Additional Paths Complaints can take under the Sunshine Ordinance, CPRA and the Brown Act.
The simple is the first 3 paragraphs.Sunshine Ordinance Sec. 67.35 Enforcement Provisions (d) “Any person may institute proceedings for enforcement and penalties under this act in any court of competent jurisdiction or before the Ethics Commission if enforcement action is not taken by a City or State official 40 days after a complaint is filed.”
It makes sense that any person can file a complaint with a City or State official, elected or not elected, who has authority over a person or entity that has violated public record and meeting laws and allow that official to take corrective actions before adjudication. The alleged violation has a chance to be resolved before a lengthy process occurs. The Sunshine Ordinance Task Force (SOTF) and the Ethics Commission would be left to resolve disputes of interpretation of law, delay or obstruction or just no action. Sec 67.35 (d) does not say after a complaint is filed with SOTF. Direct complaint responsibility of City or State officials should increase compliance with public access laws and decrease SOTF complaints.
Partly what this provision is reinforcing in the context of the whole Sunshine Ordinance and the Ethic Commission Charter is that City or State officials have responsibility for implementing and enforcement, SOTF is mostly in charge of interpretation of public access laws and the Ethics Commission is mostly in charge of investigation, enforcement and where conflict of interest occur.
City and State Official Responsibility for Action in Making Records Public
Three sections of the Sunshine Ordinance spell out a City or State official’s responsibility and oversight of public access laws to individuals, bodies or entities under their authority.Sunshine Ordinance Sec 67.29-7 Correspondence And Records Shall Be Maintained
(a) “ The Mayor and all Department Heads shall maintain and preserve in a professional and businesslike manner all documents and correspondence, including but not limited to letters, e-mails, drafts, memorandum, invoices, reports and proposals and shall disclose all such records in accordance with this ordinance.”Sunshine Ordinance Sec. 67.31 Responsibility for Administration
“The Mayor shall administer and coordinate the implementation of the provisions of this chapter for departments under his or her control. The Mayor shall administer and coordinate the implementation of the provisions of this Chapter for departments under the control of board and commissions appointed by the Mayor. Elected officers shall administer and coordinate the implementation of the provisions of this chapter for departments under their respective control.”Sunshine Ordinance Sec. 67.32 Provision of Services to Other Agencies Sunshine Required
“Officers, agents and other representatives of the City shall continually, consistently and assertively work to seek commitments to enact open meetings, public information and citizen comment policies by these agencies and institutions, including but not limited to the Presidio Trust, the San Francisco Unified School District, the San Francisco Community College District, the San Francisco Transportation Authority, the San Francisco Housing Authority, the Treasure Island Development Authority, the San Francisco Redevelopment Authority and the University of California. To the extent not expressly prohibited by law, copies of all written communications with the above identified entities and any City employee, officer, agents, or and representative, shall be accessible as public records”Sec 67.21 (f) reinforces administrative and judicial remedies and broadens the definition to who, spelling out “with respect to any officer or employee of any agency, executive office, department or board”.
Sunshine Ordinance Sec 67.21 (f) “The administrative remedy provided under this article shall in no way limit the availability of other administrative remedies provided to any person with respect to any officer or employee of any agency, executive office, department or board; nor shall the administrative remedy provided by this section in any way limit the availability of judicial remedies otherwise available to any person requesting a public record. If a custodian of a public record refuses or fails to comply with the request of any person for inspection or copy of a public record or with an administrative order under this section, the superior court shall have jurisdiction to order compliance.”
A complaint to a City or State official with a 40 day time limit does not negate any original violation of the public access laws in that records Sunshine Ordinance Sec 67.25(d) “when so requested, the City and County shall produce any and all responsive public records as soon as reasonably possible on an incremental or "rolling" basis such that responsive records are produced as soon as possible by the end of the same business day that they are reviewed and collected.” Enforcement actions can include remedies to ensure future compliance with public access laws.
City and State Official Responsibility for Action for Meetings
Requirements for public access to meetings are spelled out in the Sunshine Ordinance and The Brown Act, but it is only in The Brown Act 54960.2 that spells out a detailed complaint of cease and desist of a legislative body. The Brown Act 54952 definition of a legislative body is broad and the Sunshine Ordinance adds additional meaning. The Brown Act 54960.2 is lengthy, so it is placed at the bottom of this document.While the Sunshine Ordinance does not spell out a cease and desist complaint, it still states a person can complain to a City or State official about meeting violations with responsibility spelled out under Sunshine Ordinance Sec. 67.31 (previously shared in this document) and in Sunshine Ordinance Sec. 67.3. Definitions (c) “"Passive meeting body" shall mean:” and (d) “"Policy Body" shall mean:”.
