November 14, 2007

At Member Pilpel's suggestion, the Committee consensed that the parties' testimony should be reduced from 5 to 3 minutes.

At Member Comstock's suggestion, the Committee consensed that Members' questioning should be limited to 10 minutes.

1.

Approval of minutes of October 10, 2007.

Speakers: Allen Grossman asked the Committee to make some wording changes to his statement on item #6.

Peter Warfield said item #6 should be amended to include the listing of grants on the website as another area of difference.

Motion to approve minutes of October 10, 2007, as amended. ( Pilpel / Comsotck )

Ayes: Knee, Comstock, Craven, Pilpel

Absent: Wolfe

2.

07040 & 07042

Progress report regarding speaker assignment process: June 26, 2007, Order of Determination in re Dr. Ahimsha Sumchai and Francisco Da Costa vs. Supervisor Sophie Maxwell.

Member Comstock recused himself.

Chair Knee noted that no representative of Supervisor Maxwell's Office was present.

Speakers: Dr. Ahimsha Sumchai said Supervisor Maxwell is not in compliance with the Order of Determination and that at the October 29, 2007, meeting of the Board of Supervisors Land Use Committee, the supervisor delayed public comment on an item for four hours. She said she felt that the matter was personal.

Member Craven said the matter indicated by Dr. Sumchai is different from that in the Order of Determination and suggested Dr. Sumchai file a new complaint.

Member Pilpel suggested the matter be continued.

Member Craven suggested the matter not be continued.

Member Wolfe agreed that the matter should not be continued but expressed concern that representatives of departments are not attending.

Peter Warfield said 67.21(e) requires that a representative of the department attend the meeting.

Jason Garza said a representative of the department is required to attend.

No action taken.

3.

07057

Continued hearing on the status of the August 28, 2007, Order of Determination in re Jeff Ente vs. Supervisor Aaron Peskin.

Member Comstock recused himself.

Chair Knee noted that no representative of Supervisor Peskin's Office was present.

Speakers: Jeff Ente, Complainant, said his main request was to see the e-mails for advocacy for the legislation that was passed, and not recovery of e-mails.

Jason Garza said that not attending today's Committee meeting is official misconduct and the rules should be followed.

Peter Warfield, said Section 67.21(e) does not say the department head must attend, but that an authorized representative of the department must attend.

Member Craven suggested a follow-up letter be sent to Supervisor Peskin, with the October 4, 2007, e-mail from Chair Knee attached, expressing concern that no one has appeared before the body to address the issues and there is no confirmation that the directive to search the backup and archived e-mails was met. She said Supervisor Peskin's office should be asked again to conduct the search and to provide the results prior to the next CAC meeting; that if the office continues to fail to show that the search has been done and/or fail to appear, the matter will be referred to the full Task Force for recommendation of finding of willful failure and failure to comply with the OD.

Member Sheppard also suggested that a letter be written to the Board of Supervisors.

Member Pilpel agreed that a formal letter on Task Force letterhead stationery be written. He asked DCA Llorente to search for a prior memo from the City Attorney to the Clerk of the Board, from 8 years ago, regarding retention of e-mails on legislative matters.

Member Craven said the retention of legislative files is governed by departments' Records Retention Schedule.

DCA Llorente said he is not averse to doing research, but not for the purpose of satisfying a person's curiosity. He said that requests should be relevant to the matter at hand.

Motion authorizing the chair to send a formal letter to Supervisor Peskin as follow-up on this matter as outlined by Member Craven. (Pilpel/Wolfe)

Ayes: Knee, Craven, Pilpel, Wolfe

Recused: Comstock

Continued without objection.

4.

07061 & 07062

Hearing on the status of the September 25, 2007, Order of Determination in re Peter Warfield, for the Library Users Association, vs. the San Francisco Public Library.

Speakers: Peter Warfield, Complainant, read a portion of the response letter submitted by the Library, and said nothing has changed and that the department refuses to provide certain information on donors. He urged the Committee to take appropriate action. Allen Grossman, in support, said the Committee should refer the matter to the Task Force for further action since the Library refuses to comply with the Order of Determination.

Sue Blackman, Respondent, said the Library has provided written legal justification for withholding and is in compliance with Section 67.29-6 of the Ordinance.

Mr. Warfield, in rebuttal, said the Library should send someone who can speak to the legal issues, and urged the Committee to forward the matter to the full Task Force for further action.

