SUNSHINE ORDINANCE TASK FORCE
REGULAR MEETING
MINUTES
Tuesday, February 27, 2001
4:00 p.m. City Hall, Room 408
Task Force Members
  Seat 1 Judith Appel Seat 8 Robert Planthold
  Seat 2 Bruce Brugmann Seat 9 Daniel Guillory
  Seat 3 Vince Courtney Seat 10 Paul Hogan, Vice Chair
  Seat 4 Vacant Seat 11 Sue Cauthen
  Seat 5 Tuesday Ray Ex-officio Lillian Hare
  Seat 6 Hilda Bernstein, Chair Ex-officio Hala Hijazi
  Seat 7 Ted Kowalczuk
Roll Call: All present.
Agenda changes announced.
1. Approval of Minutes of January 23, 2001
3. Report from Chair
  Chair Bernstein reported on the following items:
  (a) Status and update letter to Gloria Tulanowski
  (b) Letter to San Francisco Retirement Board regarding 
    Courtney & Courtney complaints
  (c) Letters to and from Anita Theoharis regarding meeting 
    with Chair of Planning Commission
  (d) Attendance at Committee meetings of 1/31/01 Ad Hoc 
    Committee on Conflict of Interest and 2/13 Rules Committee
  (f) Reassessment of the Task Force three-meeting-absence 
    rule
  
  (g) Facilitating work of Task Force; the role of the Chair
  
  (e) Dawn Clements letters to Board of Supervisors and 
    Supervisor Ammiano
  
    and Task Force response. 
    Member Guillory asked if the Task Force had had a response 
      from the Attorney General. The answer was no. Deputy City Attorney Delventhal 
      stated State Law requires response from City Attorney to the subject when 
      a request is made to the Attorney General
  
4. Report from Counsel
  Deputy City Attorney Minor reported on the following items:
  (1) Information on disclosure of home telephone numbers 
    and addresses
  (2) Attorney General opinion information regarding e-mails
  (3) 1/9/01 memo regarding referral of matters by the Task 
    Force to the Attorney General
  (4) Article I, Section I of the State Constitution which 
    is the right to privacy.
2. Recommendation regarding removal of Task Force Member
  This item was removed from the agenda. Member Brugmann 
    submitted a letter of resignation from Marie-Lorraine Mallare.
5. Report from Judy Appel, Chair of the Complaint Committee 
  and Bob Planthold, Chair of the Rules Committee regarding distribution of complaints 
  to the Task Force
  Members Ray, Hogan were in favor of leaving the distribution 
    of complaints first through the Complaint Committee and then to the entire 
    Task Force.
  Members Brugmann, Courtney were in favor of all Task Force 
    members receiving copies of the complaints at the time they were submitted 
    to the Sunshine Ordinance Task Force Office.
  Motion to continue with the practice now of distributing 
    complaints through the Complaint Committee first. (Planthold/Ray) (Ayes Ray, 
    Bernstein, Kowalczuk, Planthold, Hogan) (Noes Appel, Brugmann, Courtney, Guillory, 
    Cauthen) The motion failed.
  Moved to distribute copies of complaints at the time they 
    are submitted to the Sunshine Ordinance Task Force Office to the members who 
    have requested advance copies. (Appel/Brugmann) (Ayes Appel, Brugmann, Cauthen, 
    Courtney, Guillory, Ray, Kowalczuk, Planthold, Hogan) (Noes Bernstein)
6. Report from Complaint Committee
  Committee Chair Appel reported on the meetings of the 
    Complaint Committee relative to changes to the Public Complaint Procedure 
    adopted 8/22/00. The changes dealt with Section B. Filing a Petition of Complaint 
    with the SOTF and Section D. Public Hearing Requested.
  Moved to amend the Public Complaint Procedure, Section 
    B. Filing a Petition of Complaint with the SOTF and Section D. Public Hearing 
    Requested, Item 1, as follows: (Appel/Planthold)
  Section B. Filing a Petition of Complaint with the 
    SOTF to now read:
B. Filing a Petition of Complaint with the SOTF:
  1. No hearing will be held without the filing of a petition, 
    either in the form of a letter or with a (revised) complaint form.
