Summary of the Nonprofit Public Access Ordinance

Sec. 12L.1 Intent and Interpretation; Costs of Compliance.

Sec. 12L.2 Contract Language Establishing Public Access to Nonprofit Organizations.

Sec. 12L.3. Definitions.

Sec. 12L.4. Public Access to Meetings.

Sec. 12L.5 Public Access to Records.

Sec. 12L.6. Community Representation.

Sec. 12L.7. Compliance.

Sec. 12L.8. Severability.

Sec. 12L.9. City Undertaking Limited to Promotion of General Welfare.

Sec. 12L.10. Effective Date.

SEC. 12L.1 INTENT AND INTERPRETATION; COSTS OF COMPLIANCE.

(a) The intent of this Chapter is to establish a policy wherein the City ensures that nonprofit organizations with which the City chooses to do business operate with the greatest possible openness and maintain the closest possible ties to communities they intend to serve. Nothing in this Chapter shall be construed to limit the level of openness and democracy in nonprofit organizations and any contracting nonprofit organization may establish policies that guarantee additional openness to stakeholders.

(b) This Chapter is intended to be cost-neutral in its effects upon nonprofit organizations, and the requirements imposed by this Chapter shall be subject to that intent. This Chapter is not intended to impose obligations equal to those of governmental agencies upon nonprofit organizations doing business with the City. (Added by Ord. 198-98, App. 6/19/98)

SEC. 12L.2 CONTRACT LANGUAGE ESTABLISHING PUBLIC ACCESS TO NONPROFIT ORGANIZATIONS.

(a) Each contracting agency of the City or any department thereof, acting for or on behalf of the City, shall include in all contracts between it and any nonprofit organization which are subject to this Chapter, provisions imposing the requirements set forth in Sections 12L.4 through 12L.7, inclusive.

(b) Each contracting agency of the City or any department thereof shall include in every invitation to submit proposals or requests for City-administered funding provisions requiring that any nonprofit organization submitting such a proposal or request provide information regarding its efforts to comply with this Chapter, and further include a summary stating, to the best of the nonprofit organization"s knowledge, all complaints concerning the nonprofit organization filed with any contracting agency of the City or any department thereof under this Chapter in the preceding two years which that City agency or department has deemed to be substantiated and the disposition of each such complaint, or a statement that no such complaints have been filed in the preceding two years.

(c) In furtherance of the purposes of this Chapter, the Controller, in consultation with the City Attorney, shall create the provisions described in Subsections (a) and (b), above, consistent with the provisions of this Chapter. (Added by Ord. 198-98, App. 6/19/98)

SEC. 12L.3. DEFINITIONS.

As used in this Chapter the following words and phrases shall have the meanings indicated herein:

(a) "Board of Directors" shall mean the Board of Directors, the Board of Trustees, or other principal decision making body of any nonprofit organization.

(b) "City" shall mean the City and County of San Francisco.

(c) "Contract" shall mean an agreement (however titled, including without limitation a memorandum of understanding) to grant or otherwise provide funds to a nonprofit organization including funds from another governmental entity administered through the City or any City commission, City board, City agency or City department, for such organization"s operation, new or existing programs, events, performances, capital improvements, or for goods or services provided by or through such organization, to all or any portion of the public. "Contract" shall not include (1) an agreement to provide goods to the City pursuant to bids or requests for proposals, where the City is the end user of the goods, or (2) an agreement to provide services or benefits to City employees and/or to their family members, dependents, or their other designated beneficiaries.

(d) "Cost-neutral" shall mean that a nonprofit organization"s reasonable costs of complying with this Chapter (not including direct costs of duplication, or mailing costs, of financial documents which are paid by a member of the public pursuant to Section 12L.5(a) herein) shall not exceed five hundred dollars per year.

(e) "Nonprofit organization" shall mean any corporation formed pursuant to California Corporations Code Sections 5000 et seq. for any public or charitable purpose, and/or any organization described within 26 USC Section 501(c), which receives a cumulative total per year of at least $250,000 in City-provided or City-administered funds.

(f) "Designated public meeting" shall mean any regular or special meeting of the Board of Directors of a nonprofit organization which the Board of Directors designates as open to all members of the public pursuant to Section 12L.4(a)(1) of this Chapter. (Added by Ord. 198-98, App. 6/19/98)

SEC. 12L.4. PUBLIC ACCESS TO MEETINGS.

