File No. 19093 Item No.6
SUNSHINE ORDINANCE TASK FORCE AGENDA PACKET CONTENTS LIST
Complaint Committee Date: October 15, 2019
0 Petition/Complaint Page:~ Memorandum - Deputy City Attorney Page: f~7 ~ Petitioner/Complainant Supporting Documents Page: Sf( EJ Respondent's Response Page:)96 D Public Correspondence Page:_ D Order of Determination Page:_ D Minutes Page:_ D Administrator's Report Page:_ D No Attachments
OTHER D D D D D D D D D
· Completed by:_--=C-=-. =L=eg;;;.Le=r______Date 9/26/19
*An asterisked item represents the cover sheet to a document that exceeds 25 pages. The complete document is in the file.
P533 Leger, Cheryl (BOS)
From: MICHAEL PETRELIS
Sunshine Ordinance Task Force City Hall San Francisco, CA
To Whom it May Concern,
I wish to lodge a complaint against Mayor London Breed for failing to provide me with the full and complete calendars of her chief of staff, Sean Elsbemd, as requested. As you can see from the attached responsive records from the mayor, months of calendars are omitted and for many of the daily calendars, Elsbemd lists only a half-hour scheduling meeting.
I believe the mayor is willing violating local public records laws and I ask that you refer this matter to the compliance committee of the task force.
Please confirm receipt of this complaint by the close of business today. If you have any questions, don't hesitate to contact me·.
Sincerely, Michael Petrelis Public Advocate San Francisco, CA
-----Original Message----- From: MayorSunshineRequests, MYR (MYR)
Michael,
Please see the attached responsive records regarding your request below. These are the available calendar entries for the timeframe you specified.
Please note that certain personal information such as cell phone numbers has been redacted to avoid an unwarranted breach of personal privacy. See Cal. Govt. Code Sees. 6254(c), 6254(k); California Constitution, Art. I, Sec. 1. Similarly, appointment of a personal and non-city nature have also been redacted. Please also note that certain call-in information has been redacted pursuant to the official information privilege. See Cal. Evid. Code Sec. 1040(b)(2).
Please note that certain identifying information has also been redacted to protect the identity of certain individuals involved in ongoing hiring processes. See Cal. Govt. Code Sees. 6254(c), Admin. Code§ 67.24(c).
Please note that we are responding only on behalf of the Office of the Mayor and not on behalf of other City Departments. If you have any questions about your request or would like to submit another public records request, please feel free to contact us at [email protected].
Regards,
Hank Heckel Compliance Officer Office of Mayor London N. Breed City and County of San Francisco
From: MayorSunshineRequests, MYR (MYR)
Michael,
We plan to respond within 10 days but reserve our rights to continue the response for up to 14 days. See § S.F. Admin Code§ 67.25(b); Government Code§ 6253(c). Let me know if you have any questions in the meantime.
Regards,
Hank Heckel Compliance Officer Office of Mayor London N. Breed City and County of San Francisco
From: MICHAEL PETRELIS
Hi Hank,
Thanks for the notice. What amount time are you invoking? Lemme know.
Best, Michael -----Original Message----- From: MayorSunshineRequests, MYR (MYR)
Dear Michael,
We have received your request and are processing our response. Please note that we are invoking an extension of time to respond to your request due to the need to consult with other city departments. § S.F. Admin Code § 67.25(b); Government Code§ 6253(c).
We understand the need to conduct this consultation with all practicable speed and will complete our response as expeditiously as possible and within the permitted statutory period for extension.
Regards,
Hank Heckel Compliance Officer Office of Mayor London N. Breed City and County of San Francisco
From: MICHAEL PETRELIS
This message is from outside the City email system. Do not open links or attachments from untrusted sources.
Mayor London Breed City Hall San Francisco, CA
Dear Mayor Breed,
This is an immediate disclosure request for a copy of any and all calendars maintained by your chief of staff, Sean Elsbernd, from October 1, 2018, through the close of business today. I wish to receive all responsive records via email, please.
If you have any questions, don't hesitate to contact me.
Please acknowledge receipt of this IDR by the close of business today.
Sincerely, Michael Petrelis Public Advocate CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY
DENNIS J. HERRERA PEDER J. V. THOREEN City Attorney Deputy City Attorney
Direct Dial: (415) 554-3846 Email: [email protected]
MEMORANDUM PRIVILEGED AND CONFIDENTIAL TO: Sunshine Ordinance Task Force FROM: Peder J. V. Thoreen Deputy City Attorney DATE: September 17, 2019 RE: Complaint No. 19093: Michael Petrelis v. Mayor London Breed and Office ofthe Mayor
COMPLAINT Complainant Michael Petrelis ("Complainant") alleges that the Office of lhe Mayor and Mayor London Breed (collectively, "Respondents"), violated the Sunshine Ordinance. COMPLAINANT FILES COMPLAINT
On August 28, 2019, Complainant filed this complaint with the Task Force, alleging that Respondent failed to provide a timely and complete response to his request, in violation of Administrative Code section 67.21. JURISDICTION The Mayor and the Mayor's office are subject to the Sunshine Ordinance. Respondents do no dispute jurisdiction. APPLICABLE STATUTORY SECTION(S) Section 67 of the San Francisco Administrative Code: • Section 67.21 sets forth the obligations of the Sunshine Ordinance with respect to the production of public records. • Section 67.29-5 sets forth the requirements for certain public.officer to maintain and retain calendars. • Section 67.29-7 governs the retention of correspondence and records. APPLICABLE CASE LAW
tt None BACKGROUND On August 16,2019, Complainant requested from Mayor London Breed the immediate disclosure of "any and all calendars maintained by your chief of staff, Sean Elsbernd, from October 1, 2018, through the close ofbusiness today." On August 19,2019, Compliance Officer
FOX PLAZA · 1390 MARKET STREET, 7TH FLOOR · SAN FRANCISCO, CALIFORNIA 94102-5408 RECEPTION: (415) 554-3800 ·FACSIMILE: (415) 437-4644
n:\codenf\as20l9\960024l \Ol392295.docx
P537 CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY AHORNEY
MEMORANDUM PRIVILEGED & CONFIDENTIAl
TO: Sunshine Ordinance Task Force DATE: September 17, 2019 PAGE: 2 RE: Complaint No. 19093: Michael Petrelis v. Mayor London Breed and Office of the Mayor
Hank Heckel invoked an extension of time "due to the need to consult with other city departments."
·On August 27, 2019, Mr. Heckel sent Complainant 43 pages of responsive records. Mr. Heckel noted that some of the calendar entries were redacted to protect privacy interests, hiring processes, and other grounds. It does not appear that Complainant takes issue with Respondents' redactions. ·
Rather, Complainant contends that, "[a]s you can see from the ... responsive records from the mayor, months of calendars are omitted and for many of the daily calendars, [Mr.] Elsbernd lists only a half-hour scheduling meeting." For example, the records produced do not contain any calendar records prior to February 2019. In short, Complainant contends that Respondents either did not maintain sufficient records or retain those records.
Respondents contend that they produced all of the responsive documents that exist; that "the Office of the Mayor performed a search for all calendars relating to city business in the possession, custody or control of Chief of StaffElsbernd and staff and provided [Complainant] with all of the available calendar entries. No calendar days retained in the possession of Chief of StaffElsbernd or staff were withheld." Respondents supplement their response with briefing from a prior, related matter, Complaint No 15163, Petrelis v. KaWa, in which the Mayor's office took the position that, regardless of whether the Mayor's chief of staffs calendar was a public record when it was in existence, the chief of staff is not required to retain his calendar under the applicable public records laws: That briefing further contended that the chief of staffs calendar was not subject to the retention requirements of Proposition G (see San Francisco Admin. Code sections 67.29-5 & 67.29-7, infra), because it was a calendar for "internal use," rather than a record "for the public to learn of past activities of specified City officials." Relatedly, the briefing took the position that the Mayor's chief of staff is not an individual within the scope of Proposition G, which applies to the Mayor, other elected officials, and department heads. See San Francisco Admin. Code sec. 67-29.5.
The prior matter was referred to the Ethics Commission and heard before that body on September 26, 2016. Accorrding to the minutes of that meeting, a motion to find that the chief of staff was required to retain his calendars failed by a vote of2-2. A motion that the chief of staff did not willfully violate the Sunshine Ordinance passed unanimously. QUESTIONS THAT MIGHT ASSIST IN DETERMINING FACTS • Does Complainant contend that additional responsive documents exist? If so, on what basis? • What is the legal basis for Complainant's contention that Respondents were required to retain responsive calendar entries? • What were the retention policies or practices of the Mayor's chief of staff? • Respondents produced some documents during the relevant time frame, but there are significant gaps in the record. What accounts for that?
n:\codenf\as20 19\9600241\01392295 .docx P538 CiTY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CiTY ATTORNEY
MEMORANDUM PRIVILEGED & CONFIDENTIAL
TO: Sunshine Ordinance Task Force DATE: September 17, 2019 PAGE: 3 RE: Complaint No. 19093: Michael Petrelis v. Mayor London Breed and Office of the Mayor
LEGAL ISSUES/LEGAL DETERMINATIONS • Did Respondents violate the Sunshine Ordinance by f0-iling to provide a timely and complete response to Complainant's request? CONCLUSION THE TASK FORCE FINDS THE FOLLOWING FACTS TO BETRUE:
THE TASK FORCE FINDS THE ALLEGED VIOLATIONS TO BE TRUE OR NOT TRUE.
* * *
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P539 CiTY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CiTY ATTORNEY
· MEMORANDUM PRIVILEGED & CONFIDENTIAL
TO: Sunshine Ordinance Ta,sk Force DATE: September 17, 2019 PAGE: 4 RE: Complaint No. 19093: Michael Petrelis v. Mayor London Breed and Office ofthe Mayor
CHAPTER 67, SAN FRANCISCO ADMINISTRATIVE CODE (SUNSHINE ORDINANCE) SEC. 67.21. PROCESS FOR GAINING ACCESS TO PUBLIC RECORDS; ADMINISTRATIVE APPEALS (a) Every person having custody of any public record or public information, as defined herein, (hereinafter referred to as a custodian of a public record) shall, at normal times arid during normal and reasonable hours of operation, without unreasonable delay, and without requiring an appointment, permit the public record, or any segregable portion of a record, to be inspected and examined by any person and shall furnish one copy thereof upon payment of a reasor1able copying charge, not to exceed the lesser of the actual cost or ten cents per page. , (b) A custodian of a public record shall, as soon as possible and within ten days following receipt of a request for inspection or copy of a public record, comply with such request. Such request may be delivered to the office of the custodian by the requester orally or in writing by fax, postal delivery, or e-mail. If the custodian believes the record or information requested is not a public record or is exempt, the custodian shall justify withholding any record by demonstrating, in writing as soon as possible and within ten days following receipt of a · request, that the record in question is exempt under express provisions of this ordinance. (c) A custodian of a public record shall assist a requester in identifying the existence, form, and nature of any records or information maintained by, available to, or in the custody of the custodian, whether or not the contents of those records are exempt from disclosure and shall, when requested to do so, provide in writing within seven days following receipt of a request, a statement as to the existence, quantity, form and nature of records relating to a particular subject or questions with enough specificity to enable a requester to identify records in order to make a request under (b). A custodian of any public record, when not in possession of the record requested, shall assist a requester in directing a request to the proper office or staff person. (d) If the custodian refuses, fails to comply, or incompletely complies with a request described in (b), the person making the request may petition the supervisor of records for a determination whether the record requested is public. The supervisor of records shall inform the petitioner, as soon as possible and within 10 days, of its determination whether the record requested, or any part of the record requested, is public. Where requested by the petition, and where otherwise desirable, this determination shall be in writing. Upon the determination by the supervisor of records that the record is public, the supervisor of records shall immediately order the custodian of the public record to comply with the person's request. If the custodian refuses or fails to comply with any such order within 5 days, the supervisor ofrecords shall notify the district attorney or the attorney general who shall take whatever measures she or he deems necessary and appropriate to insure compliance with the provisions of this ordinance. (e) If the custodian refuses, fails to comply, or incompletely complies with a request described in (b) above or if a petition is denied or not acted on by the supervisor of public · records, the person making the request may petition the Sunshine Task Force for a determination whether the record requested is public. 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
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P540 CiTY AND COUNTY OF·SAN FRANCISCO OFFICE OF THE CiTY ATTORNEY
MEMORANDUM PRIVILEGED & CONFIDENTIAL
TO: Sunshine Ordinance Task Force DATE: September 17, 2019 PAGE: 5 RE: Complaint No. 19093: Michael Petrelis v. Mayor London Breed and Office of the Mayor
when a petition in writing is received, of its determination whether the record requested, or any part of the record requested, is public. Where requested by the petition, and where otherwise desirable, this determination shall be in writing. Upon the determination that the record is public, the Sunshine Task Force shall immediately order the custodian of the public record to comply with the person's request. If the custodian refuses or fails to comply with any such order within 5 days, the Sunshine Task Force shall notify the district attorney or the attorney general who may take whatever measures she or he deems necessary to insure compliance with the provisions of this ordinance. 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. Where requested by the petition, the Sunshine Task Force may conduct a public hearing wncerning the records request denial. An authorized representative of the custodian of the public records requested shall attend any hearing and explain the basis for its decision to withhold the records requested. (f) The administrative remedy provided under this article shall in no way limit the availability ofother 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. (g) In any court proceeding pursuant to this article there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove with specificity the exemption which applies. (h) On at least an annual basis, and as otherwise requested by the Sunshine Ordinance Task Force, the supervisor of public records shall prepare a tally and report of every petition brought before it for access to records since the time of its last tally and report. The report shall at least identify for each petition the record or records sought, the custodian of those records, the ruling of the supervisor of public records, whether any ruling was overturned by a court and whether orders given to custodians of public records were followed. The report shall also summarize any court actions during that period regarding petitions the Supervisor has decided. At the request of the Sunshine Ordinance Task Force, the report shall also include copies ofall rulings made by the supervisor of public records and all opinions issued. (i) The San Francisco City Attorney's office shall act to protect and secure the rights of the people of San Francisco to access public information and public meetings and shall not act as legal counsel for any city employee or any person having custody of any public record for purposes of denying access to the public. The City Attorney may publish legal opinions in response to a request from any person as to whether a record or information is public. All communications with the City Attorney's Office with regard to this ordinance, including petitions, requests for opinion, and opinions shall be public records.
n:\codenf\as2019\9600241 \01392295.docx P541 CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY
MEMORANDUM PRIVILEGED & CONFIDENTIAL
TO: Sunshine Ordinance Task Force DATE: September 17, 2019 PAGE: 6 RE: Complaint No. 19093: Michael Petrelis v. Mayor London Breed and Office of the Mayor
G) Notwithstanding the provisions of this section, the City AttOrney may defend the City or a City Employee in litigation under this ordinance that is actually filed in court to any extent required by the City Charter or California Law. (k) Release of documentary public information, whether for inspection of the original or by providing a copy, shall be governed by the California Public Records Act (Government Code Section 6250 et seq.) in particulars not addressed by this ordinance and in accordance with the enhanced disclosure requirements provided in this ordinance. (1) Inspection and copying of documentary public information stored in electronic form shall be made available to the person requesting the information in any form requested which is available io or easily generated by the department, its officers or employees, including disk, tape, printout or monitor at a charge no greater than the cost of the media on which it is duplicated. Inspection of documentary public information on a computer monitor need not be allowed where the information sought is necessarily and unseparably intertwined with information not subject to disclosure under this ordinance. Nothing in this section shall require a department to program or reprogram a computer to respond to a request for information or to release information where the release of that information would violate alicensing agreement or copyright law.
SEC. 67.29-5. CALENDARS OF CERTAIN OFFICIALS.
(a) The Mayor, City Attorney, Treasurer, Assessor-Recorder, District Attorney, Public Defender, Sheriff, every member of the Board of Supervisors, and every Department Head shall keep or cause to be kept a daily calendar wherein is recorded the time and place of each meeting or event attended by that official, either in person or by teleconference or other electronic means, with the exclusion of purely personal or social events at which no City business is discussed and that do not take place at City Offices or at the offices or residences of people who do substantial business with or are otherwise substantially financially affected by actions of the City. For meetings not otherwise publicly recorded, the calendar shall include a general statement of issues discussed. Such calendars shall be public records and shall be available to any requester three business days subsequent to the calendar entry date.
(b) For meetings or events with ten or fewer attendees, the calendar shall also identify the individual(s) present and organization(s) represented at the meeting or event if known by the official, unless the official is aware that the information would reveal the identity of a confidential whistleblower, would interfere with an individual's right to petition government where the individual has sought and been assured confidentiality, would disclose the attendance of members or representatives of a labor organization at a meeting to cliscuss matters within the scope of representation, as that term is defined in California Government Code Section 3504, would reveal personnel information not subject to disclosure, or is otherwise exempt from disclosure under State and local law.
