Prop. B Would Let Supervisors Tamper with Open-Meeting, Public-Records Laws

By Richard Knee

A little-noticed provision in a “Privacy First” measure, Proposition B on this November’s ballot, would let the Board of Supervisors tamper with the city’s government transparency law, the voter-passed Sunshine Ordinance.

Transparency advocates warn that passing Proposition B would open the door to weakening the ordinance and they are angry at the way the board-empowerment provision was slipped into the measure.

The provision isn’t mentioned in the Voters Information Guide summary or in proponents’ printed materials, and proponents discuss it as little as possible on the stump. They apparently hope voters won’t read down as far as Subsection (i) of the measure’s text, where the provision appears.

Widely regarded as the nation’s strongest set of laws dealing with public access to city hall proceedings and records, the Sunshine Ordinance was passed by the voters by a 58-42 ratio in November 1999. Ordinarily, only the voters may amend voter-enacted ordinances.

Proposition B would set guidelines for future ordinances barring city contractors, franchise holders 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 purposes.

The Society of Professional Journalists, Northern California chapter, and the Pacific Media Workers Guild (The NewsGuild-CWA Local 39521) laud that intention but oppose Proposition B because the board-empowerment provision is locked into it. (Disclosure: This writer is active in both organizations.)

They caution also that the measure would not be a law but merely a framework for legislation to be drafted by next May by the city administrative officer, and one can assume that supervisors and the mayor would come under heavy pressure from the tech industry to water down whatever laws are proposed.

Also on the growing list of Proposition B opponents are the First Amendment Coalition, the San Francisco Labor Council, the League of Women Voters of San Francisco, the San Francisco Bay Area Planning and Urban Research Association (SPUR), the activist group San Franciscans for Sunshine, several community Democratic clubs, the Green and Libertarian parties, and the San Francisco Chronicle.

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 includes language authorizing the board to amend voter-passed privacy, open-meeting and public-record ordinances in a way “not inconsistent” with their intent or purpose.

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 qualified as “not inconsistent” would be a subjective exercise, and that power would rest with the city attorney, whose office defends officials and agencies accused of violating local and state open-meeting and public-record laws.

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

Moreover, legislation amending the ordinance 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.

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

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

Richard Knee is a San Francisco-based freelance journalist and government transparency activist.

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