ORDER OF DETERMINATION February 11, 2013 FACTS OF THE CASE

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2 CITY AND COUNTY OF SAN FRANCISCO SUNSHINE ORDINANCE TASK FORCE ORDER OF DETERMINATION February 11, 2013 DATE THE DECISION ISSUED November 7, 2012 WILLIAM & ROBERT CLARK v. ARTS COMMISSION (12013) FACTS OF THE CASE Complainant William Clark alleges that the Arts Commission and Howard Lazar ("Commission") violated section 67.21(b) and of the Ordinance by failing to properly respond to his request for documentation of the legal service expense charged to the Street Artist Program for the fiscal year amounting to $20,396, including a breakdown in the following manner: subject matter of each time you asked the City Attorney for advice date of each time you asked the City Attorney for advice; amount of time associated with each time you asked the City Attorney for advice; name of the attorney you talked to each time you asked the City Attorney for advice? COMPLAINT FILED On February 29, 2012, William Clark filed a complaint with the Task Force alleging a violation of sections 67.21(b) and HEARING ON THE COMPLAINT On November 7, 2012, Complainant William Clark appeared before the Task Force and presented his claim. The Arts Commission s was represented by Kate Patterson. The issue in the case is whether the Agency violated Section(s) 67.21(b) and of the Ordinance. FINDINGS OF FACT AND CONCLUSIONS OF LAW Based on the testimony and evidence presented by both parties, the Task Force found the testimony of Complainant William Clark to be persuasive and finds that Sections (b) and to be applicable in this case. The Task Force does not find that testimony provided by Kate Patterson, Arts Commission persuasive to this case. City Hall 1 Dr. Carlton B. Goodlett Place Room 244 San Francisco, CA (415) Fax (415) TDD/TTY No. (415)

3 CITY AND COUNTY OF SAN FRANCISCO SUNSHINE ORDINANCE TASK FORCE DECISION AND ORDER OF DETERMINATION The Task Force finds that the Arts Commission violated Sections 67.21(b) and of the Sunshine Ordinance for failure to provide complete information as requested and failure to keep withholding to a minimum. The Task Force further finds that the Arts Commission was required by the Ordinance to request detail in its attorney billing records sufficient to identify what specific matters were worked on by the City Attorney when advising the Arts Commission on compliance with the Sunshine Ordinance. The Arts Commission shall release the records requested within 5 business days of the issuance of this Order and appear before the Compliance and Amendments Committee on February 19, This Order of Determination was adopted by the Sunshine Ordinance Task Force on November 7, 2012, by the following vote: (Knee/ Manneh) Ayes: Knee, Manneh, Washburn, Hyland, Oka Noes: Pilpel, Sims, Grant Absent: David, Fischer Kitt Grant, Chair Sunshine Ordinance Task Force c: Jerry Threet, Deputy City Attorney William Clark, Complainant Kate Patterson, Arts Commission, Respondent City Hall 1 Dr. Carlton B. Goodlett Place Room 244 San Francisco, CA (415) Fax (415) TDD/TTY No. (415)

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17 Ausberry, Andrea From: Bill and Bob Clark Sent: Friday, May 24, :55 AM To: SOTF Cc: Subject: Fw: Hi Andrea, Please put a copy of this in the file for my complaint # I am NOT satisfied with the response the Arts Commission just provided me. The Arts Commission is still refusing to provide me with the most important information I asked them to provide me. The Arts Commission's response to my #6 request is that the Arts Commission is refusing to tell the public what the outcome is whenever the Street Artist Program asks the City Attorney for advice regarding anything to do with the SF Sunshine Ordinance, the Brown Act or the Public Records Act. The SOTF has already determined the information I am asking for including any advice the City Attorney gives the Arts Commission regarding the Sunshine Ordinance, the Brown Act or the Public Records Act is all public information which must be disclosed by the AC. This complaint will be heard by the Education, Outreach and Training Committee of the SOTF next month and unless the Arts Commission agrees to provide the public with the information I am requesting then I will ask the EOT Committee to send the complaint back to the full Task Force and find the Arts Commission in willful violation of the Sunshine Ordinance. The public is entitled to know what the City Attorney advises the Arts Commission whenever the Arts Commission asks the City Attorney for any advice concerning the Sunshine Ordinance, the Brown Act or the Public Records Act. For the Arts Commission to refuse to do that is a blatant willful violation of the SF Sunshine Ordinance. William J. Clark -----Forwarded Message----- From: Bill and Bob Clark Sent: May 16, :44 PM To: sotf@sfgov.org Subject: Fw: Hi, Please include the below that I sent to Tom DeCaigny, Director of Cultural Affairs of the SFArts Commission, in the file for complaint # Also, please send a copy of the below to all of the members of the Education, Outreach and Training Committee. Thanks, William J. Clark -----Forwarded Message----- From: Bill and Bob Clark Sent: May 14, :47 PM To: tom.decaigny@sfgov.org Cc: Alyssa.Licouris@sfgov.org, Howard.Lazar@sfgov.org, kate.patterson@sfgov.org, sotf@sfgov.org Subject: EOTC Mr. Decaigny, At the EOT Committee of the Sunshine Ordinance Task Force meeting I presented a few suggestions to improve the Arts Commission s record keeping regarding City Attorney consultations with the Street Artist Program concerning the Brown 1

