Contact: James Chaffee 584-8999
SaveOurLibraries.com / firstname.lastname@example.org
Being Vexatious Down At the Public Library Is a Virtue
Open Letter to the SF Bay Guardian
The one thing that history has taught us is that if there is going to be responsible democratic government, there better be process, openness, access and respect beforehand, because there will never be accountability afterward.
I use to think that there would be accountability, yet the forces of privatization have sucked our public library dry like any parasite, and everyone knows it. Yet corporate philanthropy acts as if we are supposed to be grateful, and our city officials comply.
The San Francisco City Attorney has filed a motion to have me declared a vexatious litigant. I confess that I am a bit shocked. I never thought they would try it. It is obvious that it is politically motivated and it needs to be addressed politically.
There is no mistaking the source of this move. There was a recent meeting of a committee of the Sunshine Task Force that had been called in the service of City departments reacting against document requests that were "annoying." That was not the word, but something like that. A representative of the City Attorney’s office, Matt Dorsey, stated that one of the City Attorney’s options was to seek redress in the court of public opinion. Of course, it seems all too obvious to make an example of someone like myself who does not shrink from the term "Gadfly" but in fact embraces it.
According to the papers that were served with the motion for vexatious litigant, I have filed 20 lawsuits in my 31 year career as a Gadfly at the San Francisco Public Library. When I started at the San Francisco Library Commission, there was no public attendance, no public comment, and I am sure the Library Commission never imagined there ever would be. At that time the Library staff complained because the Library Commission had de facto meetings at the home of the director of the library’s private partner, at that time called the "Friends" now called the Friends and Foundation. A prominent member of the Library staff solicited me to complain about violations of the Brown Act. I had never heard of it at that time. That was a long time ago.
At about the time that I started there was a Robert Redford movie called, "Three Days of the Condor." It was about an historical society that was a front for the CIA. I was a fly on the wall in those early Library Commission meetings, and that is what it was like. No one cared about the library as a public institution. They were going to suck it dry in the interests of private fund raising. I was the first person to break through the barrier to attendance at Library Commission meeting and that first meeting was more challenging than any open meeting issue I have faced since. Having done this, I felt it was my duty as a citizen to expose what I saw.
It is openly acknowledged at the Library that there would be no compliance with sunshine or open meetings laws without my lawsuits. As a matter of fact, at the recent meetings of the Technology and Privacy Committee that was convened to pave the way for implementation of RFID, there was a proposal to use on-line conferencing software in an illegal way. Commissioner Coulter made a joke that they had better not or they would get sued by me. Some joke. There is no respect for what is right, or what is legal, not to mention actual respect for the public. The only thing that deters them from brazen violations of the law is getting sued. The only thing that deters them from naked rip-off of the library is what little openness there is.
Yet after all of this time of being successful in creating some semblance of compliance with Sunshine and open meetings laws, if however grudging, their only response is to sue me as a vexatious litigant. It is the opposite of the three strikes law. The concept is that after twenty strikes they want a get-out-of-jail free card. One would think they would be ashamed that after this long string of illegalities, but they want to blame me for fixing it.
This vexatious litigant motion is nothing but slander and intimidation in its purest form. Labeling me as a vexatious litigant has no chance of success. Such a motion is neither legal, lawful or even valid. If any responsible authority in City Hall sees this missive, please be informed that the San Francisco City Attorney’s office is in desperate need of adult supervision.
One never knows what a judge is going to do, but even if I were to lose and end up being slandered as a vexatious litigant, it is a small price to pay. There is a sense in which I lost the battle, but won the war. There is public attendance at commission meetings, agenda items, public comment (no matter how much they laugh and rattle their M&M’s), and copies of documents under discussion (most of the time). None of those things were implemented willingly. The library Commission fought against them just as hard as I fought for them. Most of the time it doesn’t matter much, but when the staff wants a City Librarian who has an MLS or the pre-school gets kicked out of Bernal Heights, there is a forum for people to speak and the Library Commission’s arbitrariness does not go down quite so easily.
For those who believe that Coke is the Real Thing, Progress is Our Most Important Product, and Military Intelligence knows where the Weapons of Mass Destruction Are, they may also believe that corporate money in the library is "positive." Everyone else has long ago acknowledged that I was right about the stream of lies that ruined our library and benefited private interests, and continues to do so.
