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1.
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Approval of minutes of June 24, 2008, meeting.
Public Comment: Peter Witt said the minutes approved on June 24 were not accurate and would like to review the current minutes for accuracy.
Motion to approve the minutes of June 24, 2008 ( Pilpel / Knee ).
Ayes: Craven, Knee, Cauthen, Washburn, Knoebber, Pilpel, Chu
Absent: Craven, Chan
Excused: Gokhale, Washburn, Chan
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2.
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Continued discussion of City Attorney's interpretation of, implementation of, and advice and counsel to clients on compliance with Sunshine Ordinance sections 67.21 (i) and 67.24 (b) (1) (iii). Discussion of City Attorney's policy on whether such advice should be provided in written and/or oral communications.
Speakers: DCA Llorente said the City Attorney's practice in general is to advise its client agencies on the law including Sunshine. There is no policy on withholding information. Also, there is no City Attorney policy on instructing client agencies who appear before the Task Force to withhold information. Withholding will only happen when there is an exemption and that exemption has to be noted.
DCA Llorente was asked to get a written City Attorney analysis on a Deputy City Attorney's comment that questioned the legality of certain Sunshine provisions. The item is to be agendized for September.
Public Comment: Alan Grossman said the City Attorney has always taken the position that the Charter trumps the Sunshine Ordinance, but that may be wrong. He said that that he had a discussion with an authoritative lawyer with the City who told him that the City Attorney can not give advice under 67.21 (I). He also suggested getting an outside-qualified lawyer to get an unbiased look at the issue.
Kimo Crossman said that DCA Llorente was supposed to provide information in writing and has not.
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3.
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Status of implementation of the digital recording measures from technical and legal perspectives.
Speakers: Jack Chin, manager of SFGTV with the Dept of Telecommunications said the department fully supports the program but nothing could be done because the budget for staffing was not approved.
Rohan Lane of Building Management Media Services reiterated Mr. Chin's view, saying it is physically impossible to implement the Ordinance section without funding.
DCA Ernie Llorente said the author of the Ordinance, William Sanders, recalled that the hope was for the budgetary needs to be met while the Ordinance was being drafted. But since the budget allocation was not met the Ordinance could not be implemented.
Public Comment: Kimo Crossman said that posting an audio recording on line took only a few minutes of his time. He said that the need for staff is not substantiated because the issue was posting the audio online and not streaming audio and video. Mr. Crossman questioned why Mr. Darby or Mr. Rustom could not post the audio when they make daily changes to the web pages. He also said DCA Llorente should speak for the Task Force and not the City Attorney.
Allen Grossman said that every time DCA Llorente mentions conversations with his fellow counterparts on Task Force matters he thinks about what 67.34 actually means about the "ethical wall." He added that the Task Force was an independent body and if it decides to post an audio recording on the web, the Clerk is obligated to provide the necessary support.
Member Knee said he would like the Task Force to write a letter to Supervisor Mirkarimi asking him to mandate the budgetary needs.
Member Craven said the letter should convey the concern over the failure of the Board of Supervisors to allocate funds to implement the Ordinance rather than rewriting the Ordinance, which could again be vetoed by the mayor.
Member Craven asked Mr. Rustom to find out the size of a typical file and if there is space limitation on the portion of the server dedicated to the Task Force's web site.
Member Cauthen noted that the ordinance that created the Library CAC had a provision for funding to provide support but had to be removed for it to be passed.
Sheppard said if we are not making use of the available audio and video recording facilities we are not providing the kind of model open government leadership.
Chair Chu said she would write a letter to Supervisor Mirkarimi with the hope that the Task Force can place their digital recordings on line.
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4.
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08022
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Continued: Public Hearing, complaint filed by Kimo Crossman against the Clerk of the Board of Supervisors for alleged improper redaction of home address, home telephone number and e-mail address from an original Sunshine application.