(c) At any meeting or event with ten or fewer attendees, officials subject to subsection (a) of this Section 67.29-5 shall attempt to identify names of attendees present, and the · organizations they represent; provided that an official shall not require any attendees to identify
n:\codenf\as20 19\9600241\013 92295 .docx P542 CiTY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY
MEMORANDUM PRIVILEGED & CONFIDENTIAL
TO: Sunshine Ordinance Task Force DATE: September 17, 2019 PAGE: 7 RE: Complaint No. 19093: Michael Petrelis v. Mayor London Breed and Office ofthe Mayor
themselves, unless the official is aware that those attendees are campaign consultants registered with the Ethics Commission under Campaign and Governmental Conduct Code Article I, Chapter 5; lobbyists registered with the Ethics Commission under Campaign and Governmental Conduct Code Article II, Chapter 1; permit consultants registered with the Ethics Commission under Campaign and Governmental Conduct Code Article III, Chapter 4; Developers of Major Projects, as defined in Campaign and Governmental Conduct Code Section 3.510, if the Major Project is discussed at the meeting or event; and employees or representatives of any entity that has received a grant from or entered a contract with any City department within the previous 12 months. The official has no duty to ascertain whether any attendees fall into these categories. Within three business days after a meeting or event subject to this subsection (c), the official shall update tl1e daily calendar to include the names of the attendees and organizations identified by or known to the official.
(d) For the purpose of calculating the total number of attendees at a meeting or event under subsections (b) and (c), an official shall not include himself or herself.
(e) The obligations imposed under subsections (b) and (c), and the obligations imposed upon members of the Board of Supervisors under subsection (a), shall not apply to meetings or events where City business is discussed only incidentally; to unplanned, casual conversations with residents; to campaign-related meetings, events, and appearances; or to meetings or events where all attendees are employees or officers in the official's City department, which for members ofthe Board of Supervisors shall mean that all attendees are members of the Board of Supervisors, legislative aides, or employees of the Office of the Clerk of the Board. Officials are not in violation of subsections (b) or (c), and members of the Board of Supervisors are not in violation of subsection (a), if they have made a good faith effort to comply with their obligations thereunder.
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.
(b) The Department of Elections shall keep and preserve all records and invoices relating to the design and printing of ballots and other election materials and shall keep and preserve records documenting who had custody of ballots from the time ballots are cast until ballots are received and certified by the Department of Elections.
(c) In any contract, agreement or permit between the City and any outside entity that authorizes that entity to demand any funds or fees from citizens; the City shall ensure that accurate records of each transaction are maintained in a professional and businesslike manner and are available to the public as public records under the provisions of this ordinance. Failure of an entity to comply with these provisions shall be grounds for terminating the contract or for
n:\codenf\as20 19\9600241\0 13 92295 .docx
P543 CiTY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CiTY ATTORNEY
MEMORANDUM PRIVILEGED & CONFIDENTIAL
TO: Sunshine Ordinance Task Force DATE: September 17, 2019 PAGE: 8 RE: Complaint No. 19093: Michael Petrelis v. Mayor London Breed and Office of the Mayor ·
imposing a financial penalty equal to one-half of the fees derived under the agreement or permit during the period of time when the failure was in effect. Failure of any Department Head under this provision shall be a violation ofthis ordinance. This paragraph shall apply to any agreement allowing an entity to tow or impound vehicles in the City and shall apply to any agreement allowing an entity to collect any fee from limy persons in any pretrial diversion program.
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P544 Sunshine Ordinance Task Force Complaint Summary
File No. 19093
Michael Petrelis v. Mayor London Breed and Office of the Mayor
Date filed with SOTF: 08/28/19.
Contacts information (Complainant information listed first): Michael Petrelis ([email protected]) (Complainant) Mayor London Breed ([email protected]), Hank Heckel ([email protected]) Sean Elsbemd ([email protected]) (Respondents) ·
File No. 19093: Complaint filed by Michael Petrelis against Mayor London Breed and the Office of the Mayor for allegedly violating Administrative Code, (Sunshine Ordinance) Sections 67.21 by failing to respond to a request for puhlic records in a timely and/or complete manner. ·
Administrative Summary if applicable:
Complaint Attached.
P545 o plainant/Petiti ners ocuments Sub issi n
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Elsbernd, Sean (MYR) 56 8/19/2019 11:04 AM
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Elsbernd, Sean (MYR) 136 8/19/2019 11:04 AM
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FRIDAY
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Elsbernd 1 Sean (MYR) 151 _8/19/2.019.11:04 AM
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Elsbernd, Sean (HYR) 154 8/19/2019 11:04 AM
P564 June 2.019 July 2.019 June 10, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 12.3456 Monday 2 3 4 5 6 7 8 7 8 9 10 11 12. 13 9 10 11 12. 13 14 15 14 15 16 17 18 19 20 16 17 18 19 20 21 22. 2.1 22 2.3 2.4 2.5 26 27 2.3 '2.4 25 2.6 27 28 29 28 2.9 30 31 30
MONDAY
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Elsbernd, Sean (MYR) 161 8/19/2019 11:04 AM
P565 -4:30pm MLB Scheduling (MO)
163 8/19/2019 11:04 AM
P566 June 2019 July 2019 June 21; 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 1 2 3 4 5 6 Friday 2345678 7 8 9 10 11 12 13 9 10 11 12 13 14 15 14 15 16 17 18 19 20 16 17 18 19 20 21 22 21 22 23 24 25 26 27 23 24 25 26 27 28 29 28 29 30 31 30
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Elsbernd, Sean (MYR) 172 8/19/2019 11:04 AM
P567 June 2019 July 2019 June 24, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 123456 Monday 2 3 4 5 6 7 8 7 8 9 10 11 12 13 9 10 11 12 13 14 15 14 15 16 17 18 19 20 16 17 18 19 20 21 22 21 22 23 24 25 26 27 23 24 25 26 27 28 29 28 29 30 31 30
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Elsbernd, Sean (MYR) 175 . 8/19/2019 11:04 AM
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WEDNESDAY ..
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Elsbernd, Sean (MYR) 177 8/19/2019 11:04 AM
P569 July 2019 August 2019 July 12, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 123456 1 2 3 Friday 7 8 910111213 4 5 6 7 8 9 10 14 15 16 17 18 19 20 11 12 13 14 15 16 17 21 22 23 24 25 26 27 18 19 20 21 22 23 24 28 29 30 31 25 26 27 28 29 30 31
FRIDAY 12
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Elsbernd, Sean (MYR) 193 8/19/2019 11:04 AM
P570 July 2019 August 2019 July 24, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 4 5 6 1 2 3 Wednesday 7 8 9 10 11 12 13 4 5 6 7 8 9 10 14 15 16 17 18 19 20 11 12 13 14 15 16 17 21 22 23 24 25 26 27 18 19 20 21 22 23 24 28 29 30 31 25 26 27 28 29 30 31
WEDNESDAY 24 II Abby in office at 10:00 AM
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E\sbernd 1 Sean (MYR) 205 8/19/2019 11:04 AM
P571 July 2019 August 2019 July 30, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1234S6 1 2 3 Tuesday 7 8 9 10 11 12 13 4 5 6 7 8 9 10 14 15 16 17 18 19 20 11 12 13 14 15 16 17 21 22 23 24 25 26 27 18 19 20 21 22 23 24 28 29 30 31 25 26 27 28 29 30 31
TUESDAY 30 fFuil·s~ards~~~nd vote -;~the t>U"Jget(MLB must ~i9n. ih~-iiud~-~~::it~~~!~.. ~aj~j .. -.. :~~~-~-~
8
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1
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Darius Anderson Call Re: TZK Broadway Hotel ; Dari[Js to call Sean's ceU; Darius Anderson ·····--v
Elsbernd, Sean (~1YR) 1 8/19/2019 10:54 AM P572 July 2019 August 2019 July 31, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 123456 1 2 3 Wednesday 7 8 9 10 11 12 13 4 5 6 7 8 9 10 14 15 16 17 18 19 20 11 12 13 14 15 16 17 21 22 23 24 25 26 27 18 19 20 21 22 23 24 28 29 30 31 25 26 27 28 29 30 31
WEDNESDAY
31
8
9
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Paul Henderson Sean's Office; Elsbernd, Sean (MYR) 11
1
2
3 MLB Scheduling MLB Scheduling MO ; Sun, Selina (MYR) MO ; Sun, Selina (MYR) 0 Weekly Meeting with Police Chief Scott City Hall, Room 200, Sean's Office; Marcaida, MicheJie (MYR)
4:30pm - 5:00pm MLB Weekly Meeting with Police Chief Scott (City Hall, Room 200, MO)
5:00pm - 5:30pm Chief, bob Hirsch, mayor
Elsbernd, Sean (MYR) 2 8/19/2019 10:54 AM P573 August 2019 September 2019 August 1, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 1234567 4 5 6 7 8 9 10 8 9 10 11 12 13 14 Thursday 11 12 13 14 15 16 17 15 16 17 18 19 20 21 18 19 20 21 22 23 24 22 23 24 25 26 27 28 25 26 27 28 29 30 31 29 30
THURSDAY
7AM
8 Group call Office-1111111111111 0
9
Weekly Scheduling Meeting City Hall, Room 200, Sean's Office; Elsbernd, Sean (MYR) 0 10
DNS
11 Budget Signing Richmond Neighborhood Center, 741 30th Avenue
1
2 Monthly Meeting with Trent Rhorer City Hall, Room 200, Sean's Office; Marcaida, Michelle (MYR)
3
Bi-Weekly: Naomi Kelly & Sean Elsbernd Sean to call Naomi's Cell ; Elsbernd, Sean (MYR) -5:00pm Judson True
Elsbernd, Sean (MYR) 3 8/19/2019 10:54 Al"i P574 August 2019 September 2019 August 2, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 1 2 3 4 5 6 7 Friday 4 5 6 7 8 9 10 8 9 10 11 12 13 14 11 12 13 14 15 16 17 15 16 17 18 19 20 21 ' 18 19 20 21 22 23 24 22 23 24 25 26 27 28 25 26 27 28 29 30 31 29 30
FRIDAY
2
8
9
Sean to call Sheryl Davis 10
11 IGOV AFFAIRS Sean's Office Elsbernd, Sean (MYR) 0
12 PM War Memorial TOR City Hall, Room 200, Sean's Office; Elsbernd, Sean (MYR)
Mary Ellen Carroll City Hall, Room 200, Mayor's Office; Elsbernd, Sean (MYR) 0 1 ---• 2 II Power Options Workplan Check·in : i Sean Elsbernd's Office, Room 200 : ; Kelly Jr, Harlan :i 0
3
4:00pm -4:30pm Dan Adams(Sean's Office)
Elsbernd, Sean (MYR) 4 8/19/2019 10:54 AM P575 August 2019 September 2019 August 3, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 1234567 Saturday 4 s 6 7 8 9 10 8 9 10 11 12 13 14 11 12 13 14 15 16 17 15 16 17 18 19 20 21 18 19 20 21 22 23 24 22 23 24 25 26 27 28 25 26 27 28 29 30 31 29 30
SATURDAY.
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''W
Elsbernd, Sean (~1YR) 5 8/19/2019 10:54 Al'1 P576 August 2019 September 2019 August 4, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 1 2 3 4 5 6 7. 4 5 6 7 8 9 10 8 9 10 11 12 13 14 Sunday 11 12 13 14 15 16 17 15 16 17 18 19 20 21 18 19 20 21 22 23 24 22 23 24 25 26 27 28 25 26 27 28 29 30 31 29 30
SUNDAY
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8
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Elsbernd, Sean (~1YR) 6 8/19/2.019 10:54 At"l P577 August 2019 September 2019 August 5, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 1 2 3 4 5 6 7 Monday 4 5 6 7 8 9 10 8 9 10 11 12 13 14 11 12 13 14 15 16 17 15 16 17 18 19 20 21 18 19 20 21 22 23 24 22 23 24 25 26 27 28 25 26 27 28 29 30 31 29 30
MONDAY
5
To 9 -? 7AM
8
9
All Staff Check-in • City Hall, Room 201 0 10 Monday Morning Coordination Meeting City Hall, Room 201, Conference. Room; Phil hour, Marjan (MYR) 0 Tyrone j · Elsbernd, Sean (MYR) 11 TZK Broadway Hotel Call Darius to calf sean atURRRIEisber~d~~~a~-(~YR)
1 2 PM Padraic Ryan cadillac
1
Doug Goldman Call his cell 2
. Mark Kadesh
3
4:00pm -4:30pm MLB Scheduling (MO)
Elsbernd, Sean (~1YR) 7 8/19/2019 10:54 Af'1
P578 August 2019 September 2019 August 6, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 1 2 3 4 5 6 '7 4 5 6 7 8 9 10 8 9 10 11 12 13 14 Tuesday 11 12 13 14 15 16 17 15 16 17 18 19 20 21 18 19 20 21 22 23 24 22 23 24 25 26 27 28 25 26 27 28 29 30 31 29 30
TUESDAY
6
8
9
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11
Rob Binningham Bi-Rite
1 Elaine Forbes, Monthly City Hall, Room 200; Elsbernd, Sean (MYR)
2
3 Bay Delta Plan, SFPUC, Environmental Stakeholders 201
Elsbernd, Sean (I'-1YR) 8 8/19/2019 10:54 Alv1 P579 August 2019 September 2019 August 7, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 1234567 Wednesday 4 5 6 7 8 9 10 8 9 10 11 12 13 14 11 12 13 14 15 16 17 15 16 17 18 19 20 21 18 19 20 21 22 23 24 22 23 24 25 26 27 28 25 26 27 28 29 30 31 29 30
WEDNESDAY
7
7AM ~--·
8
9
Brian Mikes Bi-Rite Cafe at Civic Center Plaza- 52 Grove St, San Francisco, CA 94102, United States 10
11
Rachel Wagoner, Alice Reynolds Sean to Call: Code•BII; Elsbernd, Sean (MYR) 1 Mayor Agnos, VRR2US International Room; Elsbernd, Sean (MYR) Budget Check-In Elsbemd, Sean (MYR) . . . 2 Weekly Meeting with Police Chief Scott Hall, Room 200, Sean's Office; Marcaida, Michelle
3
- 5:00pm Lope Yap Jr. Re: GWHS Murals
-5:15pm Jenny Lam (City Hall, Room 200, Sean's Office)
-5:45pm Paul. Henderson
Elsbernd, Sean (MYR) 9 8/19/2019 10:54 M·1 P580 August 2019 September 2019 August 8, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 1 2 3 4 5 6 7 Thursday 4 5 6 7 8 9 10 8 9 10 11 12 13 14 11 12 13 14 15 16 17 15 16 17 18 19 20 21 18 19 20 21 22 23 24 22 23 24 25 26 27.28 25 26 27 28 29 30 31 29 30
THURSDAY
8
To <€---· To
8 Group call Office -1111111111 0
9
Weekly Scheduling Meeting City Hall, Room 200, Sean's Office; Elsbernd, Sean (MYR) 0 1O Senior Staff Check-In Room 201 Peacock, Rebecca (MYR) Supervisor Fewer 0 11 HSOC Policy Group City Hall, Room 201 Carroll, Maryellen (OEM) 0 HSOC Principals Policy Group City Hall, Room 201 Yank Sing Spear street Carroll, Maryellen (OEM) 0
1
Shennan Tillman
2 -~ . ~. ' .. 2:15 PM War Memorial Board of Trustees Meeting, Re: Capital~ I War Memorial Opera House, 4th Floor, Board Room Elsbernd, Sean (MYR) Craig Farr 3 Cafe Valor L .I Harlan Kelly . !1: City Hall, Room 200; Kelly Jr, Harlan 4:00pm- 4:30pm MLB: DOT Search Update
Elsbernd, Sean (MYR) 10 8/19/2019 10:54 AI·~ P581 August 2019 September 2019 August 9, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 1 2 3 4 5 6 7 Friday 4 5 6 7 8 9 10 8 9 10 11 12 13 14 11 12 13 14 15 16 17 15 16 17 18 19 20 21 18 19 20 21 22 23 24 22 23 24 25 26 27 28 25 26 27 28 29 30 31 29 30
FRIDAY
9
~---~ From Aug 8 yAM
8
9
Monthly: Phil Ginsburg City Hall, Room 200, Sean's Office; Marcaida, Michelle (MYR) 0 10
FrankFung Cafe Valor 11 GOV AFFAIRS Sean's Office Elsbernd, Sean (MYR) 0
•·· Kelly 12 PM ~ Elsbernd, Sean (MYR)
Bi-Weekly: Jeff Kositsky City Hall, Room 200, Sean's Office; Marcaida, Michelle ·(MYR) 0 1 Bi-Weekly: Je~se S~ith City Hall, Room 200, Sean's Office; Elsbernd, Sean (MYR) 0 ' ·- . . . . - .. Bi-Weekly: Joaquin & Ken Elsbernd, Sean (MYR) 1------...- 2 i·l:· Power Options Workplan Check-in i ' Sean Elsbernd's Office, Room 200 i ; Kelly Jr, Harlan . 0 . '
3
4:00pm -4:30pm Monthly: Tom Maguire (City Hall, Rm 200)
Elsbernd, Sean (1'1YR) 11 8/19/2019 10:54 AM P582 August 2019 September 2019 August 10, 019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 1 234567 Saturday 4 5 6 7 8 9 10 8 9 10 11 12 13 14 11 12 13 14 15 16 17 15 16 17 18 19 20 21 18 19 20 21 22 23 24 22 23 24 25 26 27 28 25 26 27 28 29 30 31 29 30
SATURDAY
10
7AM
8
n I ::J I
10
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12 PM
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Elsbernd, Sean (MYR) 12. 8/19/2.019 10:54 AM P583 August 2019 September 2019 August 11, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 1 2 3 4 5 6 7 Sunday 4 5 6 7 8 9 10 8 9 10 11 12 13 14 11 12 13 14 15 16 17 15 16 17 18 19 20 21 18 19 20 21 22 23 24 22 23 24 25 26 27 28 25 26 27 28 29 30 31 29 30
.SUNDAY 11
8
