FREEDOM OF INFORMATION ISSUE: Will the city's Sunshine Ordinance finally get some much-needed teeth?
On the same evening the Police Commission shot down Chief George Gascón's plan to arm his officers with Tasers, a Sunshine Ordinance Task Force (SOTF) committee reviewed a proposal to give itself a set of enforcement tools that, if approved, could help nail governmental agencies and officials that violate public information laws.
These proposals include the right to appoint outside counsel to enforce serious, willful violations of the voter-approved Sunshine Ordinance against respondents who fail to comply with SOTF orders, thereby allowing enforcement actions to be brought in civil court.
Despite the potential significance of these amendments to the cause of open government and the history of SOTF findings being blatantly ignored by Mayor Gavin Newsom and other officials who have refused to release public documents, only a small posse of regular sunshine advocates attended the March 4 meeting of SOTF's Compliance and Amendments Committee.
This lack of public interest underscores how the inability to enforce its findings has undercut its power, and why its members believe the legal equivalent of a stun gun is needed if people are going to start taking the work of this Board of Supervisors appointed body seriously.
Erica Craven-Green, an attorney who has served on SOTF for six years, has seen a number of departments not take the body's proceedings seriously.
"There are very few penalties for individuals and departments that choose not to comply with the ordinance," Craven-Green observed. "We've had numerous instances where representatives from city departments and the offices of elected officials failed to show up at our hearings and explain how they did or did not comply with the ordinance."
Angela Chan, staff attorney of the Asian Law Caucus, filed a complaint with SOTF in October 2009 after the Mayor's Office refused to explain why it gave a confidential City Attorney's Office memo about sanctuary city reforms to the San Francisco Chronicle but not her organization for two full weeks, despite her requests.
At a December 2009 SOTF hearing, Brian Purchia of the Mayor's Office of Communications handed SOTF a note that read, "I had to leave to respond to the press," shortly before Chan's complaint was heard. As a result, the task force decided to continue the matter to January so someone from the Mayor's Office could attend. Yet despite repeated requests, no mayoral representatives attended that or subsequent SOTF's meetings about Chan's complaint.
"It is deeply disappointing that the Mayor's Office has not shown any respect for the Sunshine Ordinance Task Force, which works hard to try to improve government transparency and accountability for the residents of San Francisco," Chan told the Guardian. "The mayor appears to be acting like a monarch rather than a democratically-elected official who is accountable and responsive to the people. Reform is needed to ensure all city officials comply with our Sunshine Ordinance and heed [SOTF's] orders."
And it's not just members of the public who feel their time is being wasted. "I think it is very frustrating and, quite frankly, a waste, not only of the task force's [time], but of city resources as well, to have a hearing on a matter that the city decides not to reply to and/or show up for," said Craven-Green, who steps down from SOTF later this year.
SOTF is seeking to address this sense of powerlessness by renaming SOTF the Sunshine Ordinance Commission (SOC), giving it the ability to hire an attorney and propose fines, and requiring that departments post notices of sunshine violations on their Web sites. The amendments also expand the list of public officials required to keep working calendars and clarify access requirements for electronic records and systems.
Craven Green said changing the SOTF's name is a "nonsubstantive" amendment, but that it "makes it sound more permanent."
The key difference between SOTF and SOC is that, under the proposed amendments, SOC could, with a two-thirds vote, appoint outside counsel to enforce serious and willful violations of the ordinance by bringing action against them in civil court. Right now, only the Ethics Commission and District Attorney's Office can enforce SOTF decisions, and neither has been willing to do so.
Retired attorney and sunshine advocate Allen Grossman recently won a $25,000 settlement to cover legal fees in a lawsuit he brought against the Ethics Commission and its executive director John St. Croix to force the city to provide him with previously withheld public records about why Ethics dismissed 14 sunshine cases SOFT had referred to it. The amendment would give SOC that same authority.
"Where we feel there hasn't been sufficient action by the Ethics Commission or sufficient compliance on issues we think are very important for public access, we could instigate outside counsel to prosecute serious and willful violations," Craven-Green said.
The amendments also lay out penalties for officials who willfully flout sunshine laws. Government officers and employees found to have committed official misconduct would be required to personally pay $500 to $5,000, while public agency violations would have that amount taken from their budgets.
SOC would recommend the level of these fines, and any fines that Ethics decided to impose would be placed in SOC's litigation fund. "That should be enough for most departments to comply," Craven-Green said.
Terry Francke, general counsel of Californians Aware, a Sacramento-based center for public forum rights, has been consulting with SOTF on the changes. He says the Achilles' heel of the Sunshine Ordinance, which the board enacted in 1993 and voters amended in 1999 through Proposition G, has been what happens to a department or official who refuses to comply with what SOTF thinks is required.
Under the state's Brown Act open meeting law and the California Public Records Act, correcting the unlawful withholding of public information requires a civil lawsuit. "You go into court, tell them this or that practice violates the Brown Act and ask the court to order a correction," Francke said. "Or you go to court with a request for public records that you believe are being unlawfully withheld."
But now SOTF is folding Francke's recommendations to hire a litigator into the SOC amendment package, along with establishing a $50,000 annual litigation fund. The amendments would require voter approval and the willingness of four members of the Board of Supervisors to place them on the ballot.
Francke acknowledges that this litigation fund could sound odd, "but it's a kick start that's needed" to encourage compliance. "It's not so much a net outflow of funds as a kind of transfer of funds from the operating fund of a particular agency that violated law to the litigation fund of the SO commission."
Francke says Grossman's lawsuit is a good example of a successful effort to take the city to court. "But the difference, under the proposed amendments, is that $25,000 payment would go into SOC's litigation fund," Francke said. "If the lawsuit by Mr. Grossman had been filed by SOC with its enforcement attorney, that would not have meant a net loss by the city, it would mean a net gain to the commission's litigation fund."
The problem now, Francke observes, is that Ethics dismisses most complaints on the grounds that it was not official misconduct or willful failure because employees or officials were acting on City Attorney's Office advice.
"It's less important that the occasional willful violation of the Sunshine laws gets punished personally than that the violation gets stopped," Francke said. "And someone saying, 'Harry/Judy, what you did there cost $25, 000' is not a career morale builder."
Craven-Green agrees that the problem to date has been that departments rely on the advice of the City Attorney's Office, and SOTF often disagrees with its positions. "One of the reasons we referred these cases to Ethics was so it would take a neutral look," she explained. "What's been frustrating is that the Ethics Commission has not done that. It's simply sided with the City Attorney's Office."
Last year, following a joint meeting between the Ethics Commission and SOFT to discuss difficulties those bodies have had with one another, Ethics' St. Croix introduced changes in how the agency handles SOTF referrals, including defining when he may simply dismiss a referral and allow some documents from its investigations to be made public.
"We are really working to resolve these difficulties," St. Croix told us. "The core of the conflict has been that when they refer complaints, we investigate. But from their point of view, they've done an investigation, and our response should be to assign penalties."
Grossman is hopeful that SOTF's proposed amendment package will resolve some problems. As he told us, "It substantially reduces Ethics' ability to dismiss cases arbitrarily."