SF Neighborhoods

The Sunshine Ordinance Task Force (SOTF) allows public communications marked "As a Public Communication" to be published in their communication log. The communication log can be accessed through each months full SOTF agendas. Communications are located at the end of the agenda and marked as "Administrator's Report, Complaints and Communications". Click on the item in the agenda pdf to download.

Index

Additional Paths Complaints can take under the Sunshine Ordinance, CPRA and the Brown Act.

The simple is the first 3 paragraphs.

Sunshine Ordinance Sec. 67.35 Enforcement Provisions (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.”

It makes sense that any person can file a complaint with a City or State official, elected or not elected, who has authority over a person or entity that has violated public record and meeting laws and allow that official to take corrective actions before adjudication. The alleged violation has a chance to be resolved before a lengthy process occurs. The Sunshine Ordinance Task Force (SOTF) and the Ethics Commission would be left to resolve disputes of interpretation of law, delay or obstruction or just no action. Sec 67.35 (d) does not say after a complaint is filed with SOTF. Direct complaint responsibility of City or State officials should increase compliance with public access laws and decrease SOTF complaints.

Partly what this provision is reinforcing in the context of the whole Sunshine Ordinance and the Ethic Commission Charter is that City or State officials have responsibility for implementing and enforcement, SOTF is mostly in charge of interpretation of public access laws and the Ethics Commission is mostly in charge of investigation, enforcement and where conflict of interest occur.

City and State Official Responsibility for Action in Making Records Public

Three sections of the Sunshine Ordinance spell out a City or State official’s responsibility and oversight of public access laws to individuals, bodies or entities under their authority.




Sec 67.21 (f) reinforces administrative and judicial remedies and broadens the definition to who, spelling out “with respect to any officer or employee of any agency, executive office, department or board”.


A complaint to a City or State official with a 40 day time limit does not negate any original violation of the public access laws in that records Sunshine Ordinance Sec 67.25 (d) “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.” Enforcement actions can include remedies to ensure future compliance with public access laws.

City and State Official Responsibility for Action for Meetings

Requirements for public access to meetings are spelled out in the Sunshine Ordinance and The Brown Act, but it is only in The Brown Act 54960.2 that spells out a detailed complaint of cease and desist of a legislative body. The Brown Act 54952 definition of a legislative body is broad and the Sunshine Ordinance adds additional meaning. The Brown Act 54960.2 is lengthy, so it is placed at the bottom of this document.

While the Sunshine Ordinance does not spell out a cease and desist complaint, it still states a person can complain to a City or State official about meeting violations with responsibility spelled out under Sunshine Ordinance Sec. 67.31 (previously shared in this document) and in Sunshine Ordinance Sec. 67.3. Definitions (c) “"Passive meeting body" shall mean:” and (d) “"Policy Body" shall mean:”.

SOTF in Relation to Sunshine Ordinance Sec. 67.35 Enforcement Provisions (d)

I also believe that if the Sunshine Ordinance Task Force does not hear a complaint (action) by 40 days from filing, any person may bring the complaint before the Ethics Commission. An official(s) in SOTF decides when complaints to SOTF are heard. This would apply to any body that gets a complaint pertaining to public access laws.

The Sunshine Ordinance spells out SOTF requirement to be timely and gives SOTF ways to be timely. Sunshine Ordinance Sec 67.30. (c) “The task force shall develop appropriate goals to ensure practical and timely implementation of this chapter.”



Sunshine Ordinance Sec. 67.35 Enforcement Provisions (d) and Sec 67.31 should allow for SOTF to assist any person or SOTF to direct a complaint to City or State official for possible action before a hearing before SOTF.

Providing SOTF (and Ethic Commission) with sufficient Staff and Resources “to ensure practical and timely implementation of this chapter.”

The Sunshine Ordinance requires sufficient staff and resources by the Board of Supervisors and the City Attorney’s office to fulfill its duties under this provision.


Provision Sec 67.21 (e), as previously cited, spells out the actions and timeline SOTF must take when it receives a complaint. If SOTF violates the Sunshine Ordinance because it does not have “sufficient staff and resources to allow the Sunshine Task Force to fulfill its duties under this provision,” any person or SOTF can file a complaint with a Supervisor or the Board of Supervisors or the City Attorney for action of getting “sufficient staff and resources to allow the Sunshine Task Force to fulfill its duties under this provision”. If in 40 days after a complaint is filed and there is no action “Any person may institute proceedings for enforcement and penalties under this act in any court of competent jurisdiction or before the Ethics Commission.” The underfunding of SOTF is an ethical issue GC Sec 15.105 (e) “including any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law” and possible conflict of interest.

