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Sunshine Advocates Decry San Francisco Ballot Measure That Would Let Lawmakers Tamper With Voter-Passed Transparency Laws

By Richard Knee, FAC Guest Columnist — Advocates for government transparency, including the First Amendment Coalition, are aligning against a measure on San Francisco’s November ballot that would, among other things, empower city officials to tamper with the city’s Sunshine Ordinance, which provides a greater level of public access to records and meetings than does California law.

The Sunshine Ordinance was overwhelmingly passed by San Francisco voters in 1999.  Ordinarily, only the voters may amend voter-passed ordinances.

Proponents of the measure, dubbed “Privacy First” and appearing on the ballot as Proposition B, highlight that it would add guidelines for city departments to protect the personal information of residents and visitors from misuse by companies doing business in San Francisco.  However, Proposition B would not require that any city department do anything to protect privacy. Rather, the measure is a statement of privacy principles, which, while laudable, are overshadowed by the harm it could do to government transparency in San Francisco.

Tucked into the bottom of the text of Proposition B, in Subsection (i) of what would be city Charter Section 16.130, is a provision that would allow the city’s Board of Supervisors to “amend voter-approved ordinances regarding privacy, open meetings, or public records,” so long as any such amendment is “not inconsistent” with the “purpose or intent” of the Sunshine Ordinance.

This provision is a “poison-pill,” said Bruce Brugmann, a FAC co-founder and the retired editor and publisher of the Bay Guardian, the alternative news weekly that new owners abruptly shut down in October 2014.  It would allow the Board of Supervisors “to do what they may not by law do now: amend and water down what is the first and still the best local open government ordinance in the country, if not the world,” Brugmann said.

The Society of Professional Journalists, Northern California chapter, and the Pacific Media Workers Guild (The NewsGuild-CWA Local 39521) laud Proposition B’s stated intention but echo Brugmann’s admonition that authorizing the Board of Supervisors to amend the Sunshine Ordinance would open the door to the its being legislatively gutted, and because it is locked into Proposition B, they feel compelled to oppose it, as do the San Francisco Labor Council, the League of Women Voters of San Francisco, the San Francisco Bay Area Planning and Urban Research Association (SPUR), the advocacy group San Franciscans for Sunshine, and the San Francisco Chronicle.  FAC’s Board of Directors, of which Brugmann is a member, have taken a “vote no” position on Proposition B; FAC was instrumental in the drafting and passage of the Sunshine Ordinance.

The San Francisco Democratic Party and the San Francisco League of Pissed Off Voters have taken a “vote yes” position on Proposition B, although a number of neighborhood Democratic clubs and the Green and Libertarian parties oppose the measure.

“We cannot, in good conscience, allow our elected officials to decide the intent of the voter-enacted Sunshine Ordinance, which citizens use daily to hold the same politicians accountable for their actions,” said Matt Drange, who co-chairs SPJ NorCal’s Freedom of Information Committee.

Aaron Field, the committee’s other co-chair, said, “It is a bad idea to give the Board of Supervisors the power, as Proposition B would, to amend the Sunshine Ordinance, a government transparency law that helps the public hold San Francisco officials and agencies accountable.”

On the stump and in meetings with SPJ NorCal and San Franciscans for Sunshine, Sup. Aaron Peskin, Proposition B’s chief sponsor, and his legislative aide Lee Hepner have argued that the “not inconsistent” clause would limit the board to strengthening the ordinances.

But the word “strengthen” does not appear in the provision.

Moreover, determining whether amendments met the “not inconsistent” criterion would be a subjective exercise, and that power would rest with the city attorney, whom sunshine advocates view to be conflicted as the person charged with defending officials and agencies accused of violating local and state sunshine laws.

In addition, if anti-sunshine supervisors regained a majority on the board, they would not view the “not inconsistent” clause as a hurdle to weakening the ordinances; for example, they could change the composition of the city’s open-government watchdog commission, the Sunshine Ordinance Task Force, so they could pack it with members likely to let violators skate.

What’s more, legislation amending the ordinances would need to go through the mayor, and current Mayor London Breed has shown a strong dislike of sunshine; her record of compliance in that area is far from exemplary.

