SF Neighborhoods

Systemic Problems with the Application of the San Francisco Sunshine Ordinance, the California Public Records Act and The Brown Act in the City and County of San Francisco

This complaint was submitted to the San Francisco Civil Grand Jury on October 28, 2024.

For a PDF of this document click here.

Index

Overview and Basics to Know

The Sunshine Ordinance Task Force complaint process takes an average of 407 days to resolve a complaint (2023 SOTF Annual Report) when the San Francisco Sunshine Ordinance Administrative Code, Section 67.21 (e) mandates at least in 45 days.

“The Board of Supervisors and the City Attorney's office shall provide sufficient staff and resources” San Francisco Administrative Code, Section 67.21 (e)

Supervisor of Records needs to respond “as soon as possible and within 10 days” (San Francisco Administrative Code, Section 67.21 (d))

After a SOTF determination, the custodian of records is to comply immediately and within 5 days is not enforced (San Francisco Administrative Code, Section 67.21 (e)).

6 Vote Majority (San Francisco Administrative Code, Section 4.104 (b)) in the Affirmative on Substantive Matters Favors the City and violates The Brown Act §54952.6.

Ethics Commission violates ignores the San Francisco Sunshine Ordinance, Administrative Code, Section 67.30 (c) and Section 67.35 Enforcement Provisions (d)

The SOTF Compliant Procedures 5 b. “conflict of interest” policy on SOTF committees may violate the San Francisco Administrative Code on “conflict of interest”, and other problems with “conflict of interest” transparency. Possible City Ethics Code expansion on recusal policy San Francisco Administrative Code, Section. 3.209. RECUSALS. Currently, the full SOTF and SOTF committees cannot be held accountable to follow the San Francisco Sunshine Ordinance, the CPRA and The Brown Act except for bringing a case to the Superior Court of California.

City officials delaying making responsive public records public by misuse of an incremental or “rolling” basis (Administrative Code, Section 67.25 (d) or inflating public records and piling in junk records.

Responsive records and flooding Non-Responsive Records to create a “needle in a haystack” obstruction

The SOTF relies on the San Francisco Sunshine Ordinance exclusively as the final authority while the San Franciso Sunshine Ordinance, the CPRA and The Brown Act all say to the effect which “In case of inconsistent requirements”…..”the requirement which would result in greater or more expedited public access shall apply.”

SOTF dismisses complaints because of the wrong department is written on the complaint form or the complaint is against “the wrong department”.

Establishing Jurisdiction of an entity by SOTF is not needed or required by the San Francisco Sunshine Ordinance, only whether a public record or information is the government’s or a meeting fits the definition of formally or informally created by the government to further government policy.

SOFT Annual Report Criteria Allows to Show Success but Disallows for Failure from the Public. Better Public Input and Engagement should be Implemented.

Documents submitted to SOTF or any San Francisco city entity should be as clear as they were submitted and should be in a form that text and images can be copied and pasted. Public records require an “exact copy” under the CPRA §7922.530.

Notification of Meetings in the City of San Francisco

All SOTF complaints should have a direct link to the complaint that are accessible to the public.

San Francisco Administrative Code, Section 67.21-1 encourages the city to implement a system for automatically “disclosing records subject to disclosure to members of the public” and no legal requirement to use NextRequest a for profit company to take public record requests. All city agencies must comply with the San Francisco Administrative Code, Section 67.21 (a) (b) and take record requests in person, by e-mail, by fax, or by postal delivery.

The path to bringing a public access law complaint to court favors the city.

The San Francisco Sunshine Ordinance and the SOTF Act as a Shield for the City without Full Implementation

Exhibits A - M

The San Francisco Sunshine Ordinance was enacted in 1993 by the Board of Supervisors and later amended in 1999 by the voters. The purpose was to further the rights of the people to access of public records and public meetings of the City and County of San Francisco and other government entities or government created entities and organizations that received government money and operated on behalf of the city of San Francisco. Overtime, if not zealously guarded, these rights to public access are degraded by government officials for either political or unethical reasons. This is actually noted in the San Francisco Sunshine Ordinance, Section 67.1 (c):

This complaint will go into systemic issues in the application of the San Francisco Sunshine Ordinance, California Public Record Act (CPRA), and The Brown Act have degraded over time in the City and County of San Francisco. With diminished rights of the public to access government information and actions, there is less transparency and accountability. This leads to scandals and skating close to the line of laws that would likely not happen under full transparency. When any oversight committee is degraded or compromised, it becomes a shield for the city and public officials. The compromised commissions become a superficial veil of accountability.

Quasi-judicial bodies, like the Sunshine Ordinance Task Force (SOTF) create another hurdle for the public if they eventually need to get relief from a court. Even though the San Francisco Sunshine Ordinance has a provision allowing the public to go directly to court (San Francisco Administrative Code, Section 67. 21 (f)), courts require a petitioner to exhaust all administrative avenues before seeking judicial review. (Cal. Civ. Proc. Code § 1094.5(a)).

Complaints to SOTF can take years to go fully through the process. SOTF determinations are routinely slow-walked or ignored by city employees. A detrimental determination by SOTF adds time and confusion to meeting violations that happened a year ago or records that should have been produced in 10 days. Other public access laws that San Francisco must follow if they provide greater requirements than the San Francisco Sunshine Ordinance include the California Public Record Act (CPRA), The Brown Act, and San Francisco Administrative Code 12 L.

The San Francisco Sunshine Ordinance is written in a way as to be a customer service guide for city officials and employees, with little required by the public. This may be why the San Francisco City Attorney's Office calls their pamphlet on the San Francisco Sunshine Ordinance, the CPRA, and The Brown Act as the Good Government Guide. Because the ordinance and other public access laws are written about what a government official or entity should or should not do for the public to gain access to information or meetings, there is very little leverage written for the public.

is written in San Francisco Administrative Code, Section 67.1 Finding and Purpose.

It is important to understand that in the State of California, all government records and information are considered public unless there is a specific exemption in law that can be applied. City officials or government entity have the burden to show that records or information are not public. California Constitution, the courts, and the Sunshine Ordinance instruct public access laws to be interpret broadly in favor of public access. CA Constitution Article 1, Section 3 (b) (2):

“Where terms are ambiguous, the constitutional canon requires an interpretation that maximizes the public’s right of access unless the Legislature has expressly provided to the contrary.” Sierra Club v. Superior Court (2013).

“In other words, all public records are subject to disclosure unless the Legislature has expressly provided to the contrary." Williams v. Superior Court (1993)

"Civil statutes for the protection of the public are, generally, broadly construed in favor of that protective purpose" Lungren v. Superior Court (1996)

The SOTF are city officials and are a local agency and part of the local agency, the city. If SOTF members vote against a broad interpretation of a public access provision, then they are required to cite a specific provision of a statute that provides to the contrary or is a specific exemption. Unfortunately, the current SOTF routinely reads public access laws narrowly. It often does not cite a specific provision of a statute that provides to the contrary or is a specific exemption when denying that records are public or access to public meetings. The SOTF does not follow the complaint provision in the San Francisco Sunshine Ordinance (San Francisco Administrative Code, Section 67.21 (e)). The SOTF confuses the San Francisco Sunshine Ordinance as the be in be all of public access laws when the ordinance is only meant to be additional public access requirements of public access laws and is often lacking in stronger language than the state public access laws. The city of San Francisco has imposed its 6-vote minimum in the affirmative regardless of the quorum or seat vacancy. This 6-vote majority requirement in the affirmative is applied to disadvantage members of the public complaints and advantage the city or city official’s position to withhold records. The Ethics Commission has failed to fully implement its obligation of enforcement written in the San Francisco Administrative Code, Section 67.35 (d). The city inappropriately stopped SOTF from determining the Ethics Commission obligation under the San Francisco Administrative Code, Section 67.35 (d). The SOTF allowed this.

This petitioner will go into detail and give examples of each complaint above and other complaints. Because the SOTF does not adhere to all provisions of the San Francisco Sunshine Ordinance and California public access laws and the city imposes requirements on the SOTF that favors the city, this leads to a ripple effect of public access laws not being followed by city officials in San Francisco. While not the focus of this complaint, there will be specific examples of how city officials have not followed public access laws to reinforce points of systemic problems.

The San Francisco Sunshine Ordinance is all of Chapter 67 in San Francisco Administrative Code and will also be referred to as San Francisco Administrative Code, Section 67.xx with the xx being the section number.

The Sunshine Ordinance Task Force in this complaint is written as the SOTF.

All San Francisco Government SOTF Audio: https://sanfrancisco.granicus.com/ViewPublisher.php?view_id=95

Note all full SOTF meetings and the SOTF committees meeting audio can be found here: https://www.youtube.com/@sfneighborhoods The advantage is that there is Google auto transcript and time stamps that allow you to find and jump to certain points of the audio quickly. The how to is explained in each YouTube audio description with the auto transcript button at the bottom.

This complaint will refer to Exhibit X that are located at the end of this grand jury compliant. Records cited in this complaint that are not exhibits are given links to download primarily from the San Francisco city website and news media websites. This is to cut down on this pile of paper printed and submitted. All documents can be provided and or a digital copy of this complaint with clickable links by contacting this petitioner.

The Sunshine Ordinance Task Force complaint process takes an average of 407 days to resolve a complaint (2023 SOTF Annual Report) when the San Francisco Sunshine Ordinance Administrative Code, Section 67.21 (e) mandates at least in 45 days.

From the 2023 SOTF Annual Report (https://www.sfgov.org/sunshine/sites/default/files/2023_Annual_Report_FINAL_20240410.pdf)

“The SOTF took an average of 407 days to resolve complaints, far longer than the 45 days mandated by the Ordinance for the SOTF to issue a determination for alleged violations of the San Francisco Administrative Code 67.21(b). Complaints were scheduled for Task Force hearings an average of 2.5 times before resolution.

The SOTF continues to have a significant backlog of complaints and to receive twice as many complaints as it can resolve yearly under current procedures.” (2023 SOTF Annual Report)

San Francisco Administrative Code, Section 67.21 (e) “If the custodian refuses, fails to comply, or incompletely complies with a request described in (b) above or if a petition is denied or not acted on by the supervisor of public records, the person making the request may petition the Sunshine Task Force for a determination whether the record requested is public. The Sunshine Task Force shall inform the petitioner, as soon as possible and within 2 days after its next meeting but in no case later than 45 days from when a petition in writing is received, of its determination whether the record requested, or any part of the record requested, is public. Where requested by the petition, and where otherwise desirable, this determination shall be in writing. Upon the determination that the record is public, the Sunshine Task Force shall immediately order the custodian of the public record to comply with the person's request.”

San Francisco Administrative Code, Section 67.21 (e) uses the word “shall”. “The Sunshine Task Force shall inform the petitioner, as soon as possible and within 2 days after its next meeting but in no case later than 45 days from when a petition in writing is received” Shall is must comply. The SOTF’s current complaint procedures do not allow them to comply in 45 days. Recently at a SOTF meeting, members deliberating on this issue have recognized that the “shall” and the no greater than 45 days, but they have made little attempt to comply with the provision.

From the 2023 SOTF Annual Report, “Because only the full SOTF can make definitive determinations at present, we focused exclusively on cases that were scheduled for hearing before the full SOTF.” The San Francisco Sunshine Ordinance does not state this requirement. It states San Francisco Administrative Code, Section 67.21 (e) ”Where requested by the petition, the Sunshine Task Force may conduct a public hearing concerning the records request denial.” The record request denial could come from the SOTF or a continued denial by the city after trying to resolve issues outside a hearing. The San Francisco Sunshine Ordinance does not require a determination made by the full SOTF. This appears to be a city requirement by forcing a majority 6 votes in the affirmative on substantive matters. This “requirement” is a partially to blame for SOTF failing to make determinations in 45 days of petition. The city's requirement of a 6 votes in the affirmative on all actions/determinations is complex and will be discussed under its own topic.

Some suggestions for how SOTF complaints could handle outside a hearing requirement when there is no record request denial by SOTF determination are in Exhibit B. One suggestion is that a member of SOTF write and opinion and other members of SOTF sign on to it. A majority sign on to the opinion it is a SOTF determination. There can be dissenting opinions which would clearly cite law why the records are exempt. If the SOTF opinion upholds the respondents, record request denial, then there could be a SOTF hearing.

SOTF’s structure of committees and how complaints have been handled have changed little over the years (at least since 2002, probably since 1999 or 1993?) with one notable exception. (SOTF Complaint Procedures: https://sfgov.org/sunshine/sites/default/files/Complaint_Procedure.pdf). The exception is that the SOTF Administrator and the Deputy City Attorney used to work to obtain “information to which a petitioner is legally entitled” and if this effort failed, the complaint was passed on to the SOTF. This happened from 2003 to 2008 but could have started before 2003 as there are no public SOTF Annual Reports before 2003. From 2009 to 2016, it appears to be only the SOTF Administrator trying to resolve complaints before they went to the SOTF. Since there are no annual reports from 2016 until 2022, it is unknown when the SOTF Administrator stopped trying to resolve complaints before they went to the SOTF. This petitioner started being active with complaints to the SOTF in 2018, just when a new SOTF Administrator started. This petitioner saw no concerted effort by the SOTF Administrator(s) to resolve complaints to the present, but the SOTF Administrator was most likely over worked. Recently, a second SOTF Administrator has been added.

Exhibit A is SOTF Annual Report Links and quotes from Rate of Resolution of Pubic Access Conflicts.

The 2012-2014 Annual Report is the first time SOTF notes “the sheer volume of complaints filed with the Task Force” as their biggest issue. The issue seems to have persisted from that time till now.

The current SOTF has made small efforts like a consent calendar (“The consent calendar allows the full Task Force to make determinations on straightforward cases, or those in which the City does not contest alleged violations, on the recommendation of a committee.” 2023 SOTF Annual Report). Member Schmidt has tried to put forward more substantive measures, but most have failed to gain traction. ( Exhibit B, February 15, 2022 Schmidt’s attempt based on Anonymous and Sulivan’s suggestions, which are included in full at the end) SOTF Member Schmidt tried again at the March 6, 2024, full SOTF meeting, agenda item 5, SOTF complaint File No. 23097 resulting at the SOTF, April 4, 2024 meeting, agenda item 5, a change to the SOTF by-laws “The Complaint Committee shall schedule priority review for 67.21 claims..” The San Francisco Administrative Code, Section 67.21 claims are record and information request violations. This has done little and put other every other public access law to government complaint violations like meeting violations as less of a priority.

The SOTF has implemented that once they get a complaint; they send the city official/agency respondent a letter and form asking them for their position before hearings. The SOTF Annual Report does not track compliance, but from observation, it appears to be very low. This would speed up the determination if the city respondent would clearly state the public access provisions they are basing their actions on. This respondent letter and form request is a public information request by SOTF. The non response by a government agency or official is a violation of the CPRA and the SF Sunshine Ordinance (San Francisco Administrative Code, Section 67.21 (b)). Furthermore, San Francisco Administrative Code, Section 67.27 requires “Any withholding of information shall be justified, in writing, as follows:” Also CPRA § 7922 “An agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this division, or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record” CPRA § 7922.54 (a) “A response to a written request for inspection or copies of public records that includes a determination that the request is denied, in whole or in part, shall be in writing.”

The SOTF seems entrenched in its current procedures and unable and unwilling to comply with the ordinance that created them and is supposed to get city agencies to comply with. The SOFT complaint procedures with the requirement of almost every complaint be heard in a subcommittee and then a full hearing of the SOTF make it impossible for the SOTF to comply with the San Francisco Sunshine Ordinance. None of this procedure is required in the San Francisco Sunshine Ordinance, which will be explained later in various sections of this complaint. The SOTF should put the requirements of the San Francisco Sunshine Ordinance before their bylaws and procedures.

Nothing in the San Francisco Sunshine Ordinance requires the current SOTF committee structure and SOTF complaint procedures nor place it above the time requirement for a determination on a complaint.

SOTF Member Wolfe suggested that SOTF members participate in assisting people in gaining public records. This would probably be a better use of their time than the complaint hearing committee structure before a SOTF hearing. This petitioner has suggested doing away with the compliant committee as a step to determine jurisdiction. This will be explained later in this complaint.

This petitioner has suggested that SOTF could become a party to public record request that are problematic. When the SOTF asks a respondent to respond to a complaint, the SOTF has essentially become a party to the complaint. The whole point is making public records and meetings available to the public. The SOTF can determine outside of a hearing process if the record request is a violation of timeliness of notification and producing records or a withholding based on exemption in law that is disputed. The SOTF should push for clear citation of the exemption(s) being used to withhold record. It is only a dispute about an exemption or denial that SOTF may hold a public hearing determination where requested by the petitioner. San Francisco Administrative Code, Section 67.21 (e) ”Where requested by the petition, the Sunshine Task Force may conduct a public hearing concerning the records request denial.” All other delays could be sent for enforcement. Enforcement discussed later.

The SOTF needs to rewrite its complaint procedures and by-laws (The SOTF By-laws: https://sfgov.org/sunshine/sites/default/files/SOTF_CurrentBylaws_Notice.pdf) to comply with San Francisco Sunshine Ordinance.

All the complaint points made in this complaint are systemic problems with the San Francisco public getting access to public records and meetings. Some of the problems the SOTF has no control over and result from the City Attorney's Office imposing requirements on the SOTF. If the systemic problems are addressed, it would cause a reduction of the 407 days to hear a complaint and the SOTF functioning better.

“The Board of Supervisors and the City Attorney's office shall provide sufficient staff and resources” San Francisco Administrative Code, Section 67.21 (e).

