Sunshine Task Force

Deleting accountability

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› amanda@sfbg.com

Public records are coming in pretty handy these days. Congress is using them to investigate the relationship between the Republican National Committee and the firing of eight attorneys general, and as with many investigations that use documents to uncover malfeasance, some key documents are missing — in this case Karl Rove e-mails.

It seems Mayor Gavin Newsom’s office also has a penchant for the delete key, according to findings of the city’s Sunshine Ordinance Task Force. Two complaints brought by citizens have been heard by the task force regarding how the mayor’s daily calendar is kept — or isn’t kept — and what happened to e-mails that disappeared after they were requested by a member of the public.

"We found there was willful and ongoing violations and destruction of records," task force chair Doug Comstock told the Guardian.

Staff in the Mayor’s Office say they didn’t do anything wrong and no willful destruction of public records has occurred. According to Joe Arellano of the Mayor’s Office of Communications, the e-mails — invitations sent out for the mayor’s Jan. 13 District 1 community policy forum — were purged because they were temporary.

"We have such a huge e-mail system, we have to delete e-mails that are transitory. These, to us, were the same kind of e-mails," Arellano said.

The case is on hold awaiting further information regarding the city’s capability to retrieve purged electronic documents and will be heard again by the task force. But the larger issue is whether Newsom is intentionally keeping his calendar a secret, in violation of city law.

The Mayor’s Office only makes public Newsom’s so-called Prop. G calendar, named for a 1999 ballot measure expanding the Sunshine Ordinance and explicitly making the mayor’s schedule a public record. It’s a stripped-down version of his list of appointments, often with only a couple events per day.

The Mayor’s Office has argued that Newsom’s complete calendar can’t be made public, citing security and privacy concerns. The task force disagrees and contends it’s a document that should be public, with redactions of security and privacy information as needed.

The Mayor’s Office disagrees. "The sunshine task force is wrong, and we are right," Newsom press secretary Nathan Ballard said. "The calendar we give to the public and press exceeds Prop. G."

Arellano, in a letter to the task force, described the other document as a "working calendar that is extremely detailed and accounts for his time from departure from home until his return in the evening. The working calendar contains not only the Mayor’s meeting schedule, but also confidential information such as the officers assigned to protect him, security contact numbers, the Mayor’s private schedule, details of his travel," and everything else that he’s doing.

"What they refuse to realize is they’re both public documents," Comstock said about the dual calendars.

Peter Scheer, executive director of the California First Amendment Coalition (CFAC), agrees that both calendars are public if they contain information about what the mayor’s doing with his city time.

"If they have security concerns, they can withhold particular items that would jeopardize the mayor’s security. There are certain things we can all agree on that can be withheld, certain driving routes and evasive strategies for emergency planning. But when the vehicle stops and he gets out for a meeting at an office, home, or place of business, that item has to be revealed," Scheer said. "If we’re talking about a calendar, there may be thousands of items, and only a handful may be subject to redaction. They can’t use the few to justify nondisclosure of the many."

But that’s precisely what the Mayor’s Office is doing.

The mayor, city attorney, and all department heads are required by Prop. G to reveal "the time and place of each meeting or event attended." The only exclusions may be "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."

Therefore, a Prop. G calendar should contain everything a city official does every day in the course of working for the public. When asked if all the blank spaces on the Prop. G calendar represent personal time, Ballard said, "It could be personal. It could be other. It’s not anything we’re required to divulge under Prop. G."

But just because it should be there doesn’t mean it is. For example, the mayor’s calendar for the afternoon of April 19 shows him attending a library luncheon at 12:30 p.m., a phone interview at 2:30 p.m., and a 4 p.m. meeting with his chief of staff, followed by a Port Commission swearing in.

But we ran into Newsom coming out of a 2 p.m. Recreation and Park Commission meeting, where he spoke in support of more public art in the city. This event is not listed on his calendar. Ballard said the Prop. G calendar is sometimes amended to reflect changes. "I don’t have an android following him at all times. We’re just human beings working here."

