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A Grassroots Effort

SF Neighborhoods

This website is intended to giving power to citizens to promote transparency, democratic equality and to increase participation in their neighborhoods and government.

Sunshine



The Sunshine Ordinance Task Force (SOTF) allows public communications marked "As a Public Communication" to be published in their communication log. The communication log can be accessed through each months full SOTF agendas. Communications are located at the end of the agenda and marked as "Administrator's Report, Complaints and Communications". Click on the item in the agenda pdf to download.

Index


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.

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:

(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.

(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]

(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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No Limitation on Quanity of Public Records Produced in a Record Request

Nowhere in the Sunshine Ordinance or the California Public Records Act (CPRA) does it limit the amount of records produced by a record request. Sunshine Ordinance Section 67.25 (b) even uses the words “voluminous nature of the information requested”. CPRA 6253 (c) (2) “voluminous amount of separate and distinct records” In fact, a requester has no knowledge beforehand of how many records will be produced by a request.

Neither public record acts use the term “keyword(s)” or requires a requester to narrow their request.

CPRA 6257.5 “This chapter does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.”

Sunshine Ordinance Section 67.25 (c) “The person seeking the information need not state his or her reason for making the request or the use to which the information will be put, and requesters shall not be routinely asked to make such a disclosure.”

Any ask of the requester for keyword search terms to narrow their request is asking for purpose and limiting access to public record that would otherwise be made available.

“Focused and effective request” purpose is not to limit public record access. It is to increase public record access where there would be none.

CPRA 6253.1 (a) “When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following”…

The purpose of “focused and effective” is not to limit the amount of record, but to find records if in the first search the results are zero. The rest of the code spells this out.

CPRA 6253.1 (a) (Paragraph 1 of subdivision (a) that will be noted next in CPRA 6153.1 (b)) “Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.”

Jumping to CPRA 6253.1 (b) Important “The requirements of paragraph (1) of subdivision (a) shall be deemed to have been satisfied if the public agency is unable to identify the requested information after making a reasonable effort to elicit additional clarifying information from the requester that will help identify the record or records.”

This says unable to identify the requested information. A custodian of records finds zero. Not that an agency has identified too many records. If they still find zero records after following CPRA 6253.1, they can make suggestions of other agencies or person(s) to get the records sought and close the case.

The CPRA says “reasonably describe” not reasonable request or overly broad.

The only requirement of a requester is “reasonably describe”. CPRA 6253 (a) “upon a request for a copy of records that reasonably describes an identifiable record or records”… “Reasonably describes an identifiable record”. Also shows up in previously mentioned CPRA 6253.1 (a)

Note: no such sentence is in the Sunshine Ordinance. CPRA 6253 (a) uses “reasonably describes” as in finding a record or records instead of none. Again this clause is saying “reasonably describes” not reasonable request or overly broad in finding to many records are identifiable and requiring limitation. The clause is not saying “upon a request for a copy of records that is overly broad in identifiable record or records”.

Under the Sunshine Ordinance, a whole category of public information can be requested and is required to be produced.

Sunshine Ordinance Section 67.25 (d) “in response to a request for information describing any category of non-exempt public information, when so requested, the City and County shall produce”

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The Sunshine Ordinance Requires that Public Employees give Accurate and Truthful Information. The San Francisco Sunshine Ordinance "Oath".

I am going to work backwards into this reasoning because I think it will be easier to understand.

The San Francisco Sunshine Ordinance, Section 67.22 Release of Oral Information
(b) …”This section shall not be interpreted to curtail existing informal contacts between employees and members of the public when these contacts are occasional, acceptable to the employee and the department, not disruptive of his or her operational duties and confined to accurate information not confidential by law.

In informal contacts employees must give accurate information.

A broad and logical interpretation of this is employees must also provide accurate information in formal situations, so I went looking for some language to back this up.

The Sunshine Ordinance, Section 67.1 Finding and Purpose

(b) “Elected officials, commissions, boards, councils and other agencies of the City and County exist to conduct the people's business. The people do not cede to these entities the right to decide what the people should know about the operations of local government.”

(d) “The right of the people to know what their government and those acting on behalf of their government are doing is fundamental to democracy, and with very few exceptions, that right supersedes any other policy interest government officials may use to prevent public access to information.”