San Francisco Administrative Code, Section 67.21

Provision San Francisco Administrative Code, Section 67.21 (e) spells out the SOTF responsibilities and timeline for petition resolution. The San Francisco Administrative Code, Section 67.21 (e) wording implies that it is the duty of the “Board of Supervisors and the City Attorney's office shall provide sufficient staff and resources” to get petition resolutions “within 2 days after its next meeting but in no case later than 45 days from when a petition in writing is received” and custodian of records (any person in control of the record) to “immediately order the custodian of the public record to comply with the person's request. If the custodian refuses or fails to comply with any such order within 5 days”. The providing of “sufficient staff and resources” would go up and down with compliance of the city to public access laws. Maybe the cost of providing “sufficient staff and resources” would motivate better compliance by the city at the initial public record request or meeting. San Francisco Administrative Code, Section 67.21 (e) clause, is not currently implemented and there is no indication it has ever been implemented.

San Francisco Administrative Code, Section 67.21 (e) clause to “provide sufficient staff and resources” is a different requirement than San Francisco Administrative Code, Section 67.31 “The Clerk of the Board of Supervisors shall provide a full-time staff person to perform administrative duties for the Sunshine Ordinance Task Force and to assist any person in gaining access to public meetings or public information. The Clerk of the Board of Supervisors shall provide that staff person with whatever facilities and equipment are necessary to perform said duties.” which is a different city department to provide a full-time staff person to perform mainly administrative duties. The San Francisco Administrative Code, Section 67.31 is in a different Article of the San Francisco Sunshine Ordinance. The San Francisco Administrative Code, Section 67.30 (a) “The Sunshine Ordinance Task Force shall, at its request, have assigned to in an attorney from within the City Attorney's Office or other appropriate City Office, who is experienced in public-access law matters. This attorney shall serve solely as a legal advisor and advocate to the Task Force and an ethical wall will be maintained between the work of this attorney on behalf of the Task Force and any person or Office that the Task Force determines may have a conflict of interest with regard to the matters being handled by the attorney.” The clauses for a SOTF attorney are also a separate provision and in a different Article of the San Francisco Sunshine Ordinance from “shall provide sufficient staff and resources” San Francisco Administrative Code, Section 67.21 (e).

The San Francisco Sunshine Ordinance, Article III: Public Information and Public Records has the San Francisco Administrative Code, Section 67.21 (e) clause to “provide sufficient staff and resources” and the timelines for SOTF determination and record production after the SOTF determination if they find the city’s cited exemption not valid.

The San Francisco Sunshine Ordinance, Article IV: Policy Implementation has the San Francisco Administrative Code, Section 67.31 “The Clerk of the Board of Supervisors shall provide a full-time staff person to perform administrative duties” and the San Francisco Administrative Code, Section 67.30 (a) “The Sunshine Ordinance Task Force shall, at its request, have assigned to in an attorney”.

The San Francisco Sunshine Task Force has been put in a position of overworking the volunteer members when their actual role should be as a quasi-judicial body that interprets public access laws to specific records or public access situations when the need arises and that are legitimately dispute by the city and the public. “The Board of Supervisors and the City Attorney's office shall provide sufficient staff and resources” if properly implemented, would alleviate the load on the SOTF and help give the public access to records in a timely manner.

The Administrative Code specifically identifies members of the SOTF as "officers of the City and County." (San Francisco Administrative Code, Section 1.50.) Members are eligible to participate in the City's Health’ Service System Administrative Code, Section 16.700(c)(37). Volunteer city employees with some benefit.

This petitioner has heard SOTF member Wolfe mention the “sufficient staff and resources” clause a couple of times, but nothing ever happens. This petitioner believes the city has somewhere in the past intentionally buried the implementation of this clause, so that it is forgotten. The city has, with intention, manipulated other provisions of the San Francisco Sunshine Ordinance to make it less effective and not in the public’s right to know interest.

“The Board of Supervisors and the City Attorney's office shall provide sufficient staff and resources” is very important and clearly part of ensuring enforcement of the San Francisco Sunshine Ordinance.

Supervisor of Records needs to respond “as soon as possible and within 10 days” (San Francisco Administrative Code, Section 67.21 (d))

Use of the Supervisor of Records may speed up making records that are in dispute. San Francisco Administrative Code, Section 67.21 (d) below. There are a few problems even though San Francisco Administrative Code, Section 67.21 (d) “The supervisor of records shall inform the petitioner, as soon as possible and within 10 days, of its determination whether the record requested, or any part of the record requested, is public.” This rarely happens and has taken me on occasions months. Even people that know to use this avenue have given up as a viable path. I suspect that this is the reason that SOTF does not push the use of the supervisor of records.

The supervisor of records has conflicting obligations being a lawyer in the City Attorney’s office, San Francisco Administrative Code, Section 67.20 (c). The obligation to represent the city is greater than resolving a dispute. The current Supervisor of Record explains the obligations in a public record request for information this petitioner did (Exhibit C). Incidentally, the public information request to the supervisor of record took longer than 10 days for a response. I had to ask the SOTF Administrator to assist. She sent my request to the city attorney’s government e-mail address. This petitioner suspects that supervisor.records@sf.gov does not get monitored often.

The San Francisco Supervisor of Records should respond to all requests in 10 days. A request to them is a request for public information and is covered under the CPRA and the San Francisco Sunshine Ordinance.

San Francisco Administrative Code, Section 67. 21 (d):

After a SOTF determination, the custodian of records is to comply immediately and within 5 days is not enforced (San Francisco Administrative Code, Section 67.21 (e)).

San Francisco Administrative Code, Section 67.21 (e)

This does not happen. San Francisco Administrative Code, Section 67.21 (e) is not enforced by SOTF. Following up on the SOTF complaint determinations, the SOTF Compliance and Amendment Committees should ascertain that a custodian of records did immediately comply or within 5 days with the person's public record request. When it does not happen, it should be an automatic violation, and “the Sunshine Task Force shall notify the district attorney or the attorney general who may take whatever measures she or he deems necessary to insure compliance with the provisions of this ordinance” a continuation of San Francisco Administrative Code, Section 67.21 (e). There is no need for a full SOTF determination or hearing. It was complied with or not.

Suggestion: city respondent with determinations by the SOTF that require action by the respondent should send the SOTF a record of the date they fully complied with determinations and the actions they took.

The “shall to notify the district attorney or the attorney general” happens every now and then by the full SOTF. The district attorney or the attorney general have done nothing in the past and are not required to do anything in the law. I have heard that the district attorney's office will do nothing unless there was a criminal act (stated at a SOTF meeting by SOTF Member Wolfe). This has led the SOTF to not follow the shall. Regardless of no action, the SOTF should follow the “shall notify” as part of the documentation of non-compliance and continuing to withhold public records and information. A pattern of non-compliance by the city may spur action by the district attorney office.

Example: a SOTF complaint File No. 21069 (https://sfgov.org/sunshine/sites/default/files/sotf_110321_item11.pdf). The Public Record Request started on April 28, 2021, NextRequest 21-2053 (https://sanfrancisco.nextrequest.com/requests/21-2053). Five months later, at the SOTF, November 3, 2021 meeting (https://www.sfgov.org/sunshine/meeting/2021/sotf_110321_minutes) , Agenda Item 11,
Action: Moved by Member Schmidt, seconded by Vice-Chair Yankee, to find that Public Works violated CPRA, Section 6253(b) by withholding all records in their entirety and orders the Respondent to resume production of records to the Petitioner and Administrative Code (Sunshine Ordinance), Section 67.26 for withholding all records in their entirety. In addition, the matter is forwarded to the Compliance and Amendments Committee for monitoring. 7 Ayes 0 Nayes.

The Department of Public Works, Mr. Steinberg, started producing records 27 days later on November 30, 2021, well beyond the 5 days. When this was pointed out to the SOTF Compliance and Amendments Committee, they did nothing and did not send the complaint back to the SOTF for a violation of “within 5 days” Administrative Code, Section 67.21 (e). This is because the San Francisco Sunshine Ordinance enforcement mechanism has been completely subverted by the city. Enforcement is addressed later in this complaint.

SOTF complaint File No. 21069 is going to be used throughout this grand jury complaint, not with the intent of something being done specific to this complaint, but it illustrates many systemic problems going into enforcement and the Ethic Commission's role in the San Francisco Sunshine Ordinance. The dates may look old, but the path goes into 2024. It just showing how slow things really are.

While SOTF Annual reports track things like the time the SOTF takes to make a determination on a complaint, it does not track whether the city agencies comply with the 5-days provision or how long it takes for the records to be produced. It should.

6 Vote Majority (San Francisco Administrative Code, Section 4.104 (b)) in the Affirmative on Substantive Matters Favors the City and violates The Brown Act §54952.6.

The city imposes San Francisco Administrative Code, Section 4.104 (b) on the SOTF to require a 6-vote majority in the affirmative on all substantive matters. This is regardless of if all seats on the SOTF being filled or members being absent for a hearing. The SOTF By-Laws Section 7 echoes this position. https://www.sfgov.org/sunshine/sites/default/files/SOTF_CurrentBylaws_Notice.pdf This voting requirement heavily favors the city at the SOTF and violates The Brown Act and the CA Constitution Article 1, Section 3 (b) (2).

The arguments against the City Attorney’s Office position on this issue are going to be exhaustive since this is a very continuous issue. Some points alone should require a reversal of the require a 6-vote majority in the affirmative on all substantive matters (San Francisco Administrative Code, Section 4.104 (b)).

This issue has been brought up to SOTF on April 26, 2011 https://www.sfgov.org/sunshine/ftp/meetingarchive/sunshine_full_task_force/Modules/042611item1-documentid=38315.pdf and again in SOTF compliant File No. 21043, February 19, 2021, received. There have probably been other times. At a SOTF meeting in 2021, Mr. Wolfe stated that the issues of the majority vote requirement would not be heard and the SOTF compliant File No. 21043 has never been heard. Many of the arguments in the SOTF complaint File No. 21043 will be made here and further arguments and facts have been learned since 2021. Since the SOTF complaint File No. 21043 has never been on an agenda, there is no known public link to the file. If the Grand Jury wants this file, it will have to request it from SOTF or ask this petitioner. The petitioner believes all complaints should have a public link from the time it is submitted. This will be covered later in the complaint.

SAN FRANCISCO ADMINISTRATIVE CODE, SECTION 4.104. BOARDS AND COMMISSIONS – RULES AND REGULATIONS.

The SOTF By Laws Section 7. Action at a Meeting; Quorum and Required Vote. “The presence of a majority of the Task Force members (six) shall constitute a quorum. The affirmative vote of a majority of the members of the Task Force (six) shall be required for the approval of all substantive matters. Procedural matters shall require an affirmative vote of a majority of the members present.”

There are a lot of issues here.

SOTF and the City Attorney’s Office read “the affirmative vote of a majority of the members shall be required for the approval of any matter” as the majority of seats that constitutes the SOTF whether those 11 seats are vacant of filled or if a seat is filled but the member is absent. It doesn’t matter. The majority vote required is 6 votes or greater. All SOTF determinations are considered substantive. This works out that any unfilled seat on SOTF or member(s) that are absent are an automatic vote against a petitioner (the public’s right to know) and a vote in favor of the government position. The City Attorney position is that the city Charter provisions, like SAN FRANCISCO ADMINISTRATIVE CODE, SECTION 4.104. trump any rule or regulation of the SOTF or the San Francisco Sunshine Ordinance which is not an ordinance within the city Charter. This is true, but it ignores multiple issues: a selective interpretation of SAN FRANCISCO ADMINISTRATIVE CODE, SECTION 4.104, that the San Francisco Sunshine Ordinance is based on state law, California Public Records Act and The Brown Act which trumps the city Charters.

Before we go on, an example of the 6-vote majority requirement going against the public’s right to know.

On March 6, 2019, the full SOTF considered whether they had jurisdiction on a green benefit district formation group in SOTF complaint File No. 18086. The complaint was about the stopping of videotaping of a public meeting allowed San Francisco Administrative Code, Section 67.14. Video and Audio Recording, Filming and Still Photography and The Brown ACT §54953.5 (a). The meeting room was funded by the city, the green benefit district formation group activities were funded solely by and promoted by the city and was using a city ordinance, ARTICLE 15A_ PUBLIC REALM LANDSCAPING, IMPROVEMENT AND MAINTENANCE ASSESSMENT DISTRICTS (_GREEN BENEFIT DISTRICTS_), to set up a benefit district to assessment/tax on the public. Some Green benefit district formation members were placed by a city supervisor. The city paid consultants to move its goals forward in a contract. Like all city contracts, there are 6 places in the contract that state that all work products paid by contract are property of the city. This was the case here. To go further on benefit districts would be to go down a rabbit hole that is not the subject of this complaint. I give the above detail to give context to the SOTF vote on jurisdiction. The only thing I would add is that these private entities and city interfaces have the potential to be abused with taxpayer money being misused. The primary money behind these green benefit district formation groups was primarily coming from the Department of Public Works and Director Mohamad Nuru at the time.

March 6, 2019, Sunshine Ordinance Task Force, Minutes, Item 6., File No. 18086 Government Document Download Link: https://www.sfgov.org/sunshine/sites/default/files/sotf_030619_minutes.pdf

Action: Moved by Member Cannata, seconded by Chair Wolfe, to find jurisdiction.

The motion FAILED by the following vote:
Ayes: 5 - B. Wolfe, Hyland, LaHood, J. Wolf, Martin
Noes: 4 - Hinze, Cannata, Tesfai, Yankee
Absent: 2 - Cate and Chopra

So even though 5 SOTF members voted Yes (a majority of the present vote) and 4 SOTF members voted No. The Noes win by less than a majority vote of 6. The city position wins. The item is voted not to be heard further. The SOTF issues an Order of Determination in favor of the minority no vote. Note the SOTF had all chairs filled, which is not usually the case. The 2 absent members become automatic no votes, because majority votes must be in the affirmative. Since the vote requirement in the affirmative is always 6 and a quorum of SOTF can be 6 to 11 members, you can have minority vote wins based on 1 to 5 committee members voting no. This makes the only fair chance of any majority affirmative vote in favor of the public (the petitioner) a full 11-seated SOTF and then the 6 vote majority becomes a simple majority of members present.

The city’s SAN FRANCISCO ADMINISTRATIVE CODE, SECTION 4.104. (b) “the affirmative vote of a majority of the members shall be required for the approval of any matter” violates The Brown Act § 54952.6 (provisions below) in that “actions taken” must be “to make a positive or a negative decision” “majority of the members” “when sitting”. An item on a SOTF agenda can not end on a minority negative vote as the winning side because it is not a majority in a negative decision. The Sunshine Ordinance Task Force, a quasi-judicial body, mandated (“shall”) by the public (San Francisco Administrative Code, Section 67.21 (e)) to decide the public's access to government records and meetings must comply with California Constitution Article 1, Section 3 (b) (2) “A statute, court rule, or other authority, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”

The city position mistakes a SOTF action taken in the affirmative as bringing about something to be, but SOTF is a quasi-judicial entity that is interpreting public access laws where the right of access to government information and meetings is the default and the action taken is to limit that right and that requires the majority vote. The vote is whether the government has identified a statue that correctly limits the right of access. Both the city respondent/agency and the SOTF are a part of the city government. Right now how SOTF frames and votes is turned on its head.

The Brown Act defines “action taken” in

The Brown Act § 54952.6.

The Brown Act requires a majority decision or an actual vote in the positive or negative.
As read, there should be the requirement of a majority decision/vote in either the positive or negative for the Sunshine Ordinance Taskforce (SOTF) to make a determination or any motion or any order. A minority negative decision/vote cannot stand just as a minority positive decision/vote cannot stand. SOFT By-laws Section 7 fails in requiring 6 votes in the “affirmative” and not also in the negative.

The Brown Act § 54952.6 with The Brown Act § 54952.2 (below) allows for a Simple Majority Decision/Vote of a Majority Members of a Legislative Body Sitting. The Brown Act § 54952.6 “…decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.” There is no “all”. It is a “majority of the members” “when sitting” and this is in the definition of “action taken” on “a motion, proposal, resolution, order or ordinance.”

The Brown Act § 54952.2.

The definition of “meeting” in The Brown Act § 54952.2 (a) uses “means any congregation of a majority of the members of a legislative body” .to “take action on any item that is within the subject matter jurisdiction of the legislative body.” Again, the majority is not “all” members of a legislative body. It is “any congregation of a majority of the members”.

In the SOTF Action: Moved by Member Cannata, seconded by Chair Wolfe, to find jurisdiction, that “lost” with 5 votes for jurisdiction and 4 votes against, if the default is to “maximizes the public’s right of access unless the Legislature has expressly provided to the contrary”, the city’s 6 vote majority rule in the affirmative and the minority vote “win” in this case is illegally going against the state constitution and state public access laws. This is the importance of The Brown Act § 54952.6 that requires a majority to be either positive or negative. What you have is a shift of the word framing in the above action to cause a “loss” under city rules of the people’s right of public access. A more proper framing would be Action: Moved by Member Cannata, seconded by Chair Wolfe, to *not* find jurisdiction with the citing of whatever law the Legislature has expressly provided to the contrary for denying the public access. This would swap the vote for 4 votes to not find jurisdiction and 5 votes against. The 4 votes in the affirmative would lose, jurisdiction would remain and the complaint would proceed to whether records are public or the right of public access to a meeting. Member Cannata made the motion but then voted against his own motion. The fact that a motion can be framed either in the positive or negative and manipulated to be a win or loss is not how decisions should be made and is Kafkaesque.

The framing of a motion and the need to cite the specific law denying public access has been pointed out to the SOTF multiple times by this petitioner as public comment. September 1, 2021 full SOTF hearing transcript starting 1:42 and ending at 1:51 in Exhibit E (https://www.youtube.com/watch?v=Wl-Ikv8G4TA) has this petitioner's public comments and the then Chair Wolfe response explaining a little of the past SOTF history and why SOTF would not be taking up consideration of the 6 majority rule again. Exhibit E also includes this petitioner’s public comments at the SOTF October 5,2022 meeting.