"If he indeed was there, I will try to remedy that," Ballard added.

This scenario suggests other public business is also not being adequately tracked and Newsom’s real calendar could fill in the gaps, but the mayor’s computer software is set to automatically delete the working calendar after five days, destroying a record of what the mayor actually did.

Aside from any prurient interest in what the mayor is up to, an accurate record of events is a part of public accountability. Newsom’s calendar for the week of April 16 lists 31 meetings and events amounting to 25 1/2 hours at work. The city attorney’s Prop. G calendar is even more paltry. Between April 23 and 27, Dennis Herrera apparently attended 13 meetings and spent 11 1/2 hours working for the city.

Calendars are important public documents, Scheer says. "Most importantly, they give an insight into who has access to that public official." But, he says, "it’s only as revealing as it is complete."

Scheer and the CFAC are currently involved in a court case with San Bernardino County. The San Bernardino Sun sued the county for access to supervisors’ e-mails, memos, and calendars for a period of time last summer during a large fire that destroyed houses. Bill Postmus, the chair of the board of supervisors, appeared to be AWOL during the emergency, and reporters at the Sun sought relevant documents that might support Postmus’s claim that he was in contact with his staff at the time.

A judge ordered the records released, with redactions, and most officials have complied, except Postmus, who has convinced the county to hire outside counsel and appeal.

Back in San Francisco, the Mayor’s Office doesn’t seem to be sweating much about the next legal action regarding its records management. The task force does not have the power to levy fines or punishment, so the calendar case has been referred to the Ethics Commission, the district attorney, and the attorney general.

"We will be vindicated by the Ethics Commission," Ballard said. "The Ethics Commission will side with us." *

The new sunshine “problem”

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EDITORIAL Matt Dorsey, who handles press for City Attorney Dennis Herrera, stopped by last week to talk to us about the barrage of public records requests that are coming in from one activist, Kimo Crossman, who is demanding so many records and so much information from so many departments that it’s costing the city big money.
The problem, Dorsey says, is a lot of the records that people like Crossman request (particularly if they have metadata, or hidden computerized information, embedded in them) have to be reviewed by a lawyer before they’re released to determine if any of the internal information might contain something confidential. The city typically accounts for its legal work at about $200 an hour — and already, Herrera’s office has spent hundreds of hours scouring records just to satisfy one aggressive gadfly whose sunshine activism is, we have to agree, sometimes rather scattershot. That’s a hefty taxpayer bill.
Dorsey’s done more for promoting open government than anyone who has ever worked for the Office of the San Francisco City Attorney, so we don’t dismiss his concerns. And we’ve said before and we’ll say again that the Sunshine Task Force needs to take up this issue, hold hearings, and make some policy recommendations.
Still, we had the same response we typically do when public records are at issue:
Why all the effort? Why the fuss? Just release the stuff. Give Crossman what he wants, and that will be the end of it.
Dorsey’s response: state law and state bar requirements mandate that attorneys, including municipal attorneys, carefully monitor all documents that might contain metadata and “at every peril to himself or herself” prevent any potentially confidential material from accidental release. “The lawyers in our office risk real penalties if they don’t carefully review every one of these requests, and that takes a lot of time,” Dorsey told us.
Well, if that’s a problem, the city and the state need to address it right now. Metadata is increasingly becoming part of government activities and will increasingly be part of public records requests by community activists. And there’s no reason that city employees, including city lawyers, should have to fear retribution if they make a good-faith effort to release information to the public.
Under state and local law everything the city government does is presumed to be public, unless it falls under one of a set of very narrowly defined exemptions.
But in San Francisco there’s been a culture of secrecy at City Hall that goes so far back and is so deeply inbred it’s hard to remove it from the political DNA. All sorts of deals are done behind closed doors. It’s considered perfectly acceptable to promise vendors bidding on public contracts that they can keep basic financial data secret. Every city official seems to think that every request needs legal review.
It’s ridiculous — and the supervisors, the mayor, and the city attorney should take some basic steps to end it.
For starters, the supervisors should pass a clear policy statement that says no city employee shall face any disciplinary action of any sort stemming from a good-faith effort to release information to the public. Herrera should tell his lawyers the same thing: nobody gets in trouble for handing out information.
Yes, there are sensitive documents, particularly in the City Attorney’s Office — but overall, the risk to the city of a mistaken release of confidential information is far, far lower than the risk (and the cost) of continuing this deep culture of confidentiality.
If that creates a problem with the state bar, Assemblymember Mark Leno should introduce a bill that eliminates any penalties or consequences for public agency lawyers who, in good faith, allow the release of public information that may unintentionally include confidential material.
Meanwhile, Crossman has a good idea: why not create a publicly accessible database that gets automatic copies of every document created at City Hall (unless there’s a damn good reason to mark it secret)? That way the busiest of the advocates can spend their time searching the files on their own, and the lawyers can go back to fighting Pacific Gas and Electric Co. SFBG