Speakers: Complainant Kimo Crossman, said that he is concerned by the additional authorization box on the application for the Board of Supervisors' boards and commissions. He said that people are confusing personal information like what you tell your doctor and what is contact information. Respondent Frank Darby, said one of the questions asked during the last meeting was how the department would implement the policy. That, he said, has been provided in the agenda packet.
Member Knee said there are cases where withholding information involved whistleblowers and police informants. He asked, how would the public know an applicant is eligible if a particular seat has residency requirements?
Member Pilpel said the department needs to explain the difference between personal and private information.
Mr. Crossman said although the City Attorney has said that a commissioner's email is undisclosable, the Task Force has ruled against it.
Motion to find violation of 67.21 for redacting information from successful applications to the Sunshine Ordinance Task Force. ( Cauthen / Knee )
Member Pilpel said he was against the motion because he is not persuaded that this information is subject to disclosure.
Public Comment:: Alan Grossman said Prop 59 created the right to access information concerning the conduct of the peoples business. Therefore the writings of public officials and agencies shall be open to public scrutiny.
Peter Warfileld said that there are some very lengthy and specific exclusions for disclosure listed very specifically in the California Public Records Act. He said that CPRA should be cited if there is something to be withheld.
Ayes: Craven, Knee, Knoebber, Chu, Goldman
Noes: Pilpel, Willaims
Recused: Washburn
Excused: Cauthen, Gokhale, Chan
Motion fails. No further action taken.
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5.
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08023
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Determination of jurisdiction of complaint filed by Anonymous Tenants against the Planning Department for alleged failure to provide all requested records.
Speakers: None
Motion to find jurisdiction ( Goldman / Knee )
Ayes: Craven, Knee, Washburn, Knoebber, Pilpel, Chu, Goldman, Williams
Excused: Cauthen, Gokhale, Chan
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a
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Public Hearing, complaint filed by Anonymous Tenants against the Planning Department for alleged failure to provide all requested records..
Speakers: Complainant, Anonymous Tenants, said that repeated requests for a copy of a file from the Planning Department has been unsuccessful; that requests were also sent to the director and zoning administrator. He said a separate request was needed for copies of emails sent amongst staff and public. He read a list of documents that were not provided. Respondent Scott Sanchez of the Planning Department said that he has repeatedly responded to the requestor as his role is limited to the Board of Appeals portion of the Variance file. Other files include the building permit application process. He said that the department files correspondence in a separate file and are not included with the decision-making documents. However, all requested documents were provided.
Member Craven, after extensive questioning of Mr. Sanchez, Lulu Wang of the department and the complainant, said the department did not refuse to produce a document but should had been more helpful because it knows how its records are kept. She said the Sunshine Ordinance is not violated if a certain document that is supposed to be in a file is not.
Member Pilpel said if a request on a project is received, staff should do a search for all related documents among all staff.
The Complainant, in rebuttal, said that the respondent is making false statements in order for the Task Force to rule in his favor. He said that certain documents were put in the file after the request was made.
Motion to find a violation of 67.21 ( c ) for failure to assist. (Pilpel)
Public Comment: Kimo Crossman said that the records need to be kept in a professional manner and the file is out of order because the owner has hired an expediter and is trying to force the project through.
Allen Grossman said that the department is seriously behind in maintaining documents.
Friendly amendment motion to find violation of 67.29-7(a) (Knee)
Member Craven made a friendly amendment to the motion to find a violation of §67.21 (b) and (c).
Motion to find violation of 67.21 (b) and (c) ( Pilpel / Craven )
Ayes: Craven, Knee, Washburn, Knoebber, Pilpel, Chu, Goldman, Williams
Excused: Cauthen, Gokhale, Chan
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6.
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08024
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Determination of jurisdiction of complaint filed by Michael Addario against the Arts Commission for alleged failure to provide proper notice of the changed date and time of the San Francisco Street Artists regular meeting.
