Elections Commission
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City and County of San Francisco
Elections Commission
Approved: January 17, 2007
Minutes of the Meeting at City Hall Room 421
December 6, 2006
1. CALL TO ORDER. President Matthews called the meeting to order at 7:00 pm.
- PRESENT: Commissioners Gerard Gleason, Richard P. Matthews, Arnold Townsend. Victor Hwang, Michael Mendelson, Commissioner Jennifer Meek and Deputy City Attorney Ann O’Leary, and Director of Elections John Arntz.
- President Matthews welcomed Commissioner Tajel Shah who said she was impressed by the Department and the Commission’s work and was looking forward to help assure that the City has accessible elections for its citizens.
4. Director’s Report
Director Arntz reported that negotiations for the contract with Sequoia Voting Systems have been completed and the contract will be forwarded to the Board of Supervisors for their review. Director Arntz reviewed some of the items in the contract: It’s a four-year contract, worth $12.6M, running from January 1, 2007 until January 1, 2011, $8.8M is for voting equipment, $3.8M is for services, $5.4M in grant funding is available to the City from HAVA and State Proposition 41, there’s a $100,000 financial incentive in the contract with Sequoia to submit a completed and successful application for federal review and certification by May 1, 2007. There will be liquidated damages if Sequoia does not submit this federal application by July 15, 2007 and there will be liquidated damages if Sequoia does not submit an application to the state for state certification after five days upon receipt of the federal certification. There will be liquidated damages if Sequoia fails to achieve certification for the voting system for the November 2007 election. There will be liquidated damages if Sequoia does not complete acceptance testing within ten days of final delivery of equipment – not later than August 10, 2007. There will be liquidated damages if the Logic and Accuracy Testing is not done ten days before the election. In addition, there will be liquidated damages if the voting equipment experiences ten percent or more failure on election day. There will be a $175,000 penalty if there is a ten percent failure rate of the machines and Sequoia cannot get the touch screens running within one hour, and the optical scan machines running within four hours. There will be liquidated damages of $150,000 if Sequoia cannot provide election results by 11:59 pm on election night, and if there are no results by noon on the following day - $200,000, and by the third day the amount will be $400,000. There is no limit on the liability for indemnification to the City in the contract and there is no limit on the liability in connection with any violation of the City’s charter or ordinances.
If Sequoia Systems is not certified for Ranked Choice Voting (RCV) by November 2007, Sequoia must provide an alternative method to assure that the RCV ballots are counted. If this means there will be a hand count, Sequoia will have to bare the expense. Because the contract exceeds $10 million, the Board must approve it by resolution.
Once the contract resolution is received by the Board of Supervisors, it is passed to the Board’s budget analyst, who writes a report that is sent to Board’s Budget and Finance Committee. Then there will be two readings at the Board of Supervisors before the contract resolution is ratified and executed by the City and then it will be valid for Sequoia to begin working per the contract.
The November 7, 2006 election was certified today. There is a draft State of Vote on the DoE website, and a more formatted SOV will be posted within two weeks.
The Board of Supervisors has passed legislation to amend election ordinances (these amendments are shown as attachments to these minutes).
President Matthews asked if there was any indication regarding Sequoia’s progress in developing their RCV technology. Director Arntz replied that the company had a model before past June’s election and that the company is working with San Francisco and Alameda counties to use the same RCV program by November 2007.
Public Comment. Sacha Ielmorini said she opposed the contract because Sequoia Systems was not yet RCV certified, that the City should continue using the machines it used for the last election and that the DoE should put the money instead into training poll workers. Commissioner Meek reminded the audience that the equipment used in last November’s election is no longer certified for use. Jennifer Hammond said that she was concerned with how the money is being spent and prefers that the City wait to buy better equipment that may be available in the future. Brent Turner reminded the Commission that he has provided information regarding voting machines in the past. Robert Friese said that he has been involved in a lawsuit in Alameda County that requires security vulnerability testing of voting equipment. James Soper said that testing could not check for “code hidden in the machine”. Carol Bella said that the right to vote was being controlled by private companies. Chandra Friese said that Sequoia Systems had promised to have RCV capabilities in time for the November 2006 election and it still doesn’t. Ava Swartz’s comments accused the City of buying equipment that is out of date. Chris Jerdonek offered comment on the November 2006 election and offered handouts to the Commission. He suggested that over-votes be placed in the auxiliary bin at polling sites. Roger Donaldson said that it doesn’t seem prudent to purchase new equipment at present. David Pilpel commented that, although he was in the minority at this meeting, he was pleased with the new contract and new equipment.