Dictionary.com Know - to perceive or understand as fact or truth; to apprehend clearly and with certainty:

Accurate- free from error or defect; consistent with a standard, rule, or model; precise; exact

Mirriam-webster.com Know - to be aware of the truth or factuality of : be convinced or certain of.

Accurate- 1. free from error especially as the result of care 2. conforming exactly to truth or to a standard

The Sunshine Ordinance goes further in Section 67.22 (e) in protecting public employees from disciplinary action for being accurate, speaking the truth and disclosing any public information or a public record.

The Sunshine Ordinance, Section 67.22 (e) “Notwithstanding any other provisions of this ordinance, public employees shall not be discouraged from or disciplined for disclosing any information that is public information or a public record to any journalist or any member of the public. Any public employee who is disciplined for disclosing public information or a public record shall have a cause of action against the City and the supervisor imposing the discipline.”

The Brown Act 54950 …”The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

In my opinion, the Sunshine Ordinance and The Brown Act requires government employees to provide accurate and truthful information at hearings regardless if they are not under oath.

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The Sunshine Ordinance Task Force (SOTF) is a Legislative Body under The Brown Act and therefore a Policy Body under the San Francisco Sunshine Ordinance (SFOS)

SOTF is a Legislative Body under The Brown Act and therefore a Policy Body under the SF Sunshine Ordinance (SFSO); Advisory Committees created by a Department Head are a “Passive Meeting Body” but requires Notification and Public Access to Meetings.

SOTF is a Legislative Body under The Brown Act and therefore a Policy Body under the SF Sunshine Ordinance (SFSO)

The Brown Act is the bat.

At the August 4, 2021 full Sunshine Ordinance Task Force (SOTF) meeting, with the advisory support of SOTF council, Chair Wolfe said that SOTF is a “passive meeting body” under the SF Sunshine Ordinance (SFSO). The reasoning is that SFSO, Sec 67.3 (d) the definition of a “Policy Body” that is created by ordinance is by “of the Board of Supervisors”. The electorate voted the SF Sunshine Ordinance in and not by the Board of Supervisors.

The SF Sunshine Ordinance definition of “passive meeting body” does not contain a definition that would apply to the SOTF. It is faulty reasoning to say that since the definitions under “policy body” do not apply, therefore the other definition “passive meeting body” must apply.

The Brown Act has a definition that applies to SOTF.

The Brown Act does not distinguish between a “policy body” and “passive meeting body” in those terms. The SF Sunshine Ordinance language of “policy body” is taken from The Brown Act “legislative body”. SFSO Sec 67.5 Meetings to be Open and Public; Application of Brown Act “All meetings of any policy body shall be open and public, and governed by the provisions of the Ralph M. Brown Act (Government Code Sections 54950 et. seq.) and of this Article.” To apply The Brown Act, “legislative body” and “policy body” must be interchangeable for the SF Sunshine Ordinance to provide greater access.

From the Brown Act:

54592 As used in this chapter, “legislative body” means:

(b) "A commission, committee, board, or other body of a local agency, whether permanent or temporary, decision making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body. However, advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter."

Note the use of the “or”s and comma between “resolution, or formal action of a legislative body.” The Serial Comma Rule specifies that in a series of three or more items where each is set off by a comma, each item should be viewed as independent of each other. If there was not a comma between the last two items, this segment is considered a single unit. The use of a comma before a conjunction removes ambiguity.

Ordinance is not qualified by “of a legislative body”. Since SOTF was created by ordinance, it is a legislative body.

The definitions in the SF Sunshine Ordinance are in many places weaker or less than the definitions in The Brown Act. The Brown Act 54953.7 “Notwithstanding any other provision of law, legislative bodies of local agencies may impose requirements upon themselves which allow greater access to their meetings than prescribed by the minimal standards set forth in this chapter.” allows for greater requirements but not less than requirements of The Brown Act. Furthermore, the Sunshine Ordinance, Sec. 67.5 …Application of Brown Act “….In case of inconsistent requirements under the Brown Act and this Article, the requirement which would result in greater or more expedited public access shall apply.” Since a legislative body created by ordinance (SOTF) in The Brown Act but not by the limitation of “created by ordinance or resolution of the Board of Supervisors” as in definition of the Sunshine Ordinance “Policy Body” Sec. 67.3 (d)(3), there is an inconsistency. Applying the “the requirement which would result in greater or more expedited public access shall apply” would make SOTF a policy body under the Sunshine Ordinance. The Sunshine Ordinance, Sec. 67.5 incorporates provisions of The Brown Act as its own if it provides greater public access.