(a) Meetings Open to the Public. Except as provided in Subsections (a)(2) or (a)(3), the following requirements shall be included in all City contracts with nonprofit organizations:

(1) Each nonprofit organization shall designate and hold at least two designated public meetings per year. Issues addressed by the Board of Directors at designated public meetings shall be of approximately the same general nature and significance to the nonprofit organization as issues typically addressed by the Board of Directors at its other regular or special meetings. These issues may include adoption of the nonprofit organization"s budget, nomination of members of the organization"s Board of Directors, and evaluation of the organization"s contract(s) with the City. At at least one designated public meeting the public shall have an opportunity to address the Board of Directors on membership on the Board of Directors and to propose candidates for membership on the Board of Directors as provided in Section 12L.6(b).

(2) Section 12L.4(a)(1) shall apply to the full extent allowed by State and federal law.

(3) Section 12L.4(a)(1) shall not apply to nonprofit organizations engaged primarily in the provision of abortion counseling or services, domestic violence sheltering services, or suicide prevention counseling services.

(b) Closed Meetings. The Board of Directors may choose to close a portion of a designated public meeting:

(1) When discussing any matters pertaining to the particular recipients of the nonprofit organization"s goods or services or donors of in-kind or monetary contributions to the nonprofit organization where the discussion would necessarily reveal the identity of clients or donors;

(2) When discussing any matters pertaining to litigation; real estate negotiations; the appointment, employment, evaluation of performance, or dismissal of an employee of the nonprofit organization; or labor negotiations in which the nonprofit organization is involved; when hearing complaints or charges against an employee of the nonprofit organization; or when discussing attorney-client privileged information, or information which constitutes a trade secret;

(3) Under any circumstances where admitting members of the public is prohibited by State or federal law;

(4) Under any other circumstances where the Board of Supervisors has approved the closing of a portion of a designated public meeting by the nonprofit organization.

(c) Public Comment.

(1) At every designated public meeting the public shall have an opportunity to directly address the Board of Directors on any item of interest to the public relating to the operations of or services provided by the nonprofit organization.

(2) At any designated public meeting, the Board of Directors may adopt reasonable regulations to insure that the intent of this Section is carried out, provided that the Board of Directors allows for at least 30 minutes of public comment at each designated public meeting.

(d) Notice.

(1) Each nonprofit organization shall provide the public with notice of each designated public meeting at least 30 days in advance of the meeting.

(2) The Board of Directors shall cause a written notice of the date, time and location of each designated public meeting to be submitted to the Clerk of the Board of Supervisors who shall post the written notice where notices of meetings of the Board of Supervisors are posted, and to the San Francisco Main Library Government Information Center which shall post the written notice where notices of meetings of City boards and commissions are posted. In addition, upon inquiry by a member of the public, the nonprofit organization shall disclose the date, time and location of the designated public meeting. (Added by Ord. 198-98, App. 6/19/98)

SEC. 12L.5. PUBLIC ACCESS TO RECORDS.

(a) Disclosure of Financial Information. Subject to Section 12L.5.(c), each nonprofit organization shall maintain and make available for public inspection and copying a packet of financial information concerning the nonprofit organization. The packet shall include, at a minimum, (1) the nonprofit organization"s most recent budget as already provided to the City in connection with the nonprofit organization"s application for, or in connection with the review and/or renewal of, the nonprofit organization"s contract, (2) its most recently filed State and federal tax returns except to the extent those returns are privileged, and (3) any financial audits of such organization performed by or for the City and any performance evaluations of such organization performed by or for the City pursuant to a contract between the City and the nonprofit organization, to the extent that such financial audits and performance evaluations (i) are in the nonprofit organization"s possession, (ii) may be publicly disclosed under the terms of the contract between the City and the nonprofit organization, and (iii) relate to the nonprofit corporation"s performance under its contract with the City within the last two years. A member of the public may request additional financial information other than that described above, pursuant to Section 12L.5(b) herein; however, the provision of such additional financial information by a nonprofit organization shall be voluntary, not compulsory. Members of the public, upon giving ten days" notice to the nonprofit organization, shall be entitled to inspect the packet of financial information during the nonprofit organization"s regular business hours or to receive a copy of the packet of information for which the nonprofit organization may recover from the member of the public the organization"s direct costs of duplication. Notwithstanding the foregoing, a nonprofit organization described within Sections 12L.4(a)(3) herein may comply with Section 12L.5(a) herein by sending a copy of its financial information packet, by first class mail, with the costs of such mailing prepaid by the member of the public, to a member of the public who has requested such information.

