SUNSHINE ORDINANCE TASK FORCE
REGULAR MEETING
MINUTES
Tuesday, February 27, 2001
4:00 p.m. City Hall, Room 408
Task Force Members
Seat 1 Judith Appel Seat 8 Robert Planthold
Seat 2 Bruce Brugmann Seat 9 Daniel Guillory
Seat 3 Vince Courtney Seat 10 Paul Hogan, Vice Chair
Seat 4 Vacant Seat 11 Sue Cauthen
Seat 5 Tuesday Ray Ex-officio Lillian Hare
Seat 6 Hilda Bernstein, Chair Ex-officio Hala Hijazi
Seat 7 Ted Kowalczuk
Roll Call: All present.
Agenda changes announced.
1. Approval of Minutes of January 23, 2001
3. Report from Chair
Chair Bernstein reported on the following items:
(a) Status and update letter to Gloria Tulanowski
(b) Letter to San Francisco Retirement Board regarding
Courtney & Courtney complaints
(c) Letters to and from Anita Theoharis regarding meeting
with Chair of Planning Commission
(d) Attendance at Committee meetings of 1/31/01 Ad Hoc
Committee on Conflict of Interest and 2/13 Rules Committee
(f) Reassessment of the Task Force three-meeting-absence
rule
(g) Facilitating work of Task Force; the role of the Chair
(e) Dawn Clements letters to Board of Supervisors and
Supervisor Ammiano
and Task Force response.
Member Guillory asked if the Task Force had had a response
from the Attorney General. The answer was no. Deputy City Attorney Delventhal
stated State Law requires response from City Attorney to the subject when
a request is made to the Attorney General
4. Report from Counsel
Deputy City Attorney Minor reported on the following items:
(1) Information on disclosure of home telephone numbers
and addresses
(2) Attorney General opinion information regarding e-mails
(3) 1/9/01 memo regarding referral of matters by the Task
Force to the Attorney General
(4) Article I, Section I of the State Constitution which
is the right to privacy.
2. Recommendation regarding removal of Task Force Member
This item was removed from the agenda. Member Brugmann
submitted a letter of resignation from Marie-Lorraine Mallare.
5. Report from Judy Appel, Chair of the Complaint Committee
and Bob Planthold, Chair of the Rules Committee regarding distribution of complaints
to the Task Force
Members Ray, Hogan were in favor of leaving the distribution
of complaints first through the Complaint Committee and then to the entire
Task Force.
Members Brugmann, Courtney were in favor of all Task Force
members receiving copies of the complaints at the time they were submitted
to the Sunshine Ordinance Task Force Office.
Motion to continue with the practice now of distributing
complaints through the Complaint Committee first. (Planthold/Ray) (Ayes Ray,
Bernstein, Kowalczuk, Planthold, Hogan) (Noes Appel, Brugmann, Courtney, Guillory,
Cauthen) The motion failed.
Moved to distribute copies of complaints at the time they
are submitted to the Sunshine Ordinance Task Force Office to the members who
have requested advance copies. (Appel/Brugmann) (Ayes Appel, Brugmann, Cauthen,
Courtney, Guillory, Ray, Kowalczuk, Planthold, Hogan) (Noes Bernstein)
6. Report from Complaint Committee
Committee Chair Appel reported on the meetings of the
Complaint Committee relative to changes to the Public Complaint Procedure
adopted 8/22/00. The changes dealt with Section B. Filing a Petition of Complaint
with the SOTF and Section D. Public Hearing Requested.
Moved to amend the Public Complaint Procedure, Section
B. Filing a Petition of Complaint with the SOTF and Section D. Public Hearing
Requested, Item 1, as follows: (Appel/Planthold)
Section B. Filing a Petition of Complaint with the
SOTF to now read:
B. Filing a Petition of Complaint with the SOTF:
1. No hearing will be held without the filing of a petition,
either in the form of a letter or with a (revised) complaint form.
2. A petition may be submitted to the SOTF via mail, fax
or e-mail.
Task Force members who have requested advance copies
of complaints will be sent the complaint information at the time the complaint
is submitted to the Sunshine Ordinance Task Force Office.
3. The petition will include a way to indicate
if the complainant wants a public hearing on the issue raised in the petition.
4. Copies of all correspondence and other documents relating
to or arising out of a petition will be provided to all parties in a timely
manner, and best efforts will be made to do so before any meeting or hearing
at which the petition will be discussed.
5. A standing "Complaint Committee" of
the SOTF will consist of at least three members of the SOTF.
6. All complaints will go to the Complaint Committee
for review. Petitioner will be advised of the date, time and location of the
complaint committee meeting during which their petition will be discussed.
Petitioner will be notified that they are invited and if they do not attend,
will be notified of the results of the Complaint Committee. Petitioner will
be requested to submit all pertinent information.