In the below reasoning, I use the following to further strengthen the use of the Serial Comma Rule: An accepted rule of statutory construction is that qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. (2A Sutherland, Statutory Construction (5th ed. 1992) § 47.33, p. 270.) “Every word in a statute is presumed to have meaning.” (Reno v. Baird (1998) 18 Cal. 4th 640, 658 [76 Cal. Rptr. 2d 499, 957 P.2d 1333]. Besides comporting with rules of statutory construction, interpretations should make common sense.

Other reasoning for supporting the use of the Serial Comma Rule:

1. In 54592 (b) The first is “created by charter”. In CA Constitution art XI § 3 (a) “For its own government, a county or city may adopt a charter by majority vote of its electors voting on the question.” Charters are elected by the people. Charters can be revised by the voters or the local legislative body. The current San Francisco Charter was adopted by the voters in November 7, 1995. Reading 54592 (b) “created by charter” and apply the qualifier “of a legislative body” or Board of Supervisors would disregard the action of voters. The writers of the Sunshine Ordinance note this by separating “Charter” from “of the Board of Supervisors” in Sec. 67.3 (d) (2) “Any other board or commission enumerated in the Charter;” They failed to do it for ordinance, or resolution.

Ordinances can also be elected by the people. In 54592 (b) The arguments used for “charter” can be applied to “ordinance”.

2. 54592 (b) “or formal action of a legislative body”, formal action means the taking of any vote on any resolution, rule, order, motion, regulation, or ordinance or the setting of any official policy. In 54592 (b) “or formal action of a legislative body” is used as a catch-all of any action, not as a redundancy to “ordinance” or “resolution” before it. “Action” is the actual taking of the vote.

In The Brown Act defines “action” in 54952.6 “As used in this chapter, “action taken” means a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative 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.”

The Sunshine Ordinance lacks any such definition of action but incorporates The Brown Act where it falls short or on “inconsistent requirements” (SFSO Sec. 67.5).

3. If the legislators meant for “charter, ordinance, resolution,” not to have meaning beyond “of a legislative body” qualifier, they could have simply said “…. created by formal action of a legislative body”. Instead, the legislation repeats it again in further down in 54592 (b) …. “or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter.” It is clear that the legislature wants each separation by a comma to be considered on its own.

4. The Brown Act does not express to the contrary and constitutional canon requires an interpretation that maximizes the public’s right of access. Sierra Club v. Superior Court (2013) “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.” 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.” A “legislative body” or “policy body” have more requirements put on them for public access than a “passive meeting body”.

Advisory Committees created by a Department Head are a “Passive Meeting Body” but requires Notification and Public Access to Meetings

At the August 4, 2021 full SOTF meeting, with the advisory support of SOTF council, Chair Wolfe said that his creation of an advisory committee for Project Catalytic was under SFSO Sec. 67.3 (c) “"Passive meeting body" shall mean:” (1) “Advisory committees created by the initiative of a member of a policy body, the Mayor, or a department head;“.

The Brown Act is silent on advisory committees that are not created by a legislative body. It is doubtful that “passive meeting bodies” definitions add any greater requirements from The Brown Act beyond clarifying unless SOTF applies broad interpretation to requirements of SFOS Sec. 67.4 Passive Meetings, especially to the notice and access of the public to a passive meeting body.

SFSO Sec 67.4 (a) “All gatherings of passive meeting bodies shall be accessible to individuals upon inquiry and to the extent possible consistent with the facilities in which they occur.

(1) Such gatherings need not be formally noticed, except on the City's website whenever possible, although the time, place and nature of the gathering shall be disclosed upon inquiry by a member of the public, and any agenda actually prepared for the gathering shall be accessible to such inquirers as a public record.

(2) Such gatherings need not be conducted in any particular space for the accommodation of members of the public, although members of the public shall be permitted to observe on a space available basis consistent with legal and practical restrictions on occupancy.”

There is ambiguity in the notice to the public requirement. My reading of the above is that passive meeting bodies will be accessible to the public based on prior inquiry to the extent possible. There must be some notice to the public beforehand, just not a need to be formal with some attempt to post it on the City’s website. Prior notice to the public is required in order for the public to inquire and have the access that is required in Sec 67.4 (a). With the use of access to meetings by telephone, there should be no restriction based on facilities.

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