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Elsbernd, Sean (MYR) 13 8/19/2019 10:54 AM P584 August 2019 September 2019 August 12, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 1234567 Monday 4 5 6 7 8 9 10 8 9 10 11 12 13 14 11 12 13 14 15 16 17 15 16 17 18 19 20 21 18 19 20 21 22 23 24 22 23 24 25 26 27 28 25 26 27 28 29 ·30 31 29 30
MONDAY 12 8 9 FYI: All Staff Check-in City Hall, Room 201 10 FYI: Monday Morning Coordination Meeting City Hall, Room 201, Conference Room; Philhour, Ma~an (MYR) () 11 1 2 3 Elsbernd, Sean (~1YR) 14 8/19/2019 10:54 Al'·1 P585 August 2019 September 2019 August 13, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 1234567 4 5 6 7 8 9 10 8 9 10 11 12 13 14 Tuesday 11 12 13 14 15 16 17 15 16.1718 19 20 21 18 19 20 21 22 23 24 22 23 24 25 26 27 28 25 26 27 28 29 3G 31 29 30 TUESDAY 13 8 9 10 11 1 2 FYI: MLB and Kelly Kirkpatrick 3 Elsbernd, Sean (MYR) 15 8/19/2019 10:54 AM P586 August 2019 September 2019 August 15, 2019 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 1 2 3 4 s 6 7 Thursday 4 5 6 7 8 9 10 8 9 10 11 12 13 14 11 12 13 14 15 16 17 15 16 17 18 19 20 21 18 19 20 21 22 23 24 22 23 24 25 26 27 28 25 26.27 28 29 30 31 29 30 THURSDAY 15 ...... ---··-"'""--·---·--...... -.... - ...... ___ , ...... _.. __ __ 7AM 8 ·-~· --~-··---- ··-·····- -- -·-- --·-····-·-·· -·-- --· --······-- ······---··- -~ -·· ···------··---·-· ···--···- '" ------·-· ·------~. -- ···-···-· ------·-···-··-··! ' Group call ol Office••••• -- -··--- --· .. ---· .----- ·-··------··--- ._.. ·------. -· ·- --· .-··· . .:.. ··- --···-... ----··. --~-~--~- ···---··---.. --- ____ _,... ____ -- --··- ·--· -·--- .. -----~---~ 9 10 Senior Staff Check-In Room 201 Peacock, Rebecca (MYR) 0 11 1 2 3 Sean (MYR) 17 8/19/2019 10:54 AM P588 August 2019 September 2019 August 16, 201 9 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 1234567 Friday 4 5 6 7 8 9 10 8 9 10 11 12 13 14 11 12 13 14 15 16 17 15 16 17 18 19 20 21 18 19 20 21 22 23 24 22 23 24 25 26 27 28 25 26 27 28 29 30 31 29 30 FRIDAY 16 Indonesia Flag Raising 8 9 Meeting Re: Hardly Strictly City Hall, Room 200, Sean's Office; Elsbernd, Sean (MYR) 10 Kelly Kirkpatrick Elsbernd, Sean (MYR) Monthly: Personnel City Hall, Rciom 200, Sean's Office; Marcaida, Michelle (MYR) 0 11 Government Affairs Sean's Office Elsbernd, Sean (MYR) 0 12 PM Judsol") True , City Hall, Room 200, Sean's Office; Elsbernd, Sean (MYR) 0 :~;;;::.:-:~.-;:;.. ::·;;::. Weekly Scheduling Elsbernd, Sean (MYR) 1 Jason Lally Re: Living Cities City Hall, Room 200, Sean's Office; Elsbernd, Sean (MYR) Jenny Lam Re: City College MOU - - - - Grant to call Sean atllllllllll 2 !~: Power Options Workplan Check-in Elsbernd, Sean (MYR) ! i Sean Elsbernd's Office, Room 200; Kelly Jr, Harlan LJ . . Meeting Re: CityBuild, Sean's Office ; Elsbernd, Sean (MYR) 3 4:00pm -4:30pm MLB Commissions 4:30pm- 5:00pm Shireen McSpadden(City Hall, Room 200, Sean's Office) 5:00pm -5:15pm Kelly Kirkpatrick Elsbernd, Sean (MYR) 18 8/19/2019 10:54 A!11 P589 esp ndents cu. ent Sub. iss·ion· · · \. \ . . P590 Le er, Cheryl (BOS) From: MayorSunshineRequests, MYR (MYR) S~nt: Thursday, September 12, 2019 6:14PM To: MICHAEL PETRELIS; MayorSunshineRequests, MYR (MYR) Cc: SOTF, (BOS) Subject: RE: Immediate disclosure request Sean Elsbernd's calendars. Attachments: 9.9.19 Response to SOTF Complaint of Michael Petrelis.pdf; Ltr to Ethics re. Kawa calendar.pdf; Ethics Commission Minutes-september-26-2016.pdf Hi Michael, As I stated in our response to your complaint, we have produced the responsive records that exist in the Office of the Mayor. Any other entries in that time frame that you mention either were not created or not retained. Please see our response and the attached exhibits which were submitted to SOTF on Monday. Regards, Hank Heckel Compliance Officer Office of Mayor London N. Breed City and County of San Francisco From: MICHAEL PETRELIS Hi Hank, I have received your letter and responsive records that partially comply with my request. Missing are the months prior to February and for many weeks of what was released, the only entry on the calendar is a scheduling meeting with the mayor. Where are the full calendars for Sean Elsbemd? Let rrie know. Thanks. Michael Petrelis -----Original Message----- From: MayorSunshineRequests, MYR (MYR) Michael, Please see the attached responsive records regarding your request below. These are the available calendar entries for the timeframe you specified. Please note that certain personal information such as cell phone numbers has been redacted to avoid an unwarranted breach of personal privacy. See. Cal. Govt. Code Sees. 6254(c), 6254(k); California Constitution, Art. I, Sec. 1. Similarly, appointment of a personal and non-city nature have also been redacted. Please also note that certain call-in information has been redacted pursuant to the official information privilege. See Cal. Evid. Code Sec. 1040(b)(2). Please note that certain identifying information has also been redacted to protect the identity of certain individuals involved in ongoing hiring processes. See Cal. Govt. Code Sees. 6254(c), Admin. Code§ 67.24(c). Please note that we are responding only on behalf of the Office of the Mayor and not on behalf of other City Departments. If you have any questions about your request or would like to submit another public records request, please feel free to contact us at [email protected]. Regards, Hank Heckel Compliance Officer Office of Mayor London N. Breed City and County of San Francisco From: MayorSunshineRequests, MYR (MYR) Michael, We plan to respond within 10 days but reserve our rights to continue the response for up to 14 days. See § S.F. Admin Code§ 67.25(b); Government Code§ 6253(c). Let me know if you have any questions in the meantime. Regards, Hank Heckel Compliance Officer Office of Mayor London N: Breed City and County of San Francisco From: MICHAEL PETRELIS Hi Hank, Thanks for the notice. What amount time are you invoking? Lemme know. Best, Michael -----Original Message----- From: MayorSunshineRequests, MYR (MYR) Dear Michael, We have received your request and are processing our response. Please note that we are invoking an extension of time to respond to your request due to the need to consult with other city departments. § S.F. Admin Code § 67.25(b); Government Code§ 6253(c). We understand the need to conductthis consultation with all practicable speed and will complete our response as expeditiously as possible and within the permitted statutory period for extension. Regards, Hank Heckel Compliance Officer Office of Mayor London N. Breed City and County of San Francisco From: MICHAEL PETRELIS This message is from outside the City email system. Do not open links or attachments from untrusted sources. Mayor London Breed City Hall . San Francisco, CA Dear Mayor Breed, This is an immediate disclosure request for a copy of any and all calendars maintained by your chief of staff, Sean Elsbernd, from October 1, 2018, through the close of business today. I wish to receive all responsive records via email, please. If you have any questions, don't hesitate to contact me. Please acknowledge receipt of this IDR by the close of business today. Sincerely, Michael Petrelis Public Advocate Leger, Cheryl (BOS) From: Heckel, Hank (MYR) Sent: Monday, September 9, 2019 9:22 PM To: SOTF, (BOS) Cc: Breed, Mayor London (MYR); Elsbernd, Sean (MYR) Subject: RE: SOTF - Complaint Filed with the Sunshine Ordinance Task Force - File No. 19093 Attachments: 9.9.19 Response to SOTF Complaint of Michael Petre lis. pdf; Ltr to Ethics re. Kawa calendar.pdf; Ethics Commission Minutes-september-26-2016.pdf Dear Honorable Members of the Task Force, Please see the response to Complaint File No. 19093, and the accompanying exhibits. Regards, Hank Heckel Compliance Officer Office of Mayor London i'>i. Breed City and County of San Francisco (415} 554-4796 From: SOTF, (BOS} Good Afternoon: Mayor London Breed and the Office of the Mayor have been named as Respondents in the attached complaint filed with the Sunshine Ordinance Task Force. Please respond to the following complaint/request within five business days. The Respondent is required to submit a written response to the allegations including any and all supporting documents, recordings, electronic media, etc., to the Task Force within five (5) business days of receipt of this notice. This is your opportunity to provide a full explanation to allow the Task Force to be fully informed in considering your response prior its meeting. Please include the following inforniation in your response if applicable: 1. List all relevant records with descriptions that have been provided pursuant to the Complainant request. 2. Date the relevant records were provided to the Complainant. 3. Description of the method used, along with any relevant search terms used, to search for the relevant records. 4. Statement/declaration that all relevant documents have been provided, does not exist, or has been excluded. 5. · Copy of the original request for records (if applicable). Please refer to the File Number when submitting any new information and/or supporting documents pertaining to this complaint. · The Complainant alleges: Complaint Attached. Cheryl Leger Assistant Clerk, Board of Supervisors Tel: 415-554-7724 Click here to complete a Board of Supervisors Customer Service Satisfaction form. The Legislative Research Center provides 24-hour access to Board of Supervisors legislation, and archived matters since August 1998. Disclosures: Personal information that is provided in communications to the Board of Supervisors is subject to disclosure under the California Public Records Act and the San Francisco Sunshine Ordinance. Personal information provided will not be redacted. Members of the public are not required to provide personal identifying information when they communicate with the Board of Supervisors and its committees. All written or oral communications that members of the public submit to the Clerk's Office regarding pending legislation or hearings will be made available to all members of the public for inspection and copying. The Clerk's Office does not redact any information from these submissions. This means that personal information-including names, phone numbers, addresses and siniilar information that a member of the public elects to submit to the Board and its committees-may appear on the Board of Supervisors website or in other public documents that members of the public may inspect or copy. Office of the Mayor City & County of San Frai1ci.sco Via E-mail Only to [email protected] Honorable Members of the Sunshine Ordinance Task Force 1 Dr. Carlton B. Goodlett Place, Room 244 San Francisco, CA 94102 September 9, 2019 Re: File No. 19093, Michael Petrelis v. Mayor London Breed, Office of the Mayor Dear Honorable Members of the Sunshine Ordinance Task Force ("SOTF"): This letter serves as a response on behalf of Mayor London Breed and the Office of the Mayor to the complaint designated File No. 19093, filed by Michael Petrelis. See Complaint Noticed to Respondents on August 30, 2019. The complaint alleges a violation of S.F. Administrative Code Section 67.21 "by failing to respond to a request for public records in a timely and/or complete manner." Respondents respectfully submit that the Office of the Mayor timely and fully responded to Mr. Petrelis with all of the available requested records and accordingly there has been no violation of the Sunshine Ordinance. Background On August 16,2019 at 4:16PM, Mr. Petrelis sent an Immediate Disclosure Request to the Office of the Mayor for Mayor Breed's Chief of Staff Sean Elsbernd's calendar from October 1, 2018 through close of business that day. The Office of the Mayor timely informed Mr. Petrelis that it was invoking additional time to respond to the request in order to consult with other city departments. On August 27, 2019, the Office ofthe Mayor produced to Mr. Petrelis all of the available calendar entries for Chief of StaffElsbernd for the period of time requested. These comprise over 40 pages and span from February 2019 to August 16, 2019. The Office of the Mayor offered to assist Mr. Petrelis with any questions regarding his request. The next day Mr. Petrelis filed his complaint. Argument ·Mr. Petrelis' complaint alleges that the Office of the Mayor failed to provide the "full and complete calendars" of Chief of StaffElsbemd. On the contrary, the Office of the Mayor performed a search for all calendars relating to city business in the possession, custody or control of Chief of StaffElsbemd and staff and provided Mr. Petrelis with all of the available calendar entries. No calendar days retained in the possession of Chief of Staff Elsbemd or staff were withheld. There can be no violation for not producing documents that do not exist in the custody, control or possession of the Respondents. To the extent that Mr. Petrelis claims that the Office of the Mayor is required generally to create and retain particular calendar entries for staff outside of the so-called Prop G calendar for 1 Dr. Carlton B. Goodlett Place, Room 200, S:m Francisco, California 94]{)2-4641 (415) 554-6141 P597 the Mayor, this is not supported by the Sunshine Ordinance or local record retention requirements. Respectfully, Mr. Petrelis has not pointed to any authority holding that the Chief of Staffs calendar- prepared and retained only for reference for making and keeping daily appointments- is subject to particular requirements in its content or in the duration of its retention. In fact, the San Francisco City Attorney's Office has expressed the opinion, in submissions to both the Sunshine Ordinance Task Force and the San Francisco Ethics Commission, that the Chief of Staffs calendar is not subject to such requirements. The City Attorney's Office set forth this view based on a thorough analysis of both the Sunshine Ordinance and applicable record retention laws and policies. The City Attorney's Office issued these submissions a few years ago in response to a previous complaint by Mr. Petrelis regarding the calendar of a previous Mayoral Chief of Staff, Steve Kawa. Specifically in its September 15, 2016 letter to lhe Ethics Commission, the City Attorney's Office argued that city record retention obligations did not generally require retention ofthe Chief of Staffs calendar: The law does not currently require the Mayor's Chief of Staff, as a general rule, to keep notes of meetings he attends, or of phone message slips relating to the scheduling of meetings, or of email communications concerning what transpired or is expected to transpire at a meeting. To conclude that the law nonetheless requires the Chief of Staff to retain a copy of his calendar entries for meetings would be inconsistent with this general view of records retention obligations under City law. See 9/15/16 Letter at 4. In the same letter, the City Attorney's Office also rejected the notion that the Prop G calendar provision of Admin Code § 67.29-5 (dictating that the Mayor, department heads and members of the Board of Supervisors keep calendars with specified information) created a requirement that the Chief of Staff create or retain particular calendar entries: · For those officials who are subject to the Prop G calendar requirement, the Sunshine Ordinance requires not only that the Prop G calendar be created but also that it be made available to the public, which implies that it must be retained for a period of time. Creation of the calendar is but a necessary prelude to its public disclosure. The purpose of the requirement is for the public to learn of the past activities of specified City officials. (S.F. Admin. Code§ 67.29-5 ("Such calendars shall be public records and shall be available to any requester three business days subsequent to the calendar entry date"); see also "Digest" of the Ballot Simplification Committee, Voter Information Pamphlet, November 2, 1999 Municipal Election, at 119 ("The Mayor and City depm~tment heads would be required to keep, and make public, calendars listing who meets with them and the topic of the meeting").) This makes the Prop G calendar fundamentally different from [the Chief of Staffs] individual calendar, which was created for internal use, like the individual calendars of numerous other City employees. 