Member Craven said the Library has complied with the OD in all respects except providing the home addresses, for which there is no reasonable expectation of privacy under the circumstances.

Member Sheppard said he believes that there is an expecation of privacy, and that something has to be done when there is a difference of opinion between the City Attorney and the Task Force.

Member Wolfe said the donor information should be disclosed, and that disclosure is important for the preservation of information.

Member Pilpel said he does not believe donors have an expectation that their home addresses will be disclosed.

Member Knee said he received an opinion from Terry Francke of Californians Aware that in applying the "balancing act" the Library must prove there is an expectation of privacy.

Motion to refer the item to the Task Force with a recommendation that the Library be found in willful misconduct for failure to comply with the Sunshine Ordinance, and failure to comply with the Order of Determination issued by the Task Force on September 25, 2007; that referral, based on that finding, to the District Attorney, Attorney General, the Board of Supervisors, and Ethics Commission be considered. (Comstock/Craven)

Ayes: Knee, Comstock, Craven, Wolfe

Noes: Pilpel

5.

06034

Request for reconsideration of the January 23, 2007, Order of Determination in re Jason Garza vs. Department of Public Health – San Francisco General Hospital

Member Knee informed Mr. Garza that for a matter to be reconsidered, new information must be introduced and the matter must be brought before the full Task Force.

Mr. Garza said he has a court ruling that provides new evidence and he requests that the Task Force reconsider his complaint.

Chair Knee, by consensus of the Committee, referred the matter to the full Task Force for reconsideration at the November 27, 2007, meeting.

6.

07056

Hearing on the status of the October 23, 2007, Order of Determination in re Myrna Lim against the Ethics Commission.

Member Comstock recused himself.

Speakers: Myrna Lim, Complainant, asked the Task Force to use all of its power to obtain compliance with the Order of Determination (OD). She said she needs the Task Force's help to clear her name.

John St. Croix, Respondent, provided a 6-page letter, which he referenced, explaining why the Ethics Commission (EC) will not comply with the OD. He said complying with the OD would be a violation of the law.

Ms. Lim, in rebuttal, said that what is presented is nothing new. She said the EC abuses its power, investigates persons without their knowledge, and disparages their names.

Ms. Johnson, said "forgive me for bringing up something different on the earlier matter"... inaudible.

DCA Llorente said the CAC's role is not to rehear the complaint but to ascertain compliance.

Member Craven said the law allows only partial withholding and that the issues stated by Mr. St. Croix were raised at the full Task Force meeting.

Member Pilpel asked if Mr. St. Croix wanted the Task Force to reconsider the OD. Mr. St. Croix said, yes.

Member Pilpel asked Ms. Lim if she brought her concerns about the EC's procedures to the attention of the EC. Ms. Lim said, no. He urged her to inform the EC.

Member Sheppard suggested the matter be referred back to the Task Force.

Motion to refer the item to the Task Force for reconsideration of the Order of Determination as requested by the Ethics Commission and with a recommendation that the Ethics Commission be found in willful misconduct for failure to comply with the Sunshine Ordinance and with the Order of Determination issued by the full Task Force on October 23, 2007; that referral, based on that finding, to the District Attorney, Attorney General, and the Board of Supervisor be considered. (Wolfe/Craven)

Ayes: Knee, Craven, Wolfe

Noes: Pilpel

Recused: Comstock

7.

07060

Hearing on the status of the October 23, 2007, Order of Determination in re Alex Clark against the San Francisco Public Utilities Commission (PUC).

Member Craven recused herself.

Speakers: Diane Parker, Responent, said that after conducting another search the PUC was able to find 26 additional pages, which it provided to Mr. Clark, and that it has no additional records to provide.

Member Wolfe said he feels that the matter can be tabled.

Chair Knee said he is concerned that Mr. Clark might not be satisfied. He urged the department to continue to work with Mr. Clark to provide him with additional requested records.

Motion to table, without objection. (Wolfe/Comstock)

8.

07068

Hearing on the status of the October 23, 2007, Order of Determination in re Maxine Doogan against the District Attorney.

Speakers: Maxine Doogan, Complainant, said the District Attorney provided what appear to be copies of all of the contracts she requested, which she will need to have audited. She said it does not appear to show where money went, monthly reports, and board members who attended.

Sandip Patel, Respondent, said the DA's office has provided all responsive documents in its possession. He said the office referred Ms. Doogan to departments that may have the additional records that she is requesting.

