Guest Report and Comment by Richard Knee

San Francsan-francisco-fog-sunset1-1isco’s open-government laws are regarded by some as among the nation’s strongest. But some people in City Hall are doing their best to keep the city’s Sunshine Ordinance and the 11-member panel that monitors its effectiveness as weak as possible.

The ordinance was drafted by Terry Francke, then executive director of the California First Amendment Coalition, in 1993. Bruce B. Brugmann, editor and publisher of the San Francisco Bay Guardian news weekly, shepherded the ordinance through City Hall, where it was predictably watered down and then enacted by the Board of Supervisors late that year, taking effect in 1994.

Both as a journalist and as one of the original members of the monitoring panel, called the Sunshine Ordinance Task Force, Brugmann quickly saw that the ordinance was too easily skirted, so he led a fight to have it strengthened. The result was a November 1999 ballot initiative that city voters approved, 58 percent to 42 percent.

Francke is now general counsel of Californians Aware, the First Amendment Coalition has dropped California from its name, and Brugmann retired after selling the Bay Guardian to the SF Newspaper Co., which also owns the archrival SF Weekly as well as the daily San Francisco Examiner. He continues to advocate sunshine and public control of electricity (“When PG&E spits, City Hall swims!”), through his Bruce Blog on the Guardian web site.

The latest attack on sunshine is coming on two fronts: the process of appointing members to the task force, and an effort by City Attorney Dennis Herrera to overturn a provision in the ordinance nullifying attorney-client privacy for communications regarding local and state sunshine and political-ethics laws.

Officials Use Politicized Appointments to Control Task Force

Task force appointments are the province of the city’s 11-member Board of Supervisors, whose own ranks are decidedly split on sunshine-related matters. The appointment process for the 2014-16 term is in progress and could be concluded as early as June 10.

The attorney-client privacy issue is before the state Court of Appeal. The court has taken arguments but when a decision will come forth is anyone’s guess.

The Board of Supervisors on May 20 appointed three incumbents and yet to be seen is whether some supervisors, including board President David Chiu, will abandon a vendetta against certain task force incumbents and against the three outside organizations that among them have nominating authority for four task force seats.

Sunshine advocates are pinning their hopes on a presumption that Chiu wants to curry their favor as he campaigns to represent the eastern half of the city in the state Assembly. His likely runoff opponent in November is fellow Democrat and Supervisor David Campos, who is seen as the more progressive of the two on open-government issues.

The vendetta stems from the task force’s unanimous finding in September 2011 that Chiu and three colleagues had violated local and state open-meeting laws by ramming through a residential redevelopment contract with 14 pages of amendments slipped in at the last minute.

Six of the eight members who voted to find the violation are gone, thanks in part to a purge orchestrated the following May by Chiu and five other supervisors. The two who remain are Allyson Washburn, the nominee of the League of Women Voters, and this writer, a nominee of the Society of Professional Journalists, Northern California chapter.

The purge resulted in the ouster of three incumbents, and the appointment of five newcomers and a veteran, David Pilpel, who had served two non-consecutive stints on the task force and is popular among city officials because he believes they are overburdened by many of the sunshine laws.

At the same time, the board refused to accept the nominations from SPJ, New America Media and the League of Women Voters. The board’s Rules Committee, which conducts initial vetting of policy-body applicants, continued action on the nominations “to the call of the chair.”

Committee members complained that there wasn’t enough racial/ethnic diversity among the nominees and they demanded, for the first time ever, that the organizations submit multiple nominations for each seat. All three groups steadfastly refused, and this year, too, they have submitted a single nomination for each seat.

The diversity issue was a smokescreen; NAM is an organization of news publications of, by and for racially and ethnically diverse communities, and its nominee, Suzanne Manneh, is a Palestinian-American fluent in Arabic and Spanish. Moreover, one of the ousted incumbents, Hanley Chan, is Chinese-American.