2 P598 . Just last year, the Board of Supervisors passed, and the Mayor signed, an amendment to the Sunshine Ordinance to expand the Prop G calendar requirement to cover Members of the Board of Supervisors. (Ordinance No. 118-15.) Until then, only the Mayor, other elected officials except for Members of the Board, and department heads, had to keep a Prop G calendar. Even after last year's amendment, neither the Mayor's Chief of Staff nor any other staff member serving a public official is required to keep a Prop G calendar. Id. at pp. 5-6. After receiving the City Attorney's Office's arguments on this earlier matter, the Ethics Commission did not find that the retention of the Chief of Staffs calendar was required and ultimately voted unanimously that Mr. Kawa had not willfully violated the Sunshine Ordinance by not generally retaining his calendar for periods longer than two weeks. See Ethics Commission Minutes, September 26, 2016, Item 5. The City Attorney's Office's Letter to the Ethics Commission, as well as its March 30, 2016 Letter to the Sunshine Ordinance Task Force, address essentially the same issue that Mr. Petre lis raises here. The Office of the Mayor attaches those letters to this response for reference and incorporates the entirety of those letters as if fully set forth herein. The Office of the Mayor is relying on the analysis in those letters as well as the outcome of the previous matter before the Ethics Commission in its position here. Thus, the Office of the Mayor submits that it has provided a timely and appropriate response to Mr. Petrelis' request and that there has been no violation of the Sunshine Ordinance. The Office of the Mayor is available to work with Mr. Petrelis and the Task Force to address further questions and concerns regarding this matter. Sincerely, Is/ Hank Heckel Hank Heckel Compliance Officer Office of the Mayor City and County of San Francisco 3 P599 CITY AND COUNTY OF SAN FRANCISCO ·OFFICE: OF THE. CITY ATTORNI;Y DENNlS J. HERRERA ·, '•. BLJ.R~ !:. Pt;LVi;NT.HN .) ·. City Attorney Dep~ty City Attom~Y Direct Dial: ' (~l~J 554-4659. . Efnail: buck..delventhal@sfgov .org September 15, 2016 Sent vi~ em~il (9 ethiC$.CO:miD,[email protected] ·. ·'· . ': .. . . .' ,•' ·... Honor~ble Members; Ethics Ci!tqiJni$1?.ion c/o LeeA;hn pelham, Executive Director 25 van Ness Avenue, SUite ~20 .!.>. SanFran9is.c~;CA9410~~60~3 ·. . :. Ite:; . Sh~w .tau~~ H~arill.g mthe Matter 9f S~n,shme Orc:lin,a~c,e t~~ FotfC, ' ' ' ·. i ' ·· '•• ,.,._, • '• ' 0 ,., ' ). ' • I ' • •' ' '· '' • "'' ' • · ·· ,. .; · ·, ."lt~feh.'al. Fil~ N?. 1516:?, MfchfiF,!(ft;frelis .v. $tf(Y¢ Kawa~ }r.[f!yot'$ ·Offil:.e. ·· · ·. · · "''"' • • '' • • :. '. ' r •• • •• • • • • ·;: ..... Deru;,~~#er$oli ien,p.e an~ Bqriorf!ble C~m1mis$iOn,~efliber$: . ', ' . . ··. ' ' . . . ·· .. · J]: :fuisJett~r we. address for' your c6n8ideration lega.lissues of Citywiddmportan.ce raised' in th~.a:J:;biv'e":~mtitled case, which was r~feired to the Ethics Com:mission ("Cominission"}.by 'the ' ·.;. Sunshirlei(J:J:dirllm,ce 'TaskForce C'TaskForce~'). : ·, ; • · · .. · · · •. ..· · ' . · · ·... ;.... , ( · ;Baclwcn~:rid . ·· Following its hearing of Mr. PeJ:relj,s)>. c9:WPf.a,Wt< t.Q,e TaskForce issued a Proposed Order. ofDe~er.m.i.nation ("Proposed Orde'r'')'conchidib:g tlliifM:r. ~awa had violated records . retentiad ramifications fo:r: City goveriunent this Office addressed a letter to the .· · . Task Fo~~ ~alyziHg tb,eJ~g~ i,s~u,e~; (~~r M,~cA3~,. ~Q}6, lf:i!.t,e~,, cp:py a~pheP, yvhich we -qnd~r¥AAd·~s part of the recor(;l m tqis case.). Tlie T~k Force subsequently Issued Its Order of Dete~'6~ti,ofi ("Fi:rilll Order'\ which mo·dified the P:~;opdsed Ordet Without"c})angirig its conchiSi6fi.S i . ' ; . i . . . . : .. . . • .. ' '·. i . ' . ' . . . . ·. ' • . ' .. . · .Iii o::rr M~c~ 30 letter we ill~e ·~ee niahi ~om~:. 1 DR. CARLTON B. GOODLETT PLACE, RoOM 234 • SAN FRANCISCO, CAUFORNIA 94) 02-5408 RECEPTION: {415)554-4700 ·FACSIMILE: (415)554-4699 P600 .. ,·· CITY SAN FRANCISCO . · · OFFICE OF THE CITY ATIORNEY · ' AND COUNTY OF . . .,.,, L~tter to Honqrable ~cimbefs, Ethics Commissio~ c/o LeeAiin Pelham, Executive Directo:r; ·,·... Page 2· ., ;J .... September 15, 2016 ·. ::: ~·L . . : ·.. I~· . _;.; -~ consequences that can accompari.y such a finding- the Commission's definition, whlch require; knowledge that an act or failure to act violates the Ordinance, carries out the purpose of Section 67.34. . . . ' The Final Order further asserts that the Coininission should ch~ge its defu;Utlon of "willful" to cover violations tha~ are "egregious, flagrant, cir, repeated'' _and "carried out ~th . , . a reckless disregard of the ... Ordinance." (Final Order, 7, n.7.). But wpile the TaskForce may take issue with Mr. Kawa' s practice of not retaining his individual calendar and whether the Ordinance's calendar requirements extend far enough, there is rio b?-sis under.existing law to conclude that Mr. Kawa, in periodically deleting his calendar, committed an "egregious" violation with ~ "reckless disregard" :for the $\rilshine Ordinance. There are three main reasons· Mr. Kawa' s. conduct (icies· not constitUte a willful violation of the Ord:iriano~, even .under the Task Force's suggested de:fuiition. First, there is :iio express requireme:ht in fl?.e Ordinance (or i:ii any other law) that the Mayor's Chief of Staff retain his ind:ivip:tial calendm.:. Second, even after recent amendments approved by t'he Board of Supervisors, the ''Prop G'' calendar reqUirement, discUssed below, does not apply to the Mayor's Chief of Staff or to any.other high rankit:lg City employees subordinate to those office holders whci are· subject to the requirement. Third; the Task Force's finding of a Sunshine Ordinance viol~tion conflicts With the conchi.sion of this Office as stated in our March 30 letter and in this letter, and is inconsistent with past legal ·advice. · · · Records Retention Law The Final Order substantialiy revises the Proposed Order's analysis of records retention law by resting its finding of a violation entrrely on the City's records retentio:o.Jaw (S.F. Admin. Code§§ 8.1.-.8.9), informed bythe Sunshine.Ordinance's "Prop G" calendar requirement (S.F. Admin. Code·§ 67.297"5). We addre.Ss these two points below... · A. D~fmitlon. of a ''Record" Under the CitY Records Retention Law .. . ·. . .·; .....·. . . _1.!':. . .· .. ·. . . . . The records retention statute applicable to cities is California' Government Code S~ction · 34090, which reqUires that "city records" be kept for two years. Although Section 34090 has no definition of a "record," the Attorney General has construed that term to mean: . • ' . • • _. ,· j. -.··._ • )' •. • [A]:n objective lasting indication of a writing, ev~:nt or other information, which is ·in the custody of a public officer and is kept either ( 1) because a law requires it to . be kept or (2) becauseit is necessar)r or convepientto the discharge of the public gffis;er's quti~_s and was mqcje or re_tqjv_.e~d.fqr (/Jt?.,purppse ofprese,rving its. ". infotryational cont?-nt for future reference. .. ; . . . . · · ...... (64 Cal. Op. Att'y Gen. 317 at *8 (1981)'(emphas1s added).) ·Referririg to the highlighted · language, the Attorney General explained that '.'the Legislature had in mind those records which· are made or retained as a memorial oftheir informational content for public reference." (ld at *7 (emphasis added).) 1'4f. Kawa' s individual calendar is not such a record. Nor does the law require bim to keep a calendar.· As. a resillt, there:_is no sound legal basis to conclude that periodic deletion dfhis calendar entries viohited state reco±~s retention law. . . ..~· ... ' . 1 Even if the Commission were to wish to change the scope of its regUlation defining "Willful," the way for it to do that would be to amend_ it through the Charter-mandated process rather than . through a decision resolving a particular case (S.F. Charter§ 4.104(a)(l)), a:ri.d doing so in' the midst of this proceeding, to the detriment of Mr. Kawa, would present a potential due process problem. · P601 CITY ANP COUNTY OF $AN FRANCISCO . ·OFFICI= Of TH~ CITY ATTORNEY Letter to Honorable 1\.t{embers, Ethics Commissio11 c/o LeeAnn Pelha:ril, Executive Director Page3 September 15, 2016 .Th~ 9.~twitio11 qf "re¢otd': ·WJ,qer th~ City'~- !ecot:ds wte.utiop, l~W$ i~ $in;ljJ~ to tb.~ state law dy:5.o.itiou ~cv.Jat¢.d,.py th~ ]\ttol1ley Ge.ner~: · , .· . . ·· { · · · · . · · · · : ·~ ·.~~·such pap_er, b'od~ :PP:ot9~~ph, fjlfu?. 'sb~d reRotdb:lg~: ¢ap, ·dr,awmg,ot :. . ', . . otli~rclo.c~e~\ o~ an~ ?~:P.ttli~t~q~ ,~ ~~ Th<9n..rp~~~ orr~c~iv~d bY;".~e depa'!.in1ent 11). ~onnection With the·ttansacti~:m of p:uoiic:bus~~~~s. <;mq ;may h.aye been retained by the department as eVIdence ofthe depatt::In,ent's · ' • , 1 , ·' ~GtiViti~$/fCf'I' tP.SJ infqrro.,ation contain!?dther.ein, or to prote.Qt the· legal or finan¢ial rights of the City and County or of per~;>ori.s ili.re.otly ?ffeoted by tb,e•:. ;:.• •. · a~tivities oftb,e City and County. · (S.F. ~w.w~ Q~d~ ;§ S,l ('iSection s3'").) 'whue thoS.e po+tj.ou,ll of;Mi. kawil' s inQividual calendar pert~in]ng tg City b;usi,ri~$-~.:Wer~ "m~de i.n,[email protected] the trm,i_~llqtio~ of public busine~&F 4h~ l1mli!l Q;l.'ciet' s oqn.q}W!iox~s .till.tt tl,le., Mlly9;p{s QffiGe t~t1AP-e.4:the. c.~e.gdar "a8 evidence' qfthe. ;d,e.p~ent'$ ~Gtivitie$"· Qr ''fqr: ill.~ Worm.ation coutamed 1;het,eill.'' are incorrect. ~ . . ' __ 1. Mr.Kawa's Cai~nflar Was Nofs']ieia:ihed iJy·-the Depal-inient as · · •·· .: :: '~- ( i ~yjr).~p.~~ of:tA.ti.~».-~.p·a~~pt\~ -A~tiviti~s.'!·~' · ; .· : {. . · ._ Thb ifilial '6iad.r· fu1serts that Mt. x~tw~;.s ilidividuaf calendar' ~in the w6td.s; of Section's·.l J \ · · ..~-: .. :M-~··t ...:·r· ... -.·:,,. ·.;: .,; .· ~~ ·l . •··. ··...... '·!'·· ·.',.. ,.· .. : .· ·'···r "may ¥y:e be~R- ~~~~~-~l: ~·~. qeP_arlirlt?iit. a{l ey~d.en9~ of t4:y.dep~~mt;s, aq~vitirs" be~a~~e~ ...• ·. · accor~~ 1~ m:~ '[§!:S~'l,"o~ce~ ~'+V!r. ~~'Y~;s qmly 8.~endru;ryfJ.~cts p.ot il~lef!~.t jp,(tJie ·Jiwtd.Jeds· and·ppssfi;Jly j,n th¢ thop,s P602 OITY AND COUNTY OF SAN FRANCISCO. L OFFICE OF THE CITY A DORNEY Letter to Honorable Members, Ethics Commission .. ~ :. c/o LeeAnn Pelhain, Executive Director : ·.· .· '·'f., PageA · September 15, 2016 ··, ( . . (Emphasis added;) The law does riot cUrtentlyrequire tlie Mayor's Chief (}f Staff, as a.general rule, to keep notes of meetirigs he attends, or of phone message slips relating to the scheduling of meetings, or of email colililfunications ,cop.cerning wh~t transpired or is.expectedto transpire at a meeting. To con chide thatilie l,aw nonetheleps teqqires the Chief of Staff to retain a copy of his calendar entries for meetings would be incon's,i$tent With@s general view ofrecords retention obligations und~r City law.. · · · · · Indeed, this Office specifically advised, in a 1995 letter to the Office of:the Mayor, that individual calendars need not be retained: For example, phone message slips, appointrizen(calendarsJ: and not~s of meetings and conversations are generally prepared for the personal use of the · employee cniating them, an:d are not usually intended for lise by other .· · employees .. Many other documentE; meet this criterion. Such documents are not subject to record retention and destruction laws and may be destroyed· . when they are no longer necessary for the employee's use .. (Letter from Deputy City Attorney David Greenburg to Brian Mcinerney, January 12, 1995 (emph~sis alided); copy attached.) .This letter does not draw any distinction between the. individual calendar of tli.e Mayor's Chief of Staff (a position that existed ill 1'995) and the, .. calendars of others wo~king iri the Mayor's Office. Further, there lias .been no change in the .. . defn;rition.of "record" under Section 8.1 since 1995. Rather, the only relev,a:q.t change in the l;lw has been the later adoption in the Sunshine Ordin?fice of the so-called Prop G calendar ·· requirement, mandating that certain City officials- but not the Mayor's Chief of Staff-keep and make public a certaiD. type of calendar. (S.F. Admin. Code § 67.29-5 .) . : Th.e Final Order attempts to draw a distinction- nowhere present ill Sectio118.l. or the Sunshine Ordinance -between "high-lev~l City officials" and ''lower-level staff employees," while including in the "City officials" category Mr. Kaw~ who .ip, indisputably, a,staffmember, not an "official.)' (Final Order, 3.) The Final O:r:der thus atte:p1pts to tease out from these two legal authorities a rule of law not present ill either, and in so doing misses the true meaning of Section 8.1. · · · · · .1· The Final Order ignores the difference between evidence ofwhatdepartmental officials and staff of any importance or rank~ high, low, or in-between- are doing at any given moment (which, cumulatively, amounts to virtually all records created by a department, and is far beyond the scope of the City's records retention law), and evidence of the department's activities; The latter·-refers only to Tecorcls· of efficial· aetions"taken by a department, su0h ·as ·when -a·departrr:terit head appoints an advisory committee or a subordinate employee, approves a contract, promulgates a new departmental policy or regvlation, and the like, or when the d~partment issues · a press release, annual ~eport, or other publicatiQn, or whyn the departmentmakes decisions of . legil consequence, such.as issuing or· denying a permit There are'many other ex~ples. They · would include .official actiqns ta,ken by sub~department heads when properly authorized. But .. calendar entries of staff members, even high ranking, influential .staff members, are not records of departJ:llent activities within the meaning of Section 8.1, · · · · · : ;, . : ' P603 CITY AND CO!JNTY QF SAN FRANCISCO OFFJ€:;:1; GF "FHE QITY ATTOR.NJ;Y Letter to Honorable Members, Ethics Cominission • ...... 1 • c/o LeeAnn Pelham, Executive Director .: ) Page 5 . September 15, 2016 , .; 2~ , M:r· ~~lY~'cs C;l;le~4;tr W3;s N~t~e~3;in_~4 ~y t,4e M~yQr'~ Qffi'(e ','For the . ... , . Information Contamed Therem.... ·. ·- · . . .• . · . · · · ~ · 'ThfF~ffi,prd.~t:~~~do*crti.~~~·~~~~.:;~;a;s·:m~vid~·p~e~~ai~~, jn tlieword~ of·· Sectiori ·8 .1, ·''tetailieil by tlie depa;rt:hient ':. ·: fdr the i.pforniatidil qonta.tnec;ltl1ere111'' ,_ becau~e, · . _ aqcorcJing to the Tasl,c Force, f'6ne piltpose of tetentibii was to allow fot follow-up bieetihgs to 'be sche9,11f~d'' 9-li4 an.qther pu.rpo$.e·!?f:th¢, ~~~)iq~ Wt:J.S "to jnfqpn nth(1rs, W;itb,W fAe :tv.):ayot' ~ Office of his. :r;ne~pngs . w;rQ: loc~tipps._" (Fro~ Qn~ers ~;. 4r) · . · , ,, ' - , , .. , . .· · " · Tins· 1cingt;tage iii £ection 8.1 lnjtrors the• S,ta~e law ~equir"ew,e±it tb,~t the i:locu'men.t b~ . "ma'd.e or' r~taiilf\d for the :Pwnose' of pre#~r.\iirig its i;nf6rmatj0:nal bdnterit for :fijtirre ref~rehc~;" In' mterpretiiig this :teqilirement in the <}ofite:Xt ·q£&., tape re.cordilfg of a q'iry coUQ_cil rtieetiiig to be .used to. assist in dr!lfiing minrt.tes of the tneefuig, the· Attorney GeD:etai explained: :, · : '. · ' l r . Ifthe:p'urppse. for .which the tap·e recording of' \he ~ity' coifudi fntt¢tlll'g wfis : , ri:uide atid·~et~eti·W s9lely:to ~sisfi:ll,e·city d~rk hi the' prep~ffti.ori ¢>f!lre ·. · . · h-;;.,...;,,:fe·"'~-f+'hP.-;;;t-<,•,;,.;,.;n,;l.n;;:,~=o+inri -it 1c nn+"' 'r?,.,r.ril' f-fn'i' rF-dA-/n rP.tP.ntinn · · ~~.l~L LJ V-!- ~"'!-'...... ~J V';J~~~ ~ ..... ~~::, .&..":' ~~ ~Y~.- -":'"""""'":'7- L""'"'-".A-_~ ...... - ..... -: ...... ·-- ...... - ...... - ..... ~ .,: , .. ptfuJps~~J ·. '.,. ~- 6*-tl].~ ·~1$yr llimd~ ifthe t~p~ re~O,idin:t~ w~ made. 9r tetameu _.. ·· ' ·· 1 ' l •.. t f¢ll;1}6. '(laqitio:tial purpgse ofjires_et-Vi-ng its:infori{lO,tional conte'nt]of public ' ' . 