March 12 2003

TEN YEARS AGO San Francisco adopted an unprecedented sunshine law that gave its residents more access to their local government than the residents of any other city in the nation. Six years later it was further strengthened, with passage of the Sunshine Initiative.

Some serious loopholes were closed, such as the "deliberative process privilege," which allowed documents that shed light on the governmental decision-making process to be kept secret. And San Francisco's Sunshine Ordinance is now the open-government model for the rest of the country.

But the city has yet to declare victory over political secrecy. Remaining barriers to true sunshine include the ordinance's lack of enforcement power, the use of secretive sole-source contracts by a majority of city departments, an exemption for nonprofit organizations that receive less than $250,000 in city funding, and the San Francisco Board of Supervisors' refusal to release unredacted telephone bills or their appointment books.

Sole-source tow job

City Tow's recent return to the headlines illustrates how secrecy and favoritism can still taint the public's business. On March 9 the San Francisco Chronicle reported that City Tow, the city's monopoly towing contractor, has been given a competitive advantage in its bid to retain its $50 million city contract, despite evidence of its illegal schemes to cheat its customers and the city and state out of millions of dollars.

The company has political ties to Mayor Willie Brown, leaving observers to speculate whether that was why bid specifications were modified to rule out competitors – at least in the absence of credible, publicly offered explanations. But what wasn't reported was that secrecy on this contract goes back several years.

In April 1999 the Bay Guardian sued San Francisco under the state's Public Records Act and the Sunshine Ordinance after city officials denied access to audit information that City Tow was required to make available to the city. We still have not seen City Tow's audit reports.

Department of Parking and Traffic officials actually testified in court on behalf of City Tow, saying the disclosures would "taint" the bidding process. Also, the department continues to keep secret its sole-source contracts (contracts that were not put out for bid).

A Bay Guardian investigation in March 2002 found that many city departments were keeping secret million-dollar sole-source contracts, despite a Sunshine Ordinance requirement that every department submit a list of such contracts to the Board of Supervisors at the end of each fiscal year (see "Shady Dealings," 03/13/02). The DPT filed its list in 2002 only after the Bay Guardian contacted the department, and this year, as of March 10, the department had not filed for the past fiscal year.

Other city departments that have yet to file include the Department of Public Health, whose past sole-source contract lists have amounted to more than $20 million, the Police Department, the Public Utilities Commission, the Airport Commission, the Department of the Environment, and the Port of San Francisco.

There is still no enforcement procedure in the sunshine law to ensure that city departments report sole-source contracts, according to Sunshine Ordinance Task Force administrator Donna Hall. Of the 78 city departments, boards, and commissions Hall sent a reminder to in June 2002, only 21 have filed.

Hall said the City Attorney's Office recently contacted her to find out who has submitted the required information. "Maybe they are thinking of taking some action," she said. But the City Attorney's Office itself left out the most important item on its filing: the amount paid to each contractor on its lengthy list.

"We are certainly not able to police people who don't follow the ordinance," Hall said.

Toothless law

Since the Sunshine Ordinance is only as strong as the ability to enforce it, many citizens have said in hearings that they want the law to have more teeth. To illustrate the problem, some sunshine advocates have cited former San Francisco Examiner reporter Michael Stoll's complaint against the Board of Supervisors.

When the supervisors refused to release copies of their unredacted telephone bills to the reporter in June 2002, the task force found them guilty of violating the Sunshine Ordinance. But the City Attorney's Office advised the board this February that the law does not require them to release the records.

"The Stoll matter is a prime example of the limitations of the task force, which has no enforcement authority," said California First Amendment Coalition general counsel Terry Francke, who wrote the 1993 Sunshine Ordinance. "You can have the best access provisions in the world, but if they are left to private enforcement, you can count on denials when politically sensitive issues are at stake."

Currently, the task force can refer cases of noncompliance to the Ethics Commission. But Hall told us both cases the task force referred to the Ethics Commission last year are just now being examined. "It is fair to say the commission doesn't regard the issues as high priority," said task force chair Joshua Koltun.

"The reality is that we are a body that sits outside of the existing structures of government," he said. "It will make sense for Sunshine Ordinance Task Force to have greater enforcement power."

Throwing back small fish

With the 1999 passage of the Sunshine Initiative, San Francisco became the sunniest city in the nation. But two important items were left out of the historic ballot measure's provisions: placing all nonprofits under the sunshine law and requiring the Board of Supervisors to open its appointment books.

Task force member Richard Knee said sunshine advocates worried the Sunshine Initiative might not pass if its advocates took on the nonprofits. But leaving the nonprofits out created "not just a loophole but a gap you can drive a truck through," Knee said.

There are also many nonprofits in the city that receive in-kind goods and services (such as free rent) that should also be placed under the sunshine law, task force member Sue Cauthen said.

And while the Sunshine Initiative called for the controversial mayor to open his appointment book, the Board of Supervisors' appointment books were left out. Not including them was an "oversight" that also should be corrected, Knee said.

Get involved

Fortunately, unlike state open-meetings and -records acts, the city's sunshine law is an evolving process and document that may be amended and upgraded over time. Suggestions are being compiled and will be formally examined by the task force and the public in the near future.

To submit a suggestion, contact task force administrator Donna Hall at (415) 554-7724 or make a public comment at a regular meeting of the Sunshine Ordinance Task Force. The next meeting is March 25, 4 p.m., City Hall, 1 Dr. Carlton B. Goodlett Place, Room 408, S.F. View meeting information, submitted documents, and the text of the ordinance at www.sfgov.org/site/sunshine_index.asp.