Sunshine Ordinance Sec. 67.32 Provision of Services to Other Agencies Sunshine Required
“To the extent not expressly prohibited by law, any meeting of the governing body of any such agency and institution at which City officers, agents or representatives are present in their official capacities shall be open to the public, and this provision cannot be waived by any City officer, agent or representative.”SOTF in Relation to Sunshine Ordinance Sec. 67.35 Enforcement Provisions (d)
I also believe that if the Sunshine Ordinance Task Force does not hear a complaint (action) by 40 days from filing, any person may bring the complaint before the Ethics Commission. An official(s) in SOTF decides when complaints to SOTF are heard. This would apply to any body that gets a complaint pertaining to public access laws.The Sunshine Ordinance spells out SOTF requirement to be timely and gives SOTF ways to be timely. Sunshine Ordinance Sec 67.30. (c) “The task force shall develop appropriate goals to ensure practical and timely implementation of this chapter.”
Sunshine Ordinance Sec. 67.21 (e) “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.” and “Where requested by the petition, the Sunshine Task Force may conduct a public hearing concerning the records request denial.”
Sunshine Ordinance Sec. 67.31 Responsibility for Administration “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.”
Sunshine Ordinance Sec. 67.35 Enforcement Provisions (d) and Sec 67.31 should allow for SOTF to assist any person or SOTF to direct a complaint to City or State official for possible action before a hearing before SOTF.
Providing SOTF (and Ethic Commission) with sufficient Staff and Resources “to ensure practical and timely implementation of this chapter.”
The Sunshine Ordinance requires sufficient staff and resources by the Board of Supervisors and the City Attorney’s office to fulfill its duties under this provision.
Sunshine Ordinance Sec. 67.21 (e) “The Board of Supervisors and the City Attorney's office shall provide sufficient staff and resources to allow the Sunshine Task Force to fulfill its duties under this provision.”
Provision Sec 67.21 (e), as previously cited, spells out the actions and timeline SOTF must take when it receives a complaint. If SOTF violates the Sunshine Ordinance because it does not have “sufficient staff and resources to allow the Sunshine Task Force to fulfill its duties under this provision,” any person or SOTF can file a complaint with a Supervisor or the Board of Supervisors or the City Attorney for action of getting “sufficient staff and resources to allow the Sunshine Task Force to fulfill its duties under this provision”. If in 40 days after a complaint is filed and there is no action “Any person may institute proceedings for enforcement and penalties under this act in any court of competent jurisdiction or before the Ethics Commission.” The underfunding of SOTF is an ethical issue GC Sec 15.105 (e) “including any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law” and possible conflict of interest.
The clause uses “shall” and does not distinguish responsibility of staff and resources between the Board of Supervisors and the City Attorney's Office.
Many Sunshine Ordinance complaints right now are over 40 days.
If a City or State official does act on a complaint but there is still conflict, then the complaint would go to SOTF.
Ethics Commission in Relation to Sunshine Ordinance Sec. 67.35 Enforcement Provisions (d)
Sunshine Ordinance Sec. 67.35 Enforcement Provisions (d) should not dramatically increase complaints to the Ethic Commission in the long run since the requirement is of no action within 40 days.Sunshine Ordinance Sec. 67.35 Enforcement Provisions (d) expands the Ethics Commission jurisdiction to enforcing all the Sunshine Ordinance, the CPRA and the Brown Act (because of provisions in the Sunshine Ordinance), willful or not willful, no matter who or what entity allegedly violates the act if SOTF, or a City or State official does not act in 40 days. The City or State official would be in violation of not only Sunshine Ordinance Sec. 67.35 (d) and for records and/or Sec. 67.29-7 (a), Sec. 67.31, Sec. 67.32 and for meetings Sec. 67.31 and Sec. 67.32 that spell out responsibility. I have previously cited all these sections of the Sunshine Ordinance in this document.
A City or State official no action would be a willful violation(s) if the complaint to a City or State official spells out the need to act and cites Sunshine Ordinance Sec. 67.35 Enforcement Provisions (d). No action will be willful if City and State officials are previously noticed on the requirements of Sunshine Ordinance Sec. 67.35 Enforcement Provisions (d). The Ethic Commission Charter does not prevent no actions willful or not from being investigated and enforcing an action. A willful no action goes to possible additional penalties depending on the official and prescribed by such laws.
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The Brown Act 54960.2.
