City attorney responds on sunshine task force attacks

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B3 note: Here are responses from City Attorney Dennis Herrera to Impertinent Questions from B3 on why the city attorney helped facilitate the supervisorial attack on the sunshine ordinance and task force (See previous B3 sunshine blogs).

Regarding recommended SOTF candidates

Section 67.30 (a) of the San Francisco Sunshine Ordinance provides that the Sunshine Ordinance Task Force's eleven voting members be "appointed by the Board of Supervisors."  That same section designates that a total of four members be appointed by the Board from names submitted for consideration by: the local chapter of the Society of Professional Journalists; the League of Women Voters; and New California Media.  I'm informed that when the Board's Rules Committee conducted its hearing and interviewed SOTF applicants, only one person was recommended for each seat by these entities.  The Rules Committee then continued action on those seats until the entities submitted additional names.  Legally, there is nothing problematic about such a continuance.

Regarding designated seats

Section 67.30 (a) includes specific designations for each of the seats on the SOTF.  It additionally provides that one of those seats be a person with a disability, although it does not prescribe which of the 11 seats be designated to a person with a disability.  I'll be honest here: I'm not aware of whether Mr. Todd has a disability or not.  But given that the Board still has to fill four remaining vacant SOTF seats, it will comply with the Sunshine Ordinance so long as one of the SOTF seats is timely filled by "a member of the public who is physically handicapped and who has demonstrated interest in citizen access and participation in local government."

Regarding public comment

Public comment occurs in board committees.  Each SOTF applicant spoke at the Rules Committee, and members of the public had the opportunity there to offer their comments on all of the applicants.  Although the Rules Committee forwarded six recommendations out of committee, the record transmitted to the full Board included the entire file -- including all the other applicants.  The City Attorney's Office has long advised the Board of its authority to amend appointing motions, and to instead appoint someone else, so long as that appointee's name and application was before the Rules committee, and so long as it was subject to public comment.  That was indeed the case here.  At the committee level, applicants speak; members of the public speak about the applicants; and then public comment is closed.  The committee then decides on its recommended appointments -- but public comment is not reopened to comment on the committee's choices.  

Regarding the role of the City Attorney

With respect to your question about why the City Attorney is "allowing" certain actions by clients, I should briefly address the role of the City Attorney under San Francisco Charter § 6.102.  Beyond the particular set of circumstances addressed in this email, most questions about what the City Attorney "allows" or "disallows" really misinterpret the office's function.  In many contexts over many years, the office has reiterated that "[t]he City Attorney is not a policy maker."  (See: http://www.sfcityattorney.org/modules/showdocument.aspx?documentid=953 )  The City Attorney's Good Government Guide (pages 19-21) addresses at length the role the City Attorney plays in providing legal counsel to the City and its elected officers, commissions and employees (See: http://www.sfcityattorney.org/Modules/ShowDocument.aspx?documentid=686 )  

This office provides legal advice to clients, while also acknowledging that the policy-making authority of the Board and Mayor includes the prerogative to assess for itself the relative legal risks of its actions, understanding that this office will defend its actions "so long as there are legally tenable arguments to support doing so."  In that sense, the role is no different from that of any lawyer providing advice to a client: attorneys counsel; but clients, ultimately, decide.

Best,
MATT DORSEY
Press Secretary to City Attorney Dennis Herrera

B3 comment: The city attorney has made the case for the task force to get independent legal advice and to bring in an independent attorney to represent the task force. More: It is yet another reason to have an independent attorney as a task force member who is strong enough to go up against the city attorney as appropriate on critical issues.   This was the original reason for SPJ, with its experience in public access and First Amendment issues and litigation, to nominate an experienced attorney. This was the first time the supervisors rejected the SPJ nominee (and nominees from other organizations as mandated by the charter)  without a proper explanation or apology or a nice word of thanks. .He helped Willie Brownism prevail for the first time with the sunshine ordinance and task force.

Comments

Jason Grant Garza here ...

Interesting that the city attorney has an “interpretation” of what not only the statue says but what its specific word definition is. The response includes the over board and reaching simplification that “ This office provides legal advice to clients, while also acknowledging that the policy-making authority of the Board and Mayor includes the prerogative to assess for itself the relative legal risks of its actions, understanding that this office will defend its actions "so long as there are legally tenable arguments to support doing so." In that sense, the role is no different from that of any lawyer providing advice to a client: attorneys counsel; but clients, ultimately, decide.” What if the advise is wrong; however, based on past practices (how many poor people take the city to court? - “risk management assessment”) ... what does the city attorney knowing that JUSTICE is for the RICH advise his clients of this precise fact? What happens when the city attorney is proven wrong? Does his INCORRECT and INJURIOUS advise have to compensate the VICTIM? Yes, Virginia ... in a PERFECT WORLD; however, this is far from a perfect world.