The clause uses “shall” and does not distinguish responsibility of staff and resources between the Board of Supervisors and the City Attorney's Office.

Many Sunshine Ordinance complaints right now are over 40 days.

If a City or State official does act on a complaint but there is still conflict, then the complaint would go to SOTF.

Ethics Commission in Relation to Sunshine Ordinance Sec. 67.35 Enforcement Provisions (d)

Sunshine Ordinance Sec. 67.35 Enforcement Provisions (d) should not dramatically increase complaints to the Ethic Commission in the long run since the requirement is of no action within 40 days.

Sunshine Ordinance Sec. 67.35 Enforcement Provisions (d) expands the Ethics Commission jurisdiction to enforcing all the Sunshine Ordinance, the CPRA and the Brown Act (because of provisions in the Sunshine Ordinance), willful or not willful, no matter who or what entity allegedly violates the act if SOTF, or a City or State official does not act in 40 days. The City or State official would be in violation of not only Sunshine Ordinance Sec. 67.35 (d) and for records and/or Sec. 67.29-7 (a), Sec. 67.31, Sec. 67.32 and for meetings Sec. 67.31 and Sec. 67.32 that spell out responsibility. I have previously cited all these sections of the Sunshine Ordinance in this document.

A City or State official no action would be a willful violation(s) if the complaint to a City or State official spells out the need to act and cites Sunshine Ordinance Sec. 67.35 Enforcement Provisions (d). No action will be willful if City and State officials are previously noticed on the requirements of Sunshine Ordinance Sec. 67.35 Enforcement Provisions (d). The Ethic Commission Charter does not prevent no actions willful or not from being investigated and enforcing an action. A willful no action goes to possible additional penalties depending on the official and prescribed by such laws.

The Brown Act 54960.2.

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No Limitation on Quanity of Public Records Produced in a Record Request

Nowhere in the Sunshine Ordinance or the California Public Records Act (CPRA) does it limit the amount of records produced by a record request. Sunshine Ordinance Section 67.25 (b) even uses the words “voluminous nature of the information requested”. CPRA 6253 (c) (2) “voluminous amount of separate and distinct records” In fact, a requester has no knowledge beforehand of how many records will be produced by a request.

Neither public record acts use the term “keyword(s)” or requires a requester to narrow their request.

CPRA 6257.5 “This chapter does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.”

Sunshine Ordinance Section 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.”

Any ask of the requester for keyword search terms to narrow their request is asking for purpose and limiting access to public record that would otherwise be made available.

“Focused and effective request” purpose is not to limit public record access. It is to increase public record access where there would be none.

CPRA 6253.1 (a) “When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following”…

The purpose of “focused and effective” is not to limit the amount of record, but to find records if in the first search the results are zero. The rest of the code spells this out.

CPRA 6253.1 (a) (Paragraph 1 of subdivision (a) that will be noted next in CPRA 6153.1 (b)) “Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.”

Jumping to CPRA 6253.1 (b) Important “The requirements of paragraph (1) of subdivision (a) shall be deemed to have been satisfied if the public agency is unable to identify the requested information after making a reasonable effort to elicit additional clarifying information from the requester that will help identify the record or records.”

This says unable to identify the requested information. A custodian of records finds zero. Not that an agency has identified too many records. If they still find zero records after following CPRA 6253.1, they can make suggestions of other agencies or person(s) to get the records sought and close the case.

The CPRA says “reasonably describe” not reasonable request or overly broad.

The only requirement of a requester is “reasonably describe”. CPRA 6253 (a) “upon a request for a copy of records that reasonably describes an identifiable record or records”… “Reasonably describes an identifiable record”. Also shows up in previously mentioned CPRA 6253.1 (a)

Note: no such sentence is in the Sunshine Ordinance. CPRA 6253 (a) uses “reasonably describes” as in finding a record or records instead of none. Again this clause is saying “reasonably describes” not reasonable request or overly broad in finding to many records are identifiable and requiring limitation. The clause is not saying “upon a request for a copy of records that is overly broad in identifiable record or records”.

Under the Sunshine Ordinance, a whole category of public information can be requested and is required to be produced.

Sunshine Ordinance Section 67.25 (d) “in response to a request for information describing any category of non-exempt public information, when so requested, the City and County shall produce”

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The Sunshine Ordinance Requires that Public Employees give Accurate and Truthful Information. The San Francisco Sunshine Ordinance "Oath".

I am going to work backwards into this reasoning because I think it will be easier to understand.

The San Francisco Sunshine Ordinance, Section 67.22 Release of Oral Information
(b) …”This section shall not be interpreted to curtail existing informal contacts between employees and members of the public when these contacts are occasional, acceptable to the employee and the department, not disruptive of his or her operational duties and confined to accurate information not confidential by law.”

