1. |
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Approval of minutes of June 23, 2009, regular meeting.
Motion to approve June 23, 2009, meeting minutes: ( Cauthen / Williams )
Public Comment: Peter Warfield said he was pleased to see that the length of minutes had increased.
On the motion:
Ayes: Cauthen, Knoebber, Chan, Goldman, Williams, Knee
Excused: Craven-Green, Johnson, Chu
Absent: Washburn
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2. |
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Special recognition to Tanene A. Allison for her community service as a contributing ex-officio member.
Continued to August 25, 2009 |
3. |
09026 |
Hearing on the complaint filed by Hanna Leung & Lydia Fong against the Department of Human Services for allegedly withholding information.
Complainant Hanna Leung said she and Lydia Fong are applicants for a real estate service vendor RFQ. The original request was issued two years ago and later withdrawn because the City wanted to rewrite certain parts of it. They applied again when it was reissued at the end of 2008 and were notified in March of 2009 that Keynote Properties had been selected. She then asked to review the file and was denied access until she filed a complaint with the Task Force. She was provided with the score sheets and after further review, she made an itemized request that included a copy of all communications related to the subject matter. She did not receive anything but was told that the applications would be released after the award was granted. She suspected that there should be documents in the file besides the applications and score sheets because the contract was worth $600,000.
David Curto, Director of Contracts for the Department of Human Services, said Ms Leung and Ms Fong have been given every document they are entitled to under the Sunshine Ordinance. He said there were four respondents to the RFQ and that the top two applicants were selected. He added that the award is to be announced as early as August 5 by the Adult and Ageing Services Commission.
DCA Llorente said there was a question at the last meeting on whether the respondent treated RFPs and RFQs equally because the Ordinance only talks about RFPs.
Mr. Curto said what is applicable to RFPs also applies to RFQs.
Motion to find no violation ( Knoebber / Goldman )
Public Comment: None
The respondent did not rebut.
Ms. Leung said when she asked for a copy of the file her letters to the department also need to be produced. Similarly, correspondence between the office and the other bidders should have been included. She did not think she was the only applicant who was corresponding with the department on the issue.
On the motion:
Ayes: Knoebber, Goldman, Knee
Noes: Cauthen, Washburn, Chan, Williams
Excused: Craven-Green, Johnson, Chu
Motion fails
Member Washburn said she was convinced by the complainant that it was reasonable to assume that there were more documents that what were produced.
Motion to find violation ( Washburn / Cauthen )
On the motion:
Ayes: Cauthen, Washburn, Chan, Williams
Noes: Knoebber, Goldman, Knee
Excused: Craven-Green, Johnson, Chu
Motion fails
No further action
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4. |
09025 |
Determination of jurisdiction on complaint filed by Charles Pitts against the Department of Human Services for alleged failure to respond in a timely manner.
Motion to find jurisdiction: ( Goldman / Knoebber )
Public Comment: None
On the motion:
Ayes: Cauthen, Washburn, Knoebber, Chan, Goldman, Williams, Knee
Excused: Craven-Green, Johnson, Chu
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5. |
09025 |
Hearing on the complaint filed by Charles Pitts against the Department of Human Services for alleged failure to respond in a timely manner
Complainant Charles Pitts said it took the department two or three days to respond to his Immediate Disclosure Request and also that he was provided with partial information. He also said the 10-Year Plan Implementation Council rarely meets and does not have current information on its website. He said he needs to contact somebody to start a dialogue that could improve people’s lives. He added that the missing information was the council’s bylaws and the reason why the last meeting was cancelled.
Pamela Tebo of the Department of Human Services said the department was delayed in its response because the IDR was addressed to Director Trent Rhorer and delivered to Alison Schlageter in the Housing and Homeless Unit who thought Ms. Tebo had a copy and did not forward it. She also said the department does not have a copy of the bylaws and she does not know if it exists. On the emails, she said Mr. Pitts was asked for clarification but he did not respond. She added that Angela Alioto’s email address was provided to Mr. Pitts.
On members’ questioning, Ms. Tebo repeatedly said the department has no representatives on the council that was created by the Mayor. Mr. Curto, who appeared for an earlier complaint, said Mr. Pitts’ request was referred to Dariush Kayhan, who like Ms. Alioto, reports back to the Mayor. Mr. Curto also told the Task Force why the Council was formed and what its mandate was.
Public Comment: Thomas Picarello said all Council documents in Ms. Schlageter’s possession should be forwarded to Ms. Tebo, who is the custodian of records. The Council, he said, is required to meet regularly because the city receives $20 million in federal funding annually. Ms. Tebo, by not producing the bylaws, is negligent of her duties, he added.