18 Act, the Public Records Act and the Sunshine Ordinance. I am suggesting that the following information be kept on a record with the Arts Commission each time there is a need for the Street Artist Program to seek the council of the City Attorney concerning a matter related to the Brown Act, the Public Records Act or the Sunshine Ordinance: 1) The date of each request for City Attorney council. 2) If the request for City Attorney council is concerning a specific Sunshine Ordinance complaint then the Sunshine Ordinance complaint number shall be recorded. 3) If the request for City Attorney council is concerning a public information or public record request then the name of the person making the request shall be recorded. 4) If the request for City Attorney council is for a public information or a public record request then the information or record requested shall be recorded. 5) Each time the Street Artist Program seeks the council of the City Attorney regarding any matter relating to the Brown Act, the Public Records Act or the Sunshine Ordinance a brief explanation of the reason the City Attorney s council is being requested shall be recorded. 6) The final outcome of each request for City Attorney council including any advice received from the City Attorney shall be recorded. 7) The length of time of each consultation with the City Attorney regarding any matter concerning the Brown Act, the Public Records Act or the Sunshine Ordinance shall be recorded. 8) The name of the attorney who the Street Artist Program consults regarding any matter concerning the Brown Act, The Public Records Act or the Sunshine Ordinance shall be recorded. I was asked by the EOT Committee to send you this information so you can consider implementing my suggestions and discuss the matter further at the next EOT Committee meeting. William J. Clark 2

19 Ausberry, Andrea From: Sent: To: Cc: Subject: Patterson, Kate Tuesday, May 14, :52 PM Bill and Bob Clark; DeCaigny, Tom Licouris, Alyssa; Lazar, Howard; SOTF; Adine Krell, Rebekah RE: EOTC Dear Mr. Clark, I am responding on behalf of Tom DeCaigny to let you know that we have received your list of requests and we will discuss it internally to see whether these items can be accommodated. We will respond as soon as we are able. Sincerely, Kate Patterson Director of Communications San Francisco Arts Commission 25 Van Ness Avenue, Suite 345 San Francisco, CA T: F: sfartscommission.org e-newsletter I Twitter I Facebook I YouTube I Flickr From: Bill and Bob Clark [mailto:billandbobclark@access4less.net] Sent: Tuesday, May 14, :47 PM To: DeCaigny, Tom Cc: Licouris, Alyssa; Lazar, Howard; Patterson, Kate; SOTF Subject: EOTC Mr. Decaigny, At the EOT Committee of the Sunshine Ordinance Task Force meeting I presented a few suggestions to improve the Arts Commission s record keeping regarding City Attorney consultations with the Street Artist Program concerning the Brown Act, the Public Records Act and the Sunshine Ordinance. I am suggesting that the following information be kept on a record with the Arts Commission each time there is a need for the Street Artist Program to seek the council of the City Attorney concerning a matter related to the Brown Act, the Public Records Act or the Sunshine Ordinance: 1) The date of each request for City Attorney council. 2) If the request for City Attorney council is concerning a specific Sunshine Ordinance complaint then the Sunshine Ordinance complaint number shall be recorded. 3) If the request for City Attorney council is concerning a public information or public record request then the name of the person making the request shall be recorded. 4) If the request for City Attorney council is for a public information or a public record request then the information or record requested shall be recorded. 5) Each time the Street Artist Program seeks the council of the City Attorney regarding any matter relating to the Brown Act, the Public Records Act or the Sunshine Ordinance a brief explanation of the reason the City Attorney s council is being requested shall be recorded. 1