In informal contacts employees must give accurate information.

A broad and logical interpretation of this is employees must also provide accurate information in formal situations, so I went looking for some language to back this up.

The Sunshine Ordinance, Section 67.1 Finding and Purpose

(b) “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.”

(d) “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.”

Dictionary.com Know - to perceive or understand as fact or truth; to apprehend clearly and with certainty:

Accurate- free from error or defect; consistent with a standard, rule, or model; precise; exact

Mirriam-webster.com Know - to be aware of the truth or factuality of : be convinced or certain of.

Accurate- 1. free from error especially as the result of care 2. conforming exactly to truth or to a standard

The Sunshine Ordinance goes further in Section 67.22 (e) in protecting public employees from disciplinary action for being accurate, speaking the truth and disclosing any public information or a public record.

The Sunshine Ordinance, Section 67.22 (e) “Notwithstanding any other provisions of this ordinance, public employees shall not be discouraged from or disciplined for disclosing any information that is public information or a public record to any journalist or any member of the public. Any public employee who is disciplined for disclosing public information or a public record shall have a cause of action against the City and the supervisor imposing the discipline.”

The Brown Act 54950 …”The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

In my opinion, the Sunshine Ordinance and The Brown Act requires government employees to provide accurate and truthful information at hearings regardless if they are not under oath.

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The Sunshine Ordinance Task Force (SOTF) is a Legislative Body under The Brown Act and therefore a Policy Body under the San Francisco Sunshine Ordinance (SFOS)

SOTF is a Legislative Body under The Brown Act and therefore a Policy Body under the SF Sunshine Ordinance (SFSO); Advisory Committees created by a Department Head are a “Passive Meeting Body” but requires Notification and Public Access to Meetings.

SOTF is a Legislative Body under The Brown Act and therefore a Policy Body under the SF Sunshine Ordinance (SFSO)

The Brown Act is the bat.

At the August 4, 2021 full Sunshine Ordinance Task Force (SOTF) meeting, with the advisory support of SOTF council, Chair Wolfe said that SOTF is a “passive meeting body” under the SF Sunshine Ordinance (SFSO). The reasoning is that SFSO, Sec 67.3 (d) the definition of a “Policy Body” that is created by ordinance is by “of the Board of Supervisors”. The electorate voted the SF Sunshine Ordinance in and not by the Board of Supervisors.

The SF Sunshine Ordinance definition of “passive meeting body” does not contain a definition that would apply to the SOTF. It is faulty reasoning to say that since the definitions under “policy body” do not apply, therefore the other definition “passive meeting body” must apply.

The Brown Act has a definition that applies to SOTF.

The Brown Act does not distinguish between a “policy body” and “passive meeting body” in those terms. The SF Sunshine Ordinance language of “policy body” is taken from The Brown Act “legislative body”. SFSO Sec 67.5 Meetings to be Open and Public; Application of Brown Act “All meetings of any policy body shall be open and public, and governed by the provisions of the Ralph M. Brown Act (Government Code Sections 54950 et. seq.) and of this Article.” To apply The Brown Act, “legislative body” and “policy body” must be interchangeable for the SF Sunshine Ordinance to provide greater access.

From the Brown Act:

54592 As used in this chapter, “legislative body” means:

(b) "A commission, committee, board, or other body of a local agency, whether permanent or temporary, decision making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body. However, advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter."

Note the use of the “or”s and comma between “resolution, or formal action of a legislative body.” The Serial Comma Rule specifies that in a series of three or more items where each is set off by a comma, each item should be viewed as independent of each other. If there was not a comma between the last two items, this segment is considered a single unit. The use of a comma before a conjunction removes ambiguity.

Ordinance is not qualified by “of a legislative body”. Since SOTF was created by ordinance, it is a legislative body.

The definitions in the SF Sunshine Ordinance are in many places weaker or less than the definitions in The Brown Act. The Brown Act 54953.7 “Notwithstanding any other provision of law, legislative bodies of local agencies may impose requirements upon themselves which allow greater access to their meetings than prescribed by the minimal standards set forth in this chapter.” allows for greater requirements but not less than requirements of The Brown Act. Furthermore, the Sunshine Ordinance, Sec. 67.5 …Application of Brown Act “….In case of inconsistent requirements under the Brown Act and this Article, the requirement which would result in greater or more expedited public access shall apply.” Since a legislative body created by ordinance (SOTF) in The Brown Act but not by the limitation of “created by ordinance or resolution of the Board of Supervisors” as in definition of the Sunshine Ordinance “Policy Body” Sec. 67.3 (d)(3), there is an inconsistency. Applying the “the requirement which would result in greater or more expedited public access shall apply” would make SOTF a policy body under the Sunshine Ordinance. The Sunshine Ordinance, Sec. 67.5 incorporates provisions of The Brown Act as its own if it provides greater public access.