Ms Tebo said in rebuttal that she is not the custodian of records for the Council, which was made up of representatives from several departments and Human Services was not one of them.
Mr. Pitts said the Council is part of the department’s responsibility because a member of their staff was taking care of the agendas and minutes. His request, he said, was put on Mr. Curto’s desk and was not given to Ms. Schlageter.
Motion finding failure to respond to an Immediate Disclosure Request and failure to produce request documents. ( Cauthen / Williams )
Members Knoebber and Washburn agreed to the first motion but disagreed on the second.
Motion to separate motion ( Washburn / Knoebber )
On the first motion:
Ayes: Cauthen, Washburn, Knoebber, Chan, Goldman, Williams, Knee
Excused: Craven-Green, Johnson, Chu
Motion passes.
On the second motion:
Ayes: Cauthen, Chan, Williams
Noes: Washburn, Knoebber, Goldman, Knee
Excused: Craven-Green, Johnson, Chu
The motion fails
Chair Knee said there was no need for an Order of Determination because the respondent has admitted there was a delay in responding and because the Task Force has not received previous complaints against the department that showed a pattern of violations against the Sunshine Ordinance.
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6. |
09033 |
Determination of jurisdiction on complaint filed by Sue Cauthen against the Library Commission for allegedly denying public comment.
Member Cauthen asked to be recused because she was the complainant.
Without objection.
Member Knoebber disclosed that he has been involved with the North Beach Library as well as the main library but did not think his role would affect his judgment in the case.
Motion to find jurisdiction ( Goldman / Washburn)
Public Comment: None
On the motion:
Ayes: Washburn, Knoebber, Chan, Goldman, Williams, Knee
Excused: Craven-Green, Johnson, Chu
Recused: Cauthen
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7. |
09033 |
Hearing on the complaint filed by Sue Cauthen against the Library Commission for allegedly denying public comment.
Complaint Sue Cauthen requested a continuance because the Task Force barely made quorum.
Without objection.
Chair Knee noted that the respondent was not present.
Member Williams bemoaned the fact that departments fail to appear before the Task Force at the same time when the public has to give up their own time to attend the hearings.
Ms Cauthen rescinded her request for a continuance.
Chair Knee asked her to proceed.
Ms. Cauthen played a DVD that showed that she was prevented by Library Commission President Jewelle Gomez from giving public comment at a recent Library Commission meeting. She then told the Task Force that the second item was on the design of the library and that she was not addressing the issue when she tried to speak at the first item which was general public comment. Session. Joan Wood said she was appalled by the president’s reaction and had written to the Mayor regarding his appointee’s behavior. Howard Wong said the meeting lacked professional decorum. After the outburst, he said, there was a hush in the room and nobody continued commenting on the item. He also said he was troubled with the process which he perceived to be that it was being guided to reach a certain outcome.
DCA Llorente said the library has stated their position in a letter sent in response to the filing of the complaint.
On Chair Knee’s questioning, Ms. Cauthen said she was counting on her three minutes in item one and an additional 3 minutes in item two to present her opinions. However, because she was not allowed to speak during item one she was only allowed three minutes rather than six to present her views.
Motion to find library in violation of Sec 67.15 ( a ) (Washburn/ Goldman )
Member Goldman makes friendly amendment to include 67.21 ( e ) for not sending a representative. Member Washburn agreed. DCA Llorente advised the Task Force that section 67.21(e) deals with a Department or Policy which fails to produce a requested public record and is therefore required to appear before the Task Force. This section does not apply to a Policy Body which fails to provide an opportunity for public comment at its meeting. Based on the advice of DCA Llorente the suggested amendment was not considered in the vote.
Public Comment: Peter Warfield said the library should be found in violation of 67.15 ( a ) for denying public testimony and 67.34 for willfulness because the previous speaker was in favor and given more time whereas Ms. Cauthen was not. He urged members to listen to a tape to see what had occurred before Ms. Cauthen spoke. Thomas Picarello said he did not think the Task Force would be fair and impartial if one of its members filed a complaint. He suggested referring the matter to the Ethics Commission or the City Attorney’s Office. (Chair Knee said both sides were given an opportunity to present their case. One side decided not to.) Kimo Crossman played an audio recording of events that Mr. Warfield mentioned earlier. He also said he has seen the president being dismissive to the public and at one instance rattled a glass of ice in front of an open microphone so that no one could hear what a particular member of the public was saying.
In rebuttal, Ms. Cauthen said the Commission was against the formation of the Library Citizens Advisory Committee by the Board of Supervisors and with the exception of a few events, that there always has been a sense of hostility against the two groups and those who disagree with the Committee.
