It is now more important for the Ethics Commission to protect “City Family” officials than it is to provide justice for San Francisco citizens. The Commission’s new job is to shield City agencies and politicians from their political wrongdoings.
One of the main functions of the Ethics Commission is to review and enforce Sunshine Ordinance violation cases forwarded by the Sunshine Ordinance Task Force (SOTF) for enforcement. The Ethics Commission has refused to hear at least 18 consecutive SOTF cases over the last three years, and dismissed all of the cases on the flimsiest of grounds.
The Sunshine Ordinance Task Force was created to insure that San Francisco’s open government Sunshine laws are adhered to by San Francisco government officials. It was created to help citizens who request timely access to government public records.
In a recent case, George Wooding vs The RPD, the Ethics Commission showed how far they would go to protect the corrupt behavior of the Recreation and Park Department’s (RPD) administration — a City department that has embarrassed itself repeatedly under RPD General Manager Phil Ginsburg.
This is a case about how the RPD, a public City-run agency directed by Ginsburg, abused First Amendment free speech rights of private citizens, and then tried to hide the abuse by deliberately deleting all public records relating to the RPD sabotage of a public forum at the Commonwealth Club by changing the title, the panelists, and the content of the meeting.
The RPD was unhappy that citizens with differing points of view than RPD’s official policy of park privatization were going to speak at a Commonwealth Club forum. The forum was to discuss Golden Gate Park and was initially titled “Golden Gate Park Under Siege.”
The initial panelists included:
- Jim Chappell, Moderator, Interim Director of San Francisco Beautiful, and a past Executive Director of SPUR
- Anthea Hartwig, Ph.D., President of Western Office National Trust for Historic Preservation ASLA, Golden Gate Park Preservation Alliance
- Kathy Howard, Conservation Director and General Counsel for Environmental Matters, Golden Gate Audubon Society
- George Wooding, President, West of Twin Peaks Central Council, and columnist for the Westside Observer
The RPD was so worried about what the panel would say about RPD park privatization policy that they applied immense pressure on the Commonwealth Club to change the panel members, change the topic, add RPD representatives, or cancel the public discussion forum.
About ten days before the panel discussion, the Commonwealth switchboard lit up with calls denigrating the panelist’s objectivity and qualifications. This was followed by a barrage of emails and letters, including an April 25 email from Mark Buell, president of the Recreation and Park Commission to Greg Dalton, the Commonwealth Club’s vice president, which was copied to RPD’s General Manager Phil Ginsburg. Buell wrote:
“Greg, I have been informed that the Commonwealth Club is hosting a panel on May 11 entitled “Golden Gate Park under siege” claiming that there are plans for privatization and industrial development. I assume these relate to a water plant and providing additional food vendors. I find the title inflammatory, the participants biased and the fact that no one from the RPD invited hard to understand.”
That followed an April 20 e-mail to the Commonwealth Club’s Executive Assistant, Ross Lawley, sent by Sarah Ballard, RPD’s director of policy and public affairs, which read:
“The overall tone of the panel is more likely to incite an audience than it is to rationally discuss the facts and merits of the RPD’s current direction.” I write in the hopes that the Commonwealth Club will see that this is a deeply biased panel that has no interest in discussing the facts. I am hopeful that you can cancel the panel …”
Several other emails and phone calls were sent by lobbyists, or were initiated by the RPD, such as Susan Hirsch, the lobbyist for the City Fields Foundation run by the Fisher family.
Although the Commonwealth Club had initially found that the panelists were acceptable, they eventually succumbed to RPD’s pressure by adding Buell to the panel and changing the forum’s title, broadening the scope of the forum’s topic.
Kathy Howard, one of the original panelists states,
“I was frankly appalled when I learned of the emails written by the Rec and Park Department. I had suggested this panel discussion, and by doing so I had exposed respected professional panel members to personal attack. And I am shocked, I am really shocked, that members of our city government tried to stifle free speech and to have this panel discussion cancelled. And then they denied that they had tried to do that. All we were asking for was fifty minutes, five zero minutes, to present our love of Golden Gate Park.”
Wooding filed a Sunshine records request with the RPD on June 3, 2011 requesting any and all records pertaining to the RPD’s involvement in changing the Commonwealth Club’s forum. Not surprisingly, the RPD told Wooding that no such documents existed. What the RPD did not know, but would soon find out, was that Wooding had copies of many of the documents being requested, since an anonymous source disgusted with the RPD’s behavior had already provided Wooding with the documents being requested. Wooding sought to obtain them from the horse’s own mouth.
After RPD denied Wooding’s request, he filed a Sunshine complaint. When the SOTF heard complaint No. 11049, George Wooding v. Recreation and Parks Department, it issued a “Notice and Referral for Willful Failure and Official Misconduct”; the SOFT’s findings are shown below.
“The Sunshine Ordinance Task Force (“Task Force”) hereby provides notification of willful failure and official misconduct findings against Phil Ginsburg and Sarah Ballard of the San Francisco Recreation and Parks Department for failure to comply with the Order of Determination (“Order”) issued on August 8, 2011 in sunshine complaint No. 11049, George Wooding v. Recreation and Parks Department.”
