I am not a San Franciscan and have no involvement or stake in any political issues there, but I do know quite a bit about what the law permits, requires and forbids in the area of sunshine ordinances (Google those two words coupled with my name), and have spent my professional career observing and writing, lobbying and litigating about the Brown Act.
So I’m surprised at the level of energy, misinformation and near hysteria shown by some opponents of Proposition E on Tuesday’s ballot, including traditional open government advocates. That measure would dramatically increase the public’s ability to observe and take part in The City’s governing and advisory forums by making their meetings streamed live on the Internet, open to live and prerecorded comment by those at remote locations and, given enough demand, assigning specific agenda items to be dealt with at a specified time certain.
The opposition sorts into three main types: misinformation, speculation and the soft smear.
To take the last category first, Proposition E’s author, David Lee, is said in several quarters to have persuaded (one E-foe says “conned”) his political science students at San Francisco State University to launch the effort leading to the proposition because he intends to run for supervisor at the next opportunity and wants the expansion of the Sunshine Ordinance to add luster to his résumé. Even if that were true, political ambition is not yet a felony, and if every supervisorial candidate could boast of having made City Hall more transparent, I assume most people would consider that evidence of commitment to the public interest, not of dodgy ethics.
But it’s not true. Mr. Lee’s assignment to his class was a very general one; it was they who discovered to their chagrin how obscure and poorly attended the meetings of local government bodies were, and it was they who saw smart use of technology as a key solution.
In the category of speculation I would note a similar conspiratorial charge: That the provisions allowing for remote participation by prerecorded or live testimony will be exploited by sinister forces anonymously drowning out local live speakers who identify themselves on the record or at least have enough sincere motivation to actually show up and speak their piece. This alarmist refrain ignores the fact that the Brown Act gives officials running the meeting the authority to adopt “reasonable regulations to ensure that (the public’s speech right) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.”
So, for example, a board or commission could limit the time for live remote comment to three minutes per speaker per item — the same as for speakers on hand at the meeting, and would know exactly how much time the recorded comment would take, since it must be submitted at least 48 hours before the meeting. The body could limit the total of live and recorded remote comment to 30 minutes per item. The body could require that the remote comment be heard first, so that commenters on the scene could adjust their statements accordingly.
As for misinformation, the city clerk’s concern about having to republish a meeting agenda to reflect a late breaking citizen-demanded time certain is misplaced. The time certain rule is not in conflict with either the Brown Act or the current Sunshine Ordinance, neither of which requires a body to specify on the meeting agenda the timing or sequence for particular items to be taken up. Certain issues demanding by law a formal public hearing must preannounce the hour for the hearing to commence, but as requirements of state or federal law, they would prevail in case of conflict with the Proposition E rule.
In sum, those predicting either chaos, gridlock or skulduggery as a result of Proposition E do not give nearly enough credit to city officials’ ingenuity or flexibility in making transparency work and thwarting abuse by those who would game the rules. And they give even less credit to the voters’ ability to resist being panicked by the insiders who see the proposition as a threat to their interests.
Terry Francke is general counsel for Californians Aware. As executive director of the California First Amendment Coalition, he drafted the original San Francisco Sunshine Ordinance.