20 6) The final outcome of each request for City Attorney council including any advice received from the City Attorney shall be recorded. 7) The length of time of each consultation with the City Attorney regarding any matter concerning the Brown Act, the Public Records Act or the Sunshine Ordinance shall be recorded. 8) The name of the attorney who the Street Artist Program consults regarding any matter concerning the Brown Act, The Public Records Act or the Sunshine Ordinance shall be recorded. I was asked by the EOT Committee to send you this information so you can consider implementing my suggestions and discuss the matter further at the next EOT Committee meeting. William J. Clark 2

21 Ausberry, Andrea From: Sent: To: Cc: Subject: Bill and Bob Clark Tuesday, May 14, :47 PM DeCaigny, Tom Licouris, Alyssa; Lazar, Howard; Patterson, Kate; SOTF EOTC Mr. Decaigny, At the EOT Committee of the Sunshine Ordinance Task Force meeting I presented a few suggestions to improve the Arts Commission s record keeping regarding City Attorney consultations with the Street Artist Program concerning the Brown Act, the Public Records Act and the Sunshine Ordinance. I am suggesting that the following information be kept on a record with the Arts Commission each time there is a need for the Street Artist Program to seek the council of the City Attorney concerning a matter related to the Brown Act, the Public Records Act or the Sunshine Ordinance: 1) The date of each request for City Attorney council. 2) If the request for City Attorney council is concerning a specific Sunshine Ordinance complaint then the Sunshine Ordinance complaint number shall be recorded. 3) If the request for City Attorney council is concerning a public information or public record request then the name of the person making the request shall be recorded. 4) If the request for City Attorney council is for a public information or a public record request then the information or record requested shall be recorded. 5) Each time the Street Artist Program seeks the council of the City Attorney regarding any matter relating to the Brown Act, the Public Records Act or the Sunshine Ordinance a brief explanation of the reason the City Attorney s council is being requested shall be recorded. 6) The final outcome of each request for City Attorney council including any advice received from the City Attorney shall be recorded. 7) The length of time of each consultation with the City Attorney regarding any matter concerning the Brown Act, the Public Records Act or the Sunshine Ordinance shall be recorded. 8) The name of the attorney who the Street Artist Program consults regarding any matter concerning the Brown Act, The Public Records Act or the Sunshine Ordinance shall be recorded. I was asked by the EOT Committee to send you this information so you can consider implementing my suggestions and discuss the matter further at the next EOT Committee meeting. William J. Clark 1

22 Ausberry, Andrea From: Patterson, Kate Sent: Tuesday, May 28, :12 PM To: SOTF Cc: Lazar, Howard; Licouris, Alyssa Subject: RE: SOTF - Complainant's Response - Complaint No Andrea, For the record, we are not refusing to give him information. We said we would consider it on a case by case basis under the advice of the City Attorney. Here is our response. 6) The final outcome of each request for City Attorney council including any advice received from the City Attorney shall be recorded. The Public Records Act allows an agency to decline to disclose records the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but limited to, provisions of the Evidence Code relating to privilege. Gov t Code 6254(k). California Evidence Code 954 protects from disclosure communications between attorneys and their clients. Similarly, the California Code of Civil Procedure protects from disclosure the work product of an attorney. The work product privilege protects any writing that reflects an attorney s impressions, conclusions, opinion, or legal research or theories. (Cal. Civ. Proc. Code Sec ; see also, Cal. Gov't Code Sec ) We consult with the City Attorney on a case by case basis to determine whether or not his/her advice should be disclosed as part of our log. Kate Patterson Director of Communications San Francisco Arts Commission 25 Van Ness Avenue, Suite 345 San Francisco, CA T: F: sfartscommission.org e-newsletter I Twitter I Facebook I YouTube I Flickr From: SOTF Sent: Friday, May 24, :55 AM To: Patterson, Kate Subject: FW: SOTF - Complainant's Response - Complaint No Kate, The following has been forwarded concerning the above mentioned complaint. Best, Andrea S. Ausberry Administrator Sunshine Ordinance Task Force 1

