City attorney responds on sunshine task force attacks


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: )  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: )  

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.

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.