7. The City Attorney will make a recommendation
to the Complaint Committee as to whether or not the SOTF has subject matter
jurisdiction over a complaint. If the City Attorney determines that the SOTF
lacks such jurisdiction, s/he will so advise the Complaint Committee. If the
Complaint Committee agrees, the complainant will be notified in writing that
the SOTF cannot hear the complaint and the complaint will be closed. If the
Complaint Committee disagrees with the City Attorney’s determination and determines
that subject matter jurisdiction exists, the complaint will proceed.
8. Upon a finding of jurisdiction by the complaint
committee, the SOTF Administrator will send copy of the petition to the affected
department, with a request to respond within five business days. The city
attorney may assist the city departments and agencies in responding to requests
for public records, and may seek the assistance of the city attorney assigned
to the SOTF.
9. The Administrator of the SOTF will gather relevant
information and documents prior to the first Complaint Committee during which
a petition will be discussed.
10. Prior to a hearing, and at the discretion of
the Complaint Committee, the Complaint Committee may make a determination
regarding whether the petition has possible merit as a violation of the SF
Sunshine Ordinance, based on the content of the petition and any supporting
documentation. Where it is determined that, given all of the facts alleged
by the complainant, the petition is without any possible merit, the Complaint
Committee will make a recommendation of "no violation" to the full
SOTF, and will advise the petitioner of this recommendation. Consistent with
the language and spirit of the SF Sunshine Ordinance to provide the most open
government possible, (see "Findings and Purpose," SF Admin
Code section 67.1), all inferences and evidence will be viewed in the light
most favorable to the petitioner.
11. Where the Complaint Committee makes a recommendation
of "no violation," it will do so to the SOTF at its next meeting.
If the SOTF votes against this recommendation and decides to allow the matter
to go to hearing, and where holding a hearing at the following regularly scheduled
meeting would result in a violation of the 45 day time-limit for resolving
complaints that is mandated by Admin. Code section 67.21, then a Special Meeting
will be called for a hearing on the matter.
12. A copy of the departmental response will be
forwarded to the member of the public by the SOTF Administrator. Where an
individual has not requested a hearing, they will again be advised that such
a hearing is available to them.
13. A copy of the complaint, the departmental response
and any supporting documents will be provided to all members of the SOTF for
their review. Where the documents supporting the complaint exceed 75 pages,
the complaint will be forwarded without its full exhibits, with an indication
that the full exhibits are on file with the SOTF Administrator.
14. The Complaint Committee will facilitate the
determination by the SOTF of whether or not a document is public in accordance
with Sections C (no hearing requested) & D (public hearing requested)
below.
15. The city attorney assigned to the SOTF will
be available to answer questions regarding the application of the Sunshine
Ordinance to the request at issue in the complaint.
D. Public Hearing Requested
1. When a public hearing is requested, where jurisdiction
has been found to exist, and where there has not been a determination of "no
violation," a hearing will be set at the next meeting of the SOTF. Where
this is not possible because of notice requirements or because of time restraints,
a Special Meeting will be set within 30 days of the request to hold the public
hearing.
7. Report from Rules Committee
Committee Chair Planthold reported on meetings of the
Rules Committee,
General discussion held among members regarding Task Force
and Committee meeting absences. This item will be on the Rules Committee agenda.
12. Public Comment
8. Report of Public Education & Information Committee
9. Order of Determination dated January 23, 2001, Complaint
of Kevin Williams against the Human Rights Commission
Kevin Williams addressed the Task Force stating he was
willing to use his lunch hour, his breaks that not on company time; Ms. Barnes
had stated they had no problem with that; all I asked for was the documents,
I received an order and I had an expectation that I would receive them; I
ask this Task Force exercise its inevitable authority and do exactly what
the City Attorney suggests on Page 3 of her memo 1 through 6 which details
the authority of the Task Force and institute those actions; as a direct order
you could have simply censored them because you acknowledge their non-compliance;
their comes a time to fish or cut bait.
Catherine Barnes, Deputy City Attorney, representing the
Human Rights Commission; HRC is in full compliance with the Sunshine Ordinance
and the Public Records Act; that has been the HRC position from the beginning;
the records were asked for in November and have been sitting in boxes waiting
for Mr. Williams to look at them; the only thing new that I heard is that
Mr. Williams said five minutes ago that Mr. Williams said that he wants to
look at them during his lunch hour and breaks; he has not asked for them previously
during these times; they are sitting there waiting for him; this is new information;
if it is appropriate, I would ask you to rescind the order that you put in
place at the last meeting because I believe you did not have the authority
to make the order for the HRC to loan the documents to Mr. Williams; I believe
the public records is complete.