4. Commissioners’ Reports
Commissioner Victor Hwang reported that he attended the Board of Supervisors’ Budget and Finance Committee meeting. President Richard P. Matthews reported that he attended the drawing for the precincts for the one percent manual tally with seven other observers.
He then observed the actual tally procedure at Brooks Hall.
5. OLD BUSINESS
(a) Discussion and possible action to approve the Elections Commission minutes for the meeting of October 4, 2006.
President Matthews asked that this item be held over to the next meeting because there had been communication with Mr. Lou Dedier regarding his possible inclusion of comments in these minutes and Mr. Dedier’s reponse to that request was not clear.
(b) Commissioners' Reports of their activities and observations of election held
November 7, 2006
Commissioner Jennifer Meek reported that overall the election went smoothly during her visits to polling sites in Districts 4, 5, 6, 8 and 10. The Commissioner spoke with pollworkers and voters, and observed that some of the sites were too small and that the manager of a Starbucks Coffee Shop, which was the site of one precinct, was a hindrance to the people who were trying to set up the polling site. The Commissioner said that she was upset to see so much “aggressive campaigning in districts 4 and 6”, because the candidates for supervisor in those districts should have been well aware of the laws regarding how close banners, and other campaign promotion activities can be to polling places. The Commissioner’s full report of her observations are attached to these minutes.
Commissioner Hwang said that he observed the polling site at 19th and Irving at a Starbucks. He said that in Starbucks, there was a different voting environment. The Commissioner said that some voters where voting at and discussing their vote at the tables over their coffee.
Commissioner Townsend said that the environment was no different from a voter who is voting absentee, because when a person is voting away from the polls. That voter may be discussing his or her ballot with a family member or friend. The Commissioner said that he thinks a voter has the right, and said that he had no problem with that.
President Matthews said the question was whether this was happening in a polling place. He concluded that, indeed, the Starbucks was a polling place, and that the state Elections Code prohibits communication with and among voters at polling places.
Commissioner Townsend said that citizens should be able to speak to one another in a polling place and not be afraid that the “voting cops” are watching them.
(c) Discussion and possible action on Attendence Policy for the Commission.
Deputy City Attorney Ann O’Leary gave a brief history of how this item originated and called the Commission’s attention to the one change that was suggested when this item was first considered by the Commission. That change is to remove “in a fiscal year” under the section “Report to the Appointing Authority”.
Commissioner Townsend MOVED, Commissioner Meek SECONDED approval of the Attendance Policy with the change in wording.
Public Comment. David Pilpel said he approved of the policy and suggested that a choice be made to use one of the titles for the Secretary of the Commission that is offered under the second paragraph of the policy under “Attendance Requirements”.
The Roll Call Vote was unanimous to adopt the Attendance Policy as presented by the Deputy City Attorney.
(d) Discussion and possible action to approve the Elections Commission Annual Report for 2005-2006.
President Matthews MOVED that the draft Annual Report that was presented at the previous Commission meeting be approved. Commissioner Townsend SECONDED. Commissioner Gleason asked that the reference regarding the Ballot Simplification Committee’s request for compensation be removed because the suggestion did not come from that committee, but was from Commissioner Gleason.
Public Comment. David Pilpel reminded the Commission to post the annual report to its website, and referred to his comments from the previous meeting that were documented in the minutes of that meeting. Mr. Pilpel said that he still questioned whether the Commission’s report was to be for a fiscal or calendar year.
