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February 27, 2001

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

    Minutes approved. (Planthold/Ray) (Courtney no)

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

      This item will be referred to the Rules Committee

    (g) Facilitating work of Task Force; the role of the Chair

      This item will be referred to the Rules Committee

    (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

    Emeric Kalman spoke during public comment regarding posting of agendas.

8. Report of Public Education & Information Committee

    Commttee Chair Hogan reported on the meetings of the 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

Last updated: 8/18/2009 1:57:05 PM