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1.
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Approval of minutes of September 26, 2006
Speakers: Kimo Crossman: commended Linda Wong for quality of the minutes, which he feels reflects the quality of detail needed.
Motion to approve minutes of September 26, 2006. ( Knee / Cauthen )
Ayes: Craven, Knee, Cauthen, Vongs, Chu, Comstock, Chan, Williams
Absent: Pilpel, Wolfe
Excused Absent: Goldman
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2.
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Report from Complaint Committee meeting of September 12, 2006, and October 10, 2006.
Member Cauthen made the report
Speakers: None
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06008 & 06009
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Recommendation to accept jurisdiction of complaint filed by Kimo Crossman against the Department of Telecommunications and Information Services for alleged untimely response, failure to respond to a IDR, to provide records incrementally, to exempt review, to provide records electronically, and to use computer technology to reduce cost.
Speakers: Kimo Crossman stated that DTIS did not attend the Complaint Committee hearing. Peter Warfield stated that the Complainants have a right to make public comment on this item; that departments are required to attend Task Force meetings and urged that the Task Force take action against departments that don't attend required meetings.
Motion to accept jurisdiction. ( Cauthen / Knee )
Ayes: Craven, Knee, Cauthen, Vongs, Chu, Comstock, Pilpel, Chan, Williams
Absent: Wolfe
Excused Absent: Goldman
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06014
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Recommendation to accept jurisdiction of complaint filed by Kimo Crossman against the Department of Telecommunications and Information Services for alleged failure to produce records and to provide them in electronic format.
Speakers: Kimo Crossman, Complainant, requested a continuance because he does not have all of the documents requested from DTIS, as listed on pg. 174 & 175 of the packet, which are needed to support his complaint; Ron Vinson, Respondent, requested that the complaint not be continued; that he does not have records responsive to this complaint, and made the same request at last months Task Force meeting.
Peter Warfield read from Section 67.21 (e) regarding the attendance at Task Force meetings by the department's custodian of records. He said that complainants should be allowed to continue their complaint, at will, however departments should not be allowed the opportunity to continue the item because they could drag out the complaint.
Motion to continue to the next meeting. ( Cauthen / Chu )
Ayes: Knee, Cauthen, Vongs, Chu, Comstock, Wolfe, Chan, Williams
Noes: Craven, Pilpel
Excused Absent: Goldman
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06017
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Recommendation to accept jurisdiction of complaint filed by Michael Petrelis against the Department of Public Health-Community Advisory Board for alleged failure to post meeting notices and agendas on the web and local publications, and failure to post agendas and minutes of its meetings.
Speakers: None
Motion to accept jurisdiction. ( Cauthen / Chan )
Ayes: Craven, Knee, Cauthen, Vongs, Chu, Comstock, Pilpel, Wolfe, Chan, Williams
Excused Absent: Goldman
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3.
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06008 & 06009
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Public hearing, recommendation to accept jurisdiction of complaint filed by Kimo Crossman against the Department of Telecommunications and Information Services for alleged untimely response, failure to respond to a IDR, to provide records incrementally, to exempt review, to provide records electronically, and to use computer technology to reduce cost.
Speakers: Kimo Crossman, Complainant; Ron Vinson, Department of Telecommunications and Information Services, Respondent.
Allen Grossman: said that although the request is voluminous it's the department's job to provide the record.
Peter Warfield, cited Section 67.25, 26 and 27 re: untimely response, withholding kept to a minimum, and justification for withholding. He said that it's the employee's job to provide the material.
Member Pilpel asked Mr. Crossman, pursuant to Section 67.25 (c),why he wanted the documents in electronic format. Member Knee moved that the question be ruled improper, however there was no second to the motion. Member Craven stated that the question was proper because the answer might help the Task Force determine whether Mr. Crossman received the information for the purpose that he requested.
Kimo Crossman responded that he just wanted the record in its original format.
Motion finding a violation of sections 67.21 (l) and 67.27 for failure to provide records in electronic format and failure to provide justification for witholding. (Craven / Comstock )
The Task Force understands that the original requests, and other requests pending at that time, were extensive and voluminous. Therefore, this order is prospective only. The Department of Telecommunications and Information Services will not be required to retroactively produce the requested documents in native electronic format. Nothing in this order, however, prevents Mr. Crossman from resubmitting a narrowly tailored request seeking specific documents in their electronic format.