Deputy City Attorney Ann O’Leary clarified the question regarding when the annual report is required to be presented. She gave a brief history of past Elections Commission Annual Reports. Past reports have covered the tenure of past presidents, some of whom took office upon resignation of the previous president, some were based on fiscal year calendars, and one was for the calendar year. The Administrative Code requires that a set date be used, and that the Board of Supervisors and its Clerk be informed, in writing, when the Commission’s Annual Report is due. Deputy City Attorney O’Leary suggested that the Commission’s Bylaws be amended to include a set date when the Annual Report is due.
A Roll Call Vote: Gleason – Yes, Hwang – Yes, Meek – Yes, Townsend – Yes, Mendelson – No, Matthews – Yes, Shah – Yes. With a vote of 6 to 1, the Annual Report was ADOPTED.
- NEW BUSINESS
- Discussion and possible action to approve the Elections Commission minutes for the meeting of November 15, 2006. Commissioner Meek MOVED and Commissioner Gleason SECONDED approval of the minutes. Commissioner Gleason offered a correction to his statement on page 5.
A Roll Call Vote was UNANIMOUS to accept the minutes with the additions suggested.
(b) Discussion and possible action regarding emails sent to more than a majority of Commission members.
Deputy City Attorney O’Leary reported that she recently advised the Commission regarding actions when a majority of the Commissioners receive communications from anyone. The Brown Act makes clear that writings when distributed to all or a majority of all members by anyone in connection with a matter for discussion at a public meeting or under consideration by the members should be disclosed in a public record. All such communications should be forwarded to the Secretary for retention in the public record file. Currently, the Commission does not have such a policy, however it is free to do so. The Sunshine Act requires that a file that is accessible to members of the public be maintained and these records could be contained in that file if the Commission chooses to make this a policy. An additional concern is that when members receive a communication, particularly when it is a majority, but not all of the members, it is possible that an improper meeting is formed. This is a violation of the Sunshine Act.
The Deputy City Attorney advised the Commission to consider adopting a policy regarding what to do when a majority of its members receive communications. In addition, the Commission may want to make it clear to the public the ways to communicate to the Commission. Deputy City Attorney added that if the “TO” line of an email is addressed to four or more Commissioners, then it is a public record, but if a member of the public chooses to send an email to only two Commissioners, or to an individual Commissioner, then there is no violation, it is not part of the public record.
The President and Deputy City Attorney thanked and commended Mr. David Pilpel for providing his memo of ways members of the public can communicate with the Elections Commission.
Commissioner Townsend said that he was very disturbed by not receiving an email that went to a majority of the Commission members.
Public Comment. David Pilpel reminded the Commission that even if only two members receive an email, those two members could be on the same sitting committee, and therefore the communication would be part of the public record.
President Matthews suggested that the policy, when drafted, contain information regarding what Commissioners should do if/when they receive emails for the public.
Commissioner Townsend said that he did not mean that members of the public should change the way they communicate to Commissioners. It is the responsibility of the Commission members to do “the right thing with the communication”.
Commissioner Hwang said that it will be his policy not to open any emails from parties he does not know unless that email is forwarded to him by the Commission Secretary.
(c) Discussion and possible action to assign the Budget and Oversight of Public Elections Committee to review the Election Plan for the November 7, 2006 Consolidated General Election and make a recommendation regarding the plan’s effectiveness to the full Elections Commission.
Commissioner Meek MOVED and Commissioner Mendelson SECONDED this item for discussion.
Public Comment. David Pilpel suggested that for the duration of the Budget and Oversight of Public Elections Committee, that it be that committee’s responsibility to review all Election Plans to make recommendations.
Commissioner Mendelson asked that the item be amended to include “that full and complete notice to the public as to the time and place of this hearing so as to cultivate public participation”. Deputy City Attorney O’Leary and President Matthews agreed that the amendment is not necessary because all meetings are noticed for public participation.
A Roll Call Vote for the amendment: Gleason – yes, Hwang – yes, Meek – yes, Townsend – yes, Mendelson – yes, Shah – yes, Matthews – No. The amendment was ADOPTED.
A Roll Call Vote for the motion with the amendment was UNANIMOUS.
