tv [untitled] April 4, 2014 12:30pm-1:01pm PDT
and let me just go -- give you the history of what happened here. ~ so we can all understand and i can do what i have to do. we had ms. ellis essentially admit to and plead guilty to a couple of things which, one, two counts of influencing a government decision in which the official has a financial benefit. and also another count of violation of a section which prohibits any city or officer or employee from making a contract in which she has a financial interest. and then there was another one having to do with inappropriate conduct. this committee had gone ahead and prosecuted her for those ethical violations under its powers to do so. and had entered into a stipulation with her giving
her, and which she accepted certain putsv, which were the extent of what we could punish her for, for these particular violations. so, in that sense, then, our job was over in regard to ms. ellis. the thought was at the time when we were doing this, and we had none of you all here, nobody was here. the thought when we were doing this, that in regard to these particular violations influencing a government decision, which the official has a financial benefit, that's a fairly egregious ethical breach and the thought was, and we had some discussion, i had mentioned it, this person by admitting these things has really admitted that she engaged in corrupt conduct and has disgraced herself and it would be unlikely that she would continue in san francisco employment, that she would
likely be fired. so, the next step, then, was that it was in the -- the ball was in the court of the san francisco public utilities commission. and i had heard that they had not terminated her. so, i was the one who introduced this resolution. i'm the one to blame for introducing this resolution. i sat here tonight and i've listened to all of you and i've listened to the message that you sent. it's not just the message that's a powerful message. it's a tsunami in terms of who this woman is and in terms of what you think of her and in terms of her importance, particularly in the minority community. and in the black community ~. and i agree, based upon everything that you've said, that to go ahead and terminate ms. ellis would be sending a terrible message to the city
and county of san francisco, particularly to minority individuals who want to be part of public service in san francisco. it would be, it would be miss perceived and it would be underably misperceived. it would be misperceived in the way many of you said. so, in regard to there being some sort of hidden agenda or any sort of racism, van jones had it right. we stepped in it. that's what happened. and i want to withdraw the resolution. [cheering and applauding] >> i think there is no objection from any of the other commissioners. [multiple voices]
>> we feel your heart and we thank you. you've proven to be a gentleman of character and honor. >> thank you, reverend brown. ~ i would like to keep the policy discussion on the agenda for the purpose of ensuring that we don't have this kind of thing happen again, that we can all agree that we're not going, in the future, to undermine the commission's authority to settle matters. so, that will remain on the agenda. the specific proposal has been withdrawn by commissioner keane. the next item on the agenda is the complaint number 04 -- i never met mr. keane, but i'm glad i him tonight because that is the kind of person that will help us move forward, not backwards. i'm [speaker not understood]. i'm one of the ministers at dr. brown's third baptist church. >> thank you, reverend lewis.
mr. herrera. >> mr. hartz is not here and did not request a continuance. so, i'm assuming we're just going to go ahead. >> we're going to go forward. thank you for your patience, sir. >> sure, thank you very much, commissioners. i'm luis herrera, city librarian. i trust you received my letter that gave background on this matter regarding showing cause for the sunshine ordinance task force, an order of termination. mr. hartz violated the sunshine ordinance by failing to provide equal access to members of the public regarding the library use of audiovisual material during public comment. >> sir, i'm sorry to interrupt you. i'm going to ask staff at the door be closed so we can actually hear you.
>> thank you. >> so, [speaker not understood] highlight the audience. you've been very patient this evening. the [speaker not understood] commission did not violate the sunshine ordinance because the commission entered a decision not to expend significant resource he to make the necessary accommodations to modify the technology that the library uses and to correct auditorium strictly on the basis of economics. the library, after mr. hartz did request via e-mail to consider allowing public comment and use of audio visual wasv during public ~ visuals during public comment, we did explore having an overhead with transparencies. that did not work because it did not project for the commission and the audience to be able to view the audiovisual
material. we explored further reconfiguration of the entire set up that we currently have in the current auditorium. we also involved the engineering staff at our library, director of facilities, [speaker not understood] lombardi is here. if you need more clarification on that, [speaker we consulted with the department of public works. all said it would he require spending upwards of $40,000 to change the reconfiguration. so, currently the library only allows staff and individuals that are invited as part of commission agenda to present any av kind of materials. so, the -- mr. hartz filed a complaint with the sunshine ordinance task force. that was heard in july of last year. they found that the library commission violated the administrative code section 67.5 [speaker not understood] public comment by not allowing the audiovisual commitment and
the matter was referred to the sunshine ordinance compliance and [speaker not understood] galore and referred back to the sunshine ordinance task force. as a result of the finding, as city librarian i brought the matter back to the library commission for discussion and possible action to allow the use of a-v commitment. and there is a memo from the city librarian to the commission dated august 12 of last year. we also saut the opinion of the city attorney's office and the city attorney's office advised that whether the library provides access to a-v equipment is a policy determination of the library commission because neither the brown act nor the sunshine ordinance task force gives member of the public the right to access during public comment to sf audiovisual technology. public administrative code section 67.15 address he the right of public comment, but does not prescribe the method, means, or mode of technology that the library commission must allow the public to use
during public comment. the library did have a good conversation discussion [speaker not understood] of the various options on august 15th and they voted 6 to 0 to not allow the use of audiovisual equipment for public comment because allowing members of the public to use a-v equipment during public comment would require the library to expend significant resources to make the accommodations necessary to modify the technology set up. the library commission did, however, make it clear that the public could bring printed copies of any presentations to the library commission and have them made available at the back of the room. and there is also attached library commission minutes that describe the conversation and the ultimate action. in terms of discussion, i also want to emphasize that as city librarian, i followed the policy direction established by the library commission, city charter section 4.102 on boards
and commissions stipulates, and there's two specific areas. one, that the commission or the unit of government of executive branch of the city and county shall formulate, evaluate and approve goals, objectives of plans and programs and set policies consistent with the overall goals of the city ask county as established by the mayor and the board of supervisors to the adoption of city legislation and after public hearing, that's item number 3, approve applicable departmental budgets or any budget modification or fund transfers requiring the approval of the board of supervisors. i brought the matter regarding the use of a-va equipment to the attention of the commission and deliberate on the matter and ultimately arrive at a decision. ~ their decision of using the equipment by members of the public during public comment is their policy decision and i have adhered to that policy.