(a) The district attorney or any interested person may file an action to determine the applicability of this chapter to past actions of the legislative body pursuant to subdivision (a) of Section 54960 only if all of the following conditions are met:
(b) The legislative body may respond to a cease and desist letter submitted pursuant to subdivision (a) within 30 days of receiving the letter. This subdivision shall not be construed to prevent the legislative body from providing an unconditional commitment pursuant to subdivision (c) at any time after the 30-day period has expired, except that in that event the court shall award court costs and reasonable attorney fees to the plaintiff in an action brought pursuant to this section, in accordance with Section 54960.5.
(c) (1) If the legislative body elects to respond to the cease and desist letter with an unconditional commitment to cease, desist from, and not repeat the past action that is alleged to violate this chapter, that response shall be in substantially the following form:
(2) An unconditional commitment pursuant to this subdivision shall be approved by the legislative body in open session at a regular or special meeting as a separate item of business, and not on its consent agenda.
(3) An action shall not be commenced to determine the applicability of this chapter to any past action of the legislative body for which the legislative body has provided an unconditional commitment pursuant to this subdivision. During any action seeking a judicial determination regarding the applicability of this chapter to any past action of the legislative body pursuant to subdivision (a), if the court determines that the legislative body has provided an unconditional commitment pursuant to this subdivision, the action shall be dismissed with prejudice. Nothing in this subdivision shall be construed to modify or limit the existing ability of the district attorney or any interested person to commence an action to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body.
(4) Except as provided in subdivision (d), the fact that a legislative body provides an unconditional commitment shall not be construed or admissible as evidence of a violation of this chapter.
(d) If the legislative body provides an unconditional commitment as set forth in subdivision (c), the legislative body shall not thereafter take or engage in the challenged action described in the cease and desist letter, except as provided in subdivision (e). Violation of this subdivision shall constitute an independent violation of this chapter, without regard to whether the challenged action would otherwise violate this chapter. An action alleging past violation or threatened future violation of this subdivision may be brought pursuant to subdivision (a) of Section 54960, without regard to the procedural requirements of this section.
(e) The legislative body may resolve to rescind an unconditional commitment made pursuant to subdivision (c) by a majority vote of its membership taken in open session at a regular meeting as a separate item of business not on its consent agenda, and noticed on its posted agenda as “Rescission of Brown Act Commitment,” provided that not less than 30 days prior to such regular meeting, the legislative body provides written notice of its intent to consider the rescission to each person to whom the unconditional commitment was made, and to the district attorney. Upon rescission, the district attorney or any interested person may commence an action pursuant to subdivision (a) of Section 54960. An action under this subdivision may be brought pursuant to subdivision (a) of Section 54960, without regard to the procedural requirements of this section.
(1) The district attorney or interested person alleging a violation of this chapter first submits a cease and desist letter by postal mail or facsimile transmission to the clerk or secretary of the legislative body being accused of the violation, as designated in the statement pertaining to that public agency on file pursuant to Section 53051, or if the agency does not have a statement on file designating a clerk or a secretary, to the chief executive officer of that agency, clearly describing the past action of the legislative body and nature of the alleged violation.
(2) The cease and desist letter required under paragraph (1) is submitted to the legislative body within nine months of the alleged violation.
(3) The time during which the legislative body may respond to the cease and desist letter pursuant to subdivision (b) has expired and the legislative body has not provided an unconditional commitment pursuant to subdivision (c).
(4) Within 60 days of receipt of the legislative body’s response to the cease and desist letter, other than an unconditional commitment pursuant to subdivision (c), or within 60 days of the expiration of the time during which the legislative body may respond to the cease and desist letter pursuant to subdivision (b), whichever is earlier, the party submitting the cease and desist letter shall commence the action pursuant to subdivision (a) of Section 54960 or thereafter be barred from commencing the action.
(2) The cease and desist letter required under paragraph (1) is submitted to the legislative body within nine months of the alleged violation.
(3) The time during which the legislative body may respond to the cease and desist letter pursuant to subdivision (b) has expired and the legislative body has not provided an unconditional commitment pursuant to subdivision (c).
(4) Within 60 days of receipt of the legislative body’s response to the cease and desist letter, other than an unconditional commitment pursuant to subdivision (c), or within 60 days of the expiration of the time during which the legislative body may respond to the cease and desist letter pursuant to subdivision (b), whichever is earlier, the party submitting the cease and desist letter shall commence the action pursuant to subdivision (a) of Section 54960 or thereafter be barred from commencing the action.