Let me give you a specific example ... type my name into a google search engine and read how the city broke FEDERAL MEDICAL law (2001), had my case dismissed with TESTLYING (2003) (C02-3485PJH) only to sign a “CONFESSION” (2007) (settlement agreement with the office of INSPECTOR GENERAL admitting fault and guilt, paying a small fine to OIG and leaving its INNOCENT VINDICATED VICTIM for DEAD.) Again the same principle is at work again ... in two separate incidents I went to TOM WADDELL seeking health care 2010 (Sunshine case # 10038) and in 2011 (Sunshine case # 10081) and was denied services and when I requested my MEDICAL RECORDS thru Sunshine the city attorney for SUNSHINE and DPH presented INCORRECT INACCURATE FALSE EXPERT “TESTIMONY” that they have now backed away from. If you have been reading my comments to Mr. Wolfe here at SFBG for an article entitled "The return of Willie Brownism to sunshine to the Sunshine Task Force at http://www.sfbg.com/bruce/2012/05/21/return-willie-brownism-sunshine-tas... and follow the links ... you will find the mention of the tape (5/15/2012) where the other side CONCEDES.
NOW, I am going back to the SUNSHINE TASK FORCE to DEMAND DUE PROCESS ... I am ESCALATING the HARMFUL, INCORRECT, NOT DILIGENTLY RESEARCHED ADVISE that has DENIED me DUE PROCESS not only in getting my MEDICAL RECORDS and HEALTH CARE but I am also currently being “STONEWALLED” at the city attorney’s office for ESCALATION of this matter (all too common tactic.) If you DO NOT investigate, correct, document the failures and why ... how can you “INSURE” anything will change? The answer is you won’t ... as a matter of fact ... this is again denial of medical care, medical records with the exact same procedure being used that was used before 2001-2003 by the city attorney in case C02-3485PJH. They (the city) testified as EXPERT WITNESSES, the city attorney gave his INCORRECT ADVISE and my case was thrown out. Why then do I have the “CONFESSION” from 2007? In this instant (case # 11081 (Sunshine) ... again we have the city’s EXPERT WITNESS TESTIMONY, the city attorney’s (SOTF and DPH) INCORRECT ADVISE and my WARNING at the time (just like in case C02-3495PJH where years later I was VINDICATED) to only still await DUE PROCESS at the MINISTRY of SUNSHINE. If you have read ... the other side has conceded after months ... however, where is my JUSTICE if this ( the INCORRECT ADVISE and EXPERT TESTIMONY) is NOT being HELD to ACCOUNT?

Isn’t it like the what we are going thru with ECONOMY (big corporation keep profits ...the public pays the losses) ... if the city attorney goes unchallenged, unpunished for providing “This office provides legal advice to clients, while also acknowledging that the policy-making authority of the Board and Mayor includes the prerogative to assess for itself the relative legal risks of its actions, understanding that this office will defend its actions "so long as there are legally tenable arguments to support doing so." In that sense, the role is no different from that of any lawyer providing advice to a client: attorneys counsel; but clients, ultimately, decide.” Isn’t the tenable argument that as our clients we are obligated to provide services ... and wouldn’t that be legally tenable? Yes, Virginia ... even the DEVIL can quote SCRIPTURE to his NEEDS. Now comes the question of GOOD FAITH (on whose part and to whom), RIGHT ACTION and naturally any HUMANITY or MORALITY ... However, I could guess the response ... “WE ARE JUST DOING OUR JOB” ... does that sound familiar?

So let us go on about the physically handicapped ... that does not mean “Official Disability Task Force Representative” it means anyone with a physical handicap ... a limp, a missing finger, a hearing loss, bad vision, back problems, etc. This is just a “TOKEN” ... to give another IMPRESSION/OPINION/DEFINITION. Look at the talented Mr. Wolfe ... HOW long does it take to get a HIPAA expert or hold the other side accountable? Where’s the SUNSHINE, where’s the DISINFECTANT, where’s the CLEANING ... ha, ha, ha ... what a FARCE it will just continue (the ILLUSION) as it has.

