s problem with scandal, I would say they are failing at it. If it was not for an outside investigative unit like the FBI, the scandals so far uncovered would probably still be happening. It is a sad joke that the San Francisco Office of the City Attorneys participated in the scandal investigation as they should have been proactive in stopping these scandals from happening.
There are several internal investigative units of the San Francisco city government, but they are after the facts. The “Ethic Commission”, the Sunshine Ordinance Task Force, and some other commissions are external facing watchdog bodies that take complaints from citizens. Giving a complaint to the “Ethics” Commission is like giving a complaint to a black hole. Your complaint goes in and the chance that anything comes out is slim. This is because the San Francisco Office of the City Attorneys controls this body and has no interest in transparency. Transparency only opens the city up to accountability, legal problems, and court cases. Even if an investigation only reveals wrong behavior that still is possibly “legal”, it doesn’t look good.
The other problem with the lack of transparency is the public does not know if procedures and laws are being applied the same or selectively. Mayor London Breed receiving gifts from what she saw as her friend, Mohammed Nuru, probably would not have been investigated and penalized by the “Ethics” Commission if it had not been made public. I can understand Mayor Breed’s confusion about a gift from a friend verse a political gift and the need to report it. Things are not transparent and procedures and laws are not followed consistently. This is why the city finds itself with unintended transgressions to major scandals.
In 2017, San Francisco Ethics Commissioner Quentin Kopp resigns saying politicians are unafraid of the agency. San Francisco Chronicle "SF Ethics Commissioner Quentin Kopp resigns, says politicians unafraid of agency". “I find the investigative practices of the Ethics Commission staff unsatisfactory,” Kopp wrote in his resignation letter. “I have lost confidence in the ability of the Ethics Commission and its staff to achieve the purposes represented to voters and residents two decades ago for its establishment.” A year prior, San Francisco Ethics Commissioner Peter Keane had resigned.
The “Ethics” Commission and the Sunshine Ordinance Task Force should have outside public counsel that would allow for more independence from the city, transparency, consistency of application of procedures and the law, and more teeth to outward watchdog bodies. This is not a new idea. The city fights this idea tooth and nail. The Sunshine Ordinance Task Force used to be more transparent. The San Francisco Office of the City Attorneys used to submit legal memorandums for each complaint that was part of the public record. The Sunshine Ordinance Task Force has legal counsel provided by the San Francisco Office of the City Attorneys that is supposedly is walled off from the San Francisco Office of the City Attorneys. This legal counsel recently has advised the task force not to make its opinions public. This happened shortly after the San Francisco Office of the City Attorneys stopped submitting memorandums. You have to wonder how much the wall exists with the Sunshine Ordinance Task Force legal counsel.
With the city in scandals, the San Francisco Office of the City Attorneys is asserting less transparency and accountability in its action.
I filed 2 complaints with the “Ethics” Commission against the Sunshine Ordinance Task Force (SOTF).
The first complaint was against SOTF Compliance and Amendment Committee for violating the Sunshine Ordinance during a hearing which is covered in the Westside Observer article “Railroaded Out of Town”.
About a month later, I got an e-mail from Ethics Commission Eric Willett, a Senior Investigator and Legal Analyst, that they had received my complaint. After a little follow-up, I found they had combined my complaints into one. Not a good sign, as one was an ethics complaint against the full SOTF and the other a sunshine complaint against a SOTF committee or its chair.
Next, I get an e-mail from Mr. Willet stating:
“I wondered if you could provide clarity on a couple of overarching questions that I have regarding your complaint. Specifically, what provision(s) of the Sunshine Ordinance do you allege that members of the SOTF violated in your underlying complaint against the SOTF Compliance and Amendment Committee, which SOTF members make up this committee, and what allegations comprise your original complaint to the SOTF and who did you make these allegations against?
Please provide your answers to these questions by Friday, March 24th.”