(b) Dispute Resolution. A member of the public who requests additional financial information other than that described in Section 12L.5(a), above, or who has a complaint concerning a nonprofit organization"s compliance or noncompliance with this Chapter, may submit that request or complaint to the City agency or department which is a party to and/or which administers the nonprofit organization"s contract. That City agency or department shall consider the request or complaint and shall recommend a resolution thereof in accordance with procedures established by that City agency or department. Following such consideration and recommendation, the member of the public or the nonprofit organization may seek an advisory opinion concerning the request or complaint from the Sunshine Ordinance Task Force, which that Task Force shall be authorized to provide; provided, however, that failure to seek such an advisory opinion from the Sunshine Ordinance Task Force shall not prejudice the right of the member of the public and/or the nonprofit organization to obtain a review of the City agency or department"s recommendation by the Board of Supervisors as provided herein. The member of the public or the nonprofit organization may request that the Board of Supervisors review the recommendation of the City agency or department, which review shall be conducted in accordance with procedures established by the Board of Supervisors, provided that such request is made in writing to the Clerk of the Board of Supervisors within ten days of the issuance of the City agency or department"s recommendation or the Sunshine Ordinance Task Force"s advisory opinion, whichever is later. Subject to Section 12L.7. herein, the recommendation of the City agency or department, or the determination of the Board of Supervisors, with respect to any request or complaint by a member of the public shall be nonbinding upon the nonprofit organization.

(c) Donor Confidentiality. No nonprofit organization shall be required to make available to the public any document which would reveal the identity of any of that nonprofit organization"s donors or the amount or nature of any individual donations to that nonprofit organization. (Added by Ord. 198-98, App. 6/19/98)

SEC. 12L.6. COMMUNITY REPRESENTATION.

(a) It shall be the policy of the City that each nonprofit organization shall make good-faith efforts designed to promote the membership, on its Board of Directors, of at least one person who is a recipient of the goods or services of that nonprofit organization or of like goods or services provided by another nonprofit organization.

(b) Each nonprofit organization shall seek candidates for appointment to its Board of Directors who consume or receive its goods or services, or like goods or services provided by another nonprofit organization, and who are members of the class of persons intended to be benefitted by the organization"s activities or services. The nonprofit organization shall seek these candidates by:

(1) Giving notice of vacancies on its Board of Directors by means reasonably calculated to come to the attention of the recipients of the goods or services or type of goods or services provided by the nonprofit organization, which may include, but shall not be limited to, posting written notice of such vacancies in a location accessible to recipients of such goods or services.

(2) Providing each member of the public the opportunity to propose him or herself or other member of the public for nomination for appointment to the Board of Directors at at least one of the designated public meeting per year or in writing; and

(3) Providing members of the public the opportunity to comment on Board of Directors membership at at least one of the designated public meetings per year. (Added by Ord. 198-98, App.6/19/98)

SEC. 12L.7. COMPLIANCE.

In the event that a nonprofit organization materially fails to comply with any contract provision required by this Chapter, the City agency or department which is a party to such contract shall consider such failure a material breach of the contract. The City agency or department may, but is not required to, further consider such material breach as grounds for terminating the contract or not renewing the contract, partially or in its entirety. (Added by Ord. 198-98, App. 6/19/98)

SEC. 12L.8. SEVERABILITY.

This Chapter shall be construed so as not to conflict with applicable federal or State laws, rules or regulations. Nothing in this Chapter shall authorize any City agency or department to impose any duties or obligations in conflict with limitations on municipal authority established by State or federal law at the time such agency or department action is taken.

In the event that a court or agency of competent jurisdiction holds that State or federal law invalidates any clause, sentence, paragraph or section of this Chapter or the application thereof to any person, or circumstances, it is the intent of the Board of Supervisors that the court or agency sever such clause, sentence, paragraph or section so that the remainder of this Chapter shall remain in effect. (Added by Ord. 198-98, App. 6/19/98)

SEC. 12L.9. CITY UNDERTAKING LIMITED TO PROMOTION OF GENERAL WELFARE.

In undertaking the adoption and enforcement of this Chapter, the City and County is undertaking only to promote the general welfare. The City and County is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.

This Chapter does not create a legally enforceable right by any member of the public against the City or a nonprofit organization. (Added by Ord. 198-98, App. 6/19/98)

SEC. 12L.10. EFFECTIVE DATE.

This Chapter shall not apply to any contract executed or amended before 90 days following the effective date of this Chapter. This Chapter shall apply to all contracts executed or amended 90 or more days following the effective date of this Chapter. (Added by Ord. 198-98, App. 6/19/98)