Speakers: None
Motion to find jurisdiction ( Goldman / Craven )
Ayes: Craven, Knee, Washburn, Pilpel, Chu, Goldman, Williams
Noes: Knoebber
Excused: Cauthen, Gokhale, Chan
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a
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Public Hearing, complaint filed by Michael Addario against the Arts Commission for alleged failure to provide proper notice of the changed date and time of the San Francisco Street Artists regular meeting.
Speakers: Complainant, Michael Addario, said that the evidence shows that the San Francisco Street Artists Program Committee is a regular policy body; that the emails show that the program director and Arts Commission executive Director along with some members of the Street Artists Program Committee discussed the matter, developed an agreement and excluded the public from participating.
The Respondent was not present.
Member Pilpel said he was not sure if a Sunshine violation had occurred.
Chair Chu said that it is possible that a seriatim meeting occurred.
Member Pilpel said that the email exchange between Alexander Lloyd and Sherene Melania suggests a seriatim meeting occurred.
Member Craven, through the Chair, asked DCA Paul Zarefsky, who was sitting in the audience, to answer two Brown Act questions. DCA Zarefsky said that he is reluctant to give an opinion on a case where he did not know the facts.
Member Pilpel suggested three courses of action: finding no violation, finding some kind of violation and if the City wants to contest it they can come back, or continue the matter.
Public Comment: Kimo Crossman said the committee meeting is a policy meeting. What happened was they wanted to reduce the number of meetings and took it to the commission meeting because it would cause an uproar if they addressed it at the committee meeting. The absence at the meeting is also a violation, he added.
Motion to find violation of Section 67.5 ( Pilpel / Goldman )
Ayes: Craven, Knee, Washburn, Knoebber, Pilpel, Chu, Goldman, Williams
Excused: Cauthen, Gokhale, Chan
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7.
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08027
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Determination of jurisdiction of complaint filed by Kimo Crossman against the Mayor's Office of Criminal Justice for alleged failure to respond to a public records request.
Continued. Without objection.
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a
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Public Hearing, complaint filed by Kimo Crossman against the Mayor's Office of Criminal Justice for alleged failure to respond to a public records request.
Continued. Without objection.
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8.
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08029
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Determination of jurisdiction of complaint filed by Barry Taranto against the Taxi Commission for alleged failure to prohibit defamation by a public speaker about another public speaker during public comment, adopting inappropriate public speaking times on an item, and failure to provide equal speaking time during public comment.
Richard Knee and David Pilpel informed the Task Force that they are acquainted with the complainant but believed they would not be predigious.
Speakers: None.
Motion to find jurisdiction ( Goldman / Knee )
Ayes: Craven, Knee, Knoebber, Pilpel, Chu, Goldman, Williams
Excused: Gokhale, Washburn, Chan
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a
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Public Hearing, complaint filed by Barry Taranto against the Taxi Commission for alleged failure to prohibit defamation by a public speaker about another public speaker during public comment, adopting inappropriate public speaking times on an item, and failure to provide equal speaking time during public comment.
Speakers: Complainant Barry Taranto played a segment of a Taxi Commission meeting in which a public speaker questioned Taranto's driving record. That, said Tarantino, were the kind of remarks allowed to occur by Commission President Paul Gillespie. He also alleged that the commissioner played favoritism. In support, Thomas George Williams said the commission under Gillespie has become more of a circus and its meetings are one of the most watched shows on SFGTV. People are allowed to comment on anything even if it is off topic and sometimes the commissioners get into a dialogue with the person making the comment, he said. Peter Witt said he is appalled with the representation of Gellipsse but that it was Executive Director Jordanna Thigpen's duty to oversee the meeting. The commission, he said, can commit more violations than the Task Force can deal with.
Respondent, Jordanna Thigpen, said that she attended the meeting the Mr. Taranto referred to and heard DCA Paul Zarefsky caution members of the public regarding defaming others. Some members, she said, were using the same tactics at other city meetings. She asked the Task Force for advice on how to handle public comment as it was getting out of hand. Ms. Thigpen said that she provided the commissioners copies of the Mayor's policy on discrimination and harassment and educated the President on the process outlined in the Good Government Guide; that she has also included in the agenda a paragraph titled Know your rights under the Sunshine Ordinance. She said that Commissioners are forced into a dialogue because of the allegations made during public comment, she said.