Member Chan made a friendly motion to add 67.34 for willful violation. Original makers agreed.
Chair Knee said he believed that the Commission president violated the Ordinance because Ms. Cauthen wanted to speak about libraries in general during item one. The way Ms. Cauthen was treated also was inexcusable, he said. He also said he was writing to the Commission to let them know the Task Force’s sentiment on the matter.
Member Williams urged the Chair Knee to write a strong letter because the public should not be treated in the manner Ms. Cauthen was treated.
Member Chan said the respondent is admitting guilt by not showing up at the hearing.
On the motion:
Ayes: Washburn, Knoebber, Chan, Goldman, Williams, Knee
Recused: Cauthen
Excused: Craven-Green, Johnson, Chu
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8. |
09030 |
Determination of jurisdiction on complaint filed by Ann Grogan against the Police Commission for allegedly not opening meeting to the public.
Member Chan recused himself because of his relationship with the Police Department.
Without objection
Motion to find jurisdiction ( Goldman / Knoebber)
Public Comment: None
On the motion:
Ayes: Cauthen, Washburn, Knoebber, Goldman, Williams, Knee
Excused: Craven-Green, Johnson, Chu
Recused: Chan
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9. |
09030 |
Hearing on the complaint filed by Ann Grogan against the Police Commission for allegedly not opening meeting to the public.
Complainant Ann Grogan said she wants to attend and review documents exchanged by a steering committee that is studying the cost effectiveness of the Patrol Special Policing Program. She said the committee includes members of the Police Department, Police Commission and Controller’s Office. She said the Controller has admitted that the group is a passive body and that is why the meetings should be open to the public. She said she has a copy of an email that Police Commissioner Theresa Sparks sent to Patrol Special Jane Warner that says the commission is responsible for the study’s administrative matters. In addition, she said her request to attend the meetings that was sent to Lt. Lum, the Police Department’s liaison officer to the Patrol Special, was forwarded to Commissioner Sparks. That means, she said, the Police Commission is the responsive department. She added that the committee’s last meeting is within a month’s time and if a decision by the Task Force was not reached today the public was going to miss out forever on what was to be discussed and debated.
Lt. Joe Reilly, secretary of the Police Commission, said he was not aware of the emails Ms. Grogan referred to. He said the complaint is on public records violation and not on public meetings. The commission is not the proper respondent, he said, because the contract to create the steering committee was established through the Office of Contract Administration, the Controller’s Office and the Police Department. He said the only connection to the Police Commission is because two of the five steering committee members are police commissioners. The commission also does not have any records related to the committee, he said, and that the committee is not a passive body because it was not created by the mayor or the department.
On Chair Knee’s questioning, Lt. Reilly said he was hesitant to say where the repository for the committee’s documents lay but was sure it wasn’t the Police Commission.
Public Comment: Kimo Crossman said Prop G was created in 1999 to prevent city policy and functions being done off the books by private or non-profit entities. In this case, he said, if the contractor, a non-city member, can attend the meetings so can members of the public. An anonymous male speaker said the meeting is a clear violation of the Sunshine Ordinance because it is not open to the public.
In rebuttal, Lt. Reilly reiterated that the only connection the Police Commission has with the steering committee is because two of its commissioners serve on it. The commission does not have any documents related to the committee, he added. He also said the public can weigh in on the subject at any commission meeting.
Ms. Grogan said she should have access to documents being submitted to the committee. She also said she was more interested in observing the policy discussions of the ongoing study as it develops.
DCA Llorente said the complaint needs to be amended because the issue of the meetings has been mentioned from the very beginning.
Chair Knee ruled that the complaint include the denial of the ability to attend a passive body meeting.
Lt. Reilly said he had requested a pre-hearing conference to clarify the issue but the complainant was not present.
Chair Knee suggesting determining the records part and to continue the meeting issue to August.
Ms. Grogan said the issue with be moot if the meeting part was postponed because the steering committee would have published its report by then.
Member Cauthen said the meeting issue was addressed in the DCA Llorente’s memo.
After further discussion, there was a consensus to proceed with both parts of the complaint.
Motion to find violation of 67.21 for failure to produce records and 67.4 to deny attendance to a meeting. ( Cauthen / Goldman )
Chair Knee said blanket statements on why the public cannot attend a meeting are not acceptable. Specific topics have to be agendized, he said.
Member Knoebber moved to separate to the violations and add 67.6 ( e ) to the latter.
Motion makers agree.