The first 40

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› bruce@sfbg.com
On Oct. 27, l966, my wife, Jean Dibble, and I and some journalist and literary friends published the first issue of the first alternative paper in the country that was designed expressly to compete with the local monopoly daily combine and offer an alternative voice for an urban community.
We called it the San Francisco Bay Guardian, named after the liberal Manchester Guardian of England, and declared in our statement of intent that the Guardian would be a new model for a big-city paper: we would be independent and locally owned and edited, and we would be alternative to and competitive with the San Francisco Examiner and San Francisco Chronicle, which were published under a joint operating agreement that allowed them to fix prices, pool profits, share markets, and avoid competition.
We stated that “the Guardian is proposed, not as a substitute for the daily press, but as a supplement that can do much that the San Francisco and suburban dailies, with their single ownership, visceral appeal and parochial stance, cannot and will not do.” And we played off the name Guardian by stating that we would be “liberal in assessing the present and past (supporting regional government, nuclear weapons control, welfare legislation, rapid transit, tax reform, consumer protection, planning, judicial review, de-escalation and a promptly negotiated settlement in Vietnam.)” But the Guardian would also be “conservative in preserving tradition (civil liberties and minority rights, natural resources, watersheds, our bay, our hills, our air and water).”
It was rather naive to challenge the Ex-Chron JOA with little more than a good idea and not much money and a wing and a prayer. We had almost no idea of what we were getting into in San Francisco, a venue that Warren Hinckle of Ramparts and many other defunct publications would later describe as the Bermuda Triangle of publishing. But we had, I suppose, the key ingredient of the entrepreneur — the power of ignorance and not knowing any better — and somehow thought that if we could just get a good paper going, the time being l966 and the place being San Francisco and the world being full of possibilities, we would make it, come hell or high water.
Well, after going through hell and high water and endless soap operas for four decades, Jean and I and the hundreds of people who have worked for the Guardian through the years have helped realize the paper’s original vision and created something quite extraordinary: an influential new form of independent alternative journalism that works in the marketplace and provides what little real competition there is to the monopoly dailies. And let me emphasize, the alternatives do not require government-sanctioned JOA monopolies and endless chains and clusters of dailies and the other monopolizing devices that dailies claim they need to survive.
Today I am delighted to report that there are alternative papers competing effectively with their local chains throughout the Bay Area (seven, more than any other region), throughout the state from Chico to San Diego (22, more than any other state), and throughout the nation (126 in 42 states, with a total circulation of 7.5 million, and more coming all the time). There are even cities with two and three competing alternatives, and there are cities where the monopoly daily is forced by the real alternatives to create faux alternatives to try to compete (it doesn’t work). And alas, there is now a Village Voice–New Times chain of 17 papers in major markets, including San Francisco and the East Bay, that is abandoning its alternative roots and moving to ape its daily brethren.
Jean and I met at the University of Nebraska at Lincoln in 1957. Two friends and I were driving around Lincoln one fine spring day, drinking gin and tonics, which were drawn from a tub of gin and tonic that we had mixed up and stashed in the trunk of our car. We happened upon Jean and her younger sister, Catherine, who had come from a Theta sorority function and were standing on a street corner waiting for their mother to pick them up and take them to the Dibble family home in nearby Bennet (population: 412). We stopped, convinced them to ride with us, and got them safely home. They declined our offer of gin and tonics, as did their astonished parents and grandmother when we arrived at the Dibble house.