1~ ·. tefohmc'eitis a '·tecord' .,~ • ~ . ; 'I ' ' ' i · (64 Ops. Cal. A-tty, Gen. 3i~/~~·*8(~~PhC1~i~added)\ The Atto~~y General ~pinion makys clear i:li~t everi:iftli~re is..~ ~hottp'~iiod.oftlinedtiriiig wllldi aiec'o:r;d is retaiuedfor fniernql us_e _,. sucffM fQ(the: p:Ufpq:~S;of:prep~g iriet?.ting i;n'itiiit~s - tbit 4~es no(ID,alFe it a "t~c()rd'~ 'tb.ilt is. , · beid~:p_f¢se?Vedforpublic' use .L ''for i~s' i:irl;'9,#natio11al ?oiite11t fo:t publj.c 'ref~en:ce."~ pth~'i:\fi.~(t\ ; ·. · just about every phone message slip sitting on an: bmplbyee' s desk wdtild be a "record" suoj ect to . retentioh because for ·some. p~ri.Qdtof tiine -.perhaps as short as 24 hours or less -that slip is · retaiJ:i~P, for the p'Qf_Pose of following up with the caller. Here, according. to the Mayor's Office, Mr. K.a}.va teinporaiilyw~t$ec:l ws indiyidu P604 CITY AND COUNTY OF SAN FRANCISCO · OFFICE OF THE CITY ATTOR-NEY .Letter to Honorable Members, Ethics Commission. ·· · c/o LeeAnn Pelham, Executive Director :. .• ·.. Page 6 September 15, 2016 at 119 {"The Mayor and City department heads· would be reqUited to keepi and,:make public, calendars listing who meets with them arid the topiC 'of the meeting''~,)· ..This. makes the Prop G . ?alyndar fund~en~y ~~e~ent :fro;m Mr. Kawa' s irldividual ?alen<;lar, whi9Jt. was pr~a~~d for mtemal USy, like the mdiVI<;ll!-,al, <;~enq~s, of J1Ull?-er01.1;s oth~r Crt~-. employees:. Butthe Fmal Order nevertheless se~ms to tteat.rt as if1t w~re created for public :ilse, .. Just last year, the Board ofSupervisors pass~d, and the Mayor signed, an arilendment to-· the Sunshine Ordinance to expand the Prop G calendar requirement to cover Members of the · Board of Supervisors. (Ordinan9'e No. 118-15.) Until then, only the Mayor, other elected officiais except for Members of the Board, and depart:rllent heads, had tq ·keep a Prop G calendar. Even after last year's an1endment, neither the Mayor's Chiefof Staff npr any other staff member serving apublic official is required tokeep-a Prop G cale11dar. · · · The Bo;rrd of Supervisors or the voters could amend the ~up~hine Ordinance again to · expand the Prop G calendar requiiement to include the Chief of Stili to the Mayor and/ or other · "high-level" City s_ta:ffers, how~ver defined. But that has not occurred. Yet, the Final Order, which treats MI. Kawa'.s individual calendar as if it were a Prop G calend(l[ by requiring retention, conflicts with the required legislative process, . Those whom the Gha;rter entrusts with the City' s,legislative power-the Board of Supervisors and the voters -have made clear that the Mayor's Chief of Staff is not subject to the Prop G calendar requirement. · . . . ,· . ' . . In sum, while the Task. Force may talce issue with Mr. Kawa' s practices regarding his · individual calendar and believe as a policy matter th;;tt the law should require more, the Final Order is not correct under existing law a:nd there is no sound basis to find Mr. Kawa committed a violation of the Ordinance here, much less a willful vi6latimr. · ' Very truly yours, DENNIS J. HERRERA City Attorney T5Z--bf. BURKE. DELVENTHAL. Deputy City Attorney . ' .· ~ .. Attachments: (1) March 3 0, 2016 Letter from Deputy City Attorney Buck Delventhal to Sunshine Ordinance TaskForce ·· · (2) January 12, i995letter from Deputy City Attorney David Greenburg to Brian Mcinerney, Office of the Mayor · cc: 'Steve Kaw~; Chief of Staff, Mayor's Office Michael Petrelis · · · P605 Qtfy AND· COUNilY OF SAN FRANCISCO . Oi=FICE GP THE CrtY AITORNE:Y DENNIS J. HERRERA BURKE .. DELVENTHAL ' . City Attorney ·. Oep.utY ·tltY Atto.m~v ···...... · ;;: : ~ ~ .Di:ect DiOI: . Hl~J 554-465Q ·:. .· •Ep,bfi:. 'i' ·.·' ; · · 'l:[email protected] ; ... ')-.. :.\..,·.:-.- .. · ,:;...·Y r-~.>:11'~'-~ ·'· ... r· ;:}J'.~-·.·: .. . ; ·; ' .. : ' . l :. . . ~ ·~. i . : . f.>. 't . :.: ; ' ; . '':; .. :·· ~ r .. . :~ J· ,·.·.··.. ,;, ···:. : ~ J . ~ ,. . ' ·'.).: ' ..... . ·. ·· -~-- .. . · :.: . · :. ~ · .. J ·. . ·, . . . .. :. . : : . ·;. :_. l ~ • '. • i : ' · . ~. ·. . . . · :- ' 1 :... • · : • · : .• L. ·.. : .:· · ·:· . 1 I The Order.co·cludeslfu... . :I;~._ .• " ·' . ifs.footnbte,. • . 3·• ,tJiat': . . . .. The/Mli'. Y or~s . O:ffiee . .. . . substantiail ...... Y . com'. .fl litili . Willi.. the requir$ents of§ (,7.25'' of'the Sunshlne, Ordinance, reg;arding immeq!ate dl,sclosUI:e reql.lests. · AccQrdfugly, we dono~a.;9,W'essS.~gp.pn67,:f5. .· , i · ' · i · ~ ' • ·::: : i- • : :. • \. .l- -· '!' • ]DR. CARLTON B. GOODLBT PLACE, ROOM 234 · SAN FRANCISCO, CAUFORI:liA 941 Q~-4682 RECEPTION: ( 415) 554-4700 • FACSIMILE: (415} 554-4699 P606 CITY AND COUNTY Of. SAN FRANCISCO . • ,···~. ,. ! ' j •• Letter to Hop.qta;ble :tyfe:tnbers. of i:he Sunshine Ordinance· TaskForce: Page 2 ·· . : , , .. · · · · i' \. March 30, 201'6 :: ~ ·-. · ... ,· ,:-, ·.··: :·· We begin where the Order ends, with referral of the purported violation of S.ection 67.21 to the Ethics Commission, on the theory that it is ·a "willful" violation. This referral is not proper under the Sunshitle Orqm;;moe because it misuses the legal standard employed to define a"willful'' violation.· · · · . . The Charter vests in the Ethics Commissj,on tl:J.epower t9issue regq).atioii~ goveri:ring:the · Sunshine Ordinance. (S.F. Charter, § 15.102 ["the Cop:rrnission.. may adopttules,fuid regqlations relating to caizying out the purposes Jmd provisions of ordinances regarding 0pe:i:J. meetings aild ·. public records"].) Under this Charter authority, tb.e Ethics Com.rrris.sion has adopted · · "Regulations for Handling Violations of the SunshiJ;le Ordinance."2 These regrtlatici"ns define a "willful" violation as "an action or failure to act with the knowledge that such act or fail me to act was a violation of the Sun~hine Ordinance." (Reg;ul'}tions, $.~pj:i.on :ij(U}.) .... There is no evidence ill the record that Mr. Kawa knew that the practice of perlodicBny deleting his individual calendar violated the Sunshine Ordinance, and th~ Order makes no such fbidjng. Indeed, as explained in Sections II and ill, below, this practice dOes not violate either records retention l:tws or the Surishine Ordinance. · '. ,.. . .. \ ·.,,: .. Butmth~r w.an a_pply Lor even ackrioWlt;l.dge,, ~'the .Ethics ¢~~ssiop's defullti6Ji qf '~" violation, the Ord~r iri.ste~~ applies Jl differeJ;lfdefl.iii~Qn Of "willful" cci:riduQt.; ·''intep.tionhl condl,lct U114e[takei'). With }alov,:ledge· or. <;:ons.ciolJ?n~$~ 6fits'. probable tesUlts/' .¢iting Paf'qrak.v . . Williams, (200 1) 91 Cal.App~4t)i ·826, 82~: · Patarak !).~ti:J:esses whether a landlord's. Violations qf the Mobilehome Residency Law. (f':tv.lRL''}(9al. Ciy; O.dde §§ 798 etseq.) were "Wi11:fv.l" ~d . therefore subject to ps:naltie~ Wider fu.~ :tvD.li~ We l:iaye·l;J.q quru;rel With fu,e holding it). Patardk;,. the term .''will:ful'' has different meanjngs #i clifferentte.g?l cqht§xts. But that is j:he pomt the > Order mis~e~, The OrdeJ!.'aJ?plies a de:iJ.W,tion 6f "wi:i.lful," tha.t i~ correct :in the Patqrak context of assessing penaltieS ti:qdeflli'e 11RL, out is incorrect fo:f deteril:ll.ITing a ''Wil1ful'' Violation of the . Sunshine Ordinance. · As w~ e:x:plam beiow, there-has b:een no violation of Section.. 67:21 of the Sunshirl.e Orclin~d~ in. this case. Bu,t eyen if theJ;e ha~·oeen such aviolation, because there i~::Q.b eYideri.ce :in the record that MT; Kawa destroyed his calendar kntrwi:P.g he w~'s :violating re¢ords reteriti.oh law or the . .·. Sunshi.ne Ordinance, there is no:basi.s tb'co:nchide i;B:at it yvas '\.v:i11$.il" Within. the meanfug of . Section 67.34.:... as ''willful" is de:fuied·by-ihe very co.:mfuission ·a~+.thorized to de:fine;thatterm, and to which the Ta:sk Force would refer this case if it adopts the Order. . . : .. ,:,. ' . : ; . . ~- '.: .. - . ~ - .. The Order concludes that the periodic deletion' ofM:t:rkawa's inciivid.i.ial caJ.e;o.dar violated the law governing records ,retention, at?-dt.ftat thi~ violi:l-Q:on b;apslates ipto avi.ola.tion pf Sections 67.29-7 and 67.2lofthe Sunsliili.e Ordmance. Beca\i~e the-pUipottedSU#sbi:P.e Ordin(\1lce .· · violations presume, and depend on, a records retention law violation, we first address that issue. Many City employees wh~ are not elect.ed officials or ~epartment heads - probably the vast majority of ptof~ssional, tec~cal, and.supervisori~ ~mployees at all ra.nkS iri.·the City~,s, ·. , 2 These Regulation~ are on the Ethics· Commission's ~ebsite anq -are available at ·http://www.$fethics.org/fiies/EC.Surishine.Regu1ations.effective.Nov.2013.pdf P607 CITY AND CoUNTY Of: SAN FRANCISCO :J;.,etter to Honorable Members ofthtf Sli.i:lSliine ilidfuance T~k Force Page3 M!rrch30, 2016 ·;·.1•. . ~- ·. ·'· ··t:, ,•\. ,>·'. i:. '. ) , .. . ·,.. ·;.. P608 . CITY AN.D COUNTY OF:.SAN .FRANCISCO · '··/OFFICE OF THE -:CrryA DORNEY: .. ' ' . . ' . : : . -~·. . \ Letter to Honorable Member~.oftb.~ SWishl:tt~ [email protected]¢ Tl;lSkForoe · ?~4 . . . Mai:ch30, 2016 First, the O;rd,~r sjates that adep_~~nt he. ad Qaleiid.B.J.: (oft~!l referred to as. the 1'Prop. G . · ·; .. calendar," P,apieqfo;r Novern,.~~r 1:9'99' s :Propositiop. ·e) is·fue recpri:l~ost"su:\J.stE\P-ti.iUJ.Y. simil~" to J:v!r, Kaw~'s Qalyp;d.ar, ®tl:i,~ Chief of St:Uftb the Mayor heing one amop.g many. To interpret the City's r~cord-retetitiohlaw.orthe Office ofthe Mayor's ,recordr~teliuo:ri schedhleto. create a calendar requirement for'Mi. K,awa siinilar to the Prop G calendar requirement would .· . undettnine the City's decision, made th:i:ough its legislative processes, regarding whiph officials · andemplo;y~esare-anda:renot-·supjecttosuchrequirements. -, . ''·. . . . - . ' . . . : .. . . .' - Seco,ifd~ th~:O,r,deppomts to ·a Califo;tni~ ~ttorp,ey;(}¢heral Opurion 'lil# .Q.~:q~ed a, iecord und~r .. . . state reQotdHetention law 'as one ili:at is k.ept ''be¢~;~.ljse it is necessacy· of t9nvenient to il].e · · discharge offue punP.c offi.cet'S· duti,es .arid WaS made Of refaftpecl fo(the purpose of prese!ving its. : informational content ;for futurerefC)Ie'l1ye.'". (64 Ghl. Op. Att'y Geri 317(19&1); 1981 . ' WL 1267 47 .) But the O:tder misconstrues this opinion; which, read properly, fortifies ihe conclU,sion that an e)Jlployee's hldiVidual calendar need not be i.ci.tained. . . . . • • • • . • • ' ._ •' ' ' ' I • T4e Attorney Gen,eral haP, :been asltecl, ''Wher~ ihe city clerk .makes aD. auihm;ized'tape recording ofa citY coiJnCil meeting t(l :facilifate the preparati,o:q, 6f the pTin_utes: (a) c1oes ili~ p11b}jc have the . Jig):rt tg mJ?~~g] fu¢.1?-i:l~. or_(!;>) x§.qeiy@_ P~OPi¥?· of. fu~,;tgp,y:.. ap,d;(c),w:hen:t:n~;LY. ~uq;p_,taj:ly, he, ... ·: ...... destroyed?" (1981 WL 126747, at 1.)' After ccniCludingthat such a tape was a public record subj $ctto inspection and copying, W,e :AttomGy G:ener~ !iddresse,q the retenti,Q,n. q).les.tion, . ·. ·. concluding, '·'the tl:J.p,¢ recordffig may·be. destroyed. at aJ;J.Y time 'j.f the purpQsy fcir whi_@ it was . made and retamed was -~olely tq fcjcilitate th? jirej;atc:(fion ofthe minute$ :Of the me¢ting but if the tape :Was ril&de. \1i:r~tafued for .:fue additim1a:l ptu"pose ofpreserving-its fnformb.ticnjql corit~nt for public reference, i}.:inay iwt be1aWfu11y d~~trqye~.~~cept !1? expressly alithcipz~:¢t.by state law.»· (Id. (emphasis !3.4ded):} An eniplpyee~s)iic!ivid~ caJ.endar, like the citY Glerk's tape recotding . ' in the Atto.nieY:Gep.eral opinion; i$;~:uide solely for ihe convenience ofthe employee; and is h'Qt · JJ1!3.de for;th$' pillpose -of '¢preser\ting its in:fo.rtnation'al C()ntentfor public refereP,ce. ': . · · 3 The C~ei ~i:stakto. th~~Mayor, .'and chiefs of stafftg:other electedofficials.,and dep'~ent ·. heads, are not subject to the Prop G calendar requirement. . P609 Q.ITY A~D QQUNT:Y QP SAN FRANCISCO · ORFIC!i!OrTHEQITY ATIORNEY Letter to Honorable Members ofthe S~hlue Qrdb;ian,q~ Task Fqtce ·· P~e5 . · . _· Match 30,2016 Relying op ~- A.~cnp.s:Y (Jel!y~ Q.pi.pio~ 1h~ Otde!·~~~y· ie~~m,s tll~t. ~w,ploy~~;:s' . ·· inclivjd~ ,~,~!!.cl#$. ·~~-§.p!?j~~ttg -~-tWo.-:;r.· · g.:~Jep,f,iqp,;~~g,iJ#'ewit.bt l.W4t?~·~at~ J~w/bec~use "ca1endm:.¢~tfi~~. W;e ~.Me!:l jn QJ:def 1q. ::: $:}3nq d;oe;:WJ:!~)iP.Ntm"{} ~J?.P9!nt¢.eii~:;:tp,~etmgs~ and the lil$:~, tij.~ ~' 9~~~gng g~mtyp,t;f.o:r.:fuM~ r~f~,rync~P' 'l!l:WH~1k.~ th~ 'If.!#.rii~ r~fe~eAC?Y." · · terminology frbni the Aftoto.ey GeiictaL o_tiipion out of col).text~ Foll\:!WW,'g;t4!:i·ori}©~1§. r~_a$0nllig, the city Glerk' s 4J_pe recorcijng wouldb,aye tq b,e consid~r~ 10 l;J~. created for futUre r¢ference, .. .becaus_t1,fu.~. g~~a;~ w».:WQ- m!ike ~d.~~~li 'U;t¢,~~p~i0-;as§i~ the c~el)K. ~l?.~a.Pri~1w~~#qgi¢1_zy;ut~$ ·· in the futur~:t;;1·€1b:~~r:-tliei~Jct!¥ti:i1g. "~~~ fus? c&t~;9:r;ney Geu~r~-~q:J;lplW;l~ilithft~]:(dht! ta_p~ ~qill~ ·· be ~eli ~~PLYit9 :(~p!Ji:tat~:prep@n_g"tli¢ a;n)n~¢s; and 1;1ot U;Se0. to .t:P~.si;:we ~~ iqfoi"I:¢ltigp~· . . · cont~tttf'~r jjz,{f)]iq:iif?.reiu;fi .(~~:P~~·~i9.cle.d);" ~e tta_p~:~e~4m.9t'lifttpres.~;:cy~;:~t' .'Di~ epiniq:il? s_. "ftrt!it@.;r~fei.~-!i9t;:" §t@~~me~ ;~.as. th¢ qp:i,DJ,op.i~~!'-!§ W'lfor ~~til?Ji:9;1J~f.¢ren~~_, in th~'-~tttrf!, An emprqf~~·-~:mmYii:l®. cli,lep.~ is '.l;u)~\G!¢m~4 fo~ :P~9,gc .:r~f.et~9e@:;J;lw ~tutut~~ -·· . :__ .i' . •. ': • • · ···.' M i~~·~,i::~~6~~,:~~}"~~~~tt~=:~::4Qe;~~~;:re'ii~~;ire ,i .. -law. Bufthe Or4er would conclu<;le otherwise, and woUld go further to errop.eously :find ... .' !~=-~~~~~~~~~~?!~~~~~f¥~viqi;~r:~P"~~r,···, A. Sectio:ru6g;29'J!7,_-, · l'· , .:- -~_,_, ·· .:•;• --.·~-.::·:o.>·:,.·. ,-,_;. ,_·, ...... ___ ,. · .! ~ -.~~~·<~ ~J:·:·~:·~j.~:~. ·:··_·:· .;·--·~0: .. ~.: :.··~~~; r.~~ ..t~·. ·.. /J .:·· :. .. / .:· .-~~- :..~· J:: ~"1.;,_ \ . : ·t;·. '._ ':. _:~.:;''"; :'. : .. ·.~~~\ ... The Q,rQ:~t \¥9wd;·g~l).qllf:de thf!.ti ~-+~G!?J:~.s.i~te:u~9# V1oiatio4 aJs.6 vid.l.a.tes 'S?ctJ.o~ ~'1;~9-t ¢ftqe ~' ·· SunslfuieOrtliiiance,:V,;hloh-provldesfureievantpart:·· r: J '; · ~ ', ·.. ·;" ·~· · ., c"·· ·, '.:~,.-->:_:-~::'._\.;,:, ..,!, -~ .... ' ·.~:- ,·:: ,,.l'_:'l: ,' '' -_- ! '. '' ' - '.-- '•: .,, < ' ,,i_ .'( ' ' (~) Tlie'Mayor and all Department Heacls sJiail maintain and prEi~'etye :m ~ · 1 '· _ · ; . prof~ssipnal and b:usinesslike _manner all do.cuments and correspondence, iP-9Ju~g ·. ' b¢J:iot lli;nited to letters, e-mails, c4;afts, mi:mioran~m;n [siq],.invoic~s, repo$,.a!}Q,\ :5"; · :... -.~. propo&als and sha}l,qisclose all Sl1Ch records ip. accordance With thi.sor~c¢',. . . .. ,.L .... ,·~i'·-:,~~~·~ r~,·-.~:~ ..·t_'::·~ ."(!.~···-.~.F.··~ .. -:.':· :C.tl~\-:.: ·-~~.!;\... ·:.:..,·::r· . . :.t: ~~.·-!_f~·:.~:~··" .... The fuhlmef'- · . Ordet~ead.s:ihere; .r ,.,.,r ... 1•••• ~· .qQ.lf ·- · enient±ti ...... ,,. '· rhruntrun:r • .t .... '·'' .-and...... p'res~&erecords'Pm . -·· ·. ~-~~· ... , ..... ·~- '8.... bb'Silies'~liki::· -.-, ..., .. ~--. ,,. ·~ . as. incomomfirig··'mld ,ilieSunshirie Giditiallce;~b:v:iimp.ficatiofi; rei:lords·retentibii law;,ffiid .. ' .. _l, ·- ; •• -' de ·arlrfi~ii-oo·r~boriheteiiti6Ii-~dieaille~-;-ilieibb: .. illilin ,-~ViaThii&ri-bi'ciili~i\ aiYlitittirruitie: ·· . s!shln,e. &~b)e v1olatio!L' fhls'te~dmg' o:fite.i~~~~w~:$~11ke;i.;~*~iiib1~·i~W]:!t€i~ ·_ . ,. : s ecP,on 67.29-7 in the guise of fut,¢rprefuig it. A- coUrt wiJJJ14 vefiy likely r~j ect this rea4fug. P~op_ds,~~~·i:4,cl_d~~~e.6~o~ .~i.~~:1.;~:fue ~~~e 9,tgjft_ahc~~ ~k~r· qr~?~~~ 9~~~~~~~i~on G had W,f_ypg~dr}q,{Q]<;l>reCQ;r$~!¥~ntj_c;nrfn, the.re wouJiLpave b\';en a niuph easier way tq dci. sp ._.by s4l,fuig so. cli;J;~ctly. court,s_ t9o~;Wi~ s:wpi~~on; ?:q :xj>~i¥~ ?1?jrp.:s~bout ,ala~',~ m.ea.rJh~ b" P610 CFtY AND.COUNTY OF SAN:FRANCISCO .. OFFICE. OF THE CITY. ATTORNEY .·.