by Richard Knee

Sunshine advocates in San Francisco are campaigning against a local November ballot measure that would, among other things, allow city lawmakers to tamper with the city’s voter-enacted government transparency law, which CalAware’s Terry Francke played a major role in crafting.

Ordinarily, only the voters may amend voter-passed ordinances.

Francke, CalAware’s general counsel, drafted the original language of the city’s Sunshine Ordinance, which the Board of Supervisors watered down and passed unanimously in 1993. Then-Mayor Frank Jordan signed it into law. Francke at the time was general counsel and executive director of the First Amendment Coalition.

Voters approved a package of amendments strengthening the ordinance in November 1999. It is widely regarded as the nation’s strongest local government transparency law, and the Francke-drafted original version is used as a template for sunshine laws throughout the country.

Proponents of a “Privacy First” measure on this November’s ballot apparently hope that a provision to let the Board of Supervisors amend the ordinance will escape the voters’ notice. They slipped the provision in near the bottom of the text, in Subsection (i) of what would be city Charter Section 16.130, and they give it scant if any mention in print and on the stump.

Francke and Bruce B. Brugmann – the latter, as editor and publisher of the Bay Guardian, shepherded the 1993 ordinance through City Hall and then spearheaded the ordinance reform effort six years later – frowned on the ballot measure.

“The thing is too long, too complicated, too vague, too litigation-prone and with an unknown price tag,” Francke said. “‘Privacy First’ sounds appealing because it has no content to quarrel with, but before converting a smiley-face slogan into binding law, let’s have a governmental impact report to spell out just what is likely to change in how the city is run.”

The measure, designated as Proposition B, “has a poison-pill provision that is the latest and most dangerous move to sabotage the Sunshine Ordinance and the task force that it established,” said Brugmann, who was also one of the original members of that body.

He is now retired and the new owners of the venerable alternative news weekly shut it down abruptly in October 2014, though it is archived online.

Proposition B “would allow the supervisors to do what they may not by law do now: amend and water down what is the first and still the best local open government ordinance in the country, if not the world,” Brugmann said. “These are dark times and gushers of dark money are flowing into City Hall and our elections through opaque PACs from the Manhattanization gang that is ruining our city. Our proud standard ought to be sunshine first. If the voters pass Proposition B, it could reverse the progress toward that standard to the pre-Sunshine Ordinance days of more than two decades ago.”

Proposition B is billed as a precursor to ordinances barring city contractors, franchise holders and business licensees from passing customers’ personal data to utilities, social media, and other companies and individuals that mine such information for profit or more malicious ends.

The Society of Professional Journalists, Northern California chapter, and the Pacific Media Workers Guild (The NewsGuild-CWA Local 39521) laud that long-term goal, but echo Brugmann’s admonition that authorizing the Board of Supervisors to amend the Sunshine Ordinance would open the door to its being legislatively gutted, and because it is locked into Proposition B, they feel compelled to oppose it, as do the San Francisco Labor Council, the League of Women Voters of San Francisco, the San Francisco Bay Area Planning and Urban Research Association (SPUR) and the advocacy group San Franciscans for Sunshine.

“We cannot, in good conscience, allow our elected officials to decide the intent of the voter-enacted Sunshine Ordinance, which citizens use daily to hold the same politicians accountable for their actions,” said Matt Drange, who co-chairs SPJ NorCal’s Freedom of Information Committee. “Time and again, we have witnessed government officials openly flout public records laws and work against the interests of transparency and open government. Attacks led by supervisors on the citizen watchdog body charged with protecting the Sunshine Ordinance severely crippled the group’s ability to do its job in 2012. If Proposition B is passed, voters will effectively hand current and future elected officials a blank check to do the same.”

“It is a bad idea to give the Board of Supervisors the power, as Proposition B would, to amend the Sunshine Ordinance, a government transparency law that helps the public hold San Francisco officials and agencies accountable,” said Aaron Field, the committee’s other co-chair.  “As the California Supreme Court said in City of San Jose vs. Superior Court, a recent access case, ‘[o]penness in government is essential to the functioning of a democracy’ because it allows individuals to ‘verify accountability’ and ‘permits checks against the arbitrary exercise of official power and secrecy in the political process.’

“The Sunshine Ordinance serves these purposes.  But any transparency law’s ability to check official power is undermined when the officials it’s supposed to rein in have the power to change it,” Field said.  “To make sure that the Sunshine Ordinance continues to be an effective check on the arbitrary exercise of official power in San Francisco, the people should keep the power to amend it for themselves.”

The organizations also caution that the measure would not in itself be a law; it would merely set guidelines for a set of ordinances to be enacted by next May 31, and there is no telling how watered down they would be due to backroom deals with tech-industry lobbyists. (Disclosure: This writer is active in SPJ NorCal and the Guild.)