Jean and I made a good team. We both had small-town Midwestern values and roots in family-owned small-business. Her father owned lumberyards in small towns in southeast Nebraska. Her maternal grandfather founded banks in Kansas and Nebraska and was the state-appointed receiver for failed banks in Kansas during the Depression. Her paternal grandfather owned a grocery store in Topeka, Kan. Jean had the business background and the ability to create a solid start-up plan — she was a graduate of the Harvard-Radcliffe Program in Business Administration and had worked in San Francisco for Matson Navigation as well as Hansell Associates, a personnel firm.
I was the son and grandson of pioneering pharmacists in Rock Rapids, Iowa. (Population: 2,800. Slogan: “Brugmann’s Drugs. Where drugs and gold are fairly sold. Since l902.”) I had the newspaper background, starting at age l2 writing for my hometown Lyon County Reporter (under the third-generation Paul Smith family); going on to the campus paper (which we called the Rag) and then the Lincoln Star (under liberal city editor “Sterl” Earl Dyer and liberal editor Jimmy Lawrence); getting a master’s degree in journalism at Columbia University in New York City; and then working at Stars and Stripes in Korea (dateline: Yongdongpo), the Milwaukee Journal (where I got splendid professional training at one of the top 10 daily papers in the country), and the Redwood City Tribune (where I plowed into some of the juicy Peninsula scandals of the mid-l960s in bay fill, dirt hauling, and the classic Pacific Gas and Electric Co.–Stanford University Linear Accelerator battle). To those who ask how Jean and I have worked together for 40 years, I just say we have complementary abilities: she handles the bank, and I handle PG&E.
Not only did I find my partner at the University of Nebraska, but I also got the inspiration for the Guardian. In fact, I can remember the precise moment of truth that illuminated for me the value of an alternative paper in a city with a monopoly daily press (then, in Lincoln, a JOA between the afternoon Lincoln Journal and the morning Lincoln Star) that was tied into the local power structure, then known as the O Street gang (the local business owners along the downtown thoroughfare O Street). The O Street gang was so quietly powerful that it once decided to fire the Nebraska football coach before anyone bothered to notify the chancellor.
As a liberal Rag editor in the spring of 1955, I had just put out an important front-page story on how one of the most controversial professors on campus, C. Clyde Mitchell, who had been under fire for years from the conservative Farm Bureau and others because of his liberal views on farm policy, was being quietly axed as chair of the agricultural economics department.
We had gotten the tip from one of Mitchell’s students and had confirmed it by talking to professors in his department who had attended the meeting where the quiet firing was announced by Mitchell’s dean. Our lead story was headlined “Ag Ex Chairman Mitchell said relieved of post, outside pressures termed cause.” And I wrote a “demand all the facts” editorial arguing in high tones that “any attempt to make professors fair game for irresponsible charges, any attempt by pressure groups unduly to influence the academic position of university personnel … is an abridgment of the spirit of academic freedom and those principles of free communication protected by the Constitution and the Bill of Rights.” It was a bombshell.
The Lincoln Journal fired back immediately with a classic daily front-page story seeking to “scotch” the nasty rumors started by that pesky Rag on the campus. The story had all the usual recognizable elements: it did not independently investigate, did not quote our story properly, did not call us for comment, took the handout denial from the university public relations office, and put it out without blushing. Bang, that was to be the end of it, on to the next press release from the university.
It made me mad. I knew our story was right, the daily story was wrong, and the story was important and needed to be pursued. And so I stoked up a campaign for the rest of the semester that ultimately emboldened Mitchell to make formal charges that the university had violated his academic freedom. He gave us the scoop for two rousing final editions of the Rag. The proper academic committee investigated and upheld Mitchell but dragged the case out and waited until I graduated to release the report.