Taxi Commissioner Tom Oneto said what he heard from the clip presented by Tarino was Gillespie telling the commissioners that the public has the right to say what they want during public comment and commissioners have no control over it. Regarding time allotment, he said there are about 25 to 30 people speaking on each item on the agenda and the public is allotted time depending on the seriousness of the topic; that questions are asked during public comment to be able to see the issue from that persons particular point of view.
Member Cauthen was concerned by Gillespie not giving all speakers an extra 30 seconds. Commissioner Oneto responded that this has happened only once and it happened only because the commission was not sure if the person had addressed the commission earlier.
Member Williams said that she saw the meeting in question on TV and praised Ms. Thigpen on her conduct. One has to remember, she said, that the people who are addressing the meeting are people fighting for their livelihood. However, public comment should be conducted in another way.
Member Pilpel said President Gillespie has done a good job under difficult circumstances and suggest that the public read more about public comment on pages 105 through 107 in the Good Government Guide.
In rebuttal, Ms. Thigpen said the commission was doing its best as all arguments and decisions reflect their passion as it relates to people's lives.
Mr. Taranto, in rebuttal, said that Paul Gillespie should be present because he was president at the time and not Tom Oneto. He also said when commissioners engage in long dialogues with the public it is like giving them a soapbox to stand on and present their opinions. Regarding the time allocation, he said the number of speaker cards is a good indication as to how much time each speaker should be allowed.
Public Comment: Kimo Crossman expressed concerned over limiting public comment to one minute. He recalled DCA Zarefsky saying that he would look poorly on a committee that allows less than two minutes. People are going to be upset at these meetings and must be allowed to vent, he said.
Tarik Mamood said he was happy with the way the meetings are conducted but added that there are several instances when the complainant and his affiliates get more speaking time than others. He said that attacking the commission and complaining does not make sense; that what needs to be seen is there are several issues, directions and angles and sometimes they intermingle.
Member Knee said defamation is not in the purview of the Task Force.
The question of allowing or disallowing public comment is whether the comment is revalent to the item at hand. He said that if it is general public comment on nonagenda items, then the question would be is the subject within the purview of this commission. The commissioners have the leeway to decide that and can seek the advice of counsel. On the third complaint, he was willing to go along with the motion although it looked like a "He said, she said," scenario.
Motion to find violation of 67.15 (c) for third allegation. ( Pilpel / Cauthen )
Ayes: Craven, Knee, Cauthen, Washburn, Knoebber, Pilpel, Chu, Goldman, Williams
Excused: Gokhale, Chan
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9
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08031
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Determination of jurisdiction of complaint filed by Kimo Crossman against Richard Mo of the Ethics Commission for allegedly refusing to scan and email a document.
Speakers: None
Motion to accept jurisdiction ( Goldman / Knee )
Ayes: Craven, Knee, Cauthen, Washburn, Knoebber, Pilpel, Chu, Goldman, Williams
Excused: Gokhale, Chan
Member Knee then sought the Task Force's opinion if he should be recused because he had come into contact with the respondent in a different matter.
Motion to recuse Member Knee. Without objection
On previous motion to accept jurisdiction.
Ayes: Craven, Cauthen, Washburn, Knoebber, Pilpel, Chu, Goldman, Williams
Recused: Knee
Excused: Gokhale, Chan
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a
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Public Hearing, complaint filed by Kimo Crossman against Richard Mo of the Ethics Commission for allegedly refusing to scan and email a document.
Speakers: Complainant Kimo Crossman said that the Task Force has approved and the Clerk of the Board has changed her rules to allow emailing of scanned PDF documents and the Ordinance has provisions for it. He said that the department has not responded to his initial request and so he could not formulate his response. Respondent John St. Criox, director of the Ethics Commission read a letter, which he passed out to Task Force members, explaining why provisions of the Ordinance don't support the position cited by the complainant and reasons why the Task Force should dismiss the complaint.