  2. A petition may be submitted to the SOTF via mail, fax 
    or e-mail.
  
    Task Force members who have requested advance copies 
      of complaints will be sent the complaint information at the time the complaint 
      is submitted to the Sunshine Ordinance Task Force Office.
  
3. The petition will include a way to indicate 
    if the complainant wants a public hearing on the issue raised in the petition.
  4. Copies of all correspondence and other documents relating 
    to or arising out of a petition will be provided to all parties in a timely 
    manner, and best efforts will be made to do so before any meeting or hearing 
    at which the petition will be discussed.
  5. A standing "Complaint Committee" of 
    the SOTF will consist of at least three members of the SOTF.
  6. All complaints will go to the Complaint Committee 
    for review. Petitioner will be advised of the date, time and location of the 
    complaint committee meeting during which their petition will be discussed. 
    Petitioner will be notified that they are invited and if they do not attend, 
    will be notified of the results of the Complaint Committee. Petitioner will 
    be requested to submit all pertinent information.
  7. The City Attorney will make a recommendation 
    to the Complaint Committee as to whether or not the SOTF has subject matter 
    jurisdiction over a complaint. If the City Attorney determines that the SOTF 
    lacks such jurisdiction, s/he will so advise the Complaint Committee. If the 
    Complaint Committee agrees, the complainant will be notified in writing that 
    the SOTF cannot hear the complaint and the complaint will be closed. If the 
    Complaint Committee disagrees with the City Attorney’s determination and determines 
    that subject matter jurisdiction exists, the complaint will proceed.
  8. Upon a finding of jurisdiction by the complaint 
    committee, the SOTF Administrator will send copy of the petition to the affected 
    department, with a request to respond within five business days. The city 
    attorney may assist the city departments and agencies in responding to requests 
    for public records, and may seek the assistance of the city attorney assigned 
    to the SOTF. 
  9. The Administrator of the SOTF will gather relevant 
    information and documents prior to the first Complaint Committee during which 
    a petition will be discussed.
  10. Prior to a hearing, and at the discretion of 
    the Complaint Committee, the Complaint Committee may make a determination 
    regarding whether the petition has possible merit as a violation of the SF 
    Sunshine Ordinance, based on the content of the petition and any supporting 
    documentation. Where it is determined that, given all of the facts alleged 
    by the complainant, the petition is without any possible merit, the Complaint 
    Committee will make a recommendation of "no violation" to the full 
    SOTF, and will advise the petitioner of this recommendation. Consistent with 
    the language and spirit of the SF Sunshine Ordinance to provide the most open 
    government possible, (see "Findings and Purpose," SF Admin 
    Code section 67.1), all inferences and evidence will be viewed in the light 
    most favorable to the petitioner.
  11. Where the Complaint Committee makes a recommendation 
    of "no violation," it will do so to the SOTF at its next meeting. 
    If the SOTF votes against this recommendation and decides to allow the matter 
    to go to hearing, and where holding a hearing at the following regularly scheduled 
    meeting would result in a violation of the 45 day time-limit for resolving 
    complaints that is mandated by Admin. Code section 67.21, then a Special Meeting 
    will be called for a hearing on the matter. 
  12. A copy of the departmental response will be 
    forwarded to the member of the public by the SOTF Administrator. Where an 
    individual has not requested a hearing, they will again be advised that such 
    a hearing is available to them.
  13. A copy of the complaint, the departmental response 
    and any supporting documents will be provided to all members of the SOTF for 
    their review. Where the documents supporting the complaint exceed 75 pages, 
    the complaint will be forwarded without its full exhibits, with an indication 
    that the full exhibits are on file with the SOTF Administrator.
  14. The Complaint Committee will facilitate the 
    determination by the SOTF of whether or not a document is public in accordance 
    with Sections C (no hearing requested) & D (public hearing requested) 
    below. 
  15. The city attorney assigned to the SOTF will 
    be available to answer questions regarding the application of the Sunshine 
    Ordinance to the request at issue in the complaint.