Against the power structure and against all odds, Mitchell, the Rag, and I had won the day and an important victory on behalf of academic freedom in a conservative university in a conservative state during the McCarthy era. During this battle I learned how the power structure fights back against aggressive editors. At the height of my campaign defending Mitchell, I was kept out of the Innocents Society, the senior men’s honorary society, although my four subeditors and managers all made it in. The blackball, the campus rumor went, came directly from the regents president, J. Leroy Welch, then president of the Omaha Grain Exchange (known to our readers as the “Old Grain Head”), via the chancellor via the dean of men.
I am forever indebted to them. They taught me at an impressionable age about the power of the alternative press and why it is best exercised by an independent paper on major power structure issues. They also taught me a lot about press freedom, which they were trying to grab from the Rag and me, and how we had to fight back publicly and with gusto.
When Jean and I founded the Guardian, we did so in the spirit of my old Rag campaigns. In fact, we borrowed the line from the old Chicago Times and put it on our masthead: “It is a newspaper’s duty to print the news and raise hell.” We wanted a paper that would be willing and able to do serious watchdog reporting and take on and pursue the big stories and issues that the monopoly dailies ignored — and then were ignored by the radio, television, and mainstream media that take their news and policy cues from the Ex and Chron. In JOA San Francisco that was a lot of stories, from the PG&E Raker Act scandal to the Manhattanization of the city to the theft of the Presidio to the steady conservative downtown drumbeat on such key issues as taxes, social justice, the homeless, privatization, war and peace, and endorsements.
Significantly, because of our independent position and credibility, we were able to lead tough campaigns on public power, kicking PG&E out of a corrupted City Hall and putting a blast of sunlight on local government with the nation’s first and best Sunshine Ordinance and Sunshine Task Force.
Our first big target in our prototype issue was the Ex-Chron JOA agreement, which we portrayed in an editorial cartoon as two gigantic ostrich heads coming out of a single ostrich body, marked in the belly with a huge dollar sign. Our editorial laid out the argument that we have used ever since in covering the local monopoly and in positioning the Guardian as the independent alternative. “What the public now has in San Francisco, as it does in all 55 or so of 1,461 cities with dailies, is a privately owned utility that is constitutionally exempt from public regulation, which would violate freedom of the press. This is bad for the newspaper business and bad for San Francisco.”
The Guardian prospectus, used to raise money for the paper, bravely put forth our position: “A good metropolitan weekly, starting small but speaking with integrity, can soon have influence in inverse proportion to its size. There is nothing stronger in journalism than the force of a good example.”
It concluded, “The Guardian can succeed, despite the galloping contraction of the press in San Francisco, because there are many of us who feel that the newspaper business is a trade worth fighting for. That is what this newspaper is all about.” And we quoted the famous phrase used by Ralph Ingersoll in the prospectus for his famous PM newspaper in New York: “We are against people who push other people around.”
Our journalistic points were embarrassingly timely. A year before the Guardian was launched, Hearst and the Chronicle had formed the JOA with the Examiner and killed daily newspaper competition in San Francisco. The two papers combined all their business operations — one sales force sold ads for both, one print crew handled both editions, one distribution crew handled subscriptions and got both papers out on the streets. The newsrooms were supposedly separate — but as we pointed out over and over at the time and ever after, the papers lacked any economic incentive to compete.
The San Francisco JOA became the largest and most powerful agreement of its kind in the country, and San Francisco was the only top-10 market in the country without daily competition.
This was all grist for the Guardian editorial mills because the JOAs, most notably the recent SF JOA, were in serious legal trouble. The US attorney general was successfully prosecuting a JOA in Tucson, Ariz., claiming the arrangement was a violation of antitrust laws. Naturally, the local papers were blacking out the story. But if the Tucson deal was found to be illegal, the Chron and Ex merger would be illegal too — and the hundreds of millions of dollars the papers were making off the arrangement would be gone.