On the first motion:
Ayes: Cauthen, Washburn, Knoebber, Goldman, Williams, Knee
Excused: Craven-Green, Johnson, Chu
Recused: Chan
Motion passes.
On the second motion:
Ayes: Cauthen, Washburn, Goldman
Noes: Knoebber, Williams, Knee
Excused: Craven-Green, Johnson, Chu
Recused: Chan
The motion fails.
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10. |
09032 |
Determination of jurisdiction on complaint filed by Dominic Maionchi against the Dept. of Recreation and Park for allegedly withholding information.
Motion to find jurisdiction ( Goldman / Knoebber)
Public Comment None
On the motion:
Ayes: Knee, Cauthen, Washburn, Knoebber, Chan, Goldman, Williams
Excused: Craven-Green, Johnson, Chu
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11. |
09032 |
Hearing on the complaint filed by Dominic Maionchi against the Dept. of Recreation and Park for allegedly withholding information.
Complainant Dominic Maionchi said he asked the department for copies of contracts it has entered with the marina berth-holders. He said he filed the complaint because Olive Gong of the department said she would redact the document thus making it unusable for him because he wanted to share certain information with other slip holders. Redactions are allowed, he said, but not on contracts with the City.
Respondent Ms. Gong said the department needs to redact personnel information such as home addresses before giving the complainant a copy.
To Member Goldman’s question, Ms. Gong said her decision was based on the Sunshine Ordinance and advice from the department’s attorney DCA Virginia Elizondo and former Task Force Administrator Frank Darby.
DCA Llorente said 67.1 ( g ) addresses the issue.
Member Knoebber wanted to know if there was any legal distinction between this and other contracts signed by the City.
DCA Llorente said there was none.
To Chair Knee, Ms. Gong said she did not ask the contract holders whether they wanted to release their private information.
To Member Cauthen, Ms. Gong said she would not redact the slip address. Mr. Maionchi said the slip address only provides the location of the vessel. He also said the Harbor Master rejected his suggestion that his plan be mentioned in the monthly newsletter.
Public Comment: Kimo Crossman said email addresses are not a redactable item under state and local law. He also said if people do not want to provide their residence address they could always provide a post office box number or a work address. And if someone puts their name and address at the corner of an envelope or on a contact, the person has volunteered to disclose that information. Peter Warfield said the person could say “Please don’t contact me again” and that there are laws if it became a legal issue such as harassment. He then read from sections 67.24 ( i ) on public information that must be disclosed, 64.26 on withholding kept to a minimum and 64.26 on justification.
In rebuttal, Ms. Gong said she has forwarded Mr. Darby’s email containing the statutes to Mr. Maionchi and that she would further discuss the issue with DCA Elizondo.
Mr. Maionchi said Mr. Darby should not be a participant in the matter because of his association with the Task Force. He said there are certain cases where redaction is required but none of it applied to this case. He also said addresses in DMV records are exempt, but there was a way of getting the information
Motion to find violation of 67.27 for not providing justification for withholding. ( Knoebber / Cauthen )
Chair Knee made a friendly motion to add 67.24 ( i ).
Both motion makers agreed.
On the motion:
Ayes: Cauthen, Washburn, Knoebber, Chan, Goldman, Williams, Knee
Excused: Craven-Green, Johnson, Chu
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12. |
09034 |
Determination of jurisdiction on complaint filed by Brian Tomina against the Dept. of Building Inspection for allegedly not responding in a timely fashion to an Immediate Disclosure Request.
Motion to accept jurisdiction ( Goldman / Cauthen )
Public Comment: None
On the motion:
Ayes: Cauthen, Washburn, Knoebber, Goldman, Williams, Knee
Excused: Craven-Green, Johnson, Chan, Chu
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13. |
09034 |
Hearing on the complaint filed by Brian Tomina against the Dept. of Building Inspection for allegedly not responding in timely fashion to an Immediate Disclosure Request.
Complainant was not present. There was no one in the audience who wanted to present facts and evidence on behalf of the complainant.
Respondent William Strawn of the Dept. of Building Inspection said he tried to contact Mr. Tomina to tell him that his request would take additional time because of the number of documents requested but that was not possible because Mr. Tomina’s fax provided a non-working telephone number. Contact was made only when Mr. Tomina called two days later. Mr. Tomina then promised to email him, he said, but it arrived two days later. He said the department has provided him some of the documents and will produce more as they become available. They have had a pleasant exchange, he said, and was surprised to find that Mr. Tomina had filed a complaint.
Chair Knee said faxes normally include a phone or fax number at the top of the page but Mr. Strawn said this fax did not and therefore there was no other way to contact Mr. Tomina.