D. Public Hearing Requested
  1. When a public hearing is requested, where jurisdiction 
    has been found to exist, and where there has not been a determination of "no 
    violation," a hearing will be set at the next meeting of the SOTF. Where 
    this is not possible because of notice requirements or because of time restraints, 
    a Special Meeting will be set within 30 days of the request to hold the public 
    hearing.
7. Report from Rules Committee
  Committee Chair Planthold reported on meetings of the 
    Rules Committee,
  General discussion held among members regarding Task Force 
    and Committee meeting absences. This item will be on the Rules Committee agenda.
12. Public Comment
8. Report of Public Education & Information Committee
9. Order of Determination dated January 23, 2001, Complaint 
  of Kevin Williams against the Human Rights Commission
  Kevin Williams addressed the Task Force stating he was 
    willing to use his lunch hour, his breaks that not on company time; Ms. Barnes 
    had stated they had no problem with that; all I asked for was the documents, 
    I received an order and I had an expectation that I would receive them; I 
    ask this Task Force exercise its inevitable authority and do exactly what 
    the City Attorney suggests on Page 3 of her memo 1 through 6 which details 
    the authority of the Task Force and institute those actions; as a direct order 
    you could have simply censored them because you acknowledge their non-compliance; 
    their comes a time to fish or cut bait.
  Catherine Barnes, Deputy City Attorney, representing the 
    Human Rights Commission; HRC is in full compliance with the Sunshine Ordinance 
    and the Public Records Act; that has been the HRC position from the beginning; 
    the records were asked for in November and have been sitting in boxes waiting 
    for Mr. Williams to look at them; the only thing new that I heard is that 
    Mr. Williams said five minutes ago that Mr. Williams said that he wants to 
    look at them during his lunch hour and breaks; he has not asked for them previously 
    during these times; they are sitting there waiting for him; this is new information; 
    if it is appropriate, I would ask you to rescind the order that you put in 
    place at the last meeting because I believe you did not have the authority 
    to make the order for the HRC to loan the documents to Mr. Williams; I believe 
    the public records is complete.
  Member Kowalczuk asked if Mr. Williams had to pay for 
    the ten cents per page to look at the documents during his free time. Ms. 
    Barnes answered he can look at them during his non-work time; he just cannot 
    take them away unless he pays for them.
  Member Cauthen asked if the documents were copies. Ms. 
    Barnes stated yes, they were copies; originals are kept in tact; no one else 
    has borrowed them; there are 6,000 documents.
  Member Brugmann thought this was settled; cannot believe 
    what has happened; Mr. Williams is a watchdog; is a lot of good things; he 
    is asking for these things; HRC has been under investigation by the FBI and 
    investigated by the newspapers; seems you would do everything possible to 
    make these records available as soon as possible; very proud of the Task Force 
    that they came up with a solution and you have stonewalled the solution; you 
    won’t even loan him the documents; Public Records Act and Sunshine Ordinance 
    do not specify ten cents; they could be given for free; why cannot this be 
    worked out for one of your own employees. Ms. Barnes stated they treat every 
    request the same; proud of the fact that the HRC has spent time and effort 
    to collect the 6,000 documents; to go through every document to remove any 
    kind of privacy information that applies; many, many hours have been required 
    to do this; would be a waste of our public funds if we decided to provide 
    documents to one person and to the next person; we would be giving something 
    to him that we do not give to anyone else.
  Member Appel stated she implored the Task Force stand 
    by the decision that was made at the last Task Force meeting; not hearing 
    anything today other than the HRC does not want to be cooperative in providing 
    these documents; strongly urge the Task Force to not rescind its Order of 
    Determination.
  Member Appel left the meeting at this time.
  Regarding the ten cents charge Chair Bernstein asked Catherine 
    Barnes if the fee could be waived for special circumstances; Catherine Barnes 
    stated the statute says ten cents; the Mayor has a policy of charging ten 
    cents; however under special circumstances, the fee could be waived. 
  Member Courtney stated Mr. Williams has to take time off 
    to look at documents; was under the impression HRC was going to cooperate 
    with the Order of Determination, despite the fact we do not have the authority 
    to order them to do so.