When motions can be made in a way that favors the minority as the previous jurisdiction example “Moved by Member Cannata, seconded by Chair Wolfe, to find jurisdiction.”, to manipulate what is required for a positive vote as winning, the city opens itself to easier corruption. The motion was moved by SOTF member Cannata, but he was one of the minority four vote that voted against his own motion. You have a manipulation of the motion and the fewer the city officials required to be unduly influenced to win. If only six commissioners attend a meeting, only one needs to be flipped. The combination of “the affirmative vote” and of a majority of the all members on commission, regardless of whether they are present or the seat is filled, allows for easy corruption. You could simply pay a commissioner or two to stay home or if the commission is depleted, it is just a matter of manipulation. A simple majority of those present required in the affirmative or negative (The Brown Act § 54952.6) reduces the chance of corruption and tyranny of the minority.

A version of the history that Chair Wolfe is referring to can be read in two articles that Richard Knee wrote back in June 2012. Since the links seem to stop working during this writing, the articles are presented as exhibits. A short summary of the article follows the next paragraph after. Wiener’s Mendacious Attack on City’s Sunshine Panel (Exhibit F) http://www.fogcityjournal.com/wordpress/4693/wieners-mendacious-attack-on-citys-sunshine-panel/, and Supervisors’ Vendetta Against Sunshine Panel Incumbents (Exhibit G) http://www.fogcityjournal.com/wordpress/4711/supervisors-vendetta-against-sunshine-panel-incumbents/.

On May 22, 2012, the Board of Supervisors ousted three incumbents from the Sunshine Ordinance Task Force and stalled on the appointments of the four task force members. The Sunshine Ordinance Task Force could not meet for three months because of Sunshine Ordinance, Administrative Code, Section 67.30 (a) “At all times the task force shall include at least one member who shall be a member of the public who is physically handicapped and who has demonstrated interest in citizen access and participation in local government”. Mr. Wolfe is disabled. He was one of three members purged from the SOTF. After he was reinstated by the Board of Supervisors, the SOTF was able to meet again. On December 5, 2012, at the SOTF meeting, the Sunshine Ordinance Task Force changed their by-law provision on voting to conform to the city’s opinion on SAN FRANCISCO ADMINISTRATIVE CODE, SECTION 4.104. (b). This is why the SOTF will not consider “the affirmative vote of a majority of the members shall be required for the approval of any matter” again.

This petitioner later found that in April 2011, Allen Grossman, an attorney sitting on the SOTF, wrote a letter to his fellow SOTF members about the city’s 6-vote rule violating the CA constitution and state law and how motions are currently made should be reversed. While his full comments are included in Exhibit D, page 5, his most important points are below, because this is a very important issue.

“Over the past few years the SOTF’s ability to remedy violations and maintain that “level playing field” has been seriously compromised as a result of the City Attorney’s advice regarding both minimum quorum and voting requirements.

When only six SOTF members attend a meeting - which has happened recently - the petitioner will be denied access to records or the proper conduct of a meeting even if a five-member majority - 83% - vote “yes”; whereas, the respondent City department, official or agency will absolved by a •single “yes” vote - 16.67%. Now, with only nine seats filled, the petitioner will need no less a two-thirds majority.

Such a voting “rule” is manifestly unfair, untenable and cannot be justified under any appropriate standard. It is certainly contrary to the purposes of the constitutional and state law protections afforded the public for gaining access to public meetings and records.“

“In short, the current SOTF voting procedure whether a requested record is disclosable should be reversed because under California law all public records are presumptively disclosable and the City’s departments, officials and policy bodies have the burden of establishing that a specific exemption from disclosure applies. For that reason, a motion should not be for a determination of a “violation.” Rather, the motion put to the vote should be for a determination that the specific exemption relied on by the respondent applies; and the burden of proving that exemption should rest on the respondent, not on the petitioner to establish that it does not apply. Thus, in the case of the five to one vote that the petitioner would now lose, the respondent would lose and be required to disclose the requested record, which is as it should be.”

The combination of definitions in The Brown Act § 54952.6 “action taken” and The Brown Act § 54952.2 (a) “meeting” allows for a majority of the members of a legislative body or entity when sitting to make a simple majority decision/vote in the positive or negative “upon a motion, proposal, resolution, order or ordinance.” The requirement of 6 votes affirmative is a local requirement by a local government. A larger than a simple majority in the positive or negative of a meeting of a majority of members would violate greater access laws set for in the California Constitution, The Brown Act and the San Francisco Sunshine Ordinance. The SOTF is required under San Francisco Administrative Code, Section 67.5 Application of The Brown Act to choose “the requirement which would result in greater or more expedited public access shall apply” and San Francisco Administrative Code, Section 67.21 (k) for the CPRA.

The Brown Act and the CPRA only allow cities to apply greater requirements of public access on themselves, but can not undermine the minimum requirements of the state public access laws.

The Brown Act §54953.7.

CPRA §7922.505.

The SOTF is not required to conduct hearings to make determinations. San Francisco Administrative Code, Section 67.21 (e) “Where requested by the petition, the Sunshine Task Force may conduct a public hearing concerning the records request denial.” and says nothing about a required hearing. Also note that San Francisco Administrative Code, Section 67.21 (e) applies only to a hearing “concerning the records request denial.” It is the denial of public access that is substantive. The fact that determinations can be made outside of a hearing for public access makes them more procedural than a rule and regulation and SAN FRANCISCO ADMINISTRATIVE CODE, SECTION 4.104. BOARDS AND COMMISSIONS – RULES AND REGULATIONS. (b) states “with respect to matters of procedure the body may act by the affirmative vote of a majority of the members present, so long as the members present constitute a quorum.” It is the denial of public access and the need to cite a law that exempts public access that requires a substantive vote. The SOTF could require even a greater than majority vote of themselves for that denial of public access under the city’s SAN FRANCISCO ADMINISTRATIVE CODE, SECTION 4.104. (b). This argument has never been allowed to be considered by the SOTF.

The last sentence in San Francisco Administrative Code, Section 67.21 (e) “An authorized representative of the custodian of the public records requested shall attend any hearing and explain the basis for its decision to withhold the records requested.” reinforces what any hearing is about the decision by the custodian of the public records to withhold the record requested.

San Francisco City Administrative Code, Section 14.101, INITIATIVES (*part of the city charter*)

The San Francisco Sunshine Ordinance of 1999 was an initiative approved by the voters and it clearly states “may conduct a public hearing concerning the records request denial.” San Francisco City Administrative Code, Section 14.101, INITIATIVES does not allow any authority of the city to “veto, or to amendment or repeal” to change “may” to “shall”, to force “concerning the records request denial” to the concerning of all record requests, and to flip the majority vote on its head to favor the city denying public access or favor a minority vote as a determination for public access to records and meetings. The city voters clearly voted the San Francisco Sunshine Ordinance of 1999 to give the public a “more efficient, or greater access to records” and meetings than the CPRA §7922.505 and The Brown Act §54953.7. not less access. San Francisco City Administrative Code, Section 14.101, INITIATIVES argument against the 6-vote majority in the affirmative rule has never been allowed to be considered by the SOTF.

This grand jury complaint cannot overlook the City Attorney’s Office statements on San Francisco Administrative Code, Section 4.104 (b) “the affirmative vote of a majority of the members shall be required for the approval of any matter” as applied to the SOTF. On April 26, 2011, the SOTF revised its by-laws from a substantive motion that required a majority of those present rather than a majority of all 11 voting seats. (The April 26, 2011 the SOTF minutes are terrible): https://www.sfgov.org/sunshine/ftp/meetingarchive/sunshine_full_task_force/Modules/SOTF%20Minutes%2011-04-26%20Final-documentid=52123.pdf

While April 26, 2011, is when the SOTF voted a change of the SOTF by-laws to a 6-vote present, there are discussions and documents before and after. Specifically, SOTF meetings January 25, 2011, April 26, 2011, July 11, 2012, November 7, 2012 (packet missing), and December 5, 2012, where the SOTF removes “present” from the 6-vote majority in the SOTF Bylaws (Agenda Item 10, packet missing).

The July 11, 2012, agenda item packet includes the agenda item packets from the January 25, 2011, and April 26, 2011 packets. This includes various city lawyer positions and positions of SOTF members. It can be downloaded here:
https://sfgov.org/sunshine/sites/default/files/FileCenter/Documents/42137-071112item3.pdf
It is attached as (Exhibit D).

The following are arguments pointing out problems with the city attorneys' previous written positions on SOTF 6 majority vote requirement in 42137-071112item3.pdf.

Page 2 and 3 of the document Exhibit D, Jerry Threet, Deputy City Attorney, to SOTF, Additional Advice re Majority Voting Requirement (06/28/2012)

Mr. Threet states in reference to San Francisco Administrative Code, Section 4.104 (b) “That section states that "the affirmative vote of a majority of the members shall be required for approval of any matter, and the body shall act by a majority . . . of all its authorized members." San Francisco Administrative Code, Section 4.104 (b) does not use “of all its authorized members.” Since San Francisco Administrative Code, Section 4.104 (b) was last changed on 11/7/2006 (Amended by Proposition B, Approved 11/7/2006) neither Mr. Threet’s 2012 letter or Tom Owen’s, (Deputy City Attorney) 4/2011 letter referring to wording that has been changed at the time of the writing. Mr. Threet, a little further down, states the relevant portion of Section 4.104 (b) where “of all its authorized members” doesn’t exist. He then reiterates the non-existing “of all its authorized members” wording.

The city is certainly fine to interpret “Unless otherwise required by this Charter, the affirmative vote of a majority of the members shall be required for the approval of any matter, except that the rules and regulations of the body may provide that, with respect to matters of procedure the body may act by the affirmative vote of a majority of the members present, so long as the members present constitute a quorum.” the way they do, but they then ignore the next sentence “All appointive boards, commissions or other units of government shall act by a majority, two-thirds, three-fourths or other vote of all members.” which is specific to “all appointive boards, commissions or other units of government”. The SOTF is an appointed other unit of government. This sentence allows these appointed units to vote by “other vote of all members”. It is a little open-ended since the provision goes through a majority and greater votes of all members.

Mr. Threet cites the Board of Supervisors as an example and cites a court case involving the Board of Supervisors voting. This comparison with the SOTF is not relevant for several reasons. The Board of Supervisors is an elected, paid board, which rarely has a vacancy for long. San Francisco Administrative Code, Section 4.104 (b) specifically differentiates between boards like the Board of Supervisors and “All appointive boards, commissions or other units of government” like the SOTF. The “All appointive boards, commissions or other units of government” provision would not make this distinction if it was not important. Another major difference is the Board of Supervisors is a legislative body that passes ordinances that add or restrict rights. The SOTF makes no law or ordinance. The SOTF is a quasi-judicial task force that makes determinations using public access laws of both the city and the state. It should make determinations that the city is correctly citing a law that keeps government records restricted. The SOTF is making judgments on voting against the default of records being public. This judgment requires a majority to be either positive or negative (The Brown Act § 54952.6.) or failing that the records are by default public and public access is the default to meetings. “In other words, all public records are subject to disclosure unless the Legislature has expressly provided to the contrary." Williams v. Superior Court (1993). “.the constitutional canon requires an interpretation that maximizes the public’s right of access unless the Legislature has expressly provided to the contrary.” Sierra Club v. Superior Court (2013) and CA Constitution Article 1, Section 3 (b) (2)

May 21, 2007, Thomas J. Owen, Deputy City Attorney, Application of Charter Section 4.104 to the Sunshine Ordinance Task Force (Exhibit D pages 12-17) https://sfgov.org/sunshine/sites/default/files/FileCenter/Documents/42137-071112item3.pdf previously linked in this document.

I only want to respond a few points of Thomas J. Owen, Deputy City Attorney.

Thomas J. Owen, Deputy City Attorney: “it is a well-recognized principle of statutory construction that when the legislature (or here, the electorate) has carefully employed a term in one place and has excluded it in another, that term should not be implied where it was excluded. (Brown V. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 725.)” (page 15)

The city attorneys are selectively using statutory construction in their arguments of the city’s Administrative Code, Section. 4.104. (b) when they conflate these two sentences “….Unless otherwise required by this Charter, the affirmative vote of a majority of the members shall be required for the approval of any matter, except that the rules and regulations of the body may provide that, with respect to matters of procedure the body may act by the affirmative vote of a majority of the members present, so long as the members present constitute a quorum. All appointive boards, commissions or other units of government shall act by a majority, two-thirds, three-fourths or other vote of all members.” The first sentence is used by the Board of Supervisor which is not appointive. The second sentence goes to “. All appointive boards, commissions or other units of government” is to appointive bodies and how they shall act and vote. The second sentence does not include “the affirmative vote of a majority of the members”, but has the wording allows for a majority of those present. Thus “the affirmative vote of a majority of the members” in the first sentence has been “carefully employed a term in one place and has excluded it in another, that term should not be implied where it was excluded” by the Legislature. (Brown V. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 725.). Either that or the second sentence has no meaning. Why would the legislature write the second sentence, if everything has been covered by the first sentence?

Thomas J. Owen, Deputy City Attorney “In carrying out these duties, the Task Force conducts City business and exercises part of the City's sovereign powers. it plays an active role in the ongoing implementation and enforcement of a City ordinance, both as to application of the existing law to particular facts and circumstances and as to the development and broader interpretation of the law.” (page 16, Exhibit D)

It is important to note the SOTF not only plays “an active role in the ongoing implementation and enforcement of a City ordinance, both as to application of the existing law to particular facts and circumstances and as to the development and broader interpretation of the law” but also an active role in the ongoing implementation and enforcement of the California Public Records Act (CPRA) and The Brown Act which subject its interpretations to state law that is above any city charter provisions. (San Francisco Administrative Code, Section. 67.21 (k), San Francisco Administrative Code, Section 67.5, CPRA §7922.505., and The Brown Act §54953.7.)

The following is on the last sentence of SAN FRANCISCO ADMINISTRATIVE CODE, SECTION 4.104. (b)

December 7, 2022, SOTF agenda item 8, SOTF Complaint File No. 22014, Sergei Severinov vs San Francisco Police Department, Sergei Severinov had a number of SOTF complaints against the San Francisco Police Department for public record requests. This public record request involved an incident where several police cars arrived at his house. Some of the police officers entered the house. Neither he nor his wife were home. Only his teenage daughter was home and two of her friends. The daughter was terrified. Things were said by the officer that made her cry. There was no warrant to enter the house. These incidents involve allegations of racism.

From the December 7, 2022, SOTF Minutes: https://www.sfgov.org/sunshine/meeting/2022/sotf_120722_minutes

Action: Moved by Member Schmidt, seconded by Member Stein, to notify the Attorney General of the failure of the Police Department to respond adequately to a Sunshine Ordinance Task Force prior order pursuant to Administrative Code, (Sunshine Ordinance), Section 67.21(e).

The motion PASSED by the following vote:

Ayes: 6 - Schmidt, Stein, Yankee, Wolfe, LaHood, Wong
Noes: 1 - Hyland
Absent: 2 - Hill, Wolfe

Note: The minutes are wrong as published (at the time of this writing). This action failed, because SOTF member Wong left during the vote and SOTF member Wolfe is in the Ayes and Absent. There are only 9 members on the SOTF at the time, with two seats unfilled. This vote is another example of a majority vote in the positive failing, with just one vote in the no that wins. A member of the public does not get full implementation of the San Francisco Sunshine Ordinance on a majority vote by SOTF with a SOTF member ducking out of the vote and the majority vote rule of 6 in the affirmative.

There are problems with this action. The first problem is the action did not pass under the 6 vote majority in the positive rule. SOTF member Wong did not vote yes because she was not present during the vote, proven by the audio transcript. SOTF member Wolfe was absent also and he in the above vote count is both in the Ayes and the Absents. Audio and transcription for the December 7, 2022, SOTF meeting https://www.youtube.com/watch?v=mTgwnnzGNzY. At the 2:56:19 point of the recording, the vote starts. At the 2:57:12 point of the recording, Wolfe is noted absent. At the 2:57:21 point of the recording, Wong is noted as having stepped away. At the 2:57:42 point of the recording, it noted that the action has failed. At the 2:59:41 point of the recording, SOTF member is noted as returning to the meeting. At the 2:59:49 point of the recording, a member of the public asks why they would not re-vote on that last action as SOTF members had stepped away during the vote and that it was a disservice to the person with the complaint. At the 3:00:50 point of the recording, Mr. Sullivan notes that SOTF member Wong had stepped away from the vote and may not have realized what was going on. That the vote was another example of minority rule over the majority and goes against the California Constitution that should be broadly in favor of the rights of the petitioner for open government. At the 3:02:11 point of the recording, Wong explains she stepped away because of a work emergency popped up.

The last sentence of SAN FRANCISCO ADMINISTRATIVE CODE, SECTION 4.104. (b)

If all SAN FRANCISCO ADMINISTRATIVE CODE, SECTION 4.104. (b) is followed it seems to require that SOTF members Wong and Wolfe having been present at the meeting and the discussion (not present 6:54 PM and present again 7:01 according to the minutes, 7 minutes gone) should (“shall”) have voted or the vote needed to be redone. This clause of SAN FRANCISCO ADMINISTRATIVE CODE, SECTION 4.104. (b) is important to have as you can not have members just duct out of a vote whenever to not take a position or have a vote fail by not voting. Especially when the city is saying every vote is substantive and requires 6 votes to pass. There are San Francisco Administrative Code ethics codes that require procedures for recusal for certain ethical issues. (This will be covered later.) Allowing commissioners to step away from a vote whenever during a discussion and vote, makes voting just at the whims of a commissioner, at worst manipulating of the vote for reasons that are not before the public and could be an unethical covering up something. I am sure that this is what the last sentence in SAN FRANCISCO ADMINISTRATIVE CODE, SECTION 4.104. (b) is meant to address by requiring a vote “yes” or “no” “unless excused from voting by a motion adopted by a majority of the members present”.