Then the response by the city attorney states “ Public comment occurs in board committees. Each SOTF applicant spoke at the Rules Committee, and members of the public had the opportunity there to offer their comments on all of the applicants. Although the Rules Committee forwarded six recommendations out of committee, the record transmitted to the full Board included the entire file -- including all the other applicants. The City Attorney's Office has long advised the Board of its authority to amend appointing motions, and to instead appoint someone else, so long as that appointee's name and application was before the Rules committee, and so long as it was subject to public comment. That was indeed the case here. If public comment occurs in board committee and the public had the opportunity to offer their comments on “all of the applicants” - which all is that the ALL (as in the above “including all other applicants” or the ALL of the present applicants that got up before the committee?) For if it was the ALL (as in ALL applicants “the record transmitted to the full board including the entire file”) ... where would the GOOD FAITH be ... since if ALL as in ALL got up ... then clearly the PUBLIC had a chance; however, if the ALL is only the ALL present and NOT ALL submitted ...then there was NO CHANCE ... how can the PUBLIC get up and comment on someone not present nor that spoke in committee as the city attorney would lead us to believe that ALL (as in ALL) spoke allowing opportunity for PUBLIC COMMENT (So would that be the EACH of ALL (the ALL ALL of ALL or just the ALL PRESENT and possibly NOT the ALL ALL?). Wouldn’t another representation be perhaps - A BAIT and SWITCH? I would like a clear concise answer as I am sure others would. I am not sure exactly ... however ... I am asking questions ... it is quite confusing and NOT ALL that it APPEARS.

Anyway, I still await the ESCALATION of my complaint and investigation of the INCORRECT INJURIOUS and HARMFUL EXPERT TESTIMONY provided in my case # 11081 by the city attorney for SOTF and DPH that to this DATE the city attorney has “STONEWALLED” over. When I call to followup ... I am told that I am HARASSING seeking followup and correct process ... imagine that! Oh, and if I don’t stop seeking followup and continue that I might be arrested ... naturally, I told them ... please since I have my records and await togo before a JUDGE ... I’m still awaiting and not INTIMIDATED, BULLIED nor COWED for I have the TRUTH and the paperwork. Yes, Virginia in a PERFECT world ...

I still await a response from the city attorney regarding the CONFESSION by the city and how this could happen and what consequences, remedy and assurances that it will not happen again or even when I will be "MADE WHOLE" ... oh, it is as in cases # 10038 and # 10081 ... denial of medical services and denial of medical records ... see similarity in FEDERAL case (C02-3485PJH - and the later signed confession) and SUNSHINE cases # 10038 and # 11081. Yes, Virginia in a PERFECT world ....

As far as my prior case (C02-3485PJH) and its implications ... I am writing a book inclusive of their paperwork and LETTERHEAD to be for free on the internet at the website MYOWNPRIVATEGUANTANAMO.COM ... come see how the GAME is PLAYED and NOTICE the INHUMANITY.

Posted by Jason Grant Garza on Jun. 06, 2012 @ 8:12 am

At last night's June 6, 2012 SOTF meeting Bruce Wolfe pointed out that the Sunshine Ordinance requires that the disabled representative must be a person appointed to one of the seats reserved for members of the public and not from one of the four seats reserved for representatives of the organizations named in the Sunshine Ordinance. Therefore, the disabled representative must be a member of the public so even if the BOS appoints a disabled person from one of the four remaining vacant seats it will not satisfy the requirements of the Sunshine Ordinance.

It was also pointed out that because the BOS has already appointed new task force members from all six of the seats reserved for the public without any of them being a disabled person that the BOS violated the Sunshine Ordinance and that the ony way to resolve the situation is for one of the new member appointed to the six seats reserved for
members of the public to resign or be rem ved by the BOS and replaced by a disabled member of the public.

Until that happens, if the SOTF conducts any hearings on any complaints the SOTF would violate the Sunshine Ordinance..

Posted by Bill Clark on Jun. 07, 2012 @ 1:51 pm

Jason Grant Garza here .... really ... Mr. Wolfe is pointing out the fact of what the SUNSHINE ORDINANCE requires? Would this be like MY REQUEST for filling an IMMEDIATE DISCLOSURE REQUEST within 24 hours? My, when I sent Mr. Wolfe (VICE CHAIR), Ms. Johnson (CHAIR) and Mr. Rustom (ADMINISTRATOR) a SUNSHINE IMMEDIATE DISCLOSURE REQUEST in December 2011 specifically asking:

"1.) Please send me the “OFFICIAL” SUNSHINE TASK FORCE DISABILITY REPRESENTATIVE’S NAME, INFORMATION, etc.

2.) The CORRECT information as to the CORRECT city, state and federal agencies to complain to regarding SOTF’s failing methodology ... basically who oversees this agency.