~ ' . Letter t6 Honorable Members of ihe S~shille.Ord.inance Task Force · '}··. Page 6 · March30, 2016 All do9umCi11ts~ pr~pared, .received, or mainta:ihed by .the· Office ofthe Mayor, by ·any .elected city ahd county .offiCial, and'by:fue head .ofa:tiy City or"(?o:UntY Dep~ent · · , are the property of the City;and County 6fSanFrahcisco .. The origib.als ofthese-··. documents shall be rriafntatned con§istenfwith th~ ·records retention policitis ofthe .City qnd County ofScm Frcmciscb. . :. ; · · · ·· · · I. '• (Em:ph~isadded.) Thus, in,th~ c~ntexi of~ City offidal lea:vmghls orh~'t position, Section ' 67.29;,1'makes dear.tha~ originals of:doQunients must be tet<$1ed in accd'.t:d~ce· with i;he . . · app lie able records retention .policy. Section 67 .29~ 7 (a) contlfu.s no such cross~reference. Courts recognize that the presence of a term in one part of a law, -in contrast to its o:ri::rission ih another · · part of the laW, :raises ari. in:fe;rence that the omission was intentionaL (In re Ethcm C. (2012) 54 ·· · Cal.4th 610, 63 8 (''When language is included in one portion of a statute, its omission from a different portion addressing a similar subject suggests that the. omissionwas purposeful").) The inference is particularly strong W.:li,ere the two p#.s ofth¢ ·SEJ.Ple law were adopted at the same · time and bear a close relationship to one another, a:s is true of Sections 67.29-1 and 67.29-7(a). (E.g.; Peopl~ v. Giordano (2007) 42· C8.1.4th 644, 670.} · · · In requ:irillg -th~t r~~oJ:d.S,be ;1main:uiked and prese.ryed in aprofessional anc;l businesslike manner;'' Section 67.29-7(a) speaks to how the Mayor and departrn:ent heads fn\1strnai:b.t;lln records. The records. should be reasonably organized, filed, and stored so that staff may · promptly locate and produce records in response to a public records request. N e'fther S.ection 67.29-7(a) nor the Sunshine Ordinance as a whole speaks.ge11erallyto what records rrmst b~ mail:ltained. Indeed, read literally, $ection 67.29-7(8..) would mean that depaii:ments must retain "all documents arid correSpondence," which would conflict with records retention laws and lead to the absurd conclusion that the City must retain mountains of records that do no~ fall \illder the scope of records.. retention 1?-Vf· . ; : ·.. ·. . . . · ·. · · . . . B. Sectimi:67.21 The O~der also wo)..lld conclude that the periodic deletion of Mr. Kawa's individual calendar violates Section 67.21 of the Stinsbine Ordinance, reasoning that "because Mr. Kawa:should have had. the reco:i:dsrequested ]Jy M:l;. :Petre lis'~ (empha?is iii origiiu)l), he violated Section·67 .21 for "failing to ':Pern:rit the publicrecord, to be il;lspected." Thi:q) lain text 9f s ectiop. 67.21 ' contradicts .this strained reading. As Section 67.21 states: · . (a) Every person having custody of a,ny public record o~ public information, as qefined . .. .. ·-- hereinj .... shall.,;, per,mit.the-public :r:eco;r:d;··OF E\II:Y segregable·perti0n 0fia·reeord~'·to be ·· inspected and exailJiil.ed by any person and shall furnish one copy thereof upon payment of areasonable copying charge ~. , , · · · .. -· (Emphasi:s added:) . If a record does pot exist at the time of the public records request; one does not "hay[e] qustody'' of jt.· The City's qbligationunder:tbis provision as well as under subsection (b) of Section (j7 .21, to comply with "a request for insp~ction or copying/' presupposes the existe~ce of a i:ecor9 at the ti.J:ne the City re<:;eiVes the request,. If, at.that time,·· there are no responsive records, th~ City complies With the S1iJ1shine OtcJ.4iance by noti:fy'ing·ilie .· requester that there are no responsive records. Section67.ii impos~s on the City'a duty t~ all~wm~mbers of the publicto inspect and/ot copy within 10 days of the request public records that are in the custody ofa department. Thus, a · P611 CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY Letter to H~norable Members ofthe Sunshine ordinance Task Force rage7 . Mai:ch30,2016 department would Violate :;lection 67.21 ifit had records .r.e.sponsive to a request but refUsed . (without a laW:fi:IJ basis) to allow .4Jsp~c:tion or copyin.g ofthe ~~cirds. A d~partment would also· violate Section, 67.21 if it received a j:>~blic J;~cords r~quest i:Uld then- proceed¢d to destroy a respo.nsive record to avoid producing it.:_ even iftp,e dep¢i:ment cm:ild have .destroyed the record .earlier unsier its recordS retention policy~ But neith~r o:f those sc::e.narlos is present here. The Mayor's Office did not re:fu~e to "per:tnit tll~ public record t~ be ~pe.9ted~' as_mated in the Or(ler. Nor did it destroy Mr- Kawa's individual cale~a:r aft~r receiving Mr. Petreli~?'s request. Ratp~r, the record di.d n.ot exist at the time ofthe request. Section 67.21 does not speak to which records are subject to retention re.quirements; rather, jt · imposes a present-tell$e disClosure requjreme:q~. Indeed, as o:ne court explained, nothing in the .. · Publjc Records J:\.Ct-upori whiqh Section 6721(a) and (b) aremodeled~pUIJJorts to govern the destruction ofrecor4s: "[The Public Records A]ct itself does :p.otundertake to pteE]cribe what type ofinforn;mtion !'!.pub lip agency may gather, nor to· desigriate t4.e type· ofrecords s1,wh an agenpy inay ·keep, nor to provide a mef4o4 qf Qorrep1:,i.ng Stiqh r~cmds. Its ~ole ;fiJnction is to prb'\ri.4e for discloswe~''· (Los 4ngeles Police Dept. v. Sup?rior Court (1977) q5 Cal.App3d 661, 668.)" In finding a violation of Section 67.21, the Order mistakenly confiates these two .diStinct legal' r~quireriients~ · IV. CONCLUSION The ibr~.e principal legal, cm;ic,lusions oftl;le Order are ftn;ldamentally flawed. The ilider would dete:tmine that a '\vill:ful" V:iolation ..has occurred 'by relying .on i:Ul inapplicable de:linition; it would etroneoJISly ccinclude that a re~ord c;reated solely for~ employee's personal cc;nivenience - wh~re there is no other req~~ment that the record be· created or maintained-must be . retained; arid it would compound that error by transfoiming a purported yiolation ofrecords · retention law. or a department's records retention p'ollcy into a Stinshine Ordinance viohttion. The Task Force would be well advis~d not to adopt the Order. Respectfully submitted, . ,~.. . DENNIS J. HERRERA City Attorney . · ljz_l+ BTJRKE.~~ Deputy City Attorney cc: Steve Kawa Michael Petr~lis (via email) P612 ' . ' ".CitY~. County of s._ Fr~co: L.~ ·H. Renne. ' 'City AttQmeY '1, •• ··. ' . . ~ r ·····! . . ',:: ... ' ':.. : ~. ~r1an. Mcinern,~Y . '. c . ¥· : •. ~.. • : •. · . · Offlee of\ the Mayor ·, ·i , ,. . ;_,. . ;:·:··;-? \' ·R.oQf!!fgos. ,cft;y H~ll' · .. · '· . I,.' "·.. j San Franc1sc(), CA 94102.: ,. : . ,! .. ; \ 'I ~ : < \ •' t '.' ! •• i .; I. : --~ . ,, . ' ' . . ··As ii preHmJI)ary matter, the model ,re<;or~~r~t~•JU~>n !!!!t.~~J;1~-J~.~.1rc~Jated by the Chi.ef Admln1str·~Mve Of,ffcer" ( (415) 554-4283 Room 206 City HaA San Franclsco 94102-4682 P613 ~ ..,,, ·... '·. ·•· .:·.: Bri.an Mel n.~rm~:Y;~ .. · · .. · .. - -2- January 12. ·19~9:5 Re: Mayqr Is Q.ff;f c~ R~cphl~ ·Retentfoh S4h~d~Je · · · However' noth lng' _1 n the Pub lt.c 'Records Act purports to govern_ the . retention or destruction of records. The -sole function of the Publt c Records Act fs to PI'OVidefor dJscl.osur~. Los AngeJes Po·11ce Dep. v. Superlor.tourt <1977) 65 Ca:LApp.3d 661, '668; 64 Ops. Cal.Atty. 317, 321-3-22 (1981)...... · Retention and destruct1 on of pub 1i c records iS governed -by a d1 fferent body of state and local law. Government Code sections 34090. a_nd '26202 govern record~ destruction by cit1es and counti~s. ·respectively. · Government Code sect1 on· 34090 states in pertinent part: "Unless otherwise provided by law, w1th the approval of the 'legi_slatlve body ~Y resolution .and the wrHt~n.cqnsent of the CHY. Attorney, the head of a city departm~n~-- n:ta.Y destroy any ti ty .record, doculjierit , 1nstrum~nt, book pr ,paper. under hls charge, wlthout ritaJd ng a copy .tl)eteof • .a,fter .the same 1s .no l~nger requ~red. ·' Th'1s sed1or{d0es' not authorize the destru.ctio~ of: . , . . . . R~cord·s a~fecti ng the :·t1 th, to rea 1 :pro~er:tY· or 1i ens thereon. (b) Court records. (C) Recor.d_s tequtn~( to be kept by statute• (d) R~tords Jess ·than two year·s old. -· ' . . ': ------:-----...:...... ------...-..~~...;.;,..~-----·---· -----·----- .. P614 . B,d a.n. M~~ne,rney ;..J- 1 ' l r . ·• !~·. . - ,. Re; Mayor s OffH:e Records ; I Reb~nHon Schedule· tpt,,~~r .~r~V9l~F9 · ~g{!!111t~tr~!i ~~~, Cp9~ l,( ~~~ab 1h~~.$ .J <;>c~ l requ,t rements. for ·· rec~;::.;#i:~f;:~\ t~~~~~;:::;ftiH;' ~~~ i~9~!r~~:!~ ;~v~~~; ~~· r~c~r~~ . ; r~~~UH9~ Ji:la:.~~H;tYgt1prl -,~e~a4.~e ..~~~.truct~:opA~fs-tec<>f:Q~, by·.!~ cna.rt~ri:-~1 ty~ l1 s · a Pma:tter •of .statewide concern. and not a mun1 c1 pa 1 affa1 r. In .re Shaw <1939 > 32 cai.A.pp.gf84; Q4 Qps, C~l.~~tt..Y· ,Jl7.;4,at. stiprrat, .·,:, f\r >;· ,,. , ;r\ .. ·., ·::· ·;1-h~r~:}~·~~;~~n~~·~~:.. ,~t \:?;~.~t.l~-~~;:~~~,Q' aQ4.''4~~6~,;pf~~;_~i\' ._tn~. ~~~trci~t1~~n ;of . .r~,.cqr;~~ ;~ry1£,~, ·~Ie ,J.~~s t~~~ ..t~o.,~e~~~: 9l . Tb~:r:ie~t qu~~tio~ ~th.a.t ~ris.e~ i~ W.b~t, c9,n~rYMU.tttt~· ~:·"recor_g·l' for puf;poses ·of :r.e'cords;reteiitt'Orl anti ae·struetion. Unlike the broad ·def1nltion d1Scus'sed 1 above .fn re lat1on to the Public Records Act I the terni ' record" is defined more ri~rfowlY,, fqr, pufpo.~e~. 1 Qf,_J~C()r?~ {,~te~~1 Qn:; a.~d-:,p&~fr~~t,jon ,',. ':. t. . . . .•.. 1.tt~r,·t~.r~\:iE!~9r'd~:,J i,'~9} #~t,;,:q~ .1.o:·G¢~~·rfl~nt~·~~: $~:a£,·~hs,, ~-~o'9·; '·a4q9o: ~~-f~igi. o~N~~~~K~e·~~~c~~! l~~~t:~ ~h Angz~;~yf~~Q·~~~~. n~:~c6~aft1 }~id .t~:a :r·~Of\' ;' ~ .. ;., ~ J?~OP$,rlyJ.q.~f\Qe.q .. a~ ~~\'~b1Qg ,Wh!qh C91'JSt1t~t~s .an . ··.9~d~st1v~. ~~s~'pg 1~qts~t1qo., ~f~. a, ·wrH1.lJ~, eyeryt .ocqto~r · f,., ;t;·,_ · I: 1.nfqr:R1~l1'QP.·j.~hf~~ ,h~1~ s~~ .. cust99¥:<:?fi:.a'~pUpH~ !of:f\.1·o~r. and ''' : .,; i~,.k.'~.P~··~ttb.~,~ .U> b~c~~s~ .~,la,~ f~~~-~-~.e~: H .tq ;lje .. l<;ept o,r , .. ' " . \?t, p'e'9ii'!~Er:,tt .~,\s :ne,c~,~sa,~~4~r, .c~mye~ll'lO~ .tQ;·~~~ Q.t scb..~rge. ·ofi ' \~~;.:"PU9'l ~·~ 9fnc~~ I ?: lq~;v ~~ .~~.9d~a~i !1)~9-~ -:o.r:, r~,ta., t,Qed f,Qr. ,the• l purppse of'pres·ervt ng its f nformat1ona l content for future · .:· · reference r f' 64 Ops .GaLA tty .Gen. 317, 326 <1981>. ·~·,~~~!;J~~:~~:;~~:,~~~!:f~!~~!~:~i!;!~::j:o:::: tth'~:,Q,.;~~~·, ~~~p;tra:l1s~~-~!~n;1··~· ··f·.Q._,·)U-~ -. "... .~,r~ t,,,·-1~~ .-1> ~-- P___ ,-,_. .- ,_ - ·- ~- · ·- 1~ga1 or finanCial t1gnts· of the· Ctty and County or person.s d1~~ct}Y, aff~ct~.~ by the .?-t.ti vHie~hC?f th~ .c, ty_· and. Count.>d· i.i '; :. -.- ;;: :. ·: ;·: ;· .. , . .I . . .. ·, . .· • . ' . . i' ! .••..• : ·~~:s.~g:~~ thtse ~v~.hori:ti~~,~ ~w'~ ;~b.9~l4d.~ t.h.~~ C:h;:·.dep~rtm~rt.s are' ·~egu1r~a tq·r~ta1tt MY ~CM!ll~l:it·s \:/~,~;H ~et ~heAefinit,Oil·Qf urecotds'' quoted . ! .: .. , .. -: 11 Unless otherw1se specified, all code sections mentioned in this letter axe. 1n the ~anJr~n~i s~o Adfl!ihi stri\~i·v~ OoQ!'!·. ~ -: P615 ... P( .. :-;;_1f.$;.~.'·'7,:,4lt ~ .• . . . Brtan Mclnet~ey . · .Jan_ua.r:;{ . :.·· 12.. 1995 .· . Re: May()r's Office Records ; · · Retention Schedule · .·· . . .. . Accordingly, the records" rete'otton 'pcntqy fpr t~e Ma:yorif'off~~e 'sM()~ld be. revised to ref1ectthis reqUlrement. The records· retent1on poHcy should state which documentS 1n th_e M.ayor's Off1c~ const1~ut~ "r.f?cOrQ$".for purposes of the pi:>l1cy; ·Documents: whtcn··d9·not f~ll 1,1nd~r th~ abov~ tleftnlti_ons are. no~ "records ~'u and thus ne~d nof' oe ·subject to recorf·retefl~10.n r~qui remen.ts. •. ~ ' . . l; ' • . • 'For example~ phone mes.s'age .slips,- appointment caiendars, and note~ of meet1 ng~ and conversat1 ons are generally preparqq. for t~e per.son~ 1 use of the employee creatl n9 thetri:1 · a~nd· are not usua,'lly · tn~~-n~.g for .use by .oth.er . . employees. Many ot.her·' d0cuments meet th1~ cr_1terion. Such d.~cumE!nts are not subject to retor.d retent1on ·and destni~t16h laws ano ma:y be destroy~q.. when they are no longer necessary for the employee's use.· · · ·· · , ·H~ .have· the followl rig specHtc comments oh the ·proposed rec~rds r.~tent1on olicy_.. .. · _...... · ··':; P ... !··· . 1.' Code sect1~n 8.3 r~qu1res each dep~rtment. head 'to classify ~ach ': .. depa,rtment • s records 1n accordance with sectiqns 8, 4 ~nd 8, 9. The rec()rds re.~~nt1on pol1cy should_ ~pec!fyJhat all.doc·umel:lt~.111 the pos~~·~s1on'of.~he . Mayort·s Off1ce. shall be classfflep fnto one of the ~~tegories ~stabli~hed by sections 8.4 and 8.9. · ~ · · · 2. Section 8.4 establishes tlit.~e categori~s. of recorqs; (:~rrent reg.prds, storage records anq p~r!i)anent records. . HoW.ever, ~~ctlo~ a~~ a1 so es.t~bll shes requ1temen.ts for preserVati9n of "e~se~.t~~~ record~.~· ;Q~fi.n~d as th,os~ · : · "records whi"hwould·be es~ent1al to -~h~ cont1nu.ttJ',Qf g-overn~nt ~nd, the protection of rights and lnt~rests ·of·lngfvf·duals tn· the event of a major d1saster. 11 The draft records retention sche'dule fails .to addr.ess .essential records. · · · · · · · : . .' 3. The draft schedule does not specify mfn1mum tl.me periods <:l.ur1ng wh1ch various ,c.Ja's~fes or .records ·must be retai.n.ed. Sect1qn_ 8.3 governs the de.struct1 oh of current and storage record's tha:t are ·1110re than fl ve years old. Such re~ords may be destroyeq 1f they have servect t~E!l.r i:lvrpose and are no longer needed fqr.. anx .P.u,bl_tc,~~~t1Q!~~-9LQ~~H~_.RUrRru,$.•.. a!Ld.,.lf .. d_e.s,tr:~c.t.1.on. of · tne·"aocUmenls·::has· pfior ~-pproval of the eq·ntro1lef ~.for flna.ncial do,cuments>, · the Ret1rement Board (for payroll checks, time cards and related do~uments), and the City Attorney (for ·records-· ?f 1ega I si gtlifl e(lhce). · Different rules apply to curreht or storage records that'ar:e less than five years old. Such· records may be· destroy~q 1f: 1) a d~f1ryLI;!ve de~~rfpt1cin .of the. records and the retention perjod ·applit~l;ll~ to the!TJ 1s s·et. forth .ln the departmental schedule approved by toe! CAO for reten.Uon and destrud:ion:of records; 4) the1 r destruct loft l s hot oetrlmehtal to ~he C1t.Y arid destructlon or the documents wn 1 not defeat any public purpose; and 3) any required · approva 1s from the Controller* Ret1 rement Board, or cay Attorney h-ave been obtained. The draft records retention schedule shout d be revised to address these . requirements. A copy of Section 8 is attached, along wlth an example of .a P616 Br1an Mcinl!rney -5- January 12. 1995 - .. Re~ Mayor's Office Re~ords ·Retentlon Schedule schedule listing types of d<>cu~rits. thetr class1f1cat1on, retent1on times. and any condHfons tr1gger1 ng destruction. · 5. The draft retention poltcy does not address state or federal la~s that maY govern records retention. Records 1n the Ma.yor•s Office relating to federal programs or gra,nts may b~ subject to federal records retent1on . requirements. These requirements should be addressed by .the proposed schedule. · Please do not hesitate to contact me tf you have any questions concerning this matter. Very truly yours, LOUISE H. RENNE Cfty Attorney DAVID GREENBU.RG Oeputy Ct ty ~ttorney Attachments ' 8931g P617 Minutes - September 26, 2016 - San Francisco Ethics Commission Page 1 oflO Ethics Commission City and County of San Francisco Minutes - September 26, 2016 Approved: 10/17/2016 Minutes of the Regular Meeting of The San Francisco Ethics Commission September 26, 2016 Room 400 - City Hall 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102 1. Call to order and roll calL Chairperson Renne called the meeting to order at 5;32 PM. Chairperson Renne and the Commission ·welcomed Commissioner Kopp. Chairperson Renne announced that Agenda Item 11 will be continued to the Commission's October 2016 meeting. COMMISSION MEMBERS PRESENT: Paul Renne, Chairperson; Peter Keane, Vice-Chairperson; Daina Chiu, Commissioner;· and Quentin L. Kopp, Commissioner. Commissioner Hayon was excused .. STAFF PRESENT: LeeAnn Pelham, Executive Director; Jessica Blome, Deputy Director; Catherine Argumedo, Investigator/Legal Analyst. OFFICE OF THE CITY ATIORNEY:Joshua White, Deputy City Attorney(DCA); Andrew Shen, DCA. OTHERS PRESENT: Ray Hartz; Michael Petrelis; Charles Marsteller; David Pilpel; Elena Schmid; and other unidentified members of the public. MATERIALS DISTRIBUTED: m July 25, 2016 draft minutes; n Staff memorandum, dated September 22, 2016, re: AGENDA ITEM 4-Discussion and possible action on Hearing on the Merits for Complaint No. 19-131115, In the Matter of Lynette Sweet and Sweet for Supervisor 201 0; P618 httn« •/ f«fPfhir.