Member Craven said 67.21 (1) and (b) talks about reproduction of electronic copies of records in a format that is industry standard. Economically feasible, she said, means the ability to scan a document and email it. She said that since the number of documents requested were limited to 100 documents that the Commission had the system and ability to comply very easily.
Member Sheppard disagreed saying that scanning is in essence creating a new record, scanning 100 documents is a burden to some offices. He asked where the line is drawn between what is and what is not a reasonable request.
Member Pilpel said computers and copiers are two different systems.
Mr. Crossman said almost every office equipment in use today has a microchip that qualifies it as a computer system. He reminded members that the Task Force they have ruled in favor before and that no extra effort was involved. He also said the way Ethics provided their response showed bad faith.
Public Comment: Allen Grossman said he is amazed when he hears that a person hits a button and the recipient has to go over and collect and pay for a document when that same person can press another button and have it sent to the recipient electronically.
Peter Warfield said to call the creation of a new format a new record is very dangerous ground. He said that a reasonable copy is a copy and not a new record.
Motion to find violation of 67.21 (1) Craven / Goldman )
Ayes: Craven, Washburn, Knoebber, Chu, Goldman, Williams
No: Pilpel
Recused: Knee
Excused: Cauthen, Gokhale, Chan
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10
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08032
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Determination of jurisdiction of complaint filed by Kimo Crossman against the City Attorney's Office for allegedly refusing to produce a Word version of a pdf document.
Speakers:: None
Motion to accept jurisdiction ( Goldman / Williams )
Ayes: Craven, Washburn, Knoebber, Pilpel, Chu, Goldman, Williams
Absent: Knee
Excused: Cauthen, Gokhale, Chan
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a
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Public Hearing, complaint filed by Kimo Crossman against the City Attorney's Office for allegedly refusing to produce a Word version of a pdf document.
Speakers: Complainant Kimo Crossman, said the the Task Force has ruled many times that a record has to be reproduced in the format requested and the Board of Supervisors has voted that the Clerk of the Board reproduce documents in the format requested. He said that the Board had rejected Paul Zarefsky's argument when he presented it the Rules Committee. He said that §6253 of the CPRA says that an exact copy of the original be reproduced and a Word document is not a pdf document. Creating a pdf document also means redacting metadata, he said.
Respondent, DCA Paul Zarefsky, said that the City Attorney's position on the issue has been very clear and is posted its position on the web. He said he has gone through the legislative history of Assembly Bill 2799 (CPRA amendments) and not a single reference was made on metadata, concept of metadata and computer programs. There was no intent to change from the old system that allowed a hard copy of an electronic document to Mr. Crossman's Word for Word concept.
Member Craven said the topic has been dealt with before and was surprised by Mr. Zarefsky's legislative history presentation because the statute is very clear. If a document has metadate that is exempt, it could be stripped and an explanation be given for the withholding. She added that she would like to keep the rulings consistent and find a violation.
Member Pilpel said the BOS policy applies to departments under the BOS and not citywide.
Mr. Zarefsky, in response to Member Pilpel's questions, said that he did not look at the September 25, 2007 document but was aware that it is a mayor's transmittal on the Ed Jew matter. He said that he was most certain that the metadata portion would include attorney work product and or attorney-client matters. The document, he said, was the first in a series of litigation documents and its release would be like giving out information related to a litigation matter. The basis for non-disclosure is because a department does not have a duty to provide a Word document in Word form.
Mr. Crossman, in response to Member Pilpel said that he has seen the document but did not want to say what kind of information he was looking for in the metadata.
Mr. Crossman, in response to Member Goldman, said that there are indications that the original was a Word document supported by Mr. Zarefsky who has not disputed that it was initially a Word document. Mr. Zarefsky said it was his understanding that it was a Word document.