3.) Please send me the CORRECT information as to the CORRECT city, state and federal agencies to file an ADA PROGRAMMATIC ACCESS and ADA complaints with and notify of the ADA non help.. Please realize that as the requester I am notifying you that if you DO NOT understand what I am requesting to contact me IMMEDIATELY for written/documented clarification. Please realize that you MUST work with the requester to get him what is clearly required and if you DO NOT understand what is clearly required ... do NOT hesitate to contact the requester.

4.) Please also send me ALL enforcement agencies (city, state and federal) where the PROGRAMMATIC ACCESS and an ADA complaint can be filed and investigated. In other words WHERE do I CORRECTLY go to ... the San Francisco Police Department and file and ADA complaint with them for denial of access and accommodation and have the perps arrested?"

Call and ask Andrea (the new Administrator 554-7724) or Angela (Clerk of the Board of Supervisors - 554-5184) if they have failed to SCHEDULE the SUNSHINE HEARING over this matter.

So truly I am CONFUSED .... as you can tell I did NOT receive what was required under the ordinance per the ordinance and the HEARING over the failure STILL has not been scheduled ... AMAZING.

Please explain ... the reason I asked was because Mr. Wolfe had said during the JULY 2011 hearing over another matter that he would be very concerned as the "TASK FORCE DISABILITY REPRESENTATIVE." Then he wrote me a note explaining that he was NOT the TASK FORCE"S DISABILITY REPRESENTATIVE just a member with a disability ... and that is why I sent in an IDR.

So where has the representation been for me? HOW LONG DOES IT TAKE TO FIND A HIPAA EXPERT or hold the GUILTY side ACCOUNTABLE? Call and ask anyone ... it has been 7 (SEVEN) months and counting ... isn't the law and ordinance to be followed or is it different when the MEMBERS receive what they DISPENSE ??? Shall we speak as to what (ha,ha,ha) help I received when I asked for ADA help ... I have that paperwork to.

What is even more amazing is that I have been correct and the effort made by the MINISTRY of SUNSHINE to NOT ACKNOWLEDGE, HOLD the GUILTY ACCOUNTABLE to any SUNSHINE at the MINISTRY .... see case # 11081 and case # 11099.

Telling the TRUTH during times of universal deceit is a REVOLUTIONARY ACT." George Orwell

Oh and please NOTE that if I was SPOUTING UNTRUTHS I would have already been arrested ... unlike the other side. Yes, let the GAME continue along with the lies, deception and INHUMANITY. Geez, with such concern ... what happened to the ETHICS referrals for the "OFFICIAL MISCONDUCT" sent in by the MINISTRY last year for St. Croix and several supervisors - I believe was sent in Sept 2011 (go to SOTF website and see) ? The ROSS ETHICS is proceeding ... HOW LONG for ETHICS to act on the SUNSHINE referrals ... where's the concern ... most especially for the VICTIMS of this failed UNACCOUNTABLE process ... yes, MEANINGLESS WORDS = PRICELESS and RESULTS = SWAT, NADA, NOTHING, ZIP.

I know ... "WE CARE" ... the QUESTION is for WHO ???

Posted by Jason Grant Garza on Jun. 08, 2012 @ 6:40 am

Jason Grant Garza, why did you ask for an IDR in the first place when you could have just filed for an normal information request? Aren't you abusing the process when you file for an IDR when it is not an emergency which requires all that information within 24 hours? I listened to the SOTF put up with your tantrums and insults to the detriment of other complainants waiting for their complaints to be heard. You act as if you are the only person who requires information from a government agency. BTW, the SOTF does not have the authority to make the Ethics Commission do anything. Your case may be very important to you and I am sure you deserve the results you desire but that doesn't mean you get to disrupt the SOTF meetings with your outbursts and insults of the SOTF members who are all volunteers who have to spend ungodly number of hours trying to help other members of the public get the public inform ation and records the asked for.

Bruce Wolfe and the other valuable members of the SOTF who were so thoughtlessly removed from the SOTF by the BOS just because the SOTF misunderstood the Charter Section relating to quorums should be praised for their work they did on the SOTF. The BOS did the citizens of San Francisco a great dis-service by removing so many experienced members from the SOTF at one time. It is a good thing you were not at the last meeting because the new Chairwoman of the SOTF would have only given you one
minute to speak under public comment and would have had you removed from the room if you would have graced the SOTF with one of your normal speeches.

Posted by Bill Clark on Jun. 08, 2012 @ 5:34 pm