Hepner and this writer are former members of the task force.

The board-empowerment provision has its genesis in a 16-year-old effort by sunshine advocates within and outside City Hall to close loopholes in and clarify the ordinance.

Most recently, SPJ NorCal and San Franciscans for Sunshine couldn’t persuade Peskin and Hepner to sponsor a ballot measure that would name SPJ NorCal to succeed the defunct New America Media as permanent nominator of a journalist from a minority-owned news outlet to the task force.

San Franciscans for Sunshine is a rebirth of the group that put the 1999 Sunshine Ordinance reform measure (Proposition G) on the ballot. The voters approved it by a 58-42 ratio. SFS hopes to put a package of additional reforms on the November 2019 ballot. (Disclosure: This writer is active in the current effort, as I was in the 1999 campaign.)

But it’s a struggle because the group doesn’t have sufficient funds to gather enough voter signatures and most city supervisors approached on the matter have kept SFS at arm’s length.

A major reform in SFS’s current package would expand the number of non-government organizations with permanent authority to nominate Sunshine Ordinance Task Force members, in order to increase community involvement in the appointment process and lessen the ability of the Board of Supervisors to pack the task force with anti-sunshine members.

Of the body’s 11 members, an attorney and a journalist are nominated by SPJ NorCal, a journalist from a minority-owned news outlet was until recently nominated by New America Media and a citizen is nominated by the League of Women Voters of San Francisco. The rest are directly appointed by the board. SFS’s proposed amendment would transfer NAM’s authority to SPJ NorCal, and would add the First Amendment Coalition, the Guild, the Media Alliance, the Freedom of the Press Foundation and the Coalition for San Francisco Neighborhoods as permanent nominators for specific task force seats. It would also mandate staggering of task force members’ terms, which are for two years.

NAM ceased operations last November and completed its dissolution in March. Long before that, though, the organization’s executive director, Sandy Close, declared in writing that she wanted SPJ NorCal or another bona fide journalists’ organization to take over NAM’s nominating role.

Asked if Close’s letter or a board-passed amendment to the Sunshine Ordinance could effect the transfer of authority, the city attorney’s office told this writer that only the voters could pass such a revision.

Hepner subsequently told SPJ NorCal and SFS representatives that an amendment so narrowly targeted didn’t merit the time and city resources that getting it on the ballot would take. And in the next breath, he said he was helping to craft a “more elegant” approach: empowering the board to amend the ordinance.

What he did not say, though, was that a provision giving the board that authority was being included in a proposed city Charter amendment that would go to the voters this November.

So what became the aforementioned Subection (i) slipped under the radar of sunshine advocates and the press, until veteran political consultant Jon Golinger alerted Brugmann and 48hills editor Tim Redmond, asking them if implementing the personal-data protection provisions might conflict with the Sunshine Ordinance.

News that the board-empowerment provision was in the “Privacy First” measure spread rapidly among sunshine advocates, who were furious and told Peskin and Hepner that the provision was a deal-killer.

Peskin and Hepner seemed mystified at the activists’ reaction, pointing out that the process of drafting the measure and putting it on the ballot was fully visible to the public. But Hepner told sunshine activists later that he should have been more proactive in informing them on the way the measure was taking shape.

And the pair pledged that if Proposition B passes, they will work with SPJ NorCal, SFS and other advocates to strengthen the ordinance legislatively.

It could happen, but Peskin is one supervisor on an 11-member board; it is highly possible that any amendment strengthening the ordinance would meet stiff resistance from Breed; and there is the danger that a future board with an anti-sunshine majority would find ways to weaken the ordinance and hamstring the task force.

Bottom line, sunshine advocates say, is that Proposition B guarantees none of the personal data protections its proponents tout, and the provision allowing the board to tamper with the Sunshine Ordinance, locked in as it is, is a pill so poisonous as to make the measure unacceptable.

FAC member Richard Knee is a San Francisco-based freelance journalist.  He is active in the Society of Professional Journalists Northern California chapter and the Pacific Media Workers Guild, both of which oppose Proposition B.

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