By Richard Knee
June 22, 2012
Open-government activists believe, and with good reason, that the Board of Supervisors’ May 22 vote to oust three incumbents from the Sunshine Ordinance Task Force was in retaliation for a pair of task force actions that cast the board – and particularly President David Chiu and Supervisors Scott Wiener, Malia Cohen and Eric Mar – in an unfavorable light.
The activists also wonder if the vendetta will continue in the form of a ballot initiative aimed at sabotaging the ordinance, one of the nation’s strongest, which city voters approved by a 58-42 percent margin in November 1999.
What’s more, the board is stalling on appointments of the four task force members who, under the ordinance, must be nominated by outside organizations. Two of the nominees are incumbents, one would be a returnee and the other would be a newcomer.
In urging their colleagues on May 22 to appoint five freshmen and a returnee to the 11-member task force, President Chiu and Supervisor Wiener charged that incumbents Hanley Chan, Jay Costa and Bruce Wolfe, among others, had deliberately flouted the city Charter and the city attorney’s advice by adopting a rule declaring that passage of substantive motions required a majority of those present rather than a majority of all members.
Wiener also pointed to an “audit” that, he said, showed that the task force’s complaint hearing procedure was causing city personnel to log excessive overtime, and he falsely accused the task force of objecting to its own operations being subjected to sunshine. (Details appear in my previous article, available at here).
It is true that the task force’s rule change, adopted in April 2011, ran counter to the city attorney’s counsel. But an attorney’s opinion is just that; it is an interpretation of law and does not by itself have the force of law. Furthermore, ambiguities in the Charter’s relevant section, 4.104, give credibility to the argument that those who voted for the rule change believed sincerely that it was legally permissible. These people are not scofflaws.
Before I go further, I ask readers to note that:
- I have no stake in whether any or all incumbent applicants are kept on the task force, because I am not seeking reappointment. My fifth two-year term expired last April 27, and I remain as a “holdover” member until my successor is appointed. Moreover, I cast one of the two dissenting votes in the April 2011 rules-change decision.
- Though I live in the district (3) that President Chiu represents, what I state in this article is not to be construed as an endorsement for or against his reelection this November. I am a journalist and professional ethics dictate that I avoid publicly taking sides in all candidate and most issue campaigns. My votes will be based on the candidates’ histories and position statements on multiple issues, not just one, and this article does not discuss any of President Chiu’s opponents in this regard.
Let’s assume for the moment that at least some supervisors genuinely believe that task force members willfully violated the Charter when they adopted the rule change; the board is empowered to remove task force members but no such proceeding was immediately initiated. So it’s reasonable to guess that the task force’s action by itself was not enough to rile any supervisor to the point of an incumbent-ouster attempt.
Fast-forward five months, to last Sept. 27, when a group of Parkmerced residents led by Pastor Gavin complained to the task force that President Chiu, the board’s Land Use and Economic Development Committee – which comprises Supervisors Mar (chair), Cohen and Wiener – and then the full board had violated local and state open-meeting laws by slipping in 14 pages of amendments to a Parkmerced development contract only minutes before approving it.
In delivering a response, Supervisor Wiener’s legislative aide Gillian Gillette read a prepared statement telling us that we had no right to tell the board how to vote and that in hearing the case we were overstepping our authority. The statement’s content, coupled with Ms. Gillette’s confrontational tone, made it apparent that Supervisor Wiener and perhaps some of his colleagues wanted to intimidate us.
We pushed back. Mr. Wolfe noted that the statement was premature because it was prepared under the assumption that the task force would find in favor of the complainants. And I told Ms. Gillette and other respondent representatives that when we receive a sunshine-related complaint, we are duty-bound under the Sunshine Ordinance to give it a fair and thorough hearing.
Ms. Gavin contended that the amendments changed the contract to the extent that the item on the LU&ED Committee’s and the board’s agendas no longer reflected accurately what was under consideration, and that voting on it, especially without allowing sufficient time for review by the bodies and by the public, would therefore violate city and state open-meeting laws.
The respondents countered that they had received assurances from the city attorney that the amendments did not substantially change the contract, meaning the agenda item remained accurate and therefore actionable.
The task force voted, 8-0, to find that the committee and the board had indeed violated the open-meeting laws – the ordinance and the state’s Ralph M. Brown Act – and since President Chiu and Supervisor Wiener seem to give so much weight to attorneys’ opinions, I’ll note that one of those eight votes came from the task force’s voting-member attorney, David Snyder (who let his term expire last April and did not apply for reappointment).
Sunshine advocates see the holdup on the remaining task force appointments as a power grab by the board. The board’s Rules Committee, which conducts the initial vetting of applicants to city policy and advisory bodies, is for the first time ever demanding that the nominating organizations submit multiple names for each seat. The groups appear to be standing their ground. They and their nominees are:
- The Society of Professional Journalists, Northern California chapter, which has nominated attorney Ben Rosenfeld for Seat 1 and journalist Doug Comstock for Seat 2. Comstock would be my successor. He is a past chair of the task force.
- New America Media, which has nominated journalist Suzanne Manneh for reappointment to Seat 4.
- The League of Women Voters of San Francisco, which has nominated Allyson Washburn for reappointment to Seat 5.
The excuse that Supervisor Mark Farrell and Rules Committee chair Jane Kim gave for continuing the appointments “to the call of the chair” was that they wanted nominee lists to create an opportunity to bring more racial/ethnic diversity to the task force.
Certainly, diversity is a laudable goal but it is not among the criteria that the organizations must weigh in making their choices for those specific seats.
Furthermore, Supervisors Farrell and Kim’s argument rings hollow, given that Ms. Manneh is a Palestinian-American fluent in Arabic and Spanish, and that the supervisors could have reappointed Mr. Chan, who is Chinese-American. Dr. Washburn and Messrs. Rosenfield and Comstock are Anglo.
Also, there is an element of diversity that the board pointedly ignored in making the latest round of appointments and that is, in fact, mandated by the ordinance: at all times, the task force must include at least one member with a physical disability.
The board could easily have complied by reappointing Mr. Wolfe. Instead, it has frozen the task force in its tracks, at least for the moment, because worries that the absence of a physically disabled member might result in any actions being invalidated have prompted the body to put off all substantive business, including a sizable backlog of complaints.
Another mistake the board made was appointing the returnee mentioned in the fourth paragraph of this article. I won’t identify the person by name, though most readers, including him, probably know whom I mean. I will say that he has a very thorough knowledge of sunshine law that has often proved helpful to the task force and to other city boards and commissions.
But he nitpicks – a trait he has openly admitted – and he seems to think that rules of procedure apply to him only when he finds it convenient. In a complaint-related case several years ago, he disclosed that he was friends with the respondent and had had a private conversation with the respondent on the matter at hand, but he went against the deputy city attorney’s advice to recuse himself.
That appointment, then, provides further evidence that the purported reasons for bouncing the task force incumbents – shortening meetings, and complying with the law and with the city attorney’s advice – are a smokescreen.
Next: Did the task force violate the city Charter? Ambiguities in the Charter raise the question.