The SOTF did not excuse “from voting by a motion adopted by a majority of the members present” SOTF Member Wong or Wolfe. If the city gives meaning to the first sentence of SAN FRANCISCO ADMINISTRATIVE CODE, SECTION 4.104. (b) shouldn’t the last sentence mean something also or are we just picking and choosing what to follow?

This petitioner knows no San Francisco Administrative Code that addresses what happens when the last sentence of SAN FRANCISCO ADMINISTRATIVE CODE, SECTION 4.104. (b) is violated. It seems that if a vote violates any San Francisco Administrative Code, it should be automatically nullified.

Note: The petitioner sent a public records request to sotf@sfgov.org and the SOTF Administrators for the notification sent Attorney General that “passed” on December 7, 2022, SOTF Minutes, agenda item 8, SOTF File No.22014. 7 days have passed since the 10 day limit for a public record request. No response yet. This petitioner does not believe the minutes posted are the minutes the SOTF approved. Maybe they will figure it all out? (They did figure it out)

Ethics Commission violates ignores the San Francisco Sunshine Ordinance, Administrative Code, Section 67.30 (c) and Section 67.35 Enforcement Provisions (d)

San Francisco Sunshine Ordinance, Administrative Code, Section 67.30 (c)

The Ethics Commission is clearly named “under this ordinance”, the San Francisco Sunshine Ordinance.

San Francisco Sunshine Ordinance, Administrative Code, Section. 67.35 Enforcement Provisions

San Francisco Administrative Code, Section 67.30 (c) “shall make referrals to a municipal office with enforcement power” while not stating specifically the Ethics Commission clearly refers to the Ethics Commission as it is a city municipal office with enforcement powers. This petitioner believes the provision was written in such a way to not exclude any potential municipal offices with enforcement powers that may be created in the future. The SOTF has a number of times over the years tried to be in dialog with the Ethics Commission over its enforcement powers. Over the years, the SOTF has sent many complaints of violations of public access laws to the Ethic Commission. These have been ignored or sent back. The history of which would make this grand jury complaint very long, so only one example will be given.

San Francisco Administrative Code, Section. 67.35 Enforcement Provisions (d) is very clear in naming the Ethic Commission as part of the San Francisco Sunshine Ordinance “for enforcement and penalties under this act” The words “under this act” is very clear to mean the whole San Francisco Sunshine Ordinance, not a clause or provision. The Ethics Commission does not want to enforce the entire act that is implied in San Francisco Sunshine Ordinance, Administrative Code, Section 67.30 (c) and Section 67.35 (d).

Via a public request for information, the Ethics Commission states: “Regarding your question about the applicability of Admin. Code, Section 67.35(d), this Code, Section does not establish the Ethics Commission as having jurisdiction for the enforcement of Sunshine Ordinance provisions beyond allegations of willful violations by City elected officials and Department Heads provided by Section 67.34 or the Show Cause hearing process (see Ethics Commission Enforcement Regulations Section 10)” (Exhibit H)

Beyond the previous stated argument that San Francisco Administrative Code, Section. 67.35 Enforcement Provisions (d) says “under this act”, for enforcement and penalties, there are a couple other problems with the Ethics Commission reasoning.

If San Francisco Administrative Code, Section 67.34 (allegations of willful violations by City elected officials and Department Heads) is the only provision that establishes “the Ethics Commission as having jurisdiction for the enforcement of Sunshine Ordinance”, then the Ethics Commission being mentioned in San Francisco Administrative Code, Section 67.35 (d) would not be needed. Under the Ethics Commission’s logic, San Francisco Administrative Code, Section 67.35 (d), mention of the Ethics Commission would be redundant with no additional meaning. San Francisco Administrative Code, Section 67.34 can standalone and does not need the Ethics Commission's repeated mention in San Francisco Administrative Code, Section 67.35 (d) to be applicable.

“We must read statutes as a whole, giving effect to all their provisions, neither reading one section to contradict others or its overall purpose, nor reading the whole scheme to nullify one section. "The rules governing statutory construction are well established. Our objective is to ascertain and effectuate legislative intent. [Citations.] . . . In this regard, all parts of a statute should be read together and construed in a manner that gives effect to each, yet does not lead to disharmony with the others. [Citations.]" (City of Huntington Beach v. Board of Administration (1992) 4 Cal. 4th 462, 468.) "[L]egislation must be construed as a whole while avoiding an interpretation which renders any of its language surplusage. [Citation.]" (Ibid.) "In examining the language, the courts should give to the words of the statute their ordinary, everyday meaning [citations] unless, of course, the [93 Cal. App. 4th 893] statute itself specifically defines those words to give them a special meaning [citations]).

The other problem with the Ethics Commission logic is that the San Francisco Administrative Code, Section. 67.35 (d) also lists “in any court of competent jurisdiction” before naming them with “or Ethics Commission”. With the logic they apply to themselves, does this mean “in any court of competent jurisdiction” can pick and choose or limit what part of “under this act” what parts of the Sunshine Ordinance this provision they will enforce?

I want to note the San Francisco Administrative Code, Section. 67.35 Enforcement Provisions (d) is true that the Ethics Commission is obligated to take complaints for the entire Sunshine Ordinance act for enforcement and penalties, it then makes the San Francisco Administrative Code, Section 67.30 (c) “shall make referrals to a municipal office with enforcement power” true for the Ethics Commission by default.

The Ethics Commission would only be required to enforce all the San Francisco Sunshine Ordinance if the task force makes a referral to them under San Francisco Sunshine Ordinance, Administrative Code, Section 67.30 (c) or if no enforcement action taken by a City or State official 40 days after a complaint is filed under San Francisco Sunshine Ordinance, Administrative Code, Section. 67.35 Enforcement Provisions, so the Ethic Commission is not the main entity of arbitration as the SOTF is.

January 8, 2024, a complaint (SOTF Complaint File No. 23098) was filed with the Sunshine Ordinance Task Force against the Ethic Commission for violating San Francisco Administrative Code, Section. 67.35 Enforcement Provisions (d). The city interfered with the complaint outside of a hearing, which was allowed by Chair Yankee and Vice Chair Stein. The complaint has not been heard by the Sunshine Ordinance Task Force.

How SOTF Complaint File No. 23098 against the Ethics Commission came to be is important because it shows a lot of unaccountability in enforcing the San Francisco Sunshine Ordinance and The Brown Act by the SOTF and the Ethics Commission. The short version:

Going back to SOTF complaint File No. 21069, The Department of Public Works, Mr. Steinberg started producing records 27 days later on November 30, 2021, well beyond the 5 days of SOTF determination that the records needed to be released immediately. The August 23, 2022, SOTF Compliance and Amendment Committee held a hearing on this complaint, of which the petitioner noticed key document were not included in the complaint hearing packets which is required by the San Francisco Sunshine Ordinance, The Brown Act, and SOTF’s complaint procedures. The petitioner tried to notify the SOTF Compliance and Amendment Committee on the agenda item 1. Call to Order, Roll Call, and Agenda Changes but they took no public comment. San Francisco Administrative Code (Sunshine Ordinance), Section 67.16, (“a brief summary of each person's statement during the public comment period for each agenda item”) and Section 67.15 (c), SOTF Bylaws, Article IV, Section 11 requires public comment on each agenda item. The petitioner made the comment at the agenda item 2 public comment period that documents were missing from an agenda item.

San Francisco Administrative Code, Section 67.15

After my notifying of missing documents, SOTF Compliance and Amendment Committee Chair LaHood said at about the 7:28 audio mark: “One of our committee members will be leading those two cases and we'll have a chance to discuss if there are any issues with what was included in the packet and whether we are able to proceed with our discussion today so we will get to those later.”

At the agenda item, they did nothing and continued on. Petitioners have limited time to talk. They closed the complaint even though there were multiple violations, including going beyond the 5-day law of records after a SOTF determination and important records submitted by the petitioner were not included in the agenda item. (San Francisco Administrative Code, Section 67.21 (e))

List of violations on August 23, 2022, by the SOTF Compliance and Amendment Committee:

Administrative Code (Sunshine Ordinance), Section 67.16, SOTF Bylaws, Article IV, Section 11 by failing to take public comment on each agenda item, for allegedly violating Administrative Code (Sunshine Ordinance) Section 67.7 (b) by holding complaint hearings on agenda knowing that there were missing documents in the agenda packets (there are 8 other laws that could be cited), for allegedly violating SOTF By-laws, Article IV, Section 7, By-laws Article VI, Section 1 (d), SOTF Public Complaint Procedures C, 1, 3) and AC § 4.104 (b) by closing complaints on a 3 member vote and not forwarding them to the full SOTF for the affirmative vote of a majority of the members shall be required for the approval of any matter, except that the rules and regulations of the body may provide that, with respect to matters of procedure the body may act by the affirmative vote of a majority of the members present, so long as the members present constitute a quorum, for allegedly violating Administrative Code (Sunshine Ordinance) Section 67.30 (c) by failing to advise City departments on appropriate ways in which to implement the San Francisco Sunshine Ordinance, and Administrative Code (Sunshine Ordinance) Section 67.1 (g) “However, when a person or entity is before a policy body or passive meeting body, that person, and the public, has the right to an open and public process”.

The petitioner filed a complaint against the SOTF Compliance and Amendment Committee with the full SOTF.

SOTF decided that they couldn’t hear complaints against committees, even though those members could recuse themselves. Two SOTF members objected.

From SOTF Minutes December 7, 2022 agenda item 6 A and B (https://www.sfgov.org/sunshine/meeting/2022/sotf_120722_minutes):

Action: Moved by Chair Yankee, seconded by Member Wolfe to not hear the complaints filed against the SOTF and /or its committees due to a conflict of interests and instructed the SOTF Administrator to refer the petitioners to Administrative Code 67.35 (d) for information on how they may institute proceedings for enforcement with other entities and to further inform the petitioners that they may submit their complaint for an informal discussion and potential action for corrections and that could be made but that no formal order of determination will be issued by the Sunshine Task Force.

The motion PASSED by the following vote:

Ayes: 6 - Yankee, Wolfe, LaHood, Stein, Hyland, Wong
Noes: 2 - Schmidt, Padmanabhan
Absent: 1 – Hill

Two of the SOTF members LaHood and Wong voted on this action even though they sat on a SOTF Compliance and Amendment Committee that had a complaint against them filed with SOTF. This appears to violate the San Francisco Administrative Code, Section 3.210. VOTING ON OWN CHARACTER OR CONDUCT.

as their vote at the time blocked the SOTF from hearing a complaint submitted to the SOTF that involved their conduct in conducting a meeting violating the San Francisco Sunshine Ordinance and The Brown Act. They knew of the complaint and it was mentioned that there was a complaint against a committee during the discussions.

Audio/Transcript, December 7, 2022 Full San Francisco Sunshine Ordinance Hearing https://www.youtube.com/watch?v=mTgwnnzGNzY at timestamp at 1:27:32.

Before submitting the complaint to the full SOTF, the petitioner had already tried multiple times for an informal discussion of the violations for potential action for corrections to hold the hearing again with all submitted records. There is no informal process or how to go about it, as stated in the SOTF action on December 7, 2022 agenda item 6 A and B. Informal communications had already been tried. After 40 days, the petitioner used the San Francisco Administrative Code, Section 67.35 (d) to file a complaint with the Ethics Commission.

I explained to the Ethics Commission that it was the SOTF that had sent me and included the above SOTF action in my complaint. The Ethics Commission denied the complaint because it was not their responsibility. The petitioner then filed a public information request with the Ethics Commission for an explanation of how they interpret San Francisco Administrative Code, Section 67.35 (d) which resulted in the Ethics Commission explanation in Exhibit H.

Armed with that information, the petitioner filed a SOTF complaint (Complaint File No. 23098) against the Ethics Commission that they were not following the San Francisco Administrative Code, Section 67.35 (d).

February 7, 2024, full SOTF, agenda item 8, had a hearing on whether the petition was outside the scope of matters that the SOTF can hear as a complaint and to close the complaint. The petitioner was not allowed to speak during the hearing except for public comment. There is a packet for this agenda item. SOTF closed the complaint without actually having a hearing on the complaint with a number of SOTF members parroting an Ethics Commission’s point. When a SOTF member tried to make a point by the petitioner, he was admonished by the SOTF Chair to not go into the complaint.

The start hearing February 7, 2024, full SOTF, agenda item 8 can be heard at https://www.youtube.com/watch?v=_PKw_zY2IgE at timestamp at 1:27:32. At time stamp 1:37:32 the SOTF Chair states that the Clerks Office (Mr. Victor Young) had asked them to close the case (without a hearing) but SOTF Chair and Vice Chair felt uncomfortable doing so. At the 1:29:22 time stamp, the SOTF Chair says he and the Vice Chair had discussed this with Mr. Victor Young.

The Clerk of Boards is a different city department than the SOTF. This was pointed out at the SOTF January meeting when a SOTF member had interfered and delayed a public record request of the SOTF Administrator, SOTF complaints File No. 22115 and File No. 22116. There were no public records responsive to the request known by the next day of the request, but the SOTF member instructed the SOTF Administrator to respond that they needed more time because of the voluminous nature of the records requested. They then did not find the SOTF member in violation of inappropriately interfering because he was in a different department. The CPRA makes no distinction of city departments to a city as a whole being an agency (discussed later in this compliant). Now SOTF is allowing a City Clerk to interfere with a complaint item outside of a hearing. Discussing matters that are before a government body, especially a quasi-judicial government body, is against The Brown Act and the San Francisco Sunshine Ordinance that require matters to be discussed in the open and in public. San Francisco Sunshine Ordinance Section 67.1. (g) “.. However, when a person or entity is before a policy body or passive meeting body, that person, and the public, has the right to an open and public process.” The need for an open and public meeting is repeated throughout The Brown Act and the San Francisco Sunshine Ordinance and included as part of every San Francisco meeting notice requirement, San Francisco Administrative Code, Section 67.7 (g).

The Brown Act §54950

February 7, 2024, full SOTF, agenda item 8, complaint File No. 23098, voted to not accept the complaint filing with only SOTF member Schmidt (the lawyer) voting no.

The idea that the Sunshine Ordinance Task Force can not hear complaints on any provision in the San Francisco Sunshine Ordinance goes against the San Francisco Sunshine Ordinance and purpose of the SOTF that the voters wanted.

San Francisco Sunshine Ordinance Section 67.30

The voter wanted a strong SOTF and not weaker than any other government entity like the Ethics Commission.

San Francisco Administrative Code 67. 1 (e) “Public officials who attempt to conduct the public's business in secret should be held accountable for their actions. Only a strong Open Government and Sunshine Ordinance, enforced by a strong Sunshine Ordinance Task Force, can protect the public's interest in open government.”

The Ethics Commission is required under the San Francisco Administrative Code, Section 67.30 (c) and San Francisco Administrative Code, Section 67.35 (d) to enforce the San Francisco Sunshine Ordinance.

There is possibly another municipal office with enforcement power under this ordinance, the Mayor’s Office.

San Francisco Sunshine Ordinance, Administrative Code, Section 67.30 (c)

The Mayor is mentioned with enforcement power in the San Francisco Sunshine Ordinance under the San Francisco Administrative Code, Section 67.17 but it is specific.

But the San Francisco Administrative Code says the Mayor will enforce all relating to the City and County of San Francisco and these would include the San Francisco Sunshine Ordinance, the CPRA and The Brown Act.

San Francisco Administrative Code, Section 3.100 “The Mayor shall enforce all laws relating to the City and County, and accept service of process on its behalf”

San Francisco Administrative Code, Section 3.100 3. “Receipt and examination of complaints relating to the administration of the affairs of the City and County, and timely delivery of notice to the complainant of findings and actions taken;”

The SOTF Compliant Procedures 5 b. “conflict of interest” policy on SOTF committees may violate the San Francisco Administrative Code on “conflict of interest”, and other problems with “conflict of interest” transparency. Possible City Ethics Code expansion on recusal policy San Francisco Administrative Code, Section. 3.209. RECUSALS. Currently, the full SOTF and SOTF committees cannot be held accountable to follow the San Francisco Sunshine Ordinance, the CPRA and The Brown Act except for bringing a case to the Superior Court of California.

December 7, 2022, agenda item 6, SOTF voted on a “conflict of interest” policy https://www.sfgov.org/sunshine/sites/default/files/sotf_120722_minutes.pdf This was covered in the 6-vote in the affirmative city rule section of this complaint. This policy passed with 2 yes votes from SOTF member LaHood and SOTF member Wong even though they had a complaint on their conduct for violating provisions of The Brown Act and the San Francisco Sunshine Ordinance against the SOTF Compliance and Amendment Committee they sat on. It was talked about during the discussion that a SOTF committee had a SOTF complaint against them, though the committee was not named.

From SOTF Minutes December 7, 2022 agenda item 6 A and B (https://www.sfgov.org/sunshine/meeting/2022/sotf_120722_minutes):

Action: Moved by Chair Yankee, seconded by Member Wolfe to not hear the complaints filed against the SOTF and /or its committees due to a conflict of interests and instructed the SOTF Administrator to refer the petitioners to Administrative Code 67.35 (d) for information on how they may institute proceedings for enforcement with other entities and to further inform the petitioners that they may submit their complaint for an informal discussion and potential action for corrections and that could be made but that no formal order of determination will be issued by the Sunshine Task Force.

The motion PASSED by the following vote:
Ayes: 6 - Yankee, Wolfe, LaHood, Stein, Hyland, Wong
Noes: 2 - Schmidt, Padmanabhan
Absent: 1 - Hill

Resulting in the SOTF Complaint Procedures (https://sfgov.org/sunshine/sites/default/files/Complaint_Procedure.pdf)

A few San Francisco Administrative Code, Ethic Code Sections that matter to the points of this grand jury complaint: The San Francisco Ethic Codes can be found in Article XV Ethics: Sec. 15.100 - 15.107, Appendix C: Ethics Provisions C3.699-10 – C8.105, and Chapter 2: Conflict of Interest and Other Prohibited Activities, Sec 3.200 - Sec 3.240. Possible other places and part of the listed sections link to state ethic codes.