The SOTF had taken five months to adjudicate Wooding’s complaint, and had found the RPD guilty of several Sunshine infractions. Mark Buell, Phil Ginsberg, Sarah Ballard, and secretary Olive Gong were all found guilty of San Francisco Administrative Code §67.21 (not assisting the requestor of documents), §67.25 (failure to respond to immediate document disclosure requests), §67.26 (withholding documents), or §67.27 (failure to justify the withholding of public records).
According to Hope Johnson, the then-president of the SOTF:
“The RPD emails should have been retained in a professional and businesslike manner under a records retentions policy, and Rec & Park needed to take responsibility for that action. … I believe that this case demonstrates the need for the Mayor, Ethics Commission and District Attorney to enforce the Sunshine Ordinance is much deeper than simply adhering to an ordinance. Rec & Park’s lack of compliance was also hiding City employee and Commissioner attempts to sabotage public discussions of privatization of public lands. These public officials were signing their non-public emails with their public titles to sway the Commonwealth Club to bias a forum arranged by members of the public.”
The Ethics Commission Protects the “City Family”
Cowardly and completely disrespectful to the Commonwealth Club panelists, the Sunshine Ordinance Task Force, to the First Amendment, or to Ethics in general, the Ethics Commission barely considered how the RPD attempted to alter the free speech rights of San Francisco citizens. The Ethics Commission’s main focus turned to protecting the RPD from the findings of the SOTF.
The Ethics Commission used three illegal arguments to scuttle Wooding’s case:
- Ethics accepted RPD’s claim that it can determine which documents RPD keeps, and which documents they can delete. But the Ethics Commission ignored Government Code §340.90 that says: “Unless otherwise provided by law and only with approval of a legislative body by resolution and the written consent of the City Attorney, heads of city departments may not destroy city records after a document is no longer required.” Section 340.90 also doesn’t authorize destruction of records less than two years old, but the four lawyers who serve on the Ethics Commission decided to ignore existing State law.
- The Ethics Commission forgave the RPD for not reviewing back-up tapes. Although specifically requested by Wooding several times and requested by the SOTF twice, the RPD did not review backup documents for 141 days. It later turned out that the back-up tapes contained much of the requested information that RPD claimed it didn’t have. According to City Attorney Dennis Herrera’s misguided Good Government Guide, “electronic records such as emails that an employee has properly deleted under the department’s records retention and destruction policy but that remain on back-up tapes are analogous to paper records that the department has lawfully discarded but may be found in a City-owned dumpster.” Under section §340.90 the records were improperly deleted, but could have been retrieved from back-up tapes.
- The Ethics Commission helped the RPD by making suppositions and not following written laws. Bruce Wolfe, the former Vice-Chair of SOTF testified:
“I’m very, very concerned right now because I’m hearing suppositions being made that are not based on any law. There’s ‘I think the law should do this,’ or ‘the law should do that.’ I’m hearing those kinds of statements, instead of actually [hearing references] to the law itself as it applies.”
RPD employees delete many records immediately under the theory that they do not have to provide deleted documents. A highly embarrassed Sarah Ballard produced testimony that was so incredulous, that even the Ethics Commission’s then-president, Benjamin Hur, had trouble believing her. Their exchange during Wooding’s Ethics hearing was almost comical, since Ballard claimed five separate times that she doesn’t retain “sent” emails:
HUR: I have some questions, particularly for Miss Ballard. Miss Ballard, I’m looking at Figure 1, which is the email that you sent to Ross Lawley on April 20. Why didn’t you retain this document?
BALLARD: I don’t retain sent emails.
HUR: So if you had sent a government contract, that would just disappear into the ether after it had gone out if yours was the only copy?
BALLARD: If I had a copy of a contract that was sent as an attachment, I would assume that would … I would save that either on our server or on my desktop. But as a matter of practice, no, I do not save sent emails.
HUR: So regardless of the importance of the email if you send it and there’s only one recipient who’s outside your department, that email’s going to disappear in, what, two weeks?
BALLARD: I don’t retain sent documents. I don’t know… I don’t think they’re retained anywhere beyond that.
HUR: Do you know how long your sent emails are retained?
BALLARD: I don’t believe it is.
HUR: At all?
BALLARD: Correct. So it’s sent and it’s gone.
HUR: So you can’t go to your sent file to see, oh, when did I send this email to this person?
HUR: OK. And I saw that … any other questions for Miss Ballard? (No response) Questions from the Commissioners for either the respondents or the complainant?
Every e-mail system automatically retains sent email, as Commissioner Hur had to have known. What’s more, government e-mail systems have multiple levels of back-up redundancy, such that sent e-mails are backed up at multiple locations. Had this involved a criminal case against Ballard, the City would have searched high and low on the redundant back-up servers to locate the e-mails Ballard claims she doesn’t personally retain, and you can bet the City would have located them. But Ballard, sporting a straight face, managed to hoodwink Hur.