This item need not be referred to the Compliance and Amendments Committee since no action need be taken.
Ayes: Craven, Knee, Cauthen, Vongs, Chu, Comstock, Wolfe, Williams
Noes: Pilpel
Excused Absent: Goldman, Chan
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4.
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06014
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Public hearing, complaint filed by Kimo Crossman against the Department of Telecommunications and Information Services for alleged failure to produce records and to provide in electronic format.
Previously continued.
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5.
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06017
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Public hearing, complaint filed by Michael Petrelis against the Department of Public Health-Community Advisory Board for alleged failure to post meeting notices and agendas on the web and local publications, and failure to post agendas and minutes of its meetings.
Member Williams indicated that she is familiar with both parties but can be fair and impartial.
Deputy City Attorney Llorente reminded the Task Force about the request from CAB for a separate time to comment as a party of interest, and explained the process for providing equal time for each party.
Chair Comstock, by consensus of the Task Force, indicated that the CAB, as a party of interest, will be allowed the same amount of time as the department. He informed Mr. Petrelis that he has 10 minutes to present his complaint and 6 minutes for rebuttal.
Speakers: Michael Petrelis, Complainant. Hank Wilson for complainant: needs to know who is on CAB, be allowed to have public comment and be able to talk to people directly involved. Dr. Susan Buchbinder, Department of Public Health. Robert Reinhard, CAB Member.
Gavin Hall – described CAB's function and purpose.
Matthew Lawrence – discussed CAB's community outreach and the need for privacy and confidentiality, which allows for open and honest feedback.
Israel – Talked about CAB's research studies with the community.
Kimo Crossman – urged CAB to provide a method for public participation without affecting privacy of participants.
Jennifer S. – urged the Task Force to allow the CAB to remain as is because there are difficult emotional issues, and participants need to feel safe.
Mark H. – indicated other methods to get research information without going through CAB.
Member Cauthen and Member Knee, by consensus of the Task Force, asked that the DPH, through Dr. Buchbinder, provide clarification to the Task Force by providing 1) An Organization Chart, 2) documentation re: where the CAB gets its funds, 3) documentation re: where the CAB gets its information, and 4) a copy of their Education Plan.
Mr. Petrelis agreed to waive the 45 day requirement to grant a continuance until the November 28, Task Force meeting.
Member Pilpel moved to continue the item, without objection.
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6.
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06013
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Reconsideration of complaint filed by Kimo Crossman against the Office of the Clerk of the Board for alleged failure to provide public record in original Word format and failure to provide written justification for withholding.
Linda Wong Clerked the meeting.
Member Pilpel asked, as a point of order, if only those Members on the prevailing side and who voted on this item at the previous meeting can vote on and introduce/second a motion on today's reconsideration?
Deputy City Attorney Llorente, informed the Task Force that all Members present may introduce/second a motion and/or vote on the item.
Speakers: Kimo Crossman, Complaint; Allen Grossman, in support of the complainant said that since the document has already been provided this is moot, but for a litany of reasons used at the hearing for not providing the document, there will continue to be an issue of trust, respect, honesty and integrity in the way City departments respond to these request. Frank Darby, Records and Information Manager, Office of the Clerk of the Board spoke against the motion.
Peter Warfield, urged the Task Force to find a violation using the strongest language possible, because the violation was most unfortunate and significant, was not handled properly, and legal reasons for withholding were not provided.
Motion finding a violation of Sunshine Ordinance section 67.21 (l) and Government Code Section 6253.9 (a). ( Knee / Cauthen )
Ayes: Craven, Knee, Cauthen, Vongs, Chu, Comstock, Wolfe, Williams
Noes: Pilpel
Excused Absent: Goldman, Chan
Member Williams expressed that she was offended by the statements written about her on pages 249 and 250 of the packet regarding this complaint, that it is derogatory and not an accurate characterization of her, that she has never been pro or con for anyone while serving on the Task Force. She does what she believes is right and just. She said that she does not deserve to be written up in that light, that she does not know Gloria Young or Frank Darby outside of the Task Force, and that she is for the people of San Francisco.
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7.
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Report: Compliance and Amendments Committee: meeting of October 11, 2006.