(b) The legislative body may respond to a cease and desist letter submitted pursuant to subdivision (a) within 30 days of receiving the letter. This subdivision shall not be construed to prevent the legislative body from providing an unconditional commitment pursuant to subdivision (c) at any time after the 30-day period has expired, except that in that event the court shall award court costs and reasonable attorney fees to the plaintiff in an action brought pursuant to this section, in accordance with Section 54960.5.
(c) (1) If the legislative body elects to respond to the cease and desist letter with an unconditional commitment to cease, desist from, and not repeat the past action that is alleged to violate this chapter, that response shall be in substantially the following form:
To ______________________:
The [name of legislative body] has received your cease and desist letter dated [date] alleging that the following described past action of the legislative body violates the Ralph M. Brown Act:
[Describe alleged past action, as set forth in the cease and desist letter submitted pursuant to subdivision (a)]
In order to avoid unnecessary litigation and without admitting any violation of the Ralph M. Brown Act, the [name of legislative body] hereby unconditionally commits that it will cease, desist from, and not repeat the challenged past action as described above.
The [name of legislative body] may rescind this commitment only by a majority vote of its membership taken in open session at a regular meeting and noticed on its posted agenda as “Rescission of Brown Act Commitment.” You will be provided with written notice, sent by any means or media you provide in response to this message, to whatever address or addresses you specify, of any intention to consider rescinding this commitment at least 30 days before any such regular meeting. In the event that this commitment is rescinded, you will have the right to commence legal action pursuant to subdivision (a) of Section 54960 of the Government Code. That notice will be delivered to you by the same means as this commitment, or may be mailed to an address that you have designated in writing.
Very truly yours,
________________________________________________
[Chairperson or acting chairperson of the legislative body]
The [name of legislative body] has received your cease and desist letter dated [date] alleging that the following described past action of the legislative body violates the Ralph M. Brown Act:
[Describe alleged past action, as set forth in the cease and desist letter submitted pursuant to subdivision (a)]
In order to avoid unnecessary litigation and without admitting any violation of the Ralph M. Brown Act, the [name of legislative body] hereby unconditionally commits that it will cease, desist from, and not repeat the challenged past action as described above.
The [name of legislative body] may rescind this commitment only by a majority vote of its membership taken in open session at a regular meeting and noticed on its posted agenda as “Rescission of Brown Act Commitment.” You will be provided with written notice, sent by any means or media you provide in response to this message, to whatever address or addresses you specify, of any intention to consider rescinding this commitment at least 30 days before any such regular meeting. In the event that this commitment is rescinded, you will have the right to commence legal action pursuant to subdivision (a) of Section 54960 of the Government Code. That notice will be delivered to you by the same means as this commitment, or may be mailed to an address that you have designated in writing.
Very truly yours,
________________________________________________
[Chairperson or acting chairperson of the legislative body]
(2) An unconditional commitment pursuant to this subdivision shall be approved by the legislative body in open session at a regular or special meeting as a separate item of business, and not on its consent agenda.
(3) An action shall not be commenced to determine the applicability of this chapter to any past action of the legislative body for which the legislative body has provided an unconditional commitment pursuant to this subdivision. During any action seeking a judicial determination regarding the applicability of this chapter to any past action of the legislative body pursuant to subdivision (a), if the court determines that the legislative body has provided an unconditional commitment pursuant to this subdivision, the action shall be dismissed with prejudice. Nothing in this subdivision shall be construed to modify or limit the existing ability of the district attorney or any interested person to commence an action to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body.
(4) Except as provided in subdivision (d), the fact that a legislative body provides an unconditional commitment shall not be construed or admissible as evidence of a violation of this chapter.
(d) If the legislative body provides an unconditional commitment as set forth in subdivision (c), the legislative body shall not thereafter take or engage in the challenged action described in the cease and desist letter, except as provided in subdivision (e). Violation of this subdivision shall constitute an independent violation of this chapter, without regard to whether the challenged action would otherwise violate this chapter. An action alleging past violation or threatened future violation of this subdivision may be brought pursuant to subdivision (a) of Section 54960, without regard to the procedural requirements of this section.
(e) The legislative body may resolve to rescind an unconditional commitment made pursuant to subdivision (c) by a majority vote of its membership taken in open session at a regular meeting as a separate item of business not on its consent agenda, and noticed on its posted agenda as “Rescission of Brown Act Commitment,” provided that not less than 30 days prior to such regular meeting, the legislative body provides written notice of its intent to consider the rescission to each person to whom the unconditional commitment was made, and to the district attorney. Upon rescission, the district attorney or any interested person may commence an action pursuant to subdivision (a) of Section 54960. An action under this subdivision may be brought pursuant to subdivision (a) of Section 54960, without regard to the procedural requirements of this section.
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