Motion to find no violation ( Goldman / Washburn )
Public Comment: None
On the motion:
Ayes: Cauthen, Washburn, Knoebber, Goldman, Williams, Knee
Excused: Craven-Green, Johnson, Chan, Chu
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14. |
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Use of vendors or third parties to respond to public record requests (Brian Smith, Planning Department)
Brian Smith of the Planning Department was not present.
Continued to August 25, 2009, meeting
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Approval of “Know Your Rights” brochure
Members made suggestions and changes.
Public Comment: Peter Warfield said it is important to say that the public has the right to inspect for free. He also said the promptness issue is not mentioned and the IDR section also needs rewriting. Kimo Crossman applauded the outreach but wanted entries such as the annual records be removed because it catered only to a select few. He also wanted sections that covered contracts and the availability of documents to be mentioned.
Item sent back to the Education, Outreach and Training Committee.
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16. |
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Report: Complaint Committee meeting of July 14, 2009.
Chair Nick Goldman made the report
Public Comment: None
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Report: Compliance and Amendments Committee: meeting of July 14, 2009.
Chair Richard Knee made the report
Public Comment: Kimo Crossman said the Ordinance talks only about copyrighted programs in 67.21 ( I ) and that the requestor should not be charged because it is the responsibility of every city employee to retrieve documents.
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Report: Education, Outreach and Training Committee meeting of July 9, 2009.
Chair Sue Cauthen made the report.
Public Comment: Kimo Crossman said he was concerned the PUC was advocating a central person to receive requests whereas the Ordinance says the information request can be made to any City employee. He also said the amendments should abolish the Custodian of Records position because it again singles out one person. Peter Warfield said a former library commission secretary went to great lengths to confuse the public over the Custodian of Records issue. He then read 67.21 ( a ) on how to gain public records.
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Administrator’s Report.
Clerk Chris Rustom made the report.
Public Comment: Kimo Crossman asked members to visit sfethics.org a site where the commission posts its documents and audio files. He urged the Task Force to emulate the commission and have its documents posted online and post all the digital recordings and documents. He also urged the Task Force to work with the Department of Technology on streaming media so that the public could follow the meetings from their computer location if they cannot attend. Peter Warfield said the communications received log lacks details.
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Public comment for items not listed on the agenda. Public comment shall be held at 5:00 p.m., or as soon thereafter as possible.
James Chaffee said depriving people access to reason is a psychic assault. The perpetrators are well aware of what they are doing and that the end result for them is to claim that their perpetration was not a bad as the victim’s. Emil Lawrence said he has asked the Municipal Transportation Authority to be transparent and open especially on taxi matters. By cancelling meetings till the end of December, the MTA was denying the public to matters concerning the taxi industry. He said he has contacted the City Attorney and the Ethics Commission but has not received a response. Lt. Mahoney of the Police Department’s Legal Division said the department completed its Index of Records on July 18 and forwarded it to the City Attorney’s Office the same day. That office is expected to respond within a few days time and he expects to come before the Task Force on August 25, 2009, and declare the task done. Peter Warfield said the Task Force has tremendous latitude to tell the public and the Board of Supervisors on what is necessary on Sunshine matters. Previous Task Forces included members who ferreted out the truth by asking and probing vigorously, he said. To tell the public that the body’s actions are limited is incorrect, he added. Thomas Picarello said the Task Force needs to set up a committee to see how much the public is allowed to participate in distributing $6 billion because the Budget and Finance Committee this year allowed only one minute of public comment following last years’ two minutes.
Chair Knee said the Task Force is working on time limits issue in its amendments and that there were a set of procedures to follow when filing complaints with the Ethics Commission or the Sunshine Ordinance Task Force.
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Announcements, comments, questions, and future agenda items from the Task Force.
Chair Knee said perhaps Member Chan or Member Johnson, who are on multiple committees, would be willing to step aside so that Member Williams could join the Education, Outreach and Training Committee panel. He said he would consult them and report to the Task Force accordingly.
On Chair Knee’s request, DCA Llorente said the social meeting issue needs further discussion because he has an issue with six or more members meeting at an outside venue without noticing it.
Public Comment: Kimo Crossman said committee assignments and social issues should be agendized and that socializing is acceptable as long as members do not discuss Sunshine issues. He also urged a job performance review for Mr. Rustom and Mr. Llorente. Peter Warfield said DCA Llorente’s advice to the Task Force needs to be documented because it plays a major role in Task Force decisions and it could also be used as reference material.
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Adjournment: The meeting was adjourned at 8:16 p.m. |
This meeting has been audio recorded and is on file in the Office of the Sunshine Ordinance Task Force |