Member Kowalczuk asked if Mr. Williams had to pay for
the ten cents per page to look at the documents during his free time. Ms.
Barnes answered he can look at them during his non-work time; he just cannot
take them away unless he pays for them.
Member Cauthen asked if the documents were copies. Ms.
Barnes stated yes, they were copies; originals are kept in tact; no one else
has borrowed them; there are 6,000 documents.
Member Brugmann thought this was settled; cannot believe
what has happened; Mr. Williams is a watchdog; is a lot of good things; he
is asking for these things; HRC has been under investigation by the FBI and
investigated by the newspapers; seems you would do everything possible to
make these records available as soon as possible; very proud of the Task Force
that they came up with a solution and you have stonewalled the solution; you
won’t even loan him the documents; Public Records Act and Sunshine Ordinance
do not specify ten cents; they could be given for free; why cannot this be
worked out for one of your own employees. Ms. Barnes stated they treat every
request the same; proud of the fact that the HRC has spent time and effort
to collect the 6,000 documents; to go through every document to remove any
kind of privacy information that applies; many, many hours have been required
to do this; would be a waste of our public funds if we decided to provide
documents to one person and to the next person; we would be giving something
to him that we do not give to anyone else.
Member Appel stated she implored the Task Force stand
by the decision that was made at the last Task Force meeting; not hearing
anything today other than the HRC does not want to be cooperative in providing
these documents; strongly urge the Task Force to not rescind its Order of
Determination.
Member Appel left the meeting at this time.
Regarding the ten cents charge Chair Bernstein asked Catherine
Barnes if the fee could be waived for special circumstances; Catherine Barnes
stated the statute says ten cents; the Mayor has a policy of charging ten
cents; however under special circumstances, the fee could be waived.
Member Courtney stated Mr. Williams has to take time off
to look at documents; was under the impression HRC was going to cooperate
with the Order of Determination, despite the fact we do not have the authority
to order them to do so.
Mr. Williams stated the Task Force is an ally to the HRC;
this process has helped the HRC to locate records; feel this Task Force has
not been told the truth; this process has helped the HRC; if in denial the
Task Force will not get to the real issue of eliminating a cloud and replacing
with sunshine.
Public comment from Janine Murtha regarding the 2/20/01
memo from City Attorney Office to the Task Force, pointing out points of lack
of jurisdiction to lend Mr. Williams the records.
Jackie Minor, Deputy City Attorney, stated after the Task
Force entered its Order of Determination, the HRC sent to the Task Force a
letter indicating the action taken by the Task Force was beyond the scope
and authority of the Sunshine Ordinance; the Chair of the Task Force contacted
the City Attorney Office and requested what further action the Task Force
could take. The question now is what further action can you as the Task Force
take under the Sunshine Ordinance to enforce an order that you have already
issued; under the Sunshine Ordinance there are six statutory authorities that
this Task Force can take; is there something further that can be done; there
is nothing further under the Sunshine Ordinance that the Task Force can take;
it does however provide that further action can be taken by the complainant;
under the ordinance he may pursue this further with the Ethics Commission
or by filing a complaint in court; as you further consider this when you look
at range of actions, loaning documents is not one of the provisions provided
in the ordinance; the ordinance does not provide a general, all sweeping authority
which would allow the Task Force to fashion some kind of equitable compromise
solution; there was no indication on the part of the HRC at the time of the
hearing of the compromise
that the Task Force came up with.
Member Courtney stated filing a lawsuit was not a solution.
Deputy City Attorney Minor stated the ordinance provides
for recovery of attorney fees if he prevails.
Member Cauthen asked about the amount of documents.
Member Brugmann stated the Task Force can do all kinds
of things; concerned about the statement that the Task Force cannot ask the
HRC to give or loan the documents; documents are given free to the press and
citizens all the time.
Deputy City Attorney Minor stated the question composed
to the City Attorney’s Office was whether the Task Force could compel the
HRC to loan the documents; the answer is the Task Force cannot compel.
Chair Bernstein what has happened with this is not effective
availability; would have helped if HRC would have helped if they would have
tried to compromise.
Member Courtney stated the ordinance lacks some teeth
regarding city attorney representation; what we need in the Board of Supervisors
Chambers is to get some teeth; would like a brief opinion letter from Deputy
City Attorney Minor that says what our options may or may not be with respect
to going to the Board with a resolution showing them the Task Force cannot
win-we need help.
Member Ray left the meeting at this time.
Member Planthold left the meeting at this time.
Member Cauthen stated she agreed we need to go to the
Board of Supervisors and let them know these are the kinds of problems we
come up with from time to time.
Member Brugmann asked about the ten-cent-a-page policy
from the Mayor’s Office. Chair Bernstein requested Deputy City Attorney Minor
to confirm that it is a fact there is a Mayor policy of ten cents a page.