  Mr. Williams stated the Task Force is an ally to the HRC; 
    this process has helped the HRC to locate records; feel this Task Force has 
    not been told the truth; this process has helped the HRC; if in denial the 
    Task Force will not get to the real issue of eliminating a cloud and replacing 
    with sunshine.
  Public comment from Janine Murtha regarding the 2/20/01 
    memo from City Attorney Office to the Task Force, pointing out points of lack 
    of jurisdiction to lend Mr. Williams the records. 
  Jackie Minor, Deputy City Attorney, stated after the Task 
    Force entered its Order of Determination, the HRC sent to the Task Force a 
    letter indicating the action taken by the Task Force was beyond the scope 
    and authority of the Sunshine Ordinance; the Chair of the Task Force contacted 
    the City Attorney Office and requested what further action the Task Force 
    could take. The question now is what further action can you as the Task Force 
    take under the Sunshine Ordinance to enforce an order that you have already 
    issued; under the Sunshine Ordinance there are six statutory authorities that 
    this Task Force can take; is there something further that can be done; there 
    is nothing further under the Sunshine Ordinance that the Task Force can take; 
    it does however provide that further action can be taken by the complainant; 
    under the ordinance he may pursue this further with the Ethics Commission 
    or by filing a complaint in court; as you further consider this when you look 
    at range of actions, loaning documents is not one of the provisions provided 
    in the ordinance; the ordinance does not provide a general, all sweeping authority 
    which would allow the Task Force to fashion some kind of equitable compromise 
    solution; there was no indication on the part of the HRC at the time of the 
    hearing of the compromise
  that the Task Force came up with.
  Member Courtney stated filing a lawsuit was not a solution.
  Deputy City Attorney Minor stated the ordinance provides 
    for recovery of attorney fees if he prevails.
  Member Cauthen asked about the amount of documents.
  Member Brugmann stated the Task Force can do all kinds 
    of things; concerned about the statement that the Task Force cannot ask the 
    HRC to give or loan the documents; documents are given free to the press and 
    citizens all the time.
  Deputy City Attorney Minor stated the question composed 
    to the City Attorney’s Office was whether the Task Force could compel the 
    HRC to loan the documents; the answer is the Task Force cannot compel.
  Chair Bernstein what has happened with this is not effective 
    availability; would have helped if HRC would have helped if they would have 
    tried to compromise.
  Member Courtney stated the ordinance lacks some teeth 
    regarding city attorney representation; what we need in the Board of Supervisors 
    Chambers is to get some teeth; would like a brief opinion letter from Deputy 
    City Attorney Minor that says what our options may or may not be with respect 
    to going to the Board with a resolution showing them the Task Force cannot 
    win-we need help.
  Member Ray left the meeting at this time.
  Member Planthold left the meeting at this time.
  Member Cauthen stated she agreed we need to go to the 
    Board of Supervisors and let them know these are the kinds of problems we 
    come up with from time to time. 
  Member Brugmann asked about the ten-cent-a-page policy 
    from the Mayor’s Office. Chair Bernstein requested Deputy City Attorney Minor 
    to confirm that it is a fact there is a Mayor policy of ten cents a page.
  Motion to urge the Sunshine Ordinance Task Force that 
    the HRC give the documents for free to Kevin Williams as soon as possible 
    and transmit this to the Board of Supervisors and they make it stick, if at 
    all possible. (Brugmann/Courtney) No vote.
  Deputy City Attorney Minor stated this is a voter-approved 
    initiative and changes to the ordinance must be made by the voters.
  Moved and adopted not to compel but to urge the HRC to 
    provide to Mr. Williams the copies he has requested and waive all applicable 
    fees in an order to comply with the spirit of the Sunshine Ordinance and in 
    an effort to arrive at a mutually acceptable resolution. (Courtney/Kowalczuk) 
    (Appel, Ray, Planthold absent)
  Motion requesting the City Attorney to prepare legislation 
    to bring to the Board of Supervisors to strengthen and make effective the 
    ordinance, specifically the issue of charging fee, etc., and place the matter 
    before the public at the next earliest possible election. (Bernstein/Cauthen) 
    Not voted. The motion was restated.