« rYNrfPthir • Staff Hearing Brief and supporting documents re: Complaint No. 19-131115, in the Matter of Lynette Sweet and Sweet for Supervisor 201 0; • Staff memorandum, dated September 16, 2016; re: AGENDA ITEM 5- Discussion and possible action on the Sunshine Ordinance Task Force's referral for enforn;ment against Steve Kawa Ethics Complaint 04- 160718; • Sunshine Ordinance Task Force Referral File No. 15163; • Letter from the Office of the City Attorney, dated September 15, 2016; • San Francisco Administrative Code, Chapter 67 (Sunshine Ordinance); • Ethics Commissi.on Regulations for Handling Violations ofthe Sunshine Ordinance; • Staff memorandum, dated September 16, 2016, and supporting documents; • Election 2016 handout, dated September 22, 2016; • Staff memorandum re: Agenda Item No.8- Discussion and Possible Action on· Proposed 2016 Biennial Conflict of Interest Code Update for Ethics Commission, dated September 21, 2016, and supporting documents; • Executive Director's Report, dated September 21, 2016, and supporting documents; • Court filings related to Mark Farrell for District 2 Supervisor 2010, et al. v. City and County of San Francisco, eta!. (S.F Surwrior Court Case No. 16-551745); • Public comment 2. Public comment on matters appearing or not appearing on the agenda. Ray Hartz stated that he has a list of 27 Orders of Determination from the Sunshine Ordinance Task Force. He stated that seven were referred to the Ethics Commission and five were dismissed without a hearing. He stated that the Commission held two hearings regarding the Library and yet the Commission had been found to have violated the same provision ofthe Sunshine Ordinance. He stated that the Commission had no intention of ever fulfilling its duties under the Sunshine Ordinance and that no one is going to enforce it. The following written summary was provided by the speaker, Ray Hartz, the content of which is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission: This is a listing ofthe 27 Orders of Determination issued by the STOF. Seven were referred to the EC for hearing, five of those being dismissed without a hearing for various specious reasons. The two that were given a hearing, both related to the SFPL. Ethics case #0'1-130307 resulted in a completely dubious finding given that the EC had itself been found in violation for willfully disregarding the Sunshine Ordinance in exactly the same manner (OD #11 088 Ray Hartz v Ethics Commission). Finding the library in violation would've necessitated finding this body in violation, the hearing itself being a clear ethical screw-up! Ethics case #03-120402 was heard while I, the complainant, was out-of-state. Magically, the referral made it over in less than a week, while every other referral on record took months. We have such a case on today's agenda and I predict, a finding of "no violation!" Michael Petrel is stated that he submitted a complaint in February 2016. Commissioner Kopp asked whether campaign signs are permitted to be displayed during the Commission meeting. Mr. Petrelis stated that the Commission wa5, infringing upon his First Amendment rights. Chairperson Renne stated thathe, as Chair, may ask him to put down his signs. Mr. Petrel is asked the Commission to direct the researchers on Staff to move on his complaint. He stated that the Commission was not fulfilling its obligations and is harming transparency. 9/9/7019 Minutes- September 26,2016- San Francisco Ethics Commission Page 3 of 10 3. Discussion and possible action on draft minutes for the Commission's July 25 1 2016 meeting. Motion 160926-01 (Keane/Chiu): Moved, seconded, and passed (3-0; Hayon and Kopp excused) that the Commission approve the Commission's july 25,2016 meeting minutes, as amended. Public Comment: Ray Hartz stated that the minutes are an example of the disservice to people making public comment. He stated that anything critical of Staff is removed and a reasonable summary of comments should.be included in the minutes. He also stated that information in the Good Government Guide is not a legal opinion. The following written summary was provided by the speaker, Ray Hartz, the content ofwhich is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission: These minutes are an example of the disservice this body does to individuals making public comment. Although speaking in most cases for three minutes, each is boiled down to one or two lines. There is no reasonable attempt to provide a meaningful summary of what was said. What is certain to appear is any comment that praises this body and/or its staff! Members ofthe public may have noticed that at the conclusion of each public comment I pass a 150 word summary to the staff. I work on the premise that taking time to make thoughtful public comment, exercising my constitutional rights, is worth a little time ensuring that it's accurately recorded in the official record. The reason being that bodies s·uch ofthis will censor, abridge, misrepresent, or otherwise remove public criticism. And no, I'm not asking the minutes be a "transcript, but at minimum a reasonable summary. Commissioner Kopp noted that a speaker's name on page 3 should be capitalized. 4. Discussion and possible action on Hearing on the Merits for Complaint No. 19·131115, In the Matter of lynette Sweet and Sweet for Supervisor 201 0. The complete court reporters transcript lEI of this agenda item will be posted on the Commission's website. A copy ofthe transcript will also be available for review at the Commission office during regular business hours. Catherine Argumedo made a presentation to the Commission. The Respondent, Lynette Sweet, was not present and did not submit a response to the Hearing Brief. The Commissioners discussed the matter, including the penalty amount, and asked Ms. Argumedo questions. Motion 160926-01 (Kopp/Keane): Moved, seconded, and passed (4-0; Hayon excused) that the Ethics Commission assess an administrative penalty of $74,409.18 and order forfeiture of $4,650 in this matter. Public Comment: Ray Hartz stated that the proposed penalty is double that ofthe Farrell matter. He stated that there is one set of rules for City officials and another set for everyone else. He stated that the Commission has arbitrary rules. Commissioner Kopp noted that each case has different factual and legal issues and there is no comparison between the legal issues in Item 11 and this item. Michael Petrel is echoed what the previous speaker stated. He stated that the Commissioners were politicians and politics comes into play about what is placed on the agenda. He stated that the Minutes September 26, 2016 - San Francisco Ethics Commission Page 4 of 10 Commissioners were trashing members of the public and stated that the Commissioners should not interrupt public comment and that democracy is suffering. Charles Marsteller welcomed judge Kopp to the Commission. He stated that the law for public financing is clear and that this case is useful to see where there are issues in the process. He stated there was a great deal to learn from this case. David Pilpel welcomed judge Kopp and spoke in support of Staffs recommendation. Motion 160926-02 (Keane/Kopp): Moved, seconded, and passed (4-0; Hayon excused) that the Ethics Commission order Respondent Sweet to file a Form 410, terminating her 2010 candidate committee. Public Comment: Ray Hartz stated that the Commission violated the Roberts rule and the members of the public came to participate. He stated that the public needs to understand. DCA White reminded the Commission that it only needs to permit public comment once per agenda item, not once per motion. David Pilpel stated that the Commission's action is able to make another motion. 5. Discussion and possible action on the Sunshine Ordinance Task Force's referral for enforcement against Steve Kawa, Complaint 04~160718, Michael Petrel is v. Steve Kawa Deputy Director jessica Blome introduced the item. She stated that the Commission does not have enforcement authority over records retention at this time and that the District Attorney has jurisdiction over the crime of willful destruction of public records. She stated that Staffs recommendation is that the Commission not find a violation and that the Ordinance, at this time, does not contemplate this type of situation. Chairperson Renne gave both parties five minutes to present to the Commission. Michael Petrelis stated that he requested Mr. Kawa's calendar and e-mails and stated that he received calendars with no information. He stated that he was told that Mr. Kavita routinely deleted his calendar entries after two weeks. He stated that Mr. Kawa was destroying public records and the City Attorney's Office gave its blessing to him to destroy them. He stated that the Commissioners should have reviewed the documents presented to them before arriving at the meeting. He asked to be allowed to speak without being interrupted .. Steve Kawa, Chief of Staff to Mayor Lee, stated this matter is informative for him and 30,000 City employees. He stated he has been in the Mayor's Office for 20 years and he takes his job and obligations quite seriously. He stated that initially the complaint alleged he violated the Ordinance by not maintaining a Proposition G calendar, but that he is not a department head, so they morphed it into another issue. He stated he was asking for clarification, as he had followed the City Attorney's advice regarding the retention of his calendar. He stated he has maintained his calendars since the complaint was filed. Commissioner Kopp suggested Staff prepare and recommend legislation to send to the Board regarding record retention. He stated that he was unclear why there is a Task Force and why it is not part ofthe Commission. He stated he would like to look at the definition of "willful" in the Commission's Regulations for Handling Violations of the Sunshine Ordinance. Commissioner Chiu asked whether all public records need to be maintained. DCA White stated that not all must be retained. He stated that how long and whether the records are maintained is separate from the Sunshine Ordinance. He stated that Mr. Kawa did not violated section 67.21 of the Sunshine Ordinance and he also did not violate section 67.29-7 of the Ordinance. P621 , !"'\' '"'A 1 r LA---- 1 Q/Q/')n1 Q Minutes - September 26, 2016 - San Francisco Ethics Commission Page 5 of 10 Commissioner Kopp suggested sending a letter to ask to see whether Mr. Kawa's calendars still remained on the hard drives. Public Comment: Charles Marsteller stated that it could be possible, given the timeline, that the document may exist on the mainframe of the computer. He stated that he was not sure whether the Commission invokes its subpoena powers. Commissioner Chiu stated that she shared her fellow commissioners' interest in understanding whether the documents still exist. She stated that Mr. Kawa acted in good faith on advice of the City Attorney. Motion 160926-03 (Kopp/Keane): Moved, seconded, and passed (4-0; Hayon excused) that the Chair be authorized with a letter drafted by Staff to ask the relevant City department if it can recapture the requested records for those three months. Public Comment: Ray Hartz stated citizens cannot rely on anything and that the complaint should just be re-filed With the complaint naming Mayor Lee. He stated that the Mayor is responsible for making sure that his subordinates follow the law. He also stated that the Commission's actions are questionable. He stated that the Commission is trying to hide matters that would be embarrassing for the Mayor. The following written summary was provided by the speaker, Ray Hartz, the content of which is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission: It simply amazing the time, energy and resources the City Attorney's office will expend to ensure that city officials do not comply with open government laws! Since anyone with half a brain already knows the outcome ofthis hearing, I would suggest Mr. Petrelis refile the complaint naming Mayor Ed Lee. The Mayor, an elected official, is responsible forensuring that those under his supervision comply with the law. Despite all the shucking and jiving in these laughC!ble "legal memos," it would seem the members of this commission seem determined to remain "willfully blind" to the fact that someone as senior as Mr. Kawa would have known his actions were unlawful. I see his machinations as nothing more than an effort to hide matters that would be embarrassing for Mayor Ed Lee. Dr. Derek Kerr stated that Mr. Kawa deleted his calendars every two weeks and noted that it takes effort and discipline to accomplish that. He stated that it is a taxing chore and that, even ifthere is a policy or practice to delete appointment logs, he asked what the rationale of it would be. The following written summary was provided by the speaker, Dr. Derek Kerr, the content of which is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission: WHAT'S STRIKING ABOUT THIS CASES IS THAT THE MAYOR'S CHIEF OF STAFF METHODICALLY DELETED HIS CALENDARS EVERY 2 WEEKS. THAT TAKES EFFORT- AND DISCIPLINE. MANY BUSY PEOPLE KEEP APPOINTMENT CALENDARS, BUT FEW ERASE THEM SO QUICKLY AND DILIGENTLY. IT SEEMS LIKE A TAXING CHORE EVEN FOR THE MOST FASTIDIOUS OF PERSONS. BUT BECAUSE THE MAYOR DELEGATES IMPORTANT TASKS AND MEETINGS TO HIS CHIEF OF STAFF, THIS COMMISSION SHOULD CONSIDER WHETHER FURTIVE PURPOSES DROVE THIS BEHAVIOR. P622 l--~+-~.11~-1"~4-t.:~~ ~-~f~+t-:~~/'1(\1 C:/1 (\/~:~"+~~ ~~~+~~1-.~- '1C: ')(\1 C: h-c.~l ()/()/') (\ 1 (l Minutes - September 26, 2016 - San Francisco Ethics Commission Page 6 of 10 EVEN IF THERE WAS A "POLICY" TO PROMPTLY DELETE APPOINTMENT LOGS< WHAT IS THE UNDERLYING RATIONALE? DOES IT SAVE MONEY BY PRESERVING SPACE ON COMPUTER HARD-DRIVES? DOES IT REDUCE THE WORKLOAD OF THE I.T. DEPARTMENT? OR DOES IT INTENTIONALLY CONCEAL ACTIVITIES OF PUBLIC INTEREST? David Pilpel stated that the Task Force heard this matter on three different occasions. He stated that undeleted calendars were provided in connection with the April2016 meeting. He stated that he believed it was a non-willful violation of section 67.21, but not section 67.29-7. Motion 160926-04 (Chiu/Renne): Moved and seconded that the Commission find that the Sunshine Ordinance does not require Mr. Kawa to retain his calendar and that Mr. Kawa did not violate the Sunshine Ordinance by failing to produce the calendar. Vice-Chairperson Keane asked to break up the motion into two parts. Commissioner Chiu withdrew her motion. Motion 160926-05 (Keane/Kopp): ~.. ~oved 1 seconded, and failed (2-2; Chiu and Renne dissented and Hayon excused) that the retention of Mr. Kawa's calendar was required by existing law. Chairperson Renne stated he would vote against this motion, since he did not understand what required keeping it. Vice-Chairperson Keane stated that he was casting a broad net, including the Sunshine Ordinance and Brown Act. Motion 160926-06 (Keane/Chiu): Moved, seconded, and passed (4-0; Hayon excused) that the Commission accept Staffs recommendation that Mr. Kawa did not willfully violate the Sunshine Ordinance. 6. Discussion and possible action on amendment to the Ethics Commission's bylaws to establish a process for Staff to notify the Commission when attorney-client privilege has been invoked in response to a request for public records. Public Comment: Ray Hartz stated that the Director should notify the total number of records requests and how frequently requests are being denied by attorney-client privilege. He stated that most citizens believe that government is corrupt and that the Board of Supervisors has undermined the Task Force. David Pilpel stated that it was unusual for a Commission to have these kinds of procedures and asked that the Commission revisit in six months or a year. He stated that he was not sure this is the right course. Motion 160926-07 (Kopp/Keane): Moved, seconded, and passed (4-0; Hayon excused) th9t the Commission accept Staff's proposal to amend the Commission's bylaws. 