This is kind of funny because either he has reading comprehension problems or cannot read the Ethics Commission's own complaint form, which I clearly name the committee and individuals.
I go further in the documentation with a paragraph outlining which SOTF members make up the SOTF Compliance and Amendment Committee and what allegations are against them. Below is part of the response to him. I made it really clear.
It should be noted that while the e-mail came from Eric Willet, the inquiry behind his e-mail could have come from the City Attorneys Office as part of the investigative process. San Francisco AC C3.699-13 (a) “Within ten working days, after receipt of the complaint or information, the district attorney and City attorney shall inform the commission in writing regarding whether the district attorney or City attorney has initiated or intends to pursue an investigation of the matter.”
The original SOTF complaint also included violations of SOTF By-laws and complaint procedures which are in the purview SOTF, but not the Ethics Commission. The violations of SOTF By-laws and complaint procedures was included in the Ethics Commission complaint for completeness. They got everything that SOTF did.
The e-mail from Eric Willet may have been to set a deadline, hoping I would not respond. Then they could dismiss my complaints based on my not responding and not have to deal with the allegations. Or it could have been both that and they couldn’t read. You can read my full response here. I went over my original complaint to the Ethics Commission trying to over-explain every point because if they have to ask “which SOTF members make up this committee”? I had little confidence that they understood anything else and needed a lot of hand-holding. Senior Investigator and Legal Analyst?
I had sent the Ethic Commission everything that SOTF had 270 plus pages. One problem that works against petitioners is that the complaint document file gets bigger and bigger as time drags out. Especially when the origin of the complaint is a government official using every trick, they can to delay and obstruct giving requested records and piling on junk records. This makes it harder for future investigators and costs of lawyers if needed.
About a month later, I got the dismissal notice after Ethics Commission preliminary review. The important statement: “The Ethics Commission has dismissed the complaint’s allegations pursuant to Enforcement Regulations section 4 because the conduct alleged does not fall within the jurisdiction of the Ethics Commission for enforcement and credible evidence refutes the allegation.”
Picking up on this sentence, I did a public record request about jurisdiction and “credible evidence refutes the allegation.” The record request can be found here at the bottom of this email chain with their response at the top.
The Legal Merry Go Round that is the Sunshine Ordinance, Ethics Commission and Enforcement.
Here is where we enter the circular San Francisco government “accountability”. The Ethics Commission does not “enforce” any Sunshine Ordinance violations, even if they are sent over from SOTF. In their response to my public record request, they state: “Regarding your question about the applicability of Admin. Code Sec. 67.35(d), this code section does not establish the Ethics Commission as having jurisdiction for the enforcement of Sunshine Ordinance provisions beyond allegations of willful violations by City elected officials and Department Heads provided by Sec. 67.34 or the Show Cause hearing process (see Ethics Commission Enforcement Regulations Section 10).”
Sunshine Ordinance Sec. 67.35 (d) “Any person may institute proceedings for enforcement and penalties under this act in any court of competent jurisdiction or before the Ethics Commission if enforcement action is not taken by a City or State official 40 days after a complaint is filed.”
On the face of it, Sec. 67.35 (d) seems to imply all the Sunshine Ordinance with “under this act” for both enforcement and penalties and not just the Sec. 67.34 provision, but the Ethics Commission and City Attorney’s Office narrowly reads it to mean only Sec 67.34 which says “The willful failure of any elected official, department head, or other managerial city employee 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."
The problem with this narrow interpretation is if you are saying Sec. 67.35 (d) is really only Sec. 67.34 then 67.35 (d) becomes redundant and unneeded. Sec. 67.35 (d) adds “if enforcement action is not taken by a City or State official 40 days after a complaint is filed.” Sec. 67.35 (d) does not say “elected” or add the other qualifier “department head” but adds “State”. Sec. 67.35 (d) would include SOTF or any government body or official a complaint is filed with.