The motion does not make sense without some discussion of the substance of the suits along the way. The City Attorney in its memo uses the terms "meritless lawsuits over and over again," and "repetitive meritless lawsuits." What the City Attorney does not mention is that three of those appeals resulted in published opinions. When the Court of Appeal publishes an opinion, the court is saying that it is a significant point on which lower courts need guidance. The published opinions went against me, but that is a result of the political climate not the significance of the issue.
The law on vexatious litigants uses the term "adverse judgment." Let’s take just one example. The library refused to hold the required Library Preservation Fund neighborhood hearings on open hours in the branches. I filed suit. After the suit was filed, the Library Commission scheduled new hearings, and then claimed to the judge that the case was moot. Is that an adverse judgment? The city seems to think it is. In fact, in the law there is something called a "prevailing party" standard. Under that standard, if you get what you were originally asking for you are the prevailing party. Under the "prevailing party" standard I have won the vast majority of the suits.
Let’s take another example. One of the lawsuits was on a closed session. The judge demanded to see the tape recording of the meeting "in camera." The Library Commission claimed that they had "lost" the tape, unquestionably as a coverup. The judge had no choice but to dismiss for lack of evidence. Is that an adverse judgment? The city seems to think it is.
Of course, there was the case that I won hands down. At least two of the cases were about the Fuhrman Fund (See Bay Guardian of Dec. 22, 1993) where they had to get the law and the will changed to retroactively indemnify themselves. Quentin Kopp got involved and there was a major public discussion public trusts. (Don’t forget the Director of the Friends and Foundation was the same person who had attempted to divert the Buck Trust in Marin County. Marin County was successful in protecting itself, but San Francisco failed.) How meritless was that?
I could go on like this at some length, but the point is, these were all crucial issues and now I am defending myself against this superficial and malicious SLAPP.
I am grateful for the Bay Guardian’s support, but I think it makes one small faux pas. The editorial refers to some of my lawsuits as "a little obscure." All of the suits were about distinct and important points. I never sued over anything that I didn’t consider both significant and a deliberate violation on the part of the Library Commission. The Library Commission does not negotiate or compromise. When I began the door was completely slammed in my face. I started by establishing a beachhead and advancing openness point by point. Myself, Kimo Crossman, Christian Holmer, Timothy Gillespie, Doug Comstock and so many others — including Bruce Brugmann — have been fighting for sunshine and open government against a door that has been slammed in our face by those who think that because of their money they are aristocrats or "good people." There was nothing obscure about it.
The reason that this is so prejudicial is that I am in fact in "pro per" and people make certain assumptions about that. What no one wants to admit is that the City Attorney is what is called "Rambo litigators from Hell." Until one have been through at least a dozen lawsuits against them, one is helpless against the dirty tricks that one is up against. Just as an indication, there are court rules that every case must have a settlement conference and a mediation. In my entire history, I have never had either. They never negotiate. They never discuss. They don’t have to. If there were any truth in the matter, the City Attorney would be declared "vexatious."
The fact is that democracy exists because public-spirited citizens fight for it. The better question is, Why did the Library Commission fight against it at every turn? It is important to look at the broad perspective of who is, and has been, fighting for the democratic principles of openness and public process. The fact is, Kimo Crossman and I, as well as others, have been fighting for democratic principles that are important to everyone and it is a good thing that we do, no matter how often we lose.
For those who saw my public comment at the Board of Supervisors meeting of April 11, you saw 35 newspaper headlines exposing problems in SFPL while I mentioned everything from the book dumping scandal to the retribution against staff whistleblower scandal, and many in between. Would the City and the society as a whole be better off if none of that were exposed? Of course, the library administration did not willingly allow the sunshine that brought those issues to light. One of the weapons that they use most relentlessly against openness is personal calumny against those who would uncover the truth. I have been called a lot worse things than vexatious litigant. Every gain for democracy comes at the expense of the aristocracy’s prerogatives. They don’t like it, but that is the way it works.
In the end it wasn’t about the Brown Act. Figuratively speaking, I was smuggling wheelbarrows. It was about establishing a beachhead for democracy so that there would be public discussion about the issues of the privatization and destruction of the public library. It is true that some of the Brown Act lawsuits were about relatively small points, but it began with brazen and open contempt for sunshine and ended up with more of the truth coming out than anyone thought possible.
The next step is putting Library Commission meetings on SFGTV. How many departments with a $70 Million annual budget are not broadcast on cable access or available on Video on Demand? The one thing that will make it difficult for the Library Commission to privatize the Public Library is to allow the people to see what is going on. That is where "sunshine" comes from. "Sunshine is the best disinfectant."