(d) Discussion and possible action to provide guidance to the Director of Elections on contracting for a new voting system. Commissioner Meek presented her document (a copy of which is attached to these minutes), and explained she has read through most of the documents concerning the impact of voting systems on San Francisco’s ability to conduct fair, free and functional elections.
Commissioner Gleason said that the Director has done a “phenomenal job of coming up with a contract that’s got liquidated damages”. However, the Commissioner said that he doesn’t think it is the right time to buy equipment, although the current equipment is outdated. The Commissioner said that something must be done.
Commissioner Townsend said that he doesn’t have a problem moving forward with Sequoia Voting Systems at this time and that he didn’t believe it was correct to change the process.
President Matthews said that in his conversations with the Deputy City Attorney regarding ways to show support for the Director’s contract to the Board of Supervisors, one way “of framing that” would be to give guidance to the Director, which the Commission is always privileged to do, and then publish that guidance to anyone the Commission wishes.
Deputy City Attorney O’Leary said that her advice is that it is the role of the Commission to provide advice to the Director of Elections, who is the primary negotiator for the City regarding elections. The Commission can tell the Board the advice it gives to the Director, if the Commission so chooses.
Commissioner Mendelson said that he would need to know the “factual basis upon which this (document) rests”. He said that it was not appropriate to vote on this document because it was not authorized by the Commission.
Deputy City Attorney O’Leary recommended to the Commission that it can make a vote to provide guidance to the Director of Elections on whether or not the Commission has faith in the contract that the Director has outlined today, in terms of moving forward. Secondly, Commissioner Meek’s report seems to have tried to capture what the public has said and what the Commission’s responses have been. The Commission could decide, separately, to vote on these two items.
Commissioner Shah asked the Director what has been the Board of Supervisors’ response regarding this contract. Direct Arntz said he couldn’t gauge the Board’s response because the contract has only recently been completed. He said that he has not heard any negative responses from the Board, and that there is still opportunity to inform the Board.
Commissioner Hwang said that he applauds Commissioner Meek’s efforts, and that the document is a summary of the volume of data that the Commission has received and is providing that data to the Director.
Deputy City Attorney summarized the discussion by saying that the Commission has a document on which it may choose to act or not to act. Additionally, the Commission has an agenda item to provide guidance regarding the contract should it choose to do so.
President Matthews asked Commissioner Meek which motion she wished to forward. Commissioner Meek replied that she would not seek to forward a motion. President Matthews asked Commissioner Gleason if he had a motion to forward.
Commissioner Gleason asked that the Commission recommend to stand down, and that it is not a prudent time to go forward with the contract, unfortunately.
The MOTION was restated as: Standing down and not moving forward with the Sequoia Contract. This would be a motion to provide guidance to the Director of Elections based upon the uncertain outlook regarding HAVA, the new Secretary of State and other changed circumstances.
Commissioner Meek SECONDED the motion.
Public Comment. Brent Turner said he was in favor of a vote to stand down. James Soper, playing a tape recording from a speech by the Secretary of State, said he was in favor of a vote to stand down. David Pilpel urged the Commission to vote against the stand down.
Commissioner Gleason asked to WITHDRAW his MOTION because he said it was not intended to be a vote of no confidence in the Director and Department. Commissioner Meek withdrew her SECOND.
7. Discussion regarding items for future agendas
President Matthews suggested amending the Bylaws regarding the timing for Annual Reports and amending the Bylaws regarding adopting a policy regarding receiving communications from members of the public. Commissioner Gleason asked to consider the suggestions received from Chris Jerdonek regarding ballot markings, and having a report from the Department regarding how over and under-votes are handled, as well as other issues.
- Public Comment. James Soper said that he has objected to the proposed voting machines for 1 1/2 years. Jennifer Hammond said she sees no difference between Elections Systems and Software and Sequoia Voting Systems and she thinks a way can be found to retain the system used in the last election. Roger Donaldson said that he has attended Elections Commission meetings and opposed the proposed equipment for fifteen months. Chris Jerdonek asked about the status of having Commission packets available to the public on line. Brent Turner said that more people are becoming interested in open source. Chandra Friese said that she agreed with the previous speakers.
ADJOURNMENT at 9:35 pm.