THE SUNSHINE ORDINANCE Task Force rejected a Bay Guardian reporter's complaint against the Mayor's Office July 27 in a move that raised larger issues about the city attorney's role in open-government cases.

Matthew Hirsch had complained that the Mayor's Office refused to release the résumés of candidates for the top job at the Public Utilities Commission. City treasurer Susan Leal was tapped for that position, apparently without any serious search for qualified applicants.

The Mayor's Office took the position that résumés for job seekers aren't specifically mentioned in the Sunshine Ordinance and thus are exempt from disclosure. Hirsch argued that the records aren't exempted and by default ought to be public.

Only five of the nine members present agreed that the mayor had violated the government's duty to make decisions in full view of the public. Since six votes are required to find a violation, the motion failed.

Voting in favor of releasing the records were Doug Comstock, Richard Knee, Garrett Jenkins, Alexandra Nickliss, and Marjorie Ann Williams. Voting against, and siding with the mayor, were David Pipel, David Parker, Heather Sterner, and Sue Cauthen.

What particularly irked some task force members was the fact that deputy city attorney Linda Ross appeared along with mayoral staffer Darlene Chiu to respond to the complaint. Ross acted as Chiu's counsel and did almost all of the talking.

Comstock pointed out that the sunshine law clearly forbids the City Attorney's Office from representing city officials accused of sunshine violations. Section 67.21 (i) states that "The San Francisco City Attorney ... shall not act as legal counsel for any city employee or any person having custody of any public record for the purposes of denying access to the public."

Comstock said he's raised the issue before. "I bring it up every time they bring in a city attorney," he told the Bay Guardian, "but nobody pays any attention."

Comstock said the task force's counsel, deputy city attorney Ernest Llorente, allows other deputies to appear without challenge. "He says the ordinance isn't clear, so he lets it happen," Comstock said. "It gives an unfair advantage to a member of the public who has no legal representation to have to come up against the city attorney."

Matt Dorsey, a spokesperson for City Attorney Dennis Herrera, told us his office has an obligation under the City Charter to represent elected officials and agencies. Then, in a remarkable use of legal logic, he argued that section 67.21 (i) doesn't apply in this case – because the city attorney had already decided that the documents in question weren't public records.

Thomas Burke, an attorney with Davis Wright Tremain, who helped write the ordinance, said that undermined the clear intent of the law: to prevent the city attorney from helping public officials keep records secret. At the very least, said Burke, who also represents the Bay Guardian, Herrera should have informed the task force that this was his position.

"This sort of view could structurally incapacitate the sunshine task force," Burke said.

Tim Redmond