San Francisco Administrative Code, Section 15.103 Conflict of Interest

San Francisco Administrative Code, Section 3.1-103 Filling Officers

San Francisco Administrative Code, Section 3.210. VOTING ON OWN CHARACTER OR CONDUCT.

This petitioner would argue that SOTF members LaHood and Wong knowingly voted to create a SOTF policy that blocked a hearing by SOTF on their conduct, and this influenced a governmental decision involving his or her own character or conduct. The other SOTF members have less of a conflict of interest in implementing this policy.

There are several overarching problems with the SOTF creating this “conflict of interest” policy.

It creates a policy which is not in the city's administrative code, which could be used by other commissions and boards. One city “commission” setting a standard on a substantive measure about ethics on a 6 votes yes, 2 votes no, where 2 of the yes 6 votes are suspected of an ethical conflict of interest.

By the SOTF creating a blanket “conflict of interest” not based on specific individual “conflict of interest” and the specific issue at hand, this petitioner argues it violates San Francisco Administrative Code, Section 4.104 BOARDS AND COMMISSIONS – RULES AND REGULATIONS

There are no city ethic San Francisco Administrative Code that state a whole commission or committee of can have a “conflict of interest”. It is not needed. If each individual on a commission or committee decides they have an individual “conflict of interest” on an issue and follow existing ethic codes, you could have enough “recusals” that dip the members below a quorum that can hear that issue, and then that commission or committee can not have an action on that item.

The SOTF had an action that created a policy that is outside of their jurisdiction.

It is bad policy to have a blanket “conflict of interest”. A blank “conflict of interest” can cover up actual conflict of interests of members who are required by some San Francisco Administrative and State ethic codes to make a public statement of what there “conflict of interest” is and leave the meeting until after the issue is heard.

If the SOTF “conflict of interest” policy is consider valid and commissions and boards cannot have hearings on petitions about themselves because of “conflict of interest” and cannot have petition hearings on their committees because of “conflict of interest”, then it should be written into the San Francisco Administrative Code to cover all commissions and committees. Genuine “conflict of interests” that are not addressed by the San Francisco Administrative Code leave the door open for corruption. There also needs to be a path to address a whole commission or committee “conflict of interest” because not having accountability leads to corruption.

As an example, it could be written into the San Francisco Administrative Code:

San Francisco Administrative Code, Section 3.210. VOTING ON OWN CHARACTER OR CONDUCT.

There are San Francisco “conflict of interest” codes that state prohibitions and then what city officials are then instructed what to do if they have a “conflict of interest”. There are several San Francisco “conflicts of interest” that state the prohibition, but there is no required action other than do not vote or influence an issue. They are written more with enforcement in mind and not compliance. Compliance, in what is a commission member required to do to not influence a decision if they have a “conflict of interest”? These San Francisco “conflict of interest” codes do not mesh well in a clear procedural way with SAN FRANCISCO ADMINISTRATIVE CODE, SECTION 4.104. (b) “Each member present at a regular or special meeting shall vote "yes" or "no" when a question is put, unless excused from voting by a motion adopted by a majority of the members present.”

To illustrate the previous paragraphs' points:

San Francisco Administrative Code, Section 3.206 and 3.207 “conflict of interests” deal with financial, things of value, or contribution to influence official consideration or not to consider and actions. These 2 sections of code which are referred to in the San Francisco Administrative Code, Section 3.209 on how to recuse oneself from a meeting and other required actions.

San Francisco Administrative Code, Section 3.209. RECUSALS.

San Francisco Administrative Code, Section 3.209. RECUSALS does not apply to other San Francisco “conflict of interest” codes, San Francisco Administrative Code, Section 3.210 to 3.216 and probably others.

As an example of not requiring recusal procedures, the San Francisco Administrative Code, Section 3.210. VOTING ON OWN CHARACTER OR CONDUCT.

The assumption of the code seems to be that the government's decision are not to be influenced by a person with a “conflict of interest” of character or conduct is known by all, including the public, as there is no requirement to publicly declare a “conflict of interest”. The code refers to “shall knowingly” which suggests that the person may not know or can claim not knowing at the time. What happens to a decision that after it is known that there was a “conflict of interest” by a member who voted on the decision? There is no administrative code that addresses this.

If an issue before a commission or board involves a family member of a commission member either in the room or not, the commission member is not required to make it public or leave the room. It is even questionable if it is considered a “conflict of interest” if it does not involve an employment action. (San Francisco Administrative Code, Section 3.212. DECISIONS INVOLVING FAMILY MEMBERS).

This petitioner argues that when a “conflict of interest” is known by a commissioner or member of the public identifies it, that the “conflict of interest” is made public and that the member recuse themselves from the discussion and vote on that item. Leaves the room. If a “conflict of interest” becomes relevant or known during the discussion, it is made publicly known and SAN FRANCISCO ADMINISTRATIVE CODE, SECTION 4.104. (b) “unless excused from voting by a motion adopted by a majority of the members present.” is followed. Public notification of “conflict of interest” and recusal increases transparency. This petitioner suggests a notification of all “conflict of interests” and the recusal are sent to the Ethics Commission to just log in case other issues arise. This follows the San Francisco Administrative Code, Section 3.209. RECUSALS.

It would still allow “Nothing prohibit an officer or employee from (i) responding to allegations, applying for an office, position, or employment, or responding to inquiries; or (ii) participating in the decision of his or her board, commission, or committee to choose him or her as chair, vice chair, or other officer of the board, commission, or committee.” San Francisco Administrative Code, Section 3.210. VOTING ON OWN CHARACTER OR CONDUCT (b).

“Conflict of interest” may vary in severity and penalty, but any “conflict of interest” that influences and creates a government decision makes that decision equally corrupt in that it should not stand. Because of this, all “conflicts of interest” should have the same compliance requirements. The “conflict of interest” is not the corruption, it is the not following compliance requirements where the corruption occurs. The why is the severity and requires various penalties.

As shown in many incidents above, the SOTF has shown little ability to self-reflect and correct errors in public access laws that they or their SOTF committees do. They seem to be caught up in that their action would have to be the finding of a “violation”, instead of an action correcting what happened and establishing procedures making sure the mistake does not happen in the future. The complaint process is the only process for the public to petition the SOTF for consideration on any issue. The San Francisco Sunshine Ordinance uses the word “petition” instead of “complaint”, San Francisco Administrative Code, Section 67.21 (d) and (e).

Currently, the SOTF complaint procedures 5 b not holding hearings on petitions against themselves or one of their committees because an undefined “conflict of interest”, gives no viable path for the issue to be addressed and the SOTF knows that. It ducts transparency and accountability. The SOTF refers a petitioner to an informal discussion with the SOTF Administrator, but that is undefined and is a “brush off” of the public member’s concern and is not public. The SOTF has ruled that the SOTF Administrator is a different “department”, and has no enforcement power in the San Francisco Administrative Code over the SOTF. They may as well say you can have an informal discussion with pick your city employee that has no power of enforcement.

SOTF complaint procedures 5 b refers complaints to San Francisco Administrative Code, Section 67.35 Enforcement Provisions that has been covered in the previous Ethics Commission section of this grand jury complaint. The Ethics Commission claims they have no added jurisdiction for all the San Francisco Sunshine Ordinance under San Francisco Administrative Code, Section 67.35 (d) and the SOTF has duct its responsibility to have a hearing about this even though “The task force shall advise the Board of Supervisors and provide information to other City departments on appropriate ways in which to implement this chapter.”
San Francisco Administrative Code, Section 67.30 (c).

The other named entity in this San Francisco Administrative Code, Section 67.35 is “in any court of competent jurisdiction” which will be covered in the last part of this grand jury complaint of the public's ability to bring issues to court. Since the SOTF is primarily a meeting entity, any violation will be of The Brown Act and the meeting part of the San Francisco Sunshine Ordinance for greater requirements. The Brown Act has a “poison pill” in bringing an issue to a Superior Court unless the government entity is really dug in and still found in violation by the court. There are significant costs and time making it impractical. It takes seconds for city officials to violate public access laws. The remedies and accountability take a lot more time and energy.

The Brown Act and the meeting part of the San Francisco Sunshine Ordinance are to government meeting bodies and not to officials. It is unknown that a complaint could be made of the presiding officer of a SOTF meeting or SOTF committee under the SOTF compliance procedure 5 a. Given the SOTF prior history holding itself and its members accountable to public access laws, they would probably point out the first sentence in this paragraph.

In writing this grand jury complaint, this petitioner noticed the SOTF complaint procedures posted on their website did not include the B 5 a and b and other changes. (https://www.sfgov.org/sunshine/sites/default/files/Complaint_Procedure.pdf) Confused, this petitioner sent an immediate disclosure of public information request to the SOTF and their SOTF administrators. The response and the request are Exhibit I. The SOTF administrator says that the B 5 a and b are correct and the complaint procedures will be corrected. This petitioner downloaded the correct SOTF complaint procedures from the above SOTF complaint procedure link in September 2023. Somewhere between this petitioner download and this writing, the SOTF link complaint procedures reverted to an older version. Complaint procedures that were included in SOTF agendas and SOTF agenda items discussing changes to SOTF complaint procedures have all been not their current SOTF complaint procedures. Example: April 3, 2024 SOTF, Agenda Item 5 https://www.sfgov.org/sunshine/sites/default/files/sotf_040324_item5.pdf
It is unknown how long this has been.

But the petitioner’s main point in point out the immediate disclosure of public information request to the SOTF and their SOTF administrators on the SOTF complaint procedures missing B 5 a and b (Exhibit I) is that while the SOTF administrator responds to the first part of the request in relationship to the subject of the request, the SOTF complaint procedure B 5 a and b, but the last two questions when the requester does not explicitly restate a reference to the SOTF complaint procedure B 5 a and b, the SOTF administrator answer as if they are general questions with no reference to the SOTF complaint procedure B 5 a and b the only subject of the public record request. This happens all the time to public record requesters. Public record requesters have to over explain what they are asking. This is not reasonable. The CPRA § 7922.530 (a) uses the word “reasonably” “each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records”. The San Francisco Sunshine Ordinance does not have as strong of language. This “reasonably describes an identifiable record or records” is the only requirement of a public record requester. Both the CPRA and the San Francisco Sunshine Ordinance have “duty to assist” the requester provisions. CPRA Article 4. Duty to Assist in Formulating Request § 7922.600 and San Francisco Administrative Code, Section 67.21 (c). This petitioner argues that the SOTF administrator answers to the last two questions generally in Exhibit I in a deliberate hindrance of giving information specific to the subject of the immediate disclosure of public information request on the SOTF complaint procedures. If they truly did not understand the nature and reasoning for the last two questions to the subject of the public record request, the SOTF complaint procedures B 5 a and b, that custodians of records have a duty to assist the public record requester. This need to over-explain everything in a public record request is unreasonable.

This need to over-explain is why this grand jury compliant is written in the way it is. This petitioner does not know what the requirements are of the grand jury or if this complaint will be addressed, but this complaint will be made public at some time.

City officials delaying making responsive public records public by misuse of an incremental or “rolling” basis (Administrative Code, Section 67.25 d)) or inflating public records and piling in junk records.

The purpose of city officials delaying of making responsive public records public and by misuse of an “incremental or “rolling” basis” (San Francisco Administrative Code, Section 67.25 (d)) or inflating public records and piling in junk records is to hide from the requester meaningful records that may affect policy decisions if they were made public. This happens to journalist and members of the public trying to get pertinent records before a decision or action that is before a decision making body. Custodians of Records (any person with government records San Francisco Administrative Code, Section 67.21 (a)) run out the clock or hide a few responsive records in a pile of junk records.

It is important to understand the CPRA’s required minimum deadline times to respond to a record request before learning how the San Francisco Sunshine Ordinance build on those requirements for a more efficient and greater access to records requirement for the city of San Francisco (San Francisco Administrative Code, Section 67.21 (k)).

The CPRA set time limits for when records have to be released are 10 or plus 14 days, with a maximum of 24 days. Another section of the CPRA uses the words “shall make the records promptly available to any person”.

CPRA §7922.535

Within 10 days, a notice is required with an estimated date and time when the records will be made available.

But CPRA §7922.535 (b)

It is not the 14 more days to provide a notice. It is the notice that should not specify an extension of more than 14 days to make the records public. The times of CPRA §7922.535 and CPRA §7922.535 (b) add up to 24 days maximum.

CPRA § 7922.500.

And

CPRA §7922.530.

CPRA §7922.530. speeds up the request.

California Supreme Court has made no decision on the promptly available to any person or any timeline for making responsive records assessable.

The California Appeals Court is mixed. Note that Rogers v. Superior Court 19 Cal. App. 4th 469, 483 (1993) is older.

Marken v. Santa Monica-Malibu Unified Sch. Dist., 202 Cal. App. 4th 1250, 1268 n.14 (2012), the court of appeal noted that it had “serious questions” about whether a delay of one month, following the school district’s determination that the records requested were subject to disclosure, was warranted. In contrast, the court in Rogers v. Superior Court 19 Cal. App. 4th 469, 483 (1993), as modified (Oct. 13, 1993) determined that responsive records that were not given to the petitioner until three months after the original request did not violate the Act, as the records were promptly disclosed when they became available.

The San Francisco Sunshine Ordinance is clear and stronger on the time records need to be released, dropping the word “notice” and spelling out timelines. All the below sections of law are found under Article III Public Information and Public Records in the San Francisco Sunshine Ordinance. This is important because some sections use the word “article” to refer to all sections in it. For example: “Failure to comply with this provision is a violation of this Article.” (San Francisco Administrative Code, Section 67.25 Immediacy of Response (d))

San Francisco Administrative Code, Section 67.21

San Francisco Administrative Code, Section 67.25

Note: Mentioned above Government Code (CPRA) Section 6456.1 is now CPRA §7922.535 (b). The San Francisco Sunshine Ordinance appears to have made a mistake in saying “an extension of 10 days as provided in Government Code, Section 6456.1” when it has always been a 14 day extension. The 10 days written in the San Francisco Sunshine Ordinance San Francisco Administrative Code, Section 67.2 (b) could be seen as a more stringent requirement for the city of San Francisco that the CPRA allows (CPRA §7922.505).

San Francisco Administrative Code, Section 67.25 Immediacy of Response

San Francisco Administrative Code, Section 67.25 Immediacy of Response

If you read San Francisco Administrative Code, Section 67.25 Immediacy of Response (a) and (d), the intent of “on an incremental or "rolling" basis” is to “produced as soon as possible by the end of the same business day that they are reviewed and collected” and as the second sentence “to prohibit the withholding of public records that are responsive to a records request until all potentially responsive documents have been reviewed and collected.” It is not to create a new unlimited deadline but that records should be made public on a rolling basis in 10 days or within an extension of 20 or 24 days (10+ 10 (SF Sunshine Ordinance) or 14 (CPRA)) starting the day after a member of the public makes the request. San Francisco Administrative Code, Section 67.25 Immediacy of Response (a) clearly states these are the maximum deadlines as stated in this article “Maximum deadlines provided in this article are appropriate for more extensive or demanding requests”.

The SOTF routinely does not enforce record maximum deadline limits for claims of voluminous or the previously discussed 5 days after a determination has been made by the SOTF. They appear to read “on an incremental or "rolling" basis” as allowing city officials to have an unlimited deadline because that is the practice. This is what city official respondents have promoted in their arguments.

The actually producing of responsive records in a timely manner is what gives meaning to the CPRA and The San Francisco Sunshine Ordinance as far as public access to records. If producing of responsive records could be indefinite or a date months or years away, then it would make both acts meaningless.

Joe Dworetzky is a journalist with Bay City News. He had a complaint against the San Francisco Department of Homelessness and Supportive Housing (HSH), SOTF Complaint File No. 23060. https://www.sfgov.org/sunshine/sites/default/files/sotf_050124_item12.pdf

“San Francisco homelessness agency found to violate ‘Sunshine Ordinance’” https://localnewsmatters.org/2024/05/03/san-francisco-homelessness-agency-found-to-violate-sunshine-ordinance/

I believe the San Francisco Department of Homelessness and Supportive Housing slow-walked this record request so the information would not be available before the Board of Supervisors was scheduled to hold hearings on HSH’s budget.

Mr. Dworetzky filed his public record request to the San Francisco Department of Homelessness and Supportive Housing on May 13, 2023, a month before June 15, 2023, hearing with the Board of Supervisors. It was not until July 14, 2023, that the San Francisco Department of Homelessness and Supportive Housing produced the last document. Claims of needing more time to produce records would be June 2, 2023 (20 days after the request) or June 6 (24 days). July 14, 2023, is 42 days or 38 days after the deadline. He notes in his complaint that the violations are not isolated events. He notes the required deadlines in law. On page 8 of his complaint in talking about “rolling production”, San Francisco Administrative Code, Section 67.25(d), “HSH stood the section its head to say grants the department an exemption from production deadlines once it says its production is rolling.”

Any delay beyond deadlines for making records public is a withholding of those records, because the city is denying those records to the public sometimes for purposes that they cannot be used by everyone in making a decision. The purpose of delaying records to push through an action that may otherwise fail or be difficult to pass if all records and facts (information) are known is not a justified exemption in the CPRA, The Brown Act, or San Francisco Sunshine Ordinance. San Francisco Administrative Code, Section 67.27 requires “Any withholding of information shall be justified, in writing, as follows:

Also see CPRA § 7922.54 (a) (b) (c)

Sometimes records can be justified from withholding for a certain period of time, like during litigation, but can be released to the public record requester after litigation, but this justification should be put into writing or suggest alternative sources suggested. San Francisco Administrative Code, Section 67.27

Mr. Dworetzky Complaint File No. 23060 was filed with SOTF on June 27, 2023. The full SOTF hearing on this SOTF complaint on May 1, 2024. 310 days after the complaint filing date and well over the 45 days required by the San Francisco Administrative Code 67.21 (e). SOTF found Department of Homelessness and Supportive Housing violated “Administrative Code (Sunshine Ordinance), Section(s) 67.21(b)”, by failing to respond to a public records request in a timely manner. This complaint did not necessarily require a hearing because of “concerning the records request denial”, but the complaint requires corrective measures so it doesn’t happen again by “provide information to other City departments on appropriate ways in which to implement this chapter.” (San Francisco Administrative Code, Section 67.30 (c)). The SOTF the city's interpretation and use of San Francisco Administrative Code, Section 67.25 (d) of using a claim of “rolling production” as an exemption from public record laws deadlines because it routinely allows unlimited time production of records.