At the time, one of the SPJ-nominated seats, reserved for an attorney, was vacant. It still is. The other SPJ-nominated seat is reserved for a journalist and with the Rules Committee balking on the nominations, this writer has remained on the task force as a “holdover,” as has Washburn. Manneh stayed on thus for a few months but resigned because of heavy professional and academic workloads. The seat she held remains vacant.

The real reason for the stall is that certain supervisors didn’t like the nominees. As mentioned, Washburn and Manneh were in disfavor because they voted to find Chiu et al had violated the open-meeting laws. SPJ’s attorney nominee, Ben Rosenfeld, had prevailed before the task force in at least one sunshine-related complaint against a city agency. And SPJ’s journalist nominee, Westside Observer editor Doug Comstock, had as a task force member and political consultant been a thorn in the sides of lots of city politicians and bureaucrats.

There was one glaring and costly omission from the list of May 2012 appointees: a person with a physical disability. The one applicant who met that criterion, incumbent Bruce Wolfe, was swept out in the purge. The Sunshine Ordinance stipulates that the task force must at all times have at least one physically disabled member. So, on the city attorney’s advice, the task force took a hiatus until the mandate was met. The hiatus lasted five months, exacerbating an already sizable backlog of sunshine-related complaints and other matters.

Because members are volunteers with outside responsibilities such as family and work, and because of the vacancies, the task force has at times had difficulty mustering or maintaining a quorum, so the backlog reduction has been slow.

Sunshine detractors on the board, especially Rules Committee chair Norman Yee, have seized this as an opportunity to paint the task force as inefficient.

He and fellow Rules Committee member Katy Tang have also re-erected the diversity smokescreen to stall on eight task force appointments, for which there were 11 candidates at last count. All three of the recently appointed incumbents are Anglos, and one of them, Todd David, has a porous attendance record.

Including the reappointments, possible holdovers and the formal resignation of chair Kitt Grant, the number of filled seats stands at eight, meaning three absences – instead of six when the task force is at full strength – kill a quorum.

The Rules Committee is due on June 5 to resume considering task force applicants and the full board could take the matter up on June 10.

Open City Attorney Communications on Open Government and Officials’ Ethics

Meanwhile, Herrera is appealing a Superior Court order that the city Ethics Commission’s executive director, John St. Croix, allow Allen Grossman, a retired attorney and long-time government-transparency activist, to view communications between the city attorney’s and St. Croix’s offices regarding numerous task force requests that the commission take punitive actions against sunshine scofflaws.

The order is on hold while Herrera challenges a Sunshine Ordinance provision that the normal privilege of attorney-client confidentiality does not apply to communications to or from the City Attorney consisting of

Advice on compliance with, analysis of, an opinion concerning liability under, or any communication otherwise concerning the California Public Records Act, the Ralph M. Brown Act, the Political Reform Act, any San Francisco governmental ethics code, or this Ordinance.

No such provision appears in the state Public Records Act.

Herrera’s contention is that the privacy is established in the city Charter, which supersedes the ordinance much as the U.S. and state constitutions trump statutory laws. He says that even though the Charter does not contain a specific stipulation to attorney-client privacy, the privilege is inherent in the attorney-client relationship that the Charter declares as existing between the city attorney and other city entities.

Grossman and other sunshine advocates have long held that the Charter cannot supersede the Sunshine Ordinance, especially since the latter, which was enacted by the voters, declares that when two laws dealing with government transparency conflict, the law providing for more openness prevails.

The state Court of Appeal’s conduct in the city vs. Superior Court case (No. A140308, First Appellate District, Division One) has been anything but encouraging to sunshine advocates.

The court rejected a friend-of-the-court brief that Peter Scheer, executive director of the First Amendment Coalition, filed in Grossman’s behalf. The court said he had submitted it too late for adequate review, even though he had done so by the court-set deadline.

And in hearing the case, the judges muzzled Grossman’s attorney, Michael Ng.

What remain to be seen are the appellate court’s ruling and then whether the case will go to the state Supreme Court.

Richard Knee is a freelance journalist and sunshine activist based in San Francisco.