Citizen Nancy Wuerfel testified at Wooding’s hearing:
“She [Ballard] has not been forthcoming to this body or to any of us. She did not come in and say, ‘I had some records and I deleted them, now what do I do?’ She didn’t say that, she just pretended like they never existed. This is an indictment. You can’t ignore it.”
“Of course any emails about interfering with the public forum were instantly deleted, not because of a deep commitment to the department’s record retention policy, but because Ginsburg knows that the Sunshine law requires disclosures. He’s not stupid. Had it been true that the motive for record destruction was implementing the department’s policy then this should have been stated to Mr. Wooding at the outset. The disclosure that there were once emails but they were indeed destroyed according to regulations would have led to the next requirement in the Sunshine Ordinance, which is to assist in referring Mr. Wooding to someone who could help him with his records request. Let us not kid ourselves. Mr. Ginsburg attempted a cover-up of an ill-advised attempt to influence a private entity from having an open panel discussion about contentious development in our City’s most famous and beloved park. He wanted to use his government position to exert power over the public who were simply exercising their First Amendment rights of freedom of speech and assembly.”
For his part, Ginsburg, who probably orchestrated the attack of the Commonwealth Club panel, testified that there was an email on which he had been carbon copied.
“I did delete the email. It was sent at home. I probably get well over 300 emails a day, and based on the department’s record retention policy that is not a record that in my view, at least at the time, was either essential or required any kind of serious departmental action.”
Dr. Derek Kerr, the former Laguna Honda Hospital physician who just won a $750,000 whistleblower settlement — another Ethics Commission failure — testified at Wooding’s Ethics hearing:
“Mr. Ginsburg mentioned something about 300 emails a day. But some of those are just junk emails, there are going to be inquiries about what time the park opens or the swimming pool closes. And we know that this was an important issue. This was not a trivial matter. The individuals involved in this correspondence and this lobbying back and forth are important individuals in the city. This is not the kind of correspondence that one deletes because it’s of no value as a record.”
Dr. Kerr continued:
“One deletes this information to conceal what it contains. Mr. Wooding said that there’s a bigger issue here, and the bigger issue is one of ethics. Now, this matter can be reduced and narrowed down to a technical, legal point that will make it much easier to dismiss this case as virtually every other Sunshine case has been dismissed. But this is an Ethics Commission. It would be nice if there were a professional ethicist here. But even so, there isn’t, it would be good if once in a while the ethical dimension of the behaviors you’re hearing about would be considered rather than just the loopholes and technicalities of the law.”
Wooding testified, “Having the ability to delete emails in a quick fashion does not make one moral or upstanding or a good manager of an agency. I still look at the bigger picture of what was happening and what they [RPD] were trying to do, the lobbyists in particular.”
Journalist Patrick Monette-Shaw, testified:
“Isn’t it curious that Mr. Ginsburg is being disingenuous with you? First he says in his testimony ‘there were no documents.’ Then he changes his mind and says ‘there were no essential records.’ Then, when he reports to you that he told Miss Gong that he didn’t have any emails, what he should have said to her was, ‘I’ve already deleted them.’ Because that may have set off that little alarm bell in the secretary’s head that she should have turned immediately to back-up tapes to retrieve the documents that he had deleted but failed to tell Miss Gong that he had deleted.”
Mark Buell told the San Francisco Bay Guardian, “It’s not that I did anything. It’s that I just didn’t know the Sunshine Ordinance rules that you’re supposed to keep everything.”
Buell also did not know how to use his phone to find documents. SOTF chair Hope Johnson says that she was shocked by Buell’s argument. The California records act clearly lists emails as a form of government documents that must be turned over on request. In Buell’s case, ignorance is not an excuse, particularly since as a RPD Commissioner, he is required to take annual Sunshine Ordinance training, and must sign a disclosure form that is submitted to the Ethics Commission that he has taken the annual training. He can’t really be that ignorant of Sunshine requirements, despite having tried to play coy with the Bay Guardian.
Wooding finished his testimony to the Ethics Commission by stating:
“With this current Ethics Commission, whatever I say tonight, good or bad, I’m going to lose. So, it doesn’t seem like whether something is deleted or whether something is no longer available really matters to your Ethics Commission. I think what really happens here is Sunshine suffers and the public suffers, and the public loses confidence in government, especially when Ethics, who’s supposed to maintain ethical standards and was created to help citizens, now represents the city family more than they do the public. I have very little confidence of any fairness from your Commission.”
The Commission parsed each charge in Wooding’s referral for enforcement, and voted against every finding of the Sunshine Ordinance Task Force, with the exception of sending a letter to RPD Secretary Olive Gong about being more timely in her Sunshine responses.
There will be no real Sunshine or transparency in San Francisco until the Ethics Commission stops protecting City officials who are caught acting against the best interests of San Francisco’s citizens.
Nor will there be adequate Sunshine in San Francisco until the Ethics Commission ceases and desists from re-adjudicating every referral forwarded by the SOTF for enforcement of SOTF Orders of Determination. The Ethics Commission continues to ignore that its sole role regarding SOTF Sunshine referrals involves enforcement, not endless re-adjudication.
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