Subsection (i) would authorize the board to amend voter-passed privacy, open-meeting and public-record ordinances in ways “not inconsistent” with their “purpose or intent”.

On the stump and in meetings with SPJ NorCal and San Franciscans for Sunshine, Sup. Aaron Peskin, Proposition B’s chief sponsor, and his legislative aide Lee Hepner have argued that the “not inconsistent” clause would limit the board to strengthening the ordinances.

But the word “strengthen” does not appear in the provision.

Moreover, determining whether amendments met the “not inconsistent” criterion would be a subjective exercise, and that power would rest with the city attorney, whom sunshine advocates view to be conflicted as the person charged with defending officials and agencies accused of violating local and state sunshine laws.

In addition, if anti-sunshine supervisors regained a majority on the board, they would not view the “not inconsistent” clause as a hurdle to weakening the ordinances; for example, they could change the composition of the afore-mentioned task force, so they could pack it with members likely to let violators skate.

What’s more, legislation amending the ordinances would need to go through the mayor, and current Mayor London Breed has shown a strong dislike of sunshine; her record of compliance in that area is far from exemplary.

Hepner and this writer are former members of the task force.

The board-empowerment provision has its genesis in a 16-year-old effort by sunshine advocates within and outside City Hall to close loopholes in and clarify the ordinance.

Most recently, SPJ NorCal and San Franciscans for Sunshine couldn’t persuade Peskin and Hepner to sponsor a ballot measure that would name SPJ NorCal to succeed the defunct New America Media as permanent nominator of a journalist from a minority-owned news outlet to the task force.

San Franciscans for Sunshine is a rebirth of the group that put the Sunshine Ordinance reform measure (Proposition G) on the November 1999 ballot. The voters approved it by a 58-42 ratio. SFS hopes to put a package of additional reforms on the November 2019 ballot. (Disclosure: This writer is active in the current effort, as I was in the 1999 campaign.)

But it’s a struggle because the group doesn’t have sufficient funds to gather enough voter signatures and most city supervisors approached on the matter have kept SFS at arm’s length.

A major reform in SFS’s current package would expand the number of non-government organizations with permanent authority to nominate the task force’s members, in order to increase community involvement in the appointment process and lessen the ability of the Board of Supervisors to pack the task force with anti-sunshine members.

Of the body’s 11 members, an attorney and a journalist are nominated by SPJ NorCal, a journalist from a minority-owned news outlet was until recently nominated by New America Media and a citizen is nominated by the League of Women Voters of San Francisco. The rest are directly appointed by the board. SFS’s proposed amendment would transfer NAM’s authority to SPJ NorCal, and would add the First Amendment Coalition, the Guild, the Media Alliance, the Freedom of the Press Foundation and the Coalition for San Francisco Neighborhoods as permanent nominators for specific task force seats. It would also mandate staggering of task force members’ terms, which are for two years.

NAM ceased operations last November and completed its dissolution in March. Long before that, though, the organization’s executive director, Sandy Close, declared in writing that she wanted SPJ NorCal or another bona fide journalists’ organization to take over NAM’s nominating role.

Asked if Close’s letter or a board-passed amendment to the Sunshine Ordinance could effect the transfer of authority, the city attorney’s office told this writer that only the voters could pass such a revision.

Hepner subsequently told SPJ NorCal and SFS representatives that an amendment so narrowly targeted didn’t merit the time and city resources that getting it on the ballot would take. And in the next breath, he said he was helping to craft a “more elegant” approach: empowering the board to amend the ordinance.

What he did not say, though, was that a provision giving the board that authority was being included in a proposed city Charter amendment that would go to the voters this November.

So what became the aforementioned Subection (i) slipped under the radar of sunshine advocates and the press, until veteran political consultant Jon Golinger alerted Brugmann and 48hills editor Tim Redmond, asking them if implementing the personal-data protection provisions might conflict with the Sunshine Ordinance.

News that the board-empowerment provision was in the “Privacy First” measure spread rapidly among sunshine advocates, who were furious and told Peskin and Hepner that the provision was a deal-killer.

Peskin and Hepner seemed mystified at the activists’ reaction, pointing out that the process of drafting the measure and putting it on the ballot was fully visible to the public. But Hepner told sunshine activists later that he should have been more proactive in informing them on the way the measure was taking shape.

And the pair pledged that if Proposition B passes, they will work with SPJ NorCal, SFS and other advocates to strengthen the ordinance legislatively.

It could happen, but Peskin is one supervisor on an 11-member board; it is highly possible that any amendment strengthening the ordinance would meet stiff resistance from Breed; and there is the danger that a future board with an anti-sunshine majority would find ways to weaken the ordinance and hamstring the task force.

Bottom line, sunshine advocates say, is that Proposition B guarantees none of the personal data protections its proponents tout, and the provision allowing the board to tamper with the Sunshine Ordinance, locked in as it is, is a pill so poisonous as to make the measure unacceptable.

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