Member Knee made the report. He indicated that due to the holiday the next meeting will take place on Wednesday, November 15.
Speakers: Kimo Crossman suggested that the COB should not determine the work that the Administrator performs for the Task Force. He suggest that the CAC reconsider adding in Section 67.16 a requirement that every word provided by the City Attorney be included in the minutes; that there should be an ethical wall between the Supervisor of records and the rest of the City Attorney's office.
Allen Grossman said that the Task Force members and the public who spend long hours help the process and make it work; that the process for obtaining public records by persons requesting them from Departments depends on the honesty, respect, integrity, good faith and commitments of the City employees who have custody, and upon the CAO's observance of the constraints imposed on them under the statue. He quoted from the Good Government Guide re: the CAO holding a position of public trust; that departments should not be allowed to stonewall the process.
Peter Warfield – asked that some public outreach be done to allow the public to describe their experience on Sunshine; asked that a table of contents be added when there is a 300 page packet; that Deputy City Attorney Llorente's name is spelled incorrectly in the minutes. Urged that attorney commentary be noted and included in Task Force procedures.
Member Pilpel asked Mr. Warfield to provide the Task Force with a copy of the Library's CAC minutes.
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8.
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Report from Education, Outreach and Training Committee.
Member Pilpel made the report that there was no meeting this month. The next meeting will be November 9, 2006, from 3 – 5 PM.
Speakers: None
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9.
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Report from City College Ad Hoc Committee: meeting of September 28, 2006.
Chair Comstock made the report.
Speakers: Kimo Crossman commended the Committee on doing excellent work.
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10.
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Advice from the City Attorney to other City officers and employees on the Sunshine and Ethics implications of their actions and policies.
Speakers: Matt Dorsey, Public Information Officer, City Attorney's Office, explained that the intent of their advice, as indicated on page 15 of the Good Government Guide, which states..."City officers and employees should be aware that legal advice on ethics laws and open government laws may not be confidential..." is to inform and educate the departments with regards to non attorney-client privileged information, and is not to discourage departments from seeking written advice.
Allen Grossman: stated that any opinion or advice given by the City Attorney Office (CAO) regarding the Sunshine Ordinance should be recorded and publicly available, so that everyone can see it; that the language allows departments to hide oral advice received from the CAO in violation of Section 67.21 (i). He does not believe that the CAO is doing all it can to ensure access to public records.
Peter Warfield: stated that the language is a recipe for evasion and for hiding what was given. He cited from Section 67.21 (a), and (c) information is not just what's on paper but also what is orally transmitted; that it is dangerous to allow oral information a cloak of secrecy. Urged amendment to the Ordinance to, if necessary, make it more explicit on this matter.
Kimo Crossman: Cited section 67.20 (b) re: the definition of public record; that the language is a recipe for avoiding and showing what happened, that the Task Force should use its power to require that the City Attorney record all Sunshine matters and that the language be removed from the Good Government Guide.
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11.
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Resolution supporting the right of journalists to protect source identities and to keep possession of unpublished/unaired materials, echoing the resolution of the Board of Supervisors in support of freelance blogger/videographer Joshua Wolf; and urging the Board and the Mayor to express to San Francisco's U.S. Senate and House representatives their support of shield law legislation S.2831 and H.R. 3233, that are under consideration in Congress.
Speakers: None
Member Knee requested that this item be continued, without objection.
Pilpel asked if the proposed resolution was in the Task Force's purview, with the power to adopt?
Deputy City Attorney Llorente responded that the matter goes beyond the power/scope of the Task Force under Section 67.30, but that the Task Force can do what it feels is appropriate, however the amount of weight it carries is another issue and that it is the feeling of the body to make a statement. They have a right to make a statement.
Continued without objection.
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12.
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Sunshine Ordinance Task Force Policy on release of its electronic records.
Chair Comstock requested that this item be rescheduled and the word "its" removed so that the Task Force can have a general discussion on the matter.
Motion, It is the policy of the Sunshine Ordinance Task Force to release all requested electronic records in their original format unless an alternative format is specified by the requestor and/or the respondent provides specific statutory exemption. ( Knee / Cauthen )
Speakers: Kimo Crossman: stated that the policy was not necessary and urged against its approval because it leaves the impression that departments can do otherwise.