The JOA publishers, led by Hearst and the Chronicle, quietly started a major lobbying campaign in Washington for emergency passage of a federal law that would retroactively legalize their illegal JOAs. They called it the Newspaper Preservation Act. Meanwhile, the late Al Kihn, a former camera operator for KRON-TV (which was at the time owned by the Chronicle), had prompted the Federal Communications Commission to hold hearings on whether the station’s license should be renewed. His complaint: his former employer was slanting the news on behalf of its corporate interests. We pounced on these stories with relish.
For example, in our May 22, 1969, story “The Dicks from Superchron,” we disclosed how private detectives under hire by the Chronicle were probing Kihn’s private life and seeking to gather adverse information about him to discredit his complaint and to “harass and intimidate him,” as we put it. Later, I found that the Chronicle-KRON had also hired private detectives to get adverse information on me.
I was a suspicious character, I guess, because I had gone to the KRON building to check the station’s public FCC file on the Kihn complaints, the first journalist ever to do so. The way the story came out at a later hearing was that the station’s deputy director left the room as I was going through the records and called Cooper White and Cooper, then the Chronicle’s law firm. An attorney called their investigators, and four cars of detectives were pulled off other jobs and ordered to circle the building until I came out and then follow me when I left the station to return to my South of Market office. They also surveilled me for several months and even sent a detective into the office posing as a freelance writer. (The head of the detective agency and I later became friends, and he volunteered that I was “clean.” He gave me a pillow with a large eye on it that said “You are being watched.” I displayed it proudly in my office.)
Kihn and I were asked to testify before a Senate committee about the Chronicle-KRON’s use of private detectives at hearings on the Newspaper Preservation Act in Washington in June 1969. I took the occasion to call the legislation “the bill for millionaire crybaby publishers.”
I detailed the subsidies in their special interest legislation: “amnesty, immunity from prosecution, monopoly in perpetuity, the legal right to gun down what few competitors remain, and as the maraschino cherry atop this double-decker sundae, anointment as the preservers and saviors of the newspaper business.” And I summed up, “If you plant a flower on University of California property or loose an expletive on Vietnam, the cops are out of the chutes like broncos. But if you are a big publisher and you violate antitrust laws for years and you emasculate your competition with predatory practices and you drive hundreds of newspapers out of business, then you are treated as one of nature’s noble men. And senators will rise like doves on the floor of the US Senate to proffer billion-dollar subsidies.”
After I finished, Sen. Everett Dirksen (R-Illinois) rose as the first dove and characterized my testimony as “quite a dramatic recital” but said that I had not provided a “workable, feasible solution.” Sen. Philip Hart (D-Michigan) recommended that the publishers ought to “read their own editorials and relate them to their business practices.” Morton Mintz, who covered the hearing for the Washington Post, came up and congratulated me. His story, with my picture and much of my testimony, was on the front page of the Post the next day.
Back in San Francisco the Chronicle published a misleading short story in which publisher Charles de Young Thieriot avoided admitting or denying the detective charge and added he had no further comment. Less than a week later, Thieriot wrote the Senate subcommittee and admitted to the charge, saying the use of the detectives was “entirely reasonable and proper.” This statement, which contradicted his statement in his own paper, was not reported in the Chronicle. The “competing” Examiner also reported nothing — neither the original private detective story nor the Washington testimony nor the Thieriot admission.