7. Presentation and discussion of informational Staff report highiighting 2016 eiection activities. Public Comment Ray Hartz asked the purpose ofthe handout and stated it was meaningless drivel, He stated that Staff is out to crucify a small fish and let the big whales go. He stated that it was unusual for someone to sit on a 9/9/2019 Minutes - September 26, 2016 San Francisco Ethics Commission Page 7 oflO Commission and be nasty to a member of the public. He stated that it is not unreasonable for someone to appear before the Commission and expect that they will be able to speak without interruption. The following written summary was provided by the speaker; Ray Hartz, the content of which is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission: What's the purpose of this handout? Is it soliciting members of the public to be "informants?" Of course you will praise the staff to high heaven for production of this meaningless drivel. lfthis is supposed to "promote awareness," why sjlould the public believe that anything they turn in will receive attention? All the cases this body deals with relating to campaign finance taken literally years to work their way through your labyrinthine process. Most campaign finance "delinquents" can count on dying peacefully in their sleep before you get around to taking any action. The actions that are taken, eventually, are nothing but a form of "manipulative self gratification!" This city has become a cesspool of campaign funds raised by "small fish," who you will crucify and "whales," who you couldn't or wouldn't dare touch! And the biggest whale of all? Mayor Ed "I won't run" Lee! What a farce! Vice-Chairperson Keane stated that the Commissioners are interested in what the public has to say. David Pilpel stated that he appreciated the handout and thanked Staff for their work. He asked about the Commission's new website. Executive Director LeeAnn Pelham stated that the new website would be coming soon. 8. Discussion and possible action on proposed biennial Conflict of Interest Code update for Ethics Commission. Executive Director Pelham introduced the item. She stated the Board of Supervisors will be reviewing an adjustment to the Code for all City departments and presented the update to the Commission. Motion 160926-08 (Keane/Chiu): Moved, seconded, and passed (4-0; Hayon excused) that the Commission accept Staffs proposal to the proposed biennial Conflict of Interest Code update. Public Comment: David Pilpel stated that it was the first time this Code was being brought to the Commission. He expressed concern. in possible decision-making being changed to various staff members. He stated that generally too many people in the City file the Form 700. Charles Marsteller stated that, in the earlier conversation about possibly enhancing the records retention policy, the Commission could consider capturing calendars of people who are Form 700 filers . . Ray Hartz stated that this was resource-wasting and that there is no desire to enforce the law. He stated that when the Commission starts objecting to what people have to say, it is viewpoint discrimination and that throwing mud is not a reply. The following written summary was provided by the speaker, Ray Hartz, the content of which is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission: Once again we have an example of resource wasting self-justification! What is the point of repeatedly readjusting the "conflict of Interest Codes," which this body has neither the power nor the desire to enforce? Case in point: when City Librarian Luis Herrera filed for years false SEI's, under penalty of perjury, Ethics refused to touch it! It took citizens going to the FPPC in Sacramento to get any result. I sometimes feel I'm watching a reenactment of the Wizard of Oz. The scene where Glinda, the witch of P624 httnc;·//c;f~thic.« nro-/~thic.c;/7.0111/1 O/minutec;-c;entember-26-2016.html 9/9/2019 Minutes - September 26, 2016 San Francisco Ethics Commission Page 8 oflO the North, tells the witch ofthe West "Begone, you have no power here," I feel pretty much sums up the view of City government as regards this commission. So, once more "Rearranging deck chairs on the Titanic," you will waste taxpayers resources in an effort to justify your existence. In fact, your very existence makes open government a joke! Vice-Chairperson Keane stated that he has been listening to Mr. Hartz for a year and a half and that every month, Mr. Hartz gets up and says the same thing over and over again. He stated that he has been watching him and called him tedious. 9. Discussion of Executive Director's Report. Executive Director Pelham introduced Deputy Director Blome and mentioned that she would be looking at the Commission's records retention policy and various other policies that are outdated. She stated that Ms. Blome would also be looking at the enforcement regulations and seeking progress on resolving cases that are stale. Public Comment: Ray Hartz stated that anything having to do with the Sunshine Ordinance is always missing from the Director's Report. He stated that enforcement is never rner1tioned. He stated that the Commission disparages the public instead of encouraging public attendance. The following written summary was provided by the speaker, Ray Hartz, the content of which is neither generated by, nor subject to approval or venfication of accuracy by, the Ethics Commission: Let's talk about what has always been missing from the Executive Directors report: anything to do with the Sunshine Ordinance! Despite the fact that we've heard a few times this evening about this commission's responsibilities under law, enforcement of the Sunshine Ordinance is never mentioned. After all, what could you say? We have never, and will never, do anything to enforce any open government law! We don't give a damn that the citizens of San Francisco passed this by a two-thirds majority, we won't enforce it! Not only that, we will do everything within our power to prevent any citizen attempting to provide any level of transparency, from achieving their goal. Adding insult to injury, we will openly demean and disparage such efforts. As far as open government goes you could paraphrase Walt Kelly in Pogo: "we have met the enemy and they is us!" What a joke on us! David Pilpel stated that he appreciated the detail and hoped the enforcement information would be a regular part of the report. He suggested that the Chris Jackson matter be calendared for a future meeting. 10. Discussion and possible action on items for future meetings. Commissioner Kopp stated that he understood there was a new administration, but the delays in the enforcement matter were remarkable. He stated that he would like to go through the pending matters and discuss them. He stated that he did not believe there was anything preventing the Commission from proceeding on a matter that was also being investigated by another agency. Deputy Director Blome asked for a timeframe regarding the review and proposed changes for the Sunshine Ordinance. The Commission asked Staff to hold Interested Persons meetings and reconvene on the matter for the December 2016 meeting. Public Comment Elena Schmid welcomed Commissioner Kopp. She stated that there should be Interested Persons meetings and meetings with other agencies and groups. I '' 9/9/2019 Minutes- September 26, 2016 San Francisco Ethics Commission Page 9 of 10 .Charles Marsteller stated that a possible re-write of the Ordinance, or amendment, should not be a rush and everyone should have input. Ray Hartz stated that he had one denial occur within 30 days and another within 48 hours. He stated that there is a blatant effort to look at his filings and find reasons to ignore it. 11. Discussion and possible action regarding proposed settlement for the Ethics Commission's consideration in Mark Farrell for District 2 Supervisor 2010, et al. v. City and County of San Francisco1 et al. (S.F. Superior Court Case No. 16~551745) for $25,000 payment by Supervisor Farrell and mutual release of legal claims. Matter tontinued. No discussion. Public Comment: Charles Marsteller stated that, due to the Presidential debate, the Commission usually has a larger turnout. David Pilpel asked why the matter was continued. 12. Additional opportunity for public comment on matters appearing or not appearing on the agenda pursuant to Ethics Commission Byiaws Articie Vii Section 2. Ray Hartz stated that the government is corrupt and that the Commission is not part ofthe solution and is part ofthe problem. He stated that aides were indicted for accepting illegal bribes and so the Mayor approved a huge increase in the Commission's budget. The following written summary was provided by the speaker, Ray Hartz, the content of which is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission: I've had people tell me "Maybe if you aren't so in their face, you'll get a friendly response." Years of experience have taught me one lesson: no matter how friendly, polite, or whatever you are, t~e most you can hope for is to provoke a reaction. George Orwell said: "In a time of deceit, telling the truth is a revolutionary act." As regard this body maybe Andrew Carnegie had it right "As I get older I pay less attention to what men say. I just watch what they do!" Over the years I've repeatedly asked members of this body to tell me anything they've done to make city government more open, transparent or honest? The answer is silence, truly deafening silence! The citizens of San Francisco know their government to be corrupt and I believe they should be aware that you are not a solution, but part ofthe problem! 13. Adjournment. Motion 160926-09 (Kopp/Keane): Moved1 seconded1 and passed (4-0; Hayon excused) that the Commission adjourn. Public Comment: None. The Commission adjourned at 8:52 PM. Was this page helpful? P626 nttn Scan with a QR reader to access page: rg!l~·-.-oo • r [!] - .. https://sfethics.org/ethics/2016/1 O/minutes-september-26-2016.html P627 hH~~' /1~-f"c.+hir-c rwrr/Pthirc:/')n 1 h/1 n/minlltf':S-Sentember-26-20 16.html 9/9/2019 le er, Cheryl (BOS) From: SOTF, (BOS) Sent: Thursday, September 26, 2019 5:49 PM To: 'Mo Green'; LAKE, JOSEPH {CAT); 'Cote, John (CAT)'; WALCZAK, KENNETH (CAT); Peters, Michelle (PUC); MICHAEL PETRELIS; Heckel, Hank (MYR); Breed, Mayor London (MYR); Elsbernd, Sean (MYR); '[email protected]'; '79182-05441 065 @requests.muckrock.com'; D'Amato, Nina (TIS); Gerull, Linda (TIS) Subject: SOTF - U,pdated Notice of Appearance - Complaint Committee; October 15, 2019 5:30 p.m. Good Afternoon: You are receiving this notice because you are named as a Complainant or Respondent in one of the following complaints scheduled before the Complaint Committee to: 1) hear the merits of the complaint; 2) issue a determination; and/or 3) consider referrals from a Task Force Committee. Date: October 15, 2019 Location: City Hall, Room 408 Time: 5:30p.m. Complainants: Your attendance is required for this meeting/hearing. · Respondents/Departments: Pursuant to Section 67.21 (e) of the Ordinance, the custodian of records or a representative of your department, who can speak to the matter, is required at the meeting/hearing. Complaints: File No. 19084: Complaint filed by Mo Green against the City Attorney's Office for allegedly violating Administrative Code (Sunshine Ordinance), Sections 67.21 and 67.25, by failing to respond to a request for documents in a timely and/or complete manner. File No. 19085: Complaint filed by Mo Green against the Public Utilities Commission for allegedly violating Administrative Code (Sunshine Ordinance), Sections 67.21 and 67.25, by failing to respond to a request for documents in a timely and/or complete. File No. 19093: Complaint filed by Michael Petrelis against Mayor London Breed and the Office of the Mayor for allegedly violating Administrative Code, (Sunshine Ordinance) Sections 67.21 by failing to respond to a request for public records in a timely and/or complete manner. File No. 19091: Complaint filed by Anonymous against Mayor London Breed, Hank Heckel and the Office of the Mayor for allegedly violating Administrative Code, (Sunshine Ordinance) Sections 67.21, 67.26, 67.27 and 67.29-7, by failing to respond to a request for public records in a timely and/or complete manner. File No. 19094: Complaint filed by Anonymous against Linda Gerull and the Department of Technology for allegedly violating Administrative Code (Sunshine Ordinance), Sections 67.21, 67.25, 67.26 and 67.27 by failing to respond to a public records request in a timely and/or complete manner. Documentation (evidence supporting/disputing complaint) For a document to be considered, it must be received at least five (5) working days before the hearing (see · attached Public Complaint Procedure). For inclusion into the agenda packet, supplemental/supporting documents must bereceived by 5:00pm, October 7, 2019. I (BOS) From: SOTF, (BOS) Sent: Friday, August 30, 2019 3:32 PM To: Heckel, Hank (MYR) Cc: Breed, Mayor London (MYR); Breed, London (MYR); Elsbernd, Sean (MYR) Subject: SOTF - Complaint Filed with the Sunshine Ordinance Task Force - File No. 19093 Attachments: SOTF- Complaint Procedure 2018-12-05 FINAL.pd( 19093 Complaint.pdf Good Afternoon: Mayor London Breed and the Office of the Mayor have been named as Respondents in the attached complaint filed with the Sunshine Ordinance Task Force. Please respond to the following complaint/request within five business days. The Respondent is required to submit a written response to the allegations including any and all supporting 9-ocuments, recordings, electronic media, etc., to the Task Force within five (5) business days of receipt of this notice, This is your opportunity to provide a full explanation to allow the Task Force to be fully informed in considering your response prior its meeting. Please include the following information in your response if applicable: 1. List all relevant records with descriptions that have been provided pursuant to the Complainant request. 2. Date the relevant records were provided to the Complainant. 3. Description of the method used, along with any relevant search terms used, to search for the relevant records. 4. Statement/declaration that all relevant documents have been provided, does not exist, or has been excluded. 5. Copy of the original request for records (if applicable). Please refer to the File Number when submitting any new information and/or supporting documents pertaining to this complaint. The Complainant alleges: Complaint Attached. Cheryl Leger Assistant Clerk, Board of Supervisors Tel: 415-554-7724 .Click here to complete a Board of Supervisors Customer Service Satisfaction form. The Legislative Research Center provides 24-hour access to Board of Supervisors legislation, and archiv.ed matters since August 1998. Disclosures: Personal information that is provided in communications to the Board of Supervisors is subject to disclosure under the California Public Records Act and the San Francisco Sunshine Ordinance. Personal information provided will not be redacted. Members of the public are not required to provide personal identifying information when they communicate with the Board of Supervisors and its committees. All written or oral communications that members of the public submit to the Clerk's Office regarding pending legislation or hearings will be made available to all members of the public for inspection and copying. The Clerk's Office does not redact any information from these submissions. This means that personal information-including names, phone numbers, addresses and similar information that a member of the public elects to submit to 1 P630