Responsive records and flooding Non-Responsive Records to create a “needle in a haystack” obstruction

San Francisco Administrative Code, Section 67.25 Immediacy of Response (d) use the word responsive 4 times as in “any and all responsive public records “

CPRA §7911.600 (a)

City officials will use junk records to delay or hide the few actual responsive records in a pile of non-responsive records to a request, a needle in a haystack situation. Mr. Dworetzky complains about this.

Going back to SOTF complaint File No. 21069, The Department of Public Works, Mr. Steinberg that has been used as an example in city officials not following the 5-day rule and the Ethic Commission enforcement sections of this document. The public record request can be found at https://sanfrancisco.nextrequest.com/requests/21-2053. There are a lot of violations and roadblocks in this public request delaying actual responsive records or to deny. Most of these violations will not be the subject of this point on responsive records. There were only 4 responsive records given that had anything to do with Green Benefit Districts (1 example of responsive records to this request, Exhibit J). Two records were copies of the other two. The 4 responsive records were produced on May 9, 2022, just over a year from the initial record request date of April 28, 2021. On April 29, 2021, Mr. Steinberg claims over 13,000 responsive records, back and forth 7,500 documents, then 8,586 items. He claimed 2 years to produce all records. May 3, 2021, the requester uses San Francisco Administrative Code, Section 67.21 (c) "when requested to do so, provide in writing within seven days following receipt of a request, a statement as to the existence, quantity, form and nature of records relating to a particular subject or questions with enough specificity to enable a requester to identify records in order to make a request under (b)." Mr. Steinberg responses on May 3, 2021, “You will note, however, that we have already essentially provided to you such information when we notified you of the approximate number of emails responsive to your request.” Just providing numbers is not with “with enough specificity to enable a requester to identify records in order to make a request under (b)." This was part of the SOTF complaint File No. 21069 and should have required the SOTF to address this. The SOTF did nothing.

Skipping to after the November 3, 2021 SOTF meeting that found Mr. Steinberg in violation and should immediately start producing records,Mr. Steinberg is still claiming 8,586 items with 3 years to produce now. On November 30, 2021, Mr. Steinberg starts producing records. 27 days after the SOTF action, well pass the within 5 days require by San Francisco Administrative Code, Section 67.21 (e).

June 27, 2022, was the last day Mr. Steinberg produced records, a total of 1886 records, 1882 non-responsive records. Far less than the 8,586 records Mr. Steinberg claimed were responsive to the record request. This petitioner guesses Mr. Steinberg ran out of steam and realized he was just doing work piling on junk records. 234 of the records were commercial ads for pet medication, cars, insurance (1 example Exhibit K). 67 were photos or logos. The rest of the records were back-and-forth e-mails on other Department of Public Works projects that had nothing to do with Green Benefit Districts. On December 27, 2021, Mr. Steinberg stops sending e-mail notifications of document releases or exemption of a record on NextRequest, violates CPRA §7922.535 (a) and San Francisco Administrative Code, Section 67.21 (b).

Mr. Steinberg was deliberately trying to deny and delay the responsive records from being public and violated many provisions of the San Francisco Sunshine Ordinance and the CPRA.

Meeting Minutes November 3, 2021, the only action the SOTF took was

Action: Moved by Member Schmidt, seconded by Vice-Chair Yankee, to find that Public Works violated CPRA, Section 6253(b) by withholding all records in their entirety and orders the Respondent to resume production of records to the Petitioner and Administrative Code (Sunshine Ordinance), Section 67.26 for withholding all records in their entirety. In addition, the matter is forwarded to the Compliance and Amendments Committee for monitoring.

The SOTF relies on the San Francisco Sunshine Ordinance exclusively as the final authority while the San Franciso Sunshine Ordinance, the CPRA and The Brown Act all say to the effect which “In case of inconsistent requirements”…..”the requirement which would result in greater or more expedited public access shall apply.”

No California City Ordinances and Charters can negate any provision in the state’s CPRA or The Brown Act. City governments must follow the minimum set forward in the CPRA and The Brown Act. (CPRA §7922.505 and The Brown Act §54953.7.)

The CPRA and The Brown Act allow cities to impose greater public access requirements on themselves, but not less.

The Brown Act §54953.7.

CPRA §7922.505.

The San Francisco Sunshine Ordinance says:

San Francisco Administrative Code, Section 67.5 Meetings To Be Open and Public; Application of Brown Act.

San Francisco Administrative Code, Section 67.21

The SOTF regularly only consults and finds violations using only the San Francisco Sunshine Ordinance when the language in the CPRA and The Brown Act are often stronger or the SOTF does not find any violation at all because they do not apply the CPRA and The Brown Act to a public access issue not covered or well written in the San Francisco Sunshine Ordinance. The San Francisco Sunshine Ordinance adds in some provisions greater and strong requirements and wording than the CPRA and The Brown Act but in many provisions the San Francisco Sunshine Ordinance is lacking. An easy example of this is definitions.

I will give a few as examples for both the CPRA and The Brown Act and how they affect the public and complaints brought before the SOTF. To truly cover this topic would take too long for this complaint.

CPRA §7922.500.

The word “obstruct” is not in the San Francisco Sunshine Ordinance. Delay is used 3 times in the San Francisco Sunshine Ordinance. “Delay” is a violation of time. “Obstruct” is a powerful word and covers any obstruction of the inspection or copying of public records, whether it is spelled out in law or is not clear in the law. This is because all government records are presumed to be public unless there is a specific exemption in law that makes them not public. To legally “obstruct” records from the public, an agency must justify the exemption in law. A similar argument can be made with The Brown Act.

CPRA §7921.005.

The SOTF has a number of times allowed a contractor to control the disclosure of information or claim there was no information. Information differs from a record in that it can be in any record, including instructions on a bag of concrete used by the Department of Public Works or a contractor. The San Francisco Sunshine Ordinance adds oral information as a greater requirement in its definition San Francisco Administrative Code, Section 67.20 DEFINITIONS

SOTF complaint File No. 22013, Mr. Yuli Huang made a public record and information request for the in-place trench installation method of the shoring, sheeting and bracing used by a contractor hired by the Department of Public Works (DPW) for the Sunset and Parkside Sewer and Pavement Renovation Project. Mr. Huang had damage to his property by the contractor during this project. City contracts have 6 provisions that work product and documents created for the contracted work are property of the city and can be inspected at anytime.

The Department of Public Works, Mr. Steinberg, asked the contractor to provide the requested information, but used a leading question with a note of "If there is no such document, there is no requirement that you create one." (This could be viewed as obstruction, CPRA §7922.500.) The contractor responded that it did not have such a document. The requested construction method information could be a text, images, a voice clip, or the record in any other format including oral instructions about steps and parameters that must have been communicated to the on-site workers for quality assurance and control. It is hard to believe that the contractor did not have a record of how the in-place trench installation method of the shoring, sheeting and bracing took place.

“SOTF found Moved by Member Schmidt, seconded by Member Wolfe, to find noviolation with the caveat that the record would be public if it existed.”

The idea that the contractor had no set method of in-place trench installation of the shoring, sheeting and bracing for the Sunset and Parkside Sewer and Pavement Renovation Project is not credible. The SOTF is another party to control the disclosure of information that is a public record. This petitioner believes that if the SOTF had in part used the CPRA, they would have come up with a different action.

Mr. Yuli Huang had previously petitioned the supervisor of records (city attorney) for a determination in writing of whether the record requested, or any part of the record requested, is public. (San Francisco Administrative Code, Section 67.21 (d)) The supervisor of records stated that it could not confirm or deny whether the requested record was public and refused to provide a determination. Another indication that Mr. Huang was being given the runaround by the city of San Francisco and the contractor.

The San Francisco Sunshine Ordinance adds greater requirement than The Brown Act in definitions to meetings like passive bodies (San Francisco Administrative Code, Section (c)) but problematic definitions can cause lesser requirements than The Brown Act. The SOTF by only relying on the San Francisco Sunshine Ordinance and not considering the greater definitions in the CPRA and The Brown Act, can and does come to wrong conclusions.

The San Francisco Sunshine Ordinance has a number of provisions that could be used to try and undermine The Brown Act definitions or are added but nonsensical like San Francisco Administrative Code, Section 67.3 (b) “Meetings” shall mean any of the following:

Besides “use of personal intermediaries” .. that could “permit a majority of the members of a policy body to become aware of an item” as a definition of a meeting. “Personal” to a majority of members? How would such “meetings” be publicly notified, agenized and minutes created that are a requirement of any defined meeting? Both San Francisco Administrative Code, Section 67.3 (b)(2) and (3) appear to violate The Brown Act 54952.2 (b) (1).

The Brown Act §54952.2 (b)

So San Francisco Administrative Code, Section 67.3 (b)(2) and (3) can not be meetings.

San Francisco Administrative Code, Section 67.3. Definitions. (b) (4) (4) "Meeting" shall not include any of the following:

but this provision is nonsensical when considering The Brown Act § 54952 as used in this chapter, “legislative body” means:

The meeting of a “standing committee of that body” is covered under The Brown Act regardless of “the attendance of a majority of the members of a policy body at an open and noticed meeting of a standing committee of that body” who “attend only as observers”. Since The Brown Act § 54952 (b) provides a greater definition than the San Francisco Sunshine Ordinance it must be used by the San Francisco Sunshine Ordinance.

There are going to be other examples of the CPRA and The Brown Act having greater requirements than the San Francisco Sunshine Ordinance cited in this grand jury complaint.

SOTF dismisses complaints because of the wrong department is written on the complaint form or the complaint is against “the wrong department”.

SOTF online complaint form with “Complaint against which Department or Commission *” required https://www.sfgov.org/sunshine/complaint-form The pdf does not state required and the complaint procedure “strongly recommends”. There is no requirement in the San Francisco Sunshine Ordinance for the petitioner to correctly identify the government entity that should be held accountable, but the practice of SOTF on this does matter. The San Francisco Sunshine Ordinance simply says.

San Francisco Administrative Code, Section 67.21 Process for Gaining Access to Public Records; Administrative Appeals.

but it is required by SOTF to do:

San Francisco Administrative Code, Section 67.21

And

San Francisco Administrative Code, Section 67.30

The requirement of finding the right respondents for accountability and attending a hearing is the SOTF responsibility. The petitioner only needs to petition about records not being received in a timely manner or a meeting action that denies them equal public access. It helps if the petitioner identifies the correct respondent, but not doing so does not mean a dismal of a complaint. The heart of a petition is the action by the city, “the person making the request may petition the Sunshine Task Force for a determination whether the record requested is public” San Francisco Administrative Code, Section 67.21 (e).

If a custodian of records does not have the records requested because they are in the wrong department and find themselves before the SOTF, then they violated the San Francisco Administrative Code, Section 67.21

The San Francisco Sunshine Ordinance creates a definition “Department” which is used to dismiss a complaint as the wrong “department” as previously explained or not hold a city official accountable because they are in another department. This is using a narrow definition in the San Francisco Sunshine Ordinance that is not in the CPRA and The Brown Act.

San Francisco Administrative Code, Section 67.20 Definitions
Whenever in this article the following words or phrases are used, they shall mean:

CPRA §7920.510.
“As used in this division, “local agency” includes any of the following:

The Brown Act §54951

Nothing in the CPRA or The Brown Act breaks down to a city department or office. All city departments or offices are the city and all are under the umbrella definition of “local agency” or agency. The SOTF, Ethic Commission or any municipal enforcement entity can use “department” if it is applied to require greater requirements of public access, but using “department” to limit public access is not allowed, like dismissing a complaint.

SOTF complaint File No. 22115 (https://sfgov.org/sunshine/sites/default/files/sotf_010324_item10.pdf) was heard before the full SOTF on January 3, 2024. The record request was for a for a “solid service list” of local media record as described by the Chair of SOTF as existing. This was a part of a 2 year effort to get SOTF and other city bodies to comply with notification of Special Meetings (San Francisco Administrative Code, Section 67. (d)). The first attempt at an Immediate Disclosure Request (San Francisco Administrative Code, Section 67.25 (a)) to the SOTF for a “solid service list” of local media record of was on January 28, 2022. No response from SOTF. After 10 days, February 7, 2022, a second Immediate Disclosure Request to the SOTF and included the SOTF Chair and Vice Chair because of the no response to the first request. The SOTF Chair told the SOTF Administrator to respond to the public record request as being voluminous, that it required additional days and when to respond. The SOTF Administrator knew the day after the public record request was made there was no “solid service list” of local media or any responsive record and told the SOTF Chair the next day.

On February 8, 2022, the SOTF Administrator e-mailed: “We are in receipt of the IDR and invoke a 10-day extension due to the voluminous nature of the information requested and need for any redactions as required or necessary.”

On March 1, 2022, the SOTF Administrator e-mailed, “The office of the Sunshine Task Force does not keep a list of local media for special meeting notice purposes.”

It took 32 days for SOTF to respond to this item that the SOTF Chair claimed the records existed, for them to say there is no record. Immediate Disclosure Request are to be made public by the end of the next business day.

The SOTF complaint File No. 22115 was against the SOTF Chair for obstructing a public record request by claiming the record request was voluminous for one list of local media required to be notified of special meetings. The SOTF on October 7, 2022. 453 days later, on January 3, 2024, the SOTF found Action: Moved by Member Hyland, seconded by Chair Yankee, to find no violation against former Chair Wolfe.

In the discussion before the motion, the reasoning was because they found that the SOTF Administrator and the Sunshine Ordinance Task Force are in different “departments” and the complaint was filed against the wrong “department”. This is using “departments” and filing and the complaint form naming of the department to narrow public access and find no violations. The CPRA does not allow this. The “Local Agency” or “Agency” should be used. In the CPRA, there is no distinction between the city or county and the bodies that make them up. There is no requirement of the petitioner to get it right who and the what of violation (San Francisco Administrative Code, Section 67.21 (e)) A petitioner should not have to re-file a complaint just to get a “department” right and know all the San Francisco Sunshine Ordinance, the CPRA, or The Brown Act to get what the SOTF members think should be found. The refiling a complaint would be a waste of the SOTF time. There were clear violations of both the San Francisco Sunshine Ordinance and the CPRA in use of voluminous time extension and the time of the final response 31 days later, of no records. There was obstruction (CPRA §7922.500) and or “local agency may not allow another party to control the disclosure of information that is otherwise subject to disclosure pursuant to this division.” (CPRA §7921.005). Regardless of who or what the SOTF should find, their action should be to inform on the appropriate ways to implement of public access laws. (San Francisco Administrative Code, Section 67.30 (c)). The goal should not be solely to find violations, but to stop repeat violations. Finding no violation on narrow reasoning only opens the door to repeated violations and continued narrow reasoning. Similar complaints will be the SOTF considered this before and found no violation.

There was most likely a perceived power imbalance with the SOTF Administrator following the SOTF Chair’s instructions. During SOTF meetings, the SOTF Administrator follows the SOTF Chair’s instructions.

A petitioner not providing a government body or the wrong entity should not matter on a complaint form will be made more relevant in the jurisdiction part of this complaint and the SOTF needing to use the greater definitions of the San Francisco Sunshine Ordinance, the CPRA, and The Brown Act in this grand jury complaint. The SOTF boxing in the petitioner to what they wrote on the complaint form as far as department or commission or what law they think should apply is not a proper application of public access laws. The responsibility is on SOTF.

Establishing Jurisdiction of an entity by SOTF is not needed or required by the San Francisco Sunshine Ordinance, only whether a public record or information is the government’s or a meeting fits the definition of formally or informally created by the government to further government policy.

SOTF establishing jurisdiction of whether an entity is covered when gaining access to a public record does not matter. It matters more for meetings, but even the definition of covered entities in The Brown Act is very board. Establishing who is the respondent to a complaint for attendance of a SOTF hearing does matter if a SOTF hearing is conducted concerning a records request denial by a government entity (San Francisco Administrative Code, Section 67.21 (e)).

SOTF has this whole process of establishing jurisdiction spelled out in its complaint procedure and hearings before the SOTF Complaint Committee, other SOTF committees, or the SOTF, which adds time to a SOTF determination. It is unnecessary to find jurisdiction for public records and information violations.

San Francisco Administrative Code, Section 67.21 Process for Gaining Access to Public Records; Administrative Appeals

CPRA §7921.005.

The fact that an entity can be “every person” and “may not allow another party to control the disclosure of information”, makes all entities are in jurisdiction of public access laws if they control or possess public records or information. “Every person” and “another party” do not have to be a city official. The only thing that matters is whether the records and information sought are covered by the San Francisco Sunshine Ordinance and the CPRA, not who holds them as a matter of jurisdiction. Cutting out the need to establish jurisdiction in a SOTF Complaint Committee hearing would greatly reduce the time for a SOTF determination.

On definition of meetings, the San Francisco Sunshine Ordinance adds passive meetings. The Brown Act definitions are much stronger in many respects. But in The Brown Act, “every person” and “may not allow another party to control the disclosure of information” entity broadness takes more work to get to the purpose of a body’s meetings are to “exist to aid in the conduct of the people’s business.” The Brown Act § 54950. The broadest definition is The Brown Act § 54952 (c) (1)(A).