Peter Warfield: urged the Task Force to reconsider or withdrew the motion because the law provides ample guidance on what's provided and the implication is that this policy would make the law appear unclear or that something is wrong.
Allen Grossman: Stated that the Clerk of the Board asserts that she has authority over the Task Force records, but that the Administrator is responsible only to the Task Force and not the Clerk of the Board regarding the custodianship of Task Force records and that the act of assignment of a Administrator is the only function that the COB has in relation to the performance, duties and procedures that are followed by the Task Force and its Administrator.
Member Knee withdrew the motion, after hearing comments form Members and the public.
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13.
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Discussion re: Should the Task Force refer to the Ethics Commission, for violation, the names of Departments that don't attend meetings of the full Task Force or Committees as required under Section 67.21 (e) of the Ordinance.
Member Cauthen requested that this item be continued, without objection.
Member Pilpel asked if the Task Force has the power to refer this to the Ethics Commission for action.
Deputy City Attorney Llorente said referrals are made for officials who violate sections that deal with the Sunshine Ordinance. Its problematic in that a committee is making a referral to the Ethics Commission when the full body has not addressed the issue, and fails to give the responding department an opportunity to explain their non appearance.
Chair Comstock informed members of the public that the item is being continued and that if they speak on this item now, that they would not be able to speak on it again.
Speakers: Kimo Crossman encouraged the Task Force to address this matter in such away that departments don't send uninformed persons to represent them.
Peter Warfield cited Section 67.30, and said that the Task Force may issue a report of violations to the Ethics Commission. The Task Force can also post violations, Orders of Determinations, and names of departments who don't appear on their web site; that the Task Force should ensure that the people who are sent are appropriately informed.
Allen Grossman cited Section 67.34 saying that willful failure to appear is official misconduct, which can be reported to the Ethics Commission.
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14.
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Discussion regarding the Board of Supervisors funding guidelines as it applies to the Sunshine Ordinance Task Force.
In response to Chair Comstock's question regarding the availability of SOTF guidelines, the Administrator informed the Task Force that he had no knowledge of any written guidelines regarding the Task Force. That the suggestion that the Clerk of the Board (COB) is trying to reduce Task Force support is not accurate. Support provided by the COB is greater than what is required for 1FTE under the Ordinance.
Member Pilpel asked what the COB's role is with regards to the SOTF Administrator. Deputy City Attorney Llorente responded that although Mr. Darby has been assigned to the Task Force and to all the duties as the Full Time Administrator, he is still an employee of the COB.
Speakers: Allen Grossman stated that the Ordinance is clear that the Administrator is employed by the City not the COB nor may the COB add or change his duties.
Peter Warfield said that the time and service is not the same with the new Administrator; alleged that he was overcharged for packets, that the SOTF budget is less than in previous years and not enough for a FTE. The Task Force does not have the same support as in prior years.
Kimo Crossman said that he has made a public records request for calendar entries of Frank Darby and all e-mail, that the Administrator does not respond to e-mail and that the Administrator has three job descriptions. He also discussed the COB's Efficiency Plan budget.
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15.
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Administrator's Report.
The Administrator made the report.
Speakers: Peter Warfield expressed his dissatisfaction with the Task Force for not providing him with direct communication regarding the letter received from the Ethics Commission regarding his 2004 complaint.
Kimo Crossman: stated that the Administrator is not working full time: alleges that the Task Force hours are not normal business hours.
Member Craven asked that a notation be added in the complaint log regarding responses to referrals made by the Task Force.
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16.
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Public comment for items not listed on the agenda.
Speakers: Peter Warfield informed the Task Force of an error in the September 26, minutes. Member Pilpel moved to amend the minutes as requested by Mr. Warfield, without objection.
Kimo Crossman, commended the Task Force on their thorough analysis of the complaint in item #5.
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17.
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Announcements, questions, and future agenda items from the Task Force.
Member Pilpel suggested there are two measures on the November ballot that have bearing on Sunshine matters related to teleconferencing and release of private information. He requested that the Supervisor of Records Report be agendized for the next meeting, that there may be some changes in state law re: public records and Brown Act which may need to be discussed. He asked for the newly approved Statement of Incompatible Activities from the Ethics Commission.
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Adjournment
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The meeting was adjourned at 9:55 p.m.
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