Nor did either paper report anything about the intensive JOA lobbying campaign headed by Hearst president Richard Berlin, who twice wrote letters to President Richard Nixon threatening the withdrawal of JOA endorsements in the l972 presidential election if he refused to sign the final bill. This episode illustrated in 96-point Tempo Bold the pattern of Ex and Chron suppression and obfuscation they used to advance their corporate agenda at the expense of the public interest and good journalism, all through the years and up to Hearst’s current monopoly maneuvers with Dean Singleton and the Clint Reilly antitrust suit to stop them.
Perhaps the most telling incident came when Nicholas von Hoffman, in his Washington Post column that was regularly run in the Chronicle, called the publishers “as scurvy as the special interests they love to denounce.” He singled out the Examiner and Chronicle publishers, writing that they were “so bad that the best and most reliable periodical in the city is the Bay Guardian, a monthly put out by one man and a bunch of volunteer helpers.” Neither paper would run the column, and neither paper would publish it as an ad, even when we offered cash up front. “The publisher has the right to refuse to run anything he wants, and he doesn’t have to give a reason,” the JOA ad rep told us. The Guardian of course gleefully ran the censored column and the censored ad in our own full-page ad.
On July 25, l970, the day after Nixon signed the Newspaper Preservation Act, the Guardian filed a major antitrust action in San Francisco attacking the constitutionality of the legislation and charging that the Ex-Chron JOA had taken the lion’s share of local print advertising, leaving only crumbs for other print publications in town. We battled on for five years but finally settled because the suit became too expensive. The Examiner and Chronicle continued to black out or marginalize the story, but they and the other JOA papers gave Nixon resounding endorsements in the l972 election even though he was heading toward Watergate and unprecedented disgrace.
Well, in October 2006 the mainstream press is a different creature. Hearst and publisher Dean Singleton are working to destroy daily competition and impose a regional monopoly. The Knight-Ridder chain is no more, and the McClatchy chain has turned the KR remains into what I call Galloping Conglomerati. Even some alternatives, alas, are now getting chained. Craigslist has become a toxic chain. Google, Yahoo!, and Microsoft (known as GYM in the online world) are poised to swoop in on San Francisco and other cities throughout the land to scoop up the local advertising dollars and ship them as fast as possible back to corporate headquarters on a conveyor belt.
I am happy to report on our 40th anniversary that the Guardian is aware of the challenge and is gearing up in the paper and online to compete and endure till the end of time, printing the news and raising hell and forcing the daily papers to scotch the rumors coming from our power structure exposés and our watchdog reporting. The future is still with us and with our special community and critical mission, in print and online. See you next year and for 40 more. SFBG
STOP THE PRESSES: As G.W. Schulz discloses in “A Tough Pill to Swallow,” (a) Hearst Corp. was fined $4 million in 200l by the Justice Department for failing to turn over key documents during its monopoly move to purchase a medical publishing subsidiary, the highest premerger antitrust fine in US history, according to a Justice Department press release; (b) Hearst was also forced by the the Federal Trade Commission to unload the subsidiary to break up its monopoly and disgorge $l9 million in profits generated during its ownership; (c) Hearst-owned First DataBank in San Bruno was alleged in the summer of 2005 to have inflated drug costs by upward of $7 billion by wrongly presenting drug prices, according to a lawsuit reported in a damning lead story in the Oct. 6 Wall Street Journal. Hearst blacked out the stories. And the Dean Singleton chain circling the Bay Area hasn’t pounced on the stories as real daily competitors used to do with fervor.
STOP THE PRESSES 2: SOS alert to the city and business desks of the “competing” Hearst and Singleton papers: here are the links to the key documents cited in our stories, including federal court records of the Oct. 6 Boston settlement with the Hearst-owned First DataBank (www.hagens-berman.com/first_data_bank_settlement.htm), the Justice Department’s antitrust fine of Hearst in 200l (www.usdoj.gov/atr/cases/indx330.htm), and the Federal Trade Commission decision requiring Hearst to give up its monopolistic subsidiary, Medi-Span (www.ftc.gov/bc/healthcare/antitrust/commissionactions.htm).