In the below reasoning, I use the following to further strengthen the use of the Serial Comma Rule: An accepted rule of statutory construction is that qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. (2A Sutherland, Statutory Construction (5th ed. 1992) § 47.33, p. 270.) “Every word in a statute is presumed to have meaning.” (Reno v. Baird (1998) 18 Cal. 4th 640, 658 [76 Cal. Rptr. 2d 499, 957 P.2d 1333]. Besides comporting with rules of statutory construction, interpretations should make common sense.

Other reasoning for supporting the use of the Serial Comma Rule:

1. In 54592 (b) The first is “created by charter”. In CA Constitution art XI § 3 (a) “For its own government, a county or city may adopt a charter by majority vote of its electors voting on the question.” Charters are elected by the people. Charters can be revised by the voters or the local legislative body. The current San Francisco Charter was adopted by the voters in November 7, 1995. Reading 54592 (b) “created by charter” and apply the qualifier “of a legislative body” or Board of Supervisors would disregard the action of voters. The writers of the Sunshine Ordinance note this by separating “Charter” from “of the Board of Supervisors” in Sec. 67.3 (d) (2) “Any other board or commission enumerated in the Charter;” They failed to do it for ordinance, or resolution.

Ordinances can also be elected by the people. In 54592 (b) The arguments used for “charter” can be applied to “ordinance”.

2. 54592 (b) “or formal action of a legislative body”, formal action means the taking of any vote on any resolution, rule, order, motion, regulation, or ordinance or the setting of any official policy. In 54592 (b) “or formal action of a legislative body” is used as a catch-all of any action, not as a redundancy to “ordinance” or “resolution” before it. “Action” is the actual taking of the vote.

In The Brown Act defines “action” in 54952.6 “As used in this chapter, “action taken” means a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.”

The Sunshine Ordinance lacks any such definition of action but incorporates The Brown Act where it falls short or on “inconsistent requirements” (SFSO Sec. 67.5).

3. If the legislators meant for “charter, ordinance, resolution,” not to have meaning beyond “of a legislative body” qualifier, they could have simply said “…. created by formal action of a legislative body”. Instead, the legislation repeats it again in further down in 54592 (b) …. “or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter.” It is clear that the legislature wants each separation by a comma to be considered on its own.

4. The Brown Act does not express to the contrary and constitutional canon requires an interpretation that maximizes the public’s right of access. Sierra Club v. Superior Court (2013) “where terms are ambiguous the constitutional canon requires an interpretation that maximizes the public’s right of access unless the Legislature has expressly provided to the contrary.” Constitution Article 1, Section 3 (b) (2) “A statute, court rule, or other authority, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.” A “legislative body” or “policy body” have more requirements put on them for public access than a “passive meeting body”.

Advisory Committees created by a Department Head are a “Passive Meeting Body” but requires Notification and Public Access to Meetings

At the August 4, 2021 full SOTF meeting, with the advisory support of SOTF council, Chair Wolfe said that his creation of an advisory committee for Project Catalytic was under SFSO Sec. 67.3 (c) “"Passive meeting body" shall mean:” (1) “Advisory committees created by the initiative of a member of a policy body, the Mayor, or a department head;“.

The Brown Act is silent on advisory committees that are not created by a legislative body. It is doubtful that “passive meeting bodies” definitions add any greater requirements from The Brown Act beyond clarifying unless SOTF applies broad interpretation to requirements of SFOS Sec. 67.4 Passive Meetings, especially to the notice and access of the public to a passive meeting body.

SFSO Sec 67.4 (a) “All gatherings of passive meeting bodies shall be accessible to individuals upon inquiry and to the extent possible consistent with the facilities in which they occur.

(1) Such gatherings need not be formally noticed, except on the City's website whenever possible, although the time, place and nature of the gathering shall be disclosed upon inquiry by a member of the public, and any agenda actually prepared for the gathering shall be accessible to such inquirers as a public record.

(2) Such gatherings need not be conducted in any particular space for the accommodation of members of the public, although members of the public shall be permitted to observe on a space available basis consistent with legal and practical restrictions on occupancy.”

There is ambiguity in the notice to the public requirement. My reading of the above is that passive meeting bodies will be accessible to the public based on prior inquiry to the extent possible. There must be some notice to the public beforehand, just not a need to be formal with some attempt to post it on the City’s website. Prior notice to the public is required in order for the public to inquire and have the access that is required in Sec 67.4 (a). With the use of access to meetings by telephone, there should be no restriction based on facilities.

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