The Brown Act § 54952 (c) (1) “A board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that either:

Note: The Brown Act § 54952 (c) (1) provision is use the word “elected”. San Francisco Administrative Code, Section 67.3 (d) (3) and (4) remove the word “elected” and would have a greater requirement on San Francisco, but the SOTF has narrowly interpreted them. The SOTF seems confused.

San Francisco Administrative Code, Section 67.3 (d) “"Policy Body" shall mean:”

The words “other entity” is broad. ““Created” is seen by the courts to be both formal and informally as long as legislative body defined by The Brown Act ‘played a role’ in bringing [the body] ‘into existence.’” Epstein, supra, 87 Cal.App.4th at p. 864, quoting International Longshoremen’s. “Such entities should not be allowed to conduct the people’s business in private that are required to conduct them in public.”

From Opinion of ROB BONTA, Attorney General February 29, 2024, https://oag.ca.gov/system/files/opinions/pdfs/22-402_0.pdf

“Given the Brown Act’s public access purpose, we decline to read the term “created” in a narrow or hyper-technical manner so as to allow an individual to initiate the creation of a policy body—whose original and continued existence depends upon formal approval (and funding) action by one or more legislative bodies—such that it escapes the public access and scrutiny that the Brown Act would otherwise require.”

“Generally, an Attorney General opinion is not a mere ‘advisory’ opinion, but a statement which, although not binding on the judiciary, must be regarded as having a quasi judicial character and is entitled to great respect, and given great weight by the courts.” Natkin v. California Unemployment Ins. Appeals Bd. (2013) 219 Cal.App.4th 997, 1006 (omitting internal quotation marks and citations)

In San Francisco “benefit district formation groups”, the SOTF has yet to find these “other entities” as covered under The Brown Act even though they exist to implement benefit district laws in both state and city, San Francisco Green Benefit District, Article 15 A, Ordinance 14-14. In the previous cited SOTF complaint 18086 on jurisdiction that failed even though a majority voted in favor, was for the jurisdiction on a Green Benefit District Formation Group that all activities and meeting were paid for by the City of San Francisco, a Supervisor suggested one or two people for the group that were placed in the group, the city paid for consultants for the group for the purpose to implement San Francisco Green Benefit District, Article 15 A, Ordinance 14-14 which would assess property owners for an entity the formation group would create in boundaries they drew, of which were approved by the San Francisco City Attorneys Office, the city would conduct a property weighted election, and the Board of Supervisors would approve, and the city would collect the assessment on property owners. This latter failed again in the SOTF to find that such Green Benefit Formation groups were required to follow The Brown Act. To my knowledge, the city has stopped creating and funding such benefit district formation groups.

For jurisdiction of meetings, the SOTF has to determine if the entity in question was created by a policy body in order to exercise authority that may lawfully be delegated by the governing body, in this case, the city. The governing body had to just “play some role” in bringing the entity into being that is furthering the goal of the governing body.

The jurisdiction process is too drawn out, especially for gaining access to public records and information. This contributes to the SOTF violating SF Sunshine Ordinance Administrative Code, Section 67.21 (e) in 45 days for a SOTF determination.

SOFT Annual Report Criteria Allows to Show Success but Disallows for Failure from the Public. Better Public Input and Engagement should be Implemented.

San Francisco Administrative Code, Section 67.30

On February 26, 2023, Mr. Peter Warfield, Executive Director, Library Users Association sent a public record request on SOFT Annual Report to SOTF member Laura Stein who was the main lead on putting together SOTF’s Annual Report. (Exhibit L). The e-mail exchange is a little hard to read as it goes from bottom to top and responses include previous words as reference to what they are responding to without designating who the words are attributed to. Page 2-3 of Exhibit L SOTF member Laura Stein responds: “Statements of problems are to be written by SOTF members, since that was the agreed upon process and SOTF is ultimately responsible for advising the Board of Supervisors. These are problems raised by cases in 2022 that a member feels should be addressed. If the statements are not endorsed by the SOTF as a whole at the next meeting, that member has the option to include their statement in the appendix or not at all. If you want to submit some problem statements to me, I can post them online for members to review and potentially adopt”. In including stories from the public, SOTF member Laura Stein responds “The agreed upon category of data was success stories, not failure stories. However, I do think failure stories could be useful. Perhaps they can be incorporated into future reports, presuming members agree to it.”

This petitioner was not able to find where SOTF “The agreed upon category of data was success stories, not failure stories.” or any action that affirms this.

The 2022 and 2023 Annual Reports include Practical and Policy Problems Encountered written by SOTF members.

SOTF actively solicits city departments and respondents by e-mailing them a survey. City departments and respondents are going to give information in a favorable light to them. The numbers of successful record request that city departments provide that are successful are suspect. This petitioner believes many record requests are routine. Success is in complying with public access laws, deadlines and all requirements. While success for a city official is if they fulfilled a request regardless of deadline or other areas that have been outlined in this complaint. This can be seen in all complaints brought before the SOTF. Rarely do city respondents think they have violated public access laws. This is partly because city officials misinterpret public access laws. This is where SOTF routinely fails to inform respondents during their hearings and actions. If many complaints were handled without hearing but were handled with a written action, SOTF could be better at addressing laws a city department or official has violated and possibly misunderstood a public access law(s). There are 3 major public access laws that are a spaghettifest of words and provisions that are difficult to understand. Consistent application and providing “information to other City departments on appropriate ways in which to implement this chapter.” (San Francisco Administrative Code, Section 67.30 (c)) is key to better compliance with public access laws and reducing SOTF complaints. SOTF Annual Reports are also a means to address specific provisions that are routinely not complied with for whatever reasons and to spell out what is expected.

SOTF Annual Reports should track previous annual reports Practical and Policy Problems Encountered to state whether there has been any progress or resolution.

Page 4, Exhibit L, in regards to SOTF annual reports, SOTF member Laura Stein responds “There was no formal written solicitation to petitioners or members.” as there is for city departments and respondents.

This petitioner does not believe it would be hard after every complaint has been resolved by the full SOTF to send an e-mail out with a survey or link to the online survey to the petitioner. An e-mail with a survey or link to the online survey should be sent to the petitioner after a respondent found to require certain actions to comply with public access laws informs the SOTF of compliance. City department or officials who fulfill a public record request at the end should send the requester an e-mail with a survey or link to the online survey. This information can be shared with the city department and possibly the SOTF Annual Report. It would be another way to note problems and address them.

This petitioner believes if SOTF had fewer hours in hearings, more time resolving issues in a timely manner outside of hearings and resolving systemic public access issues, the city and the public would have better public access.

Documents submitted to SOTF or any San Francisco city entity should be as clear as they were submitted and should be in a form that text and images can be copied and pasted. Public records require an “exact copy” under the CPRA §7922.530.

SOTF complaint File No. 22115 https://www.sfgov.org/sunshine/sites/default/files/sotf_010324_item10.pdf and SOTF complaint File No. 22116 https://www.sfgov.org/sunshine/sites/default/files/sotf_010324_item11.pdf There are many pages of where the text is unreadable and from the petitioner. Examples:
Complaint File No. 22115 pdf page 37 and pages around.
Complaint File No. 22116 pdf page 10 and pages around.
Exhibit M shows the pages (37 and 10) above as submitted and as produced by SOTF and in the agenda packets from the links above. The original records were submitted as pdf attachments to emails.

The documents were submitted clear text and not like it was sprayed with water and run through a scanner. The 2 complaints were against a SOTF member. Given other evidence that will be presented, these records were intentionally obscured by the SOTF Administrator. There should be no determent to the petitioner or the public in viewing records submitted for an agenda item or for city officials at a meeting. I have seen inferior copies by the SOTF before, but these are probably the worst.

If you look at other complaints, as an example, SOTF complaint 22014 https://www.sfgov.org/sunshine/sites/default/files/sotf_120722_item_8.pdf, from the December 7, 2022 agenda of the SOTF, you find the petitioners records and all records in the complaint are clear and allow copying and pasting of text. It is clear that when manipulation of agenda items, agenda and minutes happen, they are intentional.

Since these are public records, the obscuring of records and information would be an obstruction and without a law cited by the city to redact the information. The altering of documents submitted by the public violates CPRA §7922.500 “obstruct the inspections or copying of public records”. and CPRA Article 1 Justification for Withholding San Francisco Administrative Code, Section 67.26 “Withholding Kept to A Minimum, Section 67.7 Justification of Withholding. CPRA §7922.530 (a) “an exact copy”.

It appears that the SOTF Administrator printed out digital documents of a petitioner and ran them through a scanner and created an image that was put into a pdf. This causes a public record submitted to be degraded in quality from the original, which is a public record. This makes the records non-searchable by search engines or allows the copying of the text of a record to paste elsewhere by anyone wish to do so. The respondents' records are searchable in these two complaints and you have the ability to copy text from the pdf. As in the example: SOTF complaint File No. 22115 https://www.sfgov.org/sunshine/sites/default/files/sotf_010324_item10.pdf Respondent record section starts on pdf page 48 or SOTF package page 046.

San Francisco Administrative Code, Section 67.21-1

A scanned text image copy in pdf form of a submitted digital text file is not a recognized as an industry standard format now, if it ever was ever.

The current alteration by the government of records submitted in digital form by re-scanning the records violates public access laws. The government can not dictate the presentation of records in one form of copy (an image) and different from how it was submitted. It cannot degrade the presentation of records and records submitted for agenda item, as correspondence, or for any issue of consideration by the government. An image of a text document is a degrading of the original document. Public access laws also required that any portion of a record be able to be copied and must be an “exact copy” CPRA §7922.530.

“A statute, court rule, or other authority, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.” CA Constitution Article 1, Section 3 (b) (2)

To support the above paragraphs points:

San Francisco Administrative Code, Section 67.7.

The Brown Act §54957.5. specifically says any other meeting items and all meeting records are subject to the CPRA unless the writing is exempt under certain CPRA sections

San Francisco Administrative Code, Section 67.21 (k) gives a similar but more general requirement “that documentary public information” must follow the CPRA.

San Francisco Administrative Code, Section 67.21 (l) allows the public to “requesting the information in any form requested which is available to or easily generated” not the government.

CPRA §7920.530. records can be any writing containing information and not the whole record.

“Writing” in the definition of the “public record” CPRA §7920.530.

CPRA §7920.545.

CPRA §7922.530.

The requirement of “an exact copy” is not in the San Francisco Sunshine Ordinance, so CPRA wording is a greater requirement.

CPRA §7922.500.

Since a public record can be a portion of “any writing containing information”, the producing of writing as an image and not copyable text obstructs the copying of that writing limiting public access to “an exact copy”. It is also the government limiting the form of a digital record that was given to them digitally (available) so is easily generated by the department, its officers or employees. Digital documents and writings submitted by the public are usually through e-mail attachment, uploaded, or through a form. E-mails and attachments are another record that must be retained.

If the legislature meant copying to be only the entire record by pages, they would have stated so.

SOTF Complaint File No. 19098 - Anonymous v San Francisco Police Department. SOTF unanimous found of violation for unlawfully withholding text message metadata (including the to/from/etc. - note SFPD had provided the dates and times), and also for unlawfully printing and scanning electronic records which do not constitute a "copy" of an electronic record.

Prior relevant SOTF complaints by Anonymous File No. 3 File No. 19044, File No. 19047, File No. 19091, File No. 19098, File No. 19103, and File No. 19108 ruled against the City for email, text messages, past and future calendar entries, meeting details, electronic metadata, and attachment. Anonymous #3 did a lot of work trying to get copies of electronic records, specifically the metadata with the records.

The SOTF scanning submitted public records violates their own ruling actions on other city department and bodies as presented above.

The CPRA §7922.530. “an exact copy shall be provided unless impracticable to do so.” In order to print out a digital record submitted by the public to make an image of it, the government must open the digital record, so any concern over a virus or malware must be being taken care of now. You can use an antivirus or anti-malware program that scans your attachments automatically or on demand. This petitioner is sure the city does this. Even if there is some crazy reason that records must be scanned, today's scanners and software can provide clear, optical character recognition, and text that can be copied and pasted and searched. There is no reason that a petitioner’s records can not have the same accessibility as the respondents or any other government record.

Note: CPRA §7922.530. allows a requester (should be respondent) to make a copy of a record but not damage it. While not stated in the CPRA that this would apply to a government official or employee, it would follow that an agency can not make a copy of a record and damage that record during reproduction.

CPRA §7922.530.

Notification of Meetings in the City of San Francisco

For several years, Mr. Chaffee and Mr. Warfield have submitted a written yearly request to receive the SOTF “agendas and copy of all the documents constituting the agenda packets” under The Brown Act §54954.1. The SOTF has ignored these requests. This petitioner believes Mr. Chaffee has given up. Mr. Warfield has made a number of public comments at full SOTF meetings asking why he is being denied his request. Nothing has happened. The law has its own section in The Brown Act. Until the law is changed, it should be followed. The SOTF needs to be an exemplary example of the application of all public access laws.

The Brown Act §54954.1.

For 2 years, Mr. Sullivan tried to get an e-mail notice of special meetings of the SOTF (San Francisco Administrative Code, Section 67.6 (f)). The original request was on a February 1, 2021 in an e-mail to SOTF. The request was submitted after being unaware that a special meeting of the SOTF had happened on January 12, 2021. Notification of special meetings “shall be at least 24 hours before the time of the meeting as specified in the notice.” (The Brown Act §54956) The San Francisco Sunshine Ordinance adds some greater requirements and more open notification.

San Francisco Administrative Code, Section 67.6 (f)

San Francisco Administrative Code, Section 67.6 (f) uses the word “local media” and Mr. Sullivan was asking for notification as a local media website https://sfneighborhoods.net which works to make government available to the public with a special emphasis on public access laws and the publics use of them.

The Brown Act §54956.5. (b) (2) “Each local newspaper of general circulation and radio or television station that has requested notice of special meetings pursuant to Section 54956” uses more specific newspaper, radio and television station than “local media”. Mr. Sullivan argued with the SOTF multiple times that the word media is broad and can include websites, bloggers (there are court cases outside of CA that reaffirm this) and you have social media, educational media, etc.

On January 25, 2022, the SOTF had a special meeting they called a “Retreat” (https://www.sfgov.org/sunshine/sites/default/files/sotf_012522_agenda.pdf) The SOTF had referred to a “retreat” at their December 1, 2021 meeting. The public thought they were going on some sort of team building retreat. No notice of the special meeting was given to Mr. Sullivan before the meeting occurred. Mr. Sullivan only found out that the “retreat” was a special meeting an hour before the special meeting. This was because a member of the public had attended a SOTF committee meeting that afternoon and had heard about some sort of SOTF meeting starting at 6:30 PM that day. It is obvious that the SOTF used the word “Retreat” instead of “special meeting” to keep the public from attending. There is no other possible reason.

On March 15, 2022, Mr. Sullivan filed a complaint with the San Francisco Ethics Commission against the SOTF for not adhering to the San Francisco Administrative Code, Section 67.6 (f) “special meeting” notification. This was rejected by the Ethics Commission as not having “jurisdiction over this matter because SOTF is not a department and therefore then Chair Bruce Wolfe is not a department head.” This Ethics Commission complaint and response can be found here: https://www.sfgov.org/sunshine/sites/default/files/sotf_080322_item3A.pdf

At the SOTF August 3, 2022 meeting, agenda Item 3A, SOTF discussed this and noted that “Member Wolfe noted that as far as an official complaint, there is no other body in the City to take up this complaint except in court. Member Wolfe also stated that the SOTF should review it, but upon reflection of item in the complaint and how to make things work better, it should not take this matter on as a complaint and adjudicate it” (https://www.sfgov.org/sunshine/sites/default/files/sotf_080322_minutes.pdf) Audio/Transcript found here starting at the 36:46: https://www.youtube.com/watch?v=1KavJcCPveY

Note: The SOTF has no formal process for the public to petition the SOTF other than a complaint. Formal e-mail for notification of “special meetings” was still not working. Complaining during public comment did nothing.

On September 11, 2023, Mr. Sullivan filed a complaint (SOTF complaint File No. 23974) against the SOTF for violating San Francisco Administrative Code, Section 67.6 (f) special meeting notification for special meetings held 1/25/2022, 6/7/2022. 6/13/2022, 7/25/2023 and 8/22/2023. The complaint has never been heard and there is no public SOTF link to the complaint.

Also on September 11, 2023, Mr. Sullivan filed a complaint to the Mayor (Mayor Breed) under San Francisco Administrative Code, Section 3.100 “The Mayor shall enforce all laws relating to the City and County, and accept service of process on its behalf”., San Francisco Administrative Code, Section 3.100 3. “Receipt and examination of complaints relating to the administration of the affairs of the City and County, and timely delivery of notice to the complainant of findings and actions taken;”, Article IV Executive Branch – Board, Commissions and Departments, and San Francisco Sunshine Ordinance Sec 67.35 (d).

This complaint to the Mayor was given to the San Francisco Clerk of the Board of Supervisors Office. On October 23, 2024, the San Francisco Clerk of the Board of Supervisors Office started a list for notification of special meetings for all San Francisco commissions, boards, task forces, etc. The notification list is open to any member of the public and not just “local media”. A person or “local media” only needs to send a request e-mail to the Board.of.Supervisors@sfgov.org or notify any San Francisco Board of Supervisor clerk to be put on the notification list. This is not well publicized or known.

The SOTF upon learning that there was now a list for notification of special meetings, was surprised. The point of all this, the SOTF was given many opportunities to take the initiative and have them and the city of San Francisco adhere to the San Francisco Administrative Code, Section 67.6 (f), but did not. The SOTF whole reason of existence is to enforce the San Francisco Sunshine Ordinance, public access laws, and protect the public's interest in open government. (San Francisco Administrative Code, Section 67.1 (e)). They fail even on this easy requirement in apply the San Francisco Sunshine Ordinance.