Ms. Doogan, in rebuttal, said the documents show only disbursements and not monies received.

Public comment: Robin Fumes, said disclosure from the DA is not forthcoming; that it is not clear were money is going and who is attending the First Offenders Prostitution Program. He urged the Task Force not to drop the matter.

Member Craven said she doesn't understand why it took the DA's office so long to provide the records but is glad it did. She said the Task Force does not have authority to reprimand the DA.

Mr. Patel, in response to member Craven's question, said monies collected are received by the DA and disbursed in support of the programs.

Member Wolfe asked if contracts are filed with the Controller's office. Mr. Patel responded, yes.

Member Sheppard said it does not appear that there is a question of the documents provided, but rather the ethics of how the DA is spending the funds.

Member Pilpel urged Ms. Doogan to contact SAGE directly for the roster of its board of directors, the Controller's office for additional copies of financial or contractual information, and the Board of Supervisors to schedule a discussion regarding ethics issues.

Motion to table, without objection. (Pilpel/Comstock)

9.

07073

Hearing on the status of the October 23, 2007, Order of Determination in re Russell Albano against the Department of Human Resources – Workers Compensation Division.

Speakers: Russell Albano, Complainant, said he did not receive a response from the department.

Robin Masuda, Respondent, said the department has complied with the Order of Determination and has provided Mr. Albano with copies of requested documents except attorney-client privileged information. She said Mr. Albano and the department were represented by legal counsel.

Mr. Albano, in rebuttal, said legal counsel represented him in a prior matter; that he is seeking information that justifies altering his work status and not relating to the two cases.

Public comment: Ms. Johnson's comments were inaudible.

Member Craven asked Ms. Masuda if only attorney-client privileged information between Workers Compensation and the City Attorney were withheld. Ms. Masuda responded, yes. Member Craven said no further action was needed.

Member Wolfe said documents become privileged only when there is litigation. He moved to table the item. The motion failed for lack of a second.

No further action taken.

10.

07074

Hearing on the status of the October 23, 2007, Order of Determination in re Russell Albano against the Fire Department.

Speakers: Russell Albano, Complainant, said he did not receive any correspondence from the Department.

Rhab Boughn, Respondent, handed a document to Mr. Albano and the Committee, which he said has General Order information sought by Mr. Albano. He said other attorney-client privileged information was not provided.

Mr. Albano, in rebuttal, said he wished he had received the information before today so he could have time to review it.

Public comment: Ms. Johnson's comments were inaudible.

Member Craven asked Mr. Albano if there were any records requested that he did not have. Mr. Albano said, no.

No further action taken.

11.

Possible amendments to Sections 67.30 to 67A.1 of the Sunshine Ordinance and subsequent sections as time permits.

Sec 67.30 The Sunshine Ordinance Task Force.

Sec 67.31 Responsibility for Administration.

Sec 67.32 Provision of Services to other Agencies; Sunshine Required.

Sec 67.33 Department Head Declaration.

Sec 67.34 Willful Failure Shall Be Official Misconduct.

Sec 67.35 Enforcement Provisions.

Sec 67.36 Sunshine Ordinance Supercedes Other Local Laws.

Sec 67.37 Severability.

Member Craven suggested that a special meeting be held in January, 2008, to finalize the CAC's portion of the amendments. Without objection.

Continued, without objection.

12.

Administrator's report.

The Administrator made the report

Public speakers: Ms. Johnson's comments were inaudible.

13.

Public comment on items not listed on the agenda.

Public Speakers:

• Kimo Crossman, expressed concern that departments are rearguing their complaints at the CAC; that it is inappropriate to introduce new arguments after a determination has been made. He urged the committee to focus on compliance.
• Myrna Lim asked to have her item heard before item number 5.
• Ms. Johnson's comments were inaudible.
• Allen Grossman said that according to Section 67.21(i) the City Attorney (CA) could not advise departments to deny access to public records. He said that as he is an attorney, the CA's opinion is no better than his, and that it is not appropriate to use the CA as a hammer or as a legal defense for non-compliance.
• Peter Warfield said departments should appear at hearings. He said that with regard to donor information, an address should go with a name.
• Jason Grant Garza said the CA should not help departments deny access to records.

14.

Announcements, questions and future agenda items from CAC members.

Speakers: None

Adjournment: The meeting was adjourned at 7:40 p.m.

An audio recording of this meeting is on file in the Sunshine Ordinance Task Force office.