  Moved and adopted requesting the City Attorney to prepare 
    proposed legislation to be dealt with by the Board of Supervisors in anticipation 
    of putting material at the next election which will strengthen and re-enforce 
    the spirit of the Sunshine Ordinance. (Bernstein/Cauthen) (Appel, Ray, Planthold 
    absent)
  Member Hogan stated to also publicize any fees associated 
    with getting documents and also publicize a waiver of those fees may be requested 
    by someone requesting documents. 
  Member Courtney stated what we need to know is how we 
    can prevent this kind of thing occurring over and over again with multiple 
    lawyers fighting over the same issue out of the same office; what I want from 
    our lawyers is some specific instances whether or not they can be achieved 
    through the resolution process at the Board level or whether we have to go 
    to the voters; want something from the City Attorney stating what the problem 
    is; what could maybe work if the voters passed it; do not want a memo stating 
    why Mr. Williams cannot get his request.
  Chair Bernstein requested that in preparation for such 
    a proposal that the City Attorney review the past complaints that have come 
    before the Task Force to see what the common denominators are so we can specifically 
    ask that the Board of Supervisors include solutions to those problems in any 
    legislation when they place it before the voters. 
  Ex-officio Member Hijazi left the meeting at this time.
  Member Daniel Guillory left the meeting at this time.
10. Order of Determination dated October 26, 2000, Complaint 
  of Davis/Reno, representing Local 21, AFL-CIO, against the Human Rights Commission. 
  (15 min)
  Janene Murtha, Davis Reno, representing Local 21, AFL-CIO, 
    addressed the Task Force, stating the Human Rights Commission has not made 
    a good faith effort; requested handwritten compensatory time ledger; received 
    conflicting information regarding the documents; the ledger of former HRC 
    Controller Arcedo Brillantes has not been produced; information was to be 
    logged into the computer; Mr. Brillantes did not feel comfortable signing 
    a declaration regarding the ledger; need to have a neutral source look for 
    the documents; next resource is to go to the Ethics Commission; information 
    has been misrepresented.
  Member Courtney asked about letter of January 16, 2001 
    from HRC stating HRC has completely complied with the Davis Reno request; 
    Janene Murtha stated the only thing outstanding is the handwritten hand ledger. 
    
  Catharine Barnes, attorney representing HRC, stated the 
    two requests involving Kevin Williams have been confusing; records for 6/94 
    through 6/96 have been provided; additional nine compliance officer reports 
    provided first half of 1994 and last half of 1996; possible pending requests 
    for Frank Anderson and Jackie Haile are available; these are possibly with 
    Kevin Williams documents; they are available for 1994 through 1996. Mr. Williams 
    has had numerous different types of complaints about his comp time payment, 
    and these have gone back and forth to different parts of the City Attorney’s 
    Office; possibly the original document is probably somewhere misfiled at the 
    HRC or in City Attorney storage document; we are looking for them; handwritten 
    ledgers were entered into the computer; have produced all source documents; 
    all information has been submitted; unfortunate we do not have compilation; 
    we do have compilation for Kevin Williams; no missing information; feel HRC 
    has done a reasonable and diligent search. 
  Member Courtney stated the letter dated January 16, 2001 
    stating the HRC has completely complied with the Davis Reno request; is this 
    correct; Catharine Barnes stated the HRC has given them everything the HRC 
    could find; Member Courtney stated he had a problem with lack of good faith. 
    
  Member Kowalczuk stated he agreed there has been ill will 
    in the past. 
  Janene Murtha stated with regard to time cards; does not 
    say whether they have taken the time; part of the dispute is whether or not 
    Kevin Williams got the hours and whether or not he was allowed to take them 
    in comparison to others; this is not an accurate representation of the information 
    we requested. 
  This item continued to the next meeting.
11. Report of Administrator
  Donna Hall, Administrator, submitted report. 
  Member Courtney stated when Administrator is informed 
    of lack of compliance from Order of Determination, he would like to know about 
    it immediately.
The meeting adjourned at 7:00 p.m. 
Donna L. Hall, Administrator