In rebuttal, Mr. Zarefsky said that the Agency may also refuse to provide the information in electronic format if the electronic record, when transmitted or provided to the requestor, could be altered and then retransmitted, thus rendering the original record vulnerable. He said that a Word doc by definition, has the same functional properties, it can be altered; that this is the only reference in the entire Legislative History that he found to what subsection F means. Mr. Zarefsky also said that the letter from the Newspaper Publishers Association received several months ago asserted that the amendments were to cover metadata. However, the letter did not cite the legislative history. Also he is not aware of any public records law that says a record must be made available in a form that allows the requestor to actually work in the document. He asked the Task Force not to find a violation and to leave it to the City Attorney to interpret this basic legal issue.
Mr. Crossman, in rebuttal, said that the Task Force has not heard that the document in question has information that needs to be redacted and even if the document contains attorney client information it is disclosable under Sunshine and Ethics laws. He said that Mr. Zarefsky, not only ignored Sunshine, but also the outcome of FOIA cases.
Public Comment: Allen Grossman said it was deja vu all over again and that new members are not aware of the hearings and time spent on this issue before this Task Force, the Rules Committee of the Board of Supervisors and the Board itself. He said that when it comes to Sunshine issues, the Task Force is the decider and that the document does not contain attorney, client privilege, neither does it contain work product, which has to come from the City Attorney's Office and not the Mayor's Office. He said that the City Attorney's Sept 19, 2006, memo is not an opinion, because it did not go through the ridgidous requirements of what an opinion is.
Motion to find violation of 67.21 (l), CPRA 6253.9 (a) including subparagraphs 1 and 2 (Knee / Goldman )
Ayes: Craven, Knee Washburn, Knoebber, Chu, Goldman
Noes: Pilpel
Excused: Cauthen, Gokhale, Chan, Williams
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11
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Report: Compliance and Amendments Committee: meeting of July 9, 2008.
Chair Knee made the report. He also told members that he is sending a letter to other jurisdictions asking how they are handling electronic record keeping.
Public Comment: Kimo Crossman said that preservation of emails is an important issue and that he hopes the Task Force can come up with a policy that sets the standard at least statewide if not nationwide.
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12
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Administrator's Report.
Member Craven said complainants need not appear before the Task Force. They can submit their complaints in writing and attend the meeting by phone because it may not be feasible for them to come because of one reason or another. She said that departments have to come because they are compensated. She also said Mr. Peter Warfield's complaint issue needs to be addressed by the Chair and the Administrator and schedule the complaints for August.
Member Pilpel expressed concern that there were only two of three logs. He asked that the administrator follow up on #06004-Robert Planthold v Municipal Transportation Authority referral to District Attorney's Office for investigation. He also asked for the current contact list for members, and said that there should be a redacted packet made for the public and an unredacted version for Task Force members.
Public Comment: Kimo Crossman said he was disappointed to see the redactions even though the Task Force has ruled on the matter. He urged the Task Force to do an annual review of employees and staff, and said that the Task Force should not be able to see documents that the public can't see. He said that departments are not following the 5-day requirement for initial complaint responses because the administrator is not doing the follow up.
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13
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Public comment for items not listed on the agenda.
Public Comment: Kimo Crossman it would be a good idea for the Task Force to go into closed session and do an annual review of staff members.
Peter Witt said he sent a letter of inquiry to the Task Force last month and had yet to receive a response and that there was no consistency in the way the Taxi Commission records the minutes.
Peter Warfield also said he filed two complaints and although the procedure was followed, it has yet to be agendized.
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14.
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Announcements, questions, and future agenda items from the Task Force.
Chair Chu announced committee assignments:
- Complaint: Goldman (chair), Gokhale, Knoebber
- Compliance and Amendments: Knee (chair), Craven, Pilpel, Chu
- Rules: Pilpel (chair), Hanley, Chu
- Education, Outreach & Training: Washburn (chair), Williams, Cauthen, Pilpel, Chu
Chair Chu said the Outreach committee would meet next month and requested members to send suggested agenda items to Member Washburn.
Public Comment: None
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