If you use the Ethics Commission interpretation logic of Sec 67.35 (d) and apply it to “in any court of competent jurisdiction” part of this provision, the Superior Court of San Francisco would be just tied to Sec. 67.35 (a) any withholding of copy or inspection of records or right to attend meetings after not being allowed to attend one or more meetings. Shortening the explanation, this leaves only SOTF to “enforce” the Sunshine Ordinance with few penalties. You can go down several other rabbit holes with other sections of the Sunshine Ordinance applying the same Ethics Commission interpretation logic. Ultimately, the city’s narrow interpretation of the Sunshine Ordinance makes it unenforceable. City officials can be less accountable and transparent.
The California Constitution, the California Appeal Courts, and the California Supreme Court have held firmly that where there is any ambiguity in the law, it should be interpreted to allow greater public access. This is not happening in this city.
SOTF has the power to advise broader interpretation for public access and greater transparency. The Sunshine Ordnance Sec. 67.30 (c) “The task force shall advise the Board of Supervisors and provide information to other City departments on appropriate ways in which to implement this chapter.” Though “advise” and “provide information” is weak. The current members of SOTF do not seem to want to cross city officials, least they do not get approved again.
The dismissal letter also stated, “credible evidence refutes the allegation”. This evidence is not public or maybe it is. It is unknown what evidence they claim. Testing out the Sunshine Ordinance Sec. 67.21 (c) I asked the Ethics Commission to “identifying the existence, form, and nature of any records or information maintained by, available to, or in the custody of the custodian, whether or not the contents of those records are exempt from disclosure and shall, when requested to do so, 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 under (b).” As I suspected the Ethics Commission responded “Regarding your request for a statement describing investigative records, under SF Charter Sec. C3.699-13(a), Ethics Commission investigations must be conducted in a confidential manner and records of any investigation are considered confidential information. Any Commission employee who discloses information about any preliminary investigation shall be deemed guilty of official misconduct. Therefore, the Commission has withheld any records associated with the investigation or any description of the nature of those confidential investigative records.”
To my knowledge, this Sec. 67.21 (c) disclosure has little actual meaning, especially when records are claimed to be “exempt from disclosure”. Even when records could be disclosed, this provision is not enforced by SOTF. I asked Mr. Steinberg, custodian of records of Public Works for a Sec 67.21 (c) disclosure statement and was given that giving me only the total quantity in the thousands was sufficient “to enable a requester to identify records”. I think this does not adhere to the law and pointed this out to SOTF. They did nothing.
Right now, I would say the enforcement of the Sunshine Ordinance and ethics in San Francisco is weak. Partly because there are few actual penalties with both. Most of the San Francisco ethics code penalties AC Sec. 15.105 Suspension and Removal (penalties) goes to “any elective officer” and a hodgepodge of commissions, but not all. It seems crazy to have some commissions and not all commissions, especially if they are oversight bodies or quasi-judicial bodies. AC Sec. 15.105. does not include the Sunshine Ordinance Task Force. The most SOTF and the Ethics Commission can do without penalties is find a violation and make a recommendation.
Government officials can skirt around the weak laws, and vote that they have a “conflict of interests” on an issue they know little about or nothing at all. They do not need to state what their “conflict of interest” is. This way, if they actually have a “conflict of interest” they can say they didn’t know. Custodians of records can make up the number of records that they say respond to a request and not actually have to produce all the records or be accountable if they are just dumping junk records to delay. In many cases, people’s requests are outright ignored even after a SOTF determination. People never get their records. The right for a member of the public to make a record request or have a government official actually assist in helping find specific records they are looking for is considered an attack on that government official or department. SOTF, SOTF committees, departments, and other commissions regularly violate or do not find violations of public access laws or follow their own procedures.
This accounting may be small potatoes, but accountability, the people’s right to know, and democracy can die a death by a thousand cuts.
Sullivan runs the website https://www.sfneighborhoods.net/ committed to giving power to citizens to promote transparency, democratic equality and to increase participation in their neighborhoods and government.