Note on Complaints to the Mayor: These provisions are not well known. I have submitted 4 complaints to the Mayor under these provisions. 3 of the complaints have been acted on. The complaint not acted on has not received a “timely delivery of notice to the complainant of findings and actions taken;” San Francisco Administrative Code, Section 3.100 3. even with a follow up e-mail requesting one. The 3 acted on also did not get a “timely delivery of notice to the complainant of findings and actions taken;” San Francisco Administrative Code, Section 3.100 3 from the Mayor’s Office but caused actions to take place to address the issues. San Francisco Clerk of the Board of Supervisors Office findings and action taken on the special meeting notifications could be taken as a notice from the Mayor’s Office.

Lastly, The Brown Act §54957.1 (b) for a closed session uses the words “to any person who has made a standing request for all documentation as part of a request for notice of meetings” instead of naming media. The Brown Act §54954.1 also uses “any person” for notification of meetings. The full text of The Brown Act §54954.1 is at the beginning of this section of the grand jury complaint. A broad interpretation for greater public access would extend this to notify any person of any meeting, closed or not.

All SOTF complaints should have a direct link to the complaint that are accessible to the public.

Currently, SOTF complaints can only be accessed by the public if they are an agenda item on a SOTF Committee or the full SOTF agenda. A petitioner and the public have access to the complaint’s documents about 72 hours before the complaint hearing when the agenda is made public. This 72 hours before a hearing viewing by the public and the petitioner includes any new documents that the respondent (the city) has included. The respondent gets the complaint and the petitioner’s documents shortly after a complaint has been filed against them. It appears that at least some or all city respondents have access to the complaint’s documents via a link at all times. This is unfair to the petitioner and the public. This was realized by Mr. Sullivan during a hearing in an exchange between the SOTF Administrator Ms. Leger and Department of Public Works, Mr. Steinberg.

Public Comment and e-mail comment have been made to the SOTF that this is unfair access to the petitioner.

San Francisco Administrative Code, Section 67.21-1

San Francisco Administrative Code, Section 67.29-2 Internet Access/World Wide Web Minimum Standards

Both of the above San Francisco Administrative Code would support the complaints being made public from inception with San Francisco Administrative Code, Section 67.21-1 using the word “shall”; “shall program and design these systems to ensure convenient, efficient, and economical public access to records and shall make public records easily accessible over public networks such as the Internet.” It is technologically possible, transparent and fair.

It is important to remember that the San Francisco Sunshine Ordinance was written in 1999, when the word “encouraged” in San Francisco Administrative Code, Section 67.29-2.

There is no reason that the SOTF can not make all complaints they receive public with a permanent link. This is also a matter of fairness of public access and due process for the petitioner versus the city respondent’s access.

San Francisco Administrative Code, Section 67.21-1 encourages the city to implement a system for automatically “disclosing records subject to disclosure to members of the public” and no legal requirement to use NextRequest a for profit company to take public record requests. All city agencies must comply with the San Francisco Administrative Code, Section 67.21 (a) (b) and take record requests in person, by e-mail, by fax, or by postal delivery.

San Francisco Administrative Code, Section 67.21-1

San Francisco partially does this with data https://datasf.org/opendata/, which is “non-profit, non-proprietary public computer network”. The San Francisco Office of the Controller does this with SF OpenBook https://openbook.sfgov.org/ with revenue and contracts. There is no reason that a searchable database cannot be done with all San Francisco records. Depending on implementation, this could cut down public record request, the time required and people to respond to public record requests sometimes for the same records and it could save money.

NextRequest (https://sanfrancisco.nextrequest.com/) used by some city department to take public record request is a for-profit company. It allows you to search request titles but not actual records or words in a record. This means if a record appears in a request without the keywords in your search in the request title, that record will not be found. You have to make a record request to make sure you have found all the disclosable records. NextRequest cost the city money and lacks search ability of records.

All city agencies must comply with the San Francisco Administrative Code, Section 67.21 (a) (b) and take record requests in person, by e-mail, by fax, or by postal delivery. San Francisco city entities cannot require the use of NextRequest though they can post request on NextRequest and respond to a request in person, by e-mail, by fax, or by postal delivery. Many of the city departments using NextRequest make it hard or impossible to have a public record request given to them outside NextRequest, like providing no e-mail address for public record request. There are many reasons public record requester would not want to make a request on NextRequest.

San Francisco Administrative Code, Section 67.29-2 Internet Access/World Wide Web Minimum Standards

With San Francisco Administrative Code, Section 67.21-1 and San Francisco Administrative Code, Section 67.29-2, the voters of San Francisco have asked that as many documents as possible be preemptively put on the internet in a searchable way in order to make the business of the city transparent.

The path to bringing a public access law complaint to court favors the city.

Similar to the San Francisco Civil Grand Jury request to resolve issues directly with relevant city agencies or officials, California courts have a more ridged requirement in “the exhaustion of administrative remedies doctrine” or “judicial exhaustion” (Cal. Civ. Proc. Code § 1094.5(a)). “If an administrative remedy is provided by statute, it must be invoked and exhausted before e judicial review of administrative action is available.” (Ralph's Chrysler-Plymouth v. New Car Dealers Policy & Appeals Bd. (1973) 8 Cal.3d 792, 794.) The decision-making body "is entitled to learn the contentions of interested parties before litigation is instituted." (Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 384.) Thus, exhaustion requires a full presentation to the administrative agency of all issues later to be litigated and the essential facts on which the issues rest. (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 609.)

San Francisco Administrative Code, Section 67.21

So note San Francisco Administrative Code, Section 67.21 (f) “in any way limit the availability of judicial remedies otherwise available to any person requesting a public record” and not any violation to public access laws regarding meetings. Even given the San Francisco Sunshine Ordinance “in any way limit the availability of judicial remedies”, “the exhaustion of administrative remedies doctrine” says otherwise. One of the major provisions of the San Francisco Sunshine Ordinance is the creation of the San Francisco Sunshine Ordinance Task Force (SOTF). The petitioner knows of no court case involving the city of San Francisco public records or meetings, and going through the SOTF or jumping past SOTF to the Superior Court of California. It would seem unlikely that you would not be required to go through the SOTF first and it would likely be costly if you do not.

The SOTF complaint procedures slow down any resolution to an average of 407 days for a determination on SOTF complaints (2023 SOTF Annual Report). Even if you win the determination, you may not get the records and little chance in the 5 days required by San Francisco Administrative Code, Section 67.21 (e) because of poor SOTF follow up and enforcement of after their determination. It is even more dire for public access to meetings. 407 days since a violation(s) is really stale. The government meetings often continue violating public access laws and enforcement does not exist. Then the finding of lawyers and costs of bringing a court case. Most of the public can not afford the time and money. The situation is a blow to “The right of the people to know what their government and those acting on behalf of their government are doing is fundamental to democracy” San Francisco Administrative Code, Section 67.1 (d).

Should a petitioner take their complaint to court, they face a city with a City Attorney’s Office with many attorneys and large resources in the taxpayers' money. It is ironic that the City Attorney’s Office job is to defend city officials and employees if there is a question of public access or to prevent the public’s right to know with the public’s money. The city also can appeal with the public’s money.

If the petitioner prevails over the city, San Francisco Administrative Code, Section. 67.35 Enforcement Provisions

Also see CPRA 7923.115, and The Brown Act § 54960.1 and §54960.2

The “poison pill” of The Brown Act § 54960.1

The Brown Act §54960.2 (c)

With The Brown Act, if the legislative body cures the violation “during any action seeking a judicial determination” “the action filed pursuant to subdivision shall be dismissed with prejudice” and the cost to the petitioner is borne by the petitioner.

There are no penalties above court cost to the city (taxpayer money) and no penalty of officials or employees.

Public access relies on city officials and employees doing the right thing. If not, the SOTF and the Ethic Commission applying the San Francisco Sunshine Ordinance, the CPRA and The Brown Act closely are required.

A couple of suggestions:

If the SOTF determines in favor of the petitioner and the city does not comply in 5 days for records or for meeting violations, and the timeline outlined The Brown Act (explained in the next paragraph), a petitioner can file a court case and the city’s taxpayers' money pays the court cost however it gets resolved. This should spur action and city officials to consider the importance of the public’s right to know and hopefully lessen withholding. It would align the government's business with their obligation to inform the public. This would require an ordinance.

The San Francisco Sunshine Ordinance meeting provisions only add greater requirements but do not spell out actions or a timeline the SOTF can do if a violation(s) is found. Since this is an inconsistent requirement under the San Francisco Sunshine Ordinance, the Brown Act remedies should apply. San Francisco Administrative Code, Section 67.5. The SOTF requirement to enforce and the public's interest in open government (San Francisco Administrative Code, Section 67.1 (e)) and should “make a demand of the legislative body to cure or correct the action” “The demand shall be in writing and clearly describe the challenged action of the legislative body and nature of the alleged violation.” The Brown Act § 54960.1 (b) “cease and desist letter by postal mail or facsimile transmission to the clerk or secretary of the legislative body being accused of the violation” The Brown Act § 54960.2 (a)(1) and to follow the various cure and correction requirements outlined in The Brown Act § 54960.1 and The Brown Act § 54960.

The San Francisco Sunshine Ordinance and the SOTF Act as a Shield for the City without Full Implementation

When the SOTF is not functioning on all cylinders, and public access laws are not followed to their full extent of allowing full participation and transparency for the public, the San Francisco Sunshine Ordinance acts as a shield for the city and city officials from state and city public access law accountability. The SOTF and the San Francisco Sunshine Ordinance can give a facade of greater public access requirements but it creates an internal city quasi-judicial system that is manipulated by the city to the overall benefit of officials controlling public access to government. The manipulation, intentional and not by city policies, creates delay, unfair the SOTF voting requirements, and lack of accountability and enforcement of public access laws, a death of a thousand cuts. This favors the city and City Attorney’s Office objectives. Many meetings and public record request are handled well, but it is the contentious issues or things city officials and employees want to keep hidden from the public view that benefit from any dysfunction and delay. In recent years, the city has a history of scandals that get reported, but this does not include those near scandals or violations of the San Francisco Sunshine Ordinance, the CPRA and The Brown Act of the people’s rights to know.

With an average of 407 days to resolve a complaint (2023 SOTF Annual Report), a required 6 vote majority in the positive of all seats on SOTF regardless or vacancy or not present at a meeting, SOTF forced to have hearings and vote on all petitions as substantive matters, little compliance or enforcement with within 5 days after a SOTF determination, Ethics Commission ignoring sunshine enforcement provisions, abuse of incremental and “rolling basis” clause, not following the greater requirements in the CPRA and The Brown Act, not following meeting notice requirements in The Brown Act, ethic law compliance and accountability “conflict of interest” problems, direct links to complaints for petitioners, manipulated documents and agenda items, these favor city officials and not the public.

The following is not a knock on the City Attorney’s Office as they are doing the role stated in the San Francisco Administrative Code, Section 6.102(4). The following is just stating the facts of how the City Attorney’s Office role applies to the people’s right to know and public access. Suggestions follow.

“As to the idea that the city attorney can fulfill the same role as an inspector general, adds Harrington, “as much as I love them, they’re a political group.” Harrington was the city controller from 1991 to 2008. https://missionlocal.org/2024/09/whos-afraid-of-the-inspector-general-peskin-pushes-anti-corruption-reform-measure They do not, without exception, enforce the law on city officials. They interpret city codes and the law favorable to the city's current politics and keeping the government out of court. They advise city officials. The City Attorney’s Office’s mission and responsibility do not align with safeguarding the public's interests.

Our Mission
“The mission of the San Francisco City Attorney’s Office is to provide the highest quality legal services to the Mayor, Board of Supervisors, and other elected officials as well as to the approximately 100 departments, boards, commissions and offices that comprise the City and County of San Francisco’s government.”
https://www.sfcityattorney.org/aboutus/theoffice/

It can be argued if the city attorneys actually enforced city officials to follow all public law and the CA Constitution Article 1, Section 3 (b) (2)

than San Francisco City Attorney’s Office and the people’s right of access would align more and both goals would be met.

“Not one, but two 10-minute recesses were required to reach this consensus. As the supes filed out of sight, were they violating the Brown Act, which forbids elected officials from doing public business in private? “As you know, in conjunction with the Clerk’s Office, we regularly advise the Board of Supervisors and other City bodies on the Brown Act,” wrote City Attorney David Chiu. That’s not exactly a resounding “no.””
https://missionlocal.org/2023/01/san-francisco-board-president-shamann-walton-connie-chan-rafael-mandelman/

This was a violation of The Brown Act §54952.2 (b)

The San Francisco Sunshine Ordinance has no provision that states this. Another example of The Brown Act being greater than the San Francisco Sunshine Ordinance.

And

The Brown Act §54950

An attorney is assigned by the City Attorney’s Office to act as a legal advisor and advocate for the SOTF (San Francisco Administrative Code, Section 67.30 (a)). This attorney’s client is the SOTF and the public can not know what legal advice and work product are given to SOTF members. The SOTF is also a city entity, with SOTF members being city officials. This petitioner does not doubt that there is an ethical wall between the assigned SOTF city attorney and the City Attorney’s Office, but the paycheck is still coming from the City and if the SOTF had a complaint filed against it in court, the City Attorney’s Office would defend the SOTF. SOTF members are approved by the Board of Supervisors. From outside observation, the SOTF complaint procedures and many of the complaint items in this complaint, the SOTF and the SOTF attorney’s interest do not fully align with the public’s right to know what their government is doing in their name.

This petitioner suggests that the SOTF counsel be outside of government and be capable of representing the SOTF in case of court cases. This outside counsel's legal advice and work product for the SOTF all be public. This SOTF counsel would be paid for by the city’s taxpayer money. This would require a change in the San Francisco Administrative Code.

Another suggestion to repeat is if the SOTF determines that the city's argument of an exemption is not valid and that the records, information are still by default public, the city does not make them public within 5 days and there is no enforcement mechanism or it fails, Ethics Commission or other municipal office with enforcement powers, then the petitioner can file a court case in the Superior Court of San Francisco on the city’s dime, win or lose in the court. This would also go public meeting compliance that is not corrected. If a violation of public access meeting laws occurs that affects the outcome of an issue, that issue must be reheard with all corrective measures in place. This would give teeth to public access laws and the SOTF in San Francisco. This should cause greater compliance with public access laws from the outset. This would require a change in the San Francisco Administrative Code.

We, the taxpayers, are paying for all this, yet we have no one making sure of our interests in an open and public process of our city government. District Attorneys and Attorney General not interest. (San Francisco Administrative Code, Section 67.21 (d) and (e)) Ethics Commission not interested. The SOTF hampered by themselves and some questionable actions, city officials and city policies combine to create a hostile state for the public’s right to access in San Francisco.

San Francisco Administrative Code, Section 67.1

This is not happening.

Up until a couple of years ago, the SOTF old complaint procedures had in its heading “Consistent with the language and spirit of the San Francisco Sunshine Ordinance (Ordinance) to provide the most open government possible (see City Administrative Code, Section §67.1, all inferences and evidence shall be viewed in the light most favorable to the petitioner.” In their recent updating of their complaint procedures, the SOTF got rid of this.

Exhibits A - M

Exhibit A SOTF Annual Report Links and quotes from Rate of Resolution of Pubic Access Conflicts.

Exhibit B Some suggestions for how SOTF complaints could handle outside a hearing requirement when there is no record request denial by SOTF determination.

Exhibit C The supervisor of records has conflicting obligations being a lawyer in the City Attorney’s office, San Francisco Administrative Code, Section 67.20 (c). The obligation to represent the city is greater than resolving a dispute. The current Supervisor of Record explains the obligations.

Exhibit D

Exhibit E The framing of a motion and the need to cite the specific law denying public access has been pointed out to the SOTF multiple times by this petitioner as public comment. September 1, 2021 full SOTF hearing transcript starting 1:42 and ending at 1:51 in (https://www.youtube.com/watch?v=Wl-Ikv8G4TA) has this petitioner's public comments and the then Chair Wolfe response explaining a little of the past SOTF history and why SOTF would not be taking up consideration of the 6 majority rule again.

A version of the history that Chair Wolfe is referring to can be read in two articles that Richard Knee wrote back in June 2012. Since the links seem to stop working during this writing, the articles are presented as exhibits:

Exhibit F Wiener’s Mendacious Attack on City’s Sunshine Panel.

Exhibit G Supervisors’ Vendetta Against Sunshine Panel Incumbents.

Exhibit HVia a public request for information, the Ethics Commission states: “Regarding your question about the applicability of Admin. Code, Section 67.35(d), this Code, Section does not establish the Ethics Commission as having jurisdiction for the enforcement of Sunshine Ordinance provisions beyond allegations of willful violations by City elected officials and Department Heads provided by Section 67.34 or the Show Cause hearing process (see Ethics Commission Enforcement Regulations Section 10)".

Exhibit I The SOTF complaint procedures posted on their website did not include the B 5 a and b and other changes. (https://www.sfgov.org/sunshine/sites/default/files/Complaint_Procedure.pdf) Confused, this petitioner sent an immediate disclosure of public information request to the SOTF and their SOTF administrators. The response and the request are Exhibit I. The SOTF administrator says that the B 5 a and b are correct and the complaint procedures will be corrected.

Exhibit J Needle in a Haystack Example

Exhibit K 234 of the records in the public record request were commercial ads for pet medication, cars, insurance.

Exhibit L On February 26, 2023, Mr. Peter Warfield, Executive Director, Library Users Association sent a public record request on SOFT Annual Report to SOTF member Laura Stein who was the main lead on putting together SOTF’s Annual Report. The e-mail exchange is a little hard to read as it goes from bottom to top and responses include previous words as reference to what they are responding to without designating who the words are attributed to. Page 2-3 of Exhibit L

Exhibit M There are many pages of where the text is unreadable and from the petitioner. Examples:
Complaint File No. 22115 pdf page 37 and pages around.
Complaint File No. 22116 pdf page 10 and pages around.
Exhibit M shows the pages (37 and 10) above as submitted and as produced by SOTF and in the agenda packets from the links above. The original records were submitted as pdf attachments to emails.