Or you can read the Guardian each week in print or online.

Politics, beauty, and hope in the Guardian’s arts pages


Forty years of fighting urbicide — and promoting a very different vision of a city

Sunshine smoke screens

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EDITORIAL There are danger signals coming out of City Hall these days, some not-so-subtle indications that the city’s open-government laws might be quietly coming under attack. Consider:

The City Attorney’s Office has filed an action in Superior Court to have library activist James Chaffee declared a "vexatious litigant." That would stop Chaffee from filing any more legal actions to try to force the Library Commission which has a terrible record on open government issues to comply with state and local laws.

Chaffee is a former chair of the Sunshine Task Force. In 1999 and 2002, he filed a string of suits against the library (all of them lost, the city says) and he’s filed a few actions since then. He’s acted as his own attorney in almost every case. Some of them, frankly, were a little obscure: Changing the public-comment time at a meeting from three minutes to two minutes isn’t the sort of thing that typically requires a lawsuit to resolve. But his work, in and out of court for 31 years, has unquestionably had a positive impact on library openness and has infuriated the Library Commission, which is pushing this action. Chaffee’s last lawsuit was filed more than a year ago. Why go after him now?

The Chaffee litigation comes at the same time as a Sunshine Task Force committee has been quietly discussing ways to handle activists who file repeated, numerous, and extensive records requests. The target in that case is Kimo Crossman, who has filed dozens of requests seeking information related to the city’s dealings with WiFi contractors. We realize he’s flooded the City Attorney’s Office with requests, and it’s costing the city a whole lot of money to deal with them. But his basic point that the entire WiFi contract talks have been far too secretive is absolutely true.

And the question never came before the entire task force, which should have had an open, well-publicized discussion on the issue and sought ways to address it. Instead, David Pilpel, chair of the task force’s Education, Outreach, and Training Committee, called a special hearing on the matter March 22. The meeting, on "abusive, burdensome, excessive, and/or harassing" records requests, was poorly noticed and poorly attended, and Pilpel gave the City Attorney’s Office and the library plenty of time to make their cases, while limiting Crossman and Chaffee to three minutes each.

The full task force essentially rebuked Pilpel at the next meeting, March 28, and task force attorney Ernest Llorente has drafted new rules for special meetings.

Meanwhile, Sunshine Task Force chair Doug Comstock may lose his seat. The supervisors have reappointed all of the sitting task force members except Comstock; Sup. Sean Elsbernd is making an issue of Comstock’s role as a campaign consultant. This one ought to be simple: Comstock was a key part of the campaign to pass the Sunshine Initiative in the first place, led the effort on the latest round of reforms, has been an excellent chair and has been on the public-interest side of every significant issue that’s come before him.

All of this backroom dealing and overreaction has us worried. The issue of "excessive" public records requests is tricky and has the potential to lead to some terrible legislation or rules. It needs a lot more public discussion; the task force ought to schedule a full hearing on it, with plenty of time to thrash out all sides, before anyone proposes any possible solutions. There’s no need to go to court against Chaffee right now, and it sets a bad precedent. City Attorney Dennis Herrera ought to drop the case and tell the Library Commission that it ought to act like open government matters and if it wants to silence critics, it can find the money to hire its own lawyers.

And the supervisors need to reappoint Comstock, who is exactly the kind of person the task force needs as a leader at a critical time like this for open government. SFBG

For more background, including an open letter from Chaffee and the City Attorney’s motion, go to www.sfbg.com.

Read James Chaffee’s response

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Contact: James Chaffee 584-8999 

SaveOurLibraries.com / savebooks@pacbell.net

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."