23 Office Fax City Hall, 1 Dr. Carlton B. Goodlett Place, Rm. 244 San Francisco, CA Follow Us! Twitter Complete a Board of Supervisors Customer Service Satisfaction form by clickinghere From: Bill and Bob Clark [mailto:billandbobclark@access4less.net] Sent: Friday, May 24, :55 AM To: SOTF Cc: rwhartzjr@sbcglobal.net Subject: Fw: Hi Andrea, Please put a copy of this in the file for my complaint # I am NOT satisfied with the response the Arts Commission just provided me. The Arts Commission is still refusing to provide me with the most important information I asked them to provide me. The Arts Commission's response to my #6 request is that the Arts Commission is refusing to tell the public what the outcome is whenever the Street Artist Program asks the City Attorney for advice regarding anything to do with the SF Sunshine Ordinance, the Brown Act or the Public Records Act. The SOTF has already determined the information I am asking for including any advice the City Attorney gives the Arts Commission regarding the Sunshine Ordinance, the Brown Act or the Public Records Act is all public information which must be disclosed by the AC. This complaint will be heard by the Education, Outreach and Training Committee of the SOTF next month and unless the Arts Commission agrees to provide the public with the information I am requesting then I will ask the EOT Committee to send the complaint back to the full Task Force and find the Arts Commission in willful violation of the Sunshine Ordinance. The public is entitled to know what the City Attorney advises the Arts Commission whenever the Arts Commission asks the City Attorney for any advice concerning the Sunshine Ordinance, the Brown Act or the Public Records Act. For the Arts Commission to refuse to do that is a blatant willful violation of the SF Sunshine Ordinance. William J. Clark -----Forwarded Message----- From: Bill and Bob Clark Sent: May 16, :44 PM To: sotf@sfgov.org Subject: Fw: Hi, Please include the below that I sent to Tom DeCaigny, Director of Cultural Affairs of the SFArts Commission, in the file for complaint # Also, please send a copy of the below to all of the members of the Education, Outreach and Training Committee. Thanks, William J. Clark -----Forwarded Message----- From: Bill and Bob Clark Sent: May 14, :47 PM To: tom.decaigny@sfgov.org Cc: Alyssa.Licouris@sfgov.org, Howard.Lazar@sfgov.org, kate.patterson@sfgov.org, sotf@sfgov.org Subject: EOTC 2

24 Mr. Decaigny, At the EOT Committee of the Sunshine Ordinance Task Force meeting I presented a few suggestions to improve the Arts Commission s record keeping regarding City Attorney consultations with the Street Artist Program concerning the Brown Act, the Public Records Act and the Sunshine Ordinance. I am suggesting that the following information be kept on a record with the Arts Commission each time there is a need for the Street Artist Program to seek the council of the City Attorney concerning a matter related to the Brown Act, the Public Records Act or the Sunshine Ordinance: 1) The date of each request for City Attorney council. 2) If the request for City Attorney council is concerning a specific Sunshine Ordinance complaint then the Sunshine Ordinance complaint number shall be recorded. 3) If the request for City Attorney council is concerning a public information or public record request then the name of the person making the request shall be recorded. 4) If the request for City Attorney council is for a public information or a public record request then the information or record requested shall be recorded. 5) Each time the Street Artist Program seeks the council of the City Attorney regarding any matter relating to the Brown Act, the Public Records Act or the Sunshine Ordinance a brief explanation of the reason the City Attorney s council is being requested shall be recorded. 6) The final outcome of each request for City Attorney council including any advice received from the City Attorney shall be recorded. 7) The length of time of each consultation with the City Attorney regarding any matter concerning the Brown Act, the Public Records Act or the Sunshine Ordinance shall be recorded. 8) The name of the attorney who the Street Artist Program consults regarding any matter concerning the Brown Act, The Public Records Act or the Sunshine Ordinance shall be recorded. I was asked by the EOT Committee to send you this information so you can consider implementing my suggestions and discuss the matter further at the next EOT Committee meeting. William J. Clark 3

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