by Richard Knee

A Sunshine Ordinance should open government to citizen scrutiny and participation. San Francisco’s sincere commitment is tested whenever poor people and people of color bring demands for fairness to City Hall, as outspoken Black leader Minister Christopher Muhammad is doing here in a photo taken Jan. 12, 2016. – Photo: Ekevara Kitpowsong, SF Examiner

A provision empowering the Board of Supervisors to amend San Francisco’s voter-enacted government-transparency law, the Sunshine Ordinance, is prompting at least two journalist organizations, the First Amendment Coalition, the local League of Women Voters, the San Francisco Labor Council and many other sunshine advocates to oppose a city Charter amendment, “Privacy First,” that will appear as Proposition B on the local ballot this November.

Ordinarily, only the voters may amend voter-passed ordinances.

The measure is billed as a precursor to ordinances barring city contractors and business licensees from passing customers’ personal data to utilities, social media and other companies and individuals that mine such information for profit or more malicious ends.

The Society of Professional Journalists, Northern California chapter, and the Pacific Media Workers Guild (The NewsGuild-CWA Local 39521) laud that intention but warn that the board-empowerment provision would open the door to the ordinance being legislatively weakened, and because it is locked into Proposition B, they feel compelled to oppose it.

The measure is billed as a precursor to ordinances barring city contractors and business licensees from passing customers’ personal data to utilities, social media and other companies and individuals that mine such information for profit or more malicious ends.

They also caution that the measure would not in itself be a law; it would merely set guidelines for a set of ordinances to be enacted by next May 31, and there is no telling how watered down they would be due to backroom deals with tech-industry lobbyists. (Disclosure: This writer is active in both organizations.)

The measure would add Section 16.130 to the Charter, the city’s supreme body of law, its counterpart to the federal and state constitutions. Subsection (i) of the text would authorize the board to amend voter-passed privacy, open-meeting and public-record ordinances in a way “not inconsistent” with their intent or purpose.

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

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

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

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

In addition, legislation amending the ordinances would need to go through the mayor, and current Mayor London Breed has shown a strong dislike of sunshine laws; her record of compliance therewith is far from exemplary.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bottom line: Proposition B guarantees none of the protections its proponents advertise, and the provision allowing the board to tamper with the Sunshine Ordinance is a pill poisonous enough to make the measure unacceptable.

Richard Knee is a San Francisco-based freelance journalist. He can be reached at rak0408@earthlink.net.

1 COMMENT

  1. With all due respect, No. Prop B should be supported. This is unfortunately an example of putting City Hall personalities and conflicts ahead of the real needs of the people of San Francisco, especially the vulnerable populations heavily targeted by hi-tech government surveillance. With ever more data collection, inadequate storage and security protocols, rampant data sharing, racial profiling and ubiquitous surveillance pointed at targeted populations like low-income people, the homeless, immigrant communities, Muslims, BLM activists and others under a withering state glare, it is more than time for big cities like San Francisco to get themselves on the record that they are going to protect their residents from the worst kinds of privacy abuses and that is the intent of Proposition B, which commits the supervisors to meaningful surveillance and privacy ordinances by May of 2019. The clause that worries Mr. Knee very clearly states that no voter approved ordinance can be altered in any way contrary to the voters intent and it is not rocket science that the intent of a Sunshine Ordinance is governmental transparency. It has no other intent. While of course politicians are not to be trusted, I would hate to have to make an argument in a court of law that the intent of a transparency law is not transparency and the chances of succeeding in a court of law are miniscule at best. And as Mr. Knee concedes, he has been told by the Prop B's author that is not the intent of the ordinance and I agree that it is not. Sometimes we have to lift ourselves out of political squabbles and City Hall intrigue and look at the big picture. And the big picture says that we desperately need laws in San Francisco to protect our personal data from abuses and to prevent law enforcement from unfettered surveillance. Proposition B is a declaration of intent to do that much needed action and commits the City to taking those actions. That is a good thing. Privacy and transparency are never opposed interests. We need to know what they are doing in order to cut out abuses and limit overreach. Transparency advocates should understand that. Prop B deserves your support on Election Day.

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