Motion to urge the Sunshine Ordinance Task Force that
the HRC give the documents for free to Kevin Williams as soon as possible
and transmit this to the Board of Supervisors and they make it stick, if at
all possible. (Brugmann/Courtney) No vote.
Deputy City Attorney Minor stated this is a voter-approved
initiative and changes to the ordinance must be made by the voters.
Moved and adopted not to compel but to urge the HRC to
provide to Mr. Williams the copies he has requested and waive all applicable
fees in an order to comply with the spirit of the Sunshine Ordinance and in
an effort to arrive at a mutually acceptable resolution. (Courtney/Kowalczuk)
(Appel, Ray, Planthold absent)
Motion requesting the City Attorney to prepare legislation
to bring to the Board of Supervisors to strengthen and make effective the
ordinance, specifically the issue of charging fee, etc., and place the matter
before the public at the next earliest possible election. (Bernstein/Cauthen)
Not voted. The motion was restated.
Moved and adopted requesting the City Attorney to prepare
proposed legislation to be dealt with by the Board of Supervisors in anticipation
of putting material at the next election which will strengthen and re-enforce
the spirit of the Sunshine Ordinance. (Bernstein/Cauthen) (Appel, Ray, Planthold
absent)
Member Hogan stated to also publicize any fees associated
with getting documents and also publicize a waiver of those fees may be requested
by someone requesting documents.
Member Courtney stated what we need to know is how we
can prevent this kind of thing occurring over and over again with multiple
lawyers fighting over the same issue out of the same office; what I want from
our lawyers is some specific instances whether or not they can be achieved
through the resolution process at the Board level or whether we have to go
to the voters; want something from the City Attorney stating what the problem
is; what could maybe work if the voters passed it; do not want a memo stating
why Mr. Williams cannot get his request.
Chair Bernstein requested that in preparation for such
a proposal that the City Attorney review the past complaints that have come
before the Task Force to see what the common denominators are so we can specifically
ask that the Board of Supervisors include solutions to those problems in any
legislation when they place it before the voters.
Ex-officio Member Hijazi left the meeting at this time.
Member Daniel Guillory left the meeting at this time.
10. Order of Determination dated October 26, 2000, Complaint
of Davis/Reno, representing Local 21, AFL-CIO, against the Human Rights Commission.
(15 min)
Janene Murtha, Davis Reno, representing Local 21, AFL-CIO,
addressed the Task Force, stating the Human Rights Commission has not made
a good faith effort; requested handwritten compensatory time ledger; received
conflicting information regarding the documents; the ledger of former HRC
Controller Arcedo Brillantes has not been produced; information was to be
logged into the computer; Mr. Brillantes did not feel comfortable signing
a declaration regarding the ledger; need to have a neutral source look for
the documents; next resource is to go to the Ethics Commission; information
has been misrepresented.
Member Courtney asked about letter of January 16, 2001
from HRC stating HRC has completely complied with the Davis Reno request;
Janene Murtha stated the only thing outstanding is the handwritten hand ledger.
Catharine Barnes, attorney representing HRC, stated the
two requests involving Kevin Williams have been confusing; records for 6/94
through 6/96 have been provided; additional nine compliance officer reports
provided first half of 1994 and last half of 1996; possible pending requests
for Frank Anderson and Jackie Haile are available; these are possibly with
Kevin Williams documents; they are available for 1994 through 1996. Mr. Williams
has had numerous different types of complaints about his comp time payment,
and these have gone back and forth to different parts of the City Attorney’s
Office; possibly the original document is probably somewhere misfiled at the
HRC or in City Attorney storage document; we are looking for them; handwritten
ledgers were entered into the computer; have produced all source documents;
all information has been submitted; unfortunate we do not have compilation;
we do have compilation for Kevin Williams; no missing information; feel HRC
has done a reasonable and diligent search.
Member Courtney stated the letter dated January 16, 2001
stating the HRC has completely complied with the Davis Reno request; is this
correct; Catharine Barnes stated the HRC has given them everything the HRC
could find; Member Courtney stated he had a problem with lack of good faith.
Member Kowalczuk stated he agreed there has been ill will
in the past.
Janene Murtha stated with regard to time cards; does not
say whether they have taken the time; part of the dispute is whether or not
Kevin Williams got the hours and whether or not he was allowed to take them
in comparison to others; this is not an accurate representation of the information
we requested.
This item continued to the next meeting.
11. Report of Administrator
Donna Hall, Administrator, submitted report.
Member Courtney stated when Administrator is informed
of lack of compliance from Order of Determination, he would like to know about
it immediately.
The meeting adjourned at 7:00 p.m.
Donna L. Hall, Administrator