therefore, i did not violate the sunshine ordinance. i also want to reiterate that the library commission did not violate administrative code 67.15 a or b because the decision not to expend significant resources to make the necessary accommodations to modify the technology was based on fiscal matters. and finally, just to cut to the chase, i just want to emphasize that this is a policy decision that rests with the library commission and that administrative code specifically addresses the right to public comments does not prescribe the method, means or mode of technology that the library must allow. for these reasons, we did not violate the administrative code and the library commission has met its burden and shown that it did not violate the sunshine ordinance. the library commission secretary sue black man is here in case you need to have any further clarification on the matter. thank you very much. >> thank you. any questions for mr. herrera from the commission?
>> i have a question. i'm just not clear on what exactly mr. hartz was requesting. i mean, was it use of computer graphics or what? >> my understanding is that he wanted during each public comment segment of the agenda to show powerpoints and to show audiovisual material as part of public comment. >> i see. >> and we did not have the set-up currently configured to allow for that. >> thank you. >> commissioner -- >> i understand that, mr. herrera, you have a podium for, i take it, the staff when it makes its presentation to the commission. and then there is a separate podium like there is here where the public makes their comments. >> that is absolutely correct. >> and your audiovisual equipment is on that podium for the staff. >> that is correct. >> now, you have said that
what's shown on the audiovisual is whatever has been prepared by the staff? >> that is correct. >> and is there something that some public group can also have shown at that time? >> no. the only time that we have additional audiovisual equipment is when it's part of the agenda. for example, we've had some construction programs and an architect is invited to present as part of discussion that will take place during the commission. >> how about -- i think mr. hartz said something about the friends of the library occasionally make presentation. >> again, that's done under the city librarian's report when there is a standing item that is agendized and i invite the executive director and i present any audiovisual showing the fiscal matters related to that support group. >> what about if some organization is opposed to the item and you've given them notice and they say, we want you to put on your
audiovisuals, the same our position that is on the contrary? would it be done? or has it ever been done? >> ah, no, that has not been done. >> he okay. thanks. >> commissioner keane -- >> i'd like to follow-up on commissioner renne's points because i think you do have significant problems here in regard to the way you're currently doing things. and in regard to your letter to mr. hartz dated may 5th, you say, "currently the commission allows only sfpl staff and individuals and organizations invited to make presentations to the commission to use the library's computers to connect to its audiovisual equipment. so, you do invite individuals and you do invite organizations
to make presentations and you allow them to use this equipment. is that correct? >> that is correct, as part of the agenda. >> so, the problem you have, as one that teaches constitutional law, i can tell you that by virtue of having this discussion, you have a public forum that has been set up there and you are quite right when you disagree with mr. hartz that you are not discriminating on the basis of viewpoint. it's not viewpoint based, which would be a first amendment problem. but you are discriminating on the basis of content. you are allowing certain groups with certain content, those groups you invite and other organizations who make presentations, to have the use of these facilities. but other members of the public you don't. so, that's content discrimination and under the
law relating to public forums, the only way you can justify content discrimination is by meeting -- i don't want to be too much my professor hat here on -- is by meeting a standard called strict scrutiny. that's the only way you can present your presentations in any feasible way. your main argument s well, if we allow these public groups to do this, it's going to cost us some money ~. strict scrutiny is never going to be satisfied by the fact it's going to cost you something. so, you are, indeed -- i'm not saying you're doing this intentionally, but you are violating the first amendment here by making this content based. if you're doing this for these people whom you're inviting, you have to do it for other members of the public as well who are going to make presentations. otherwise, i see you are in violation of the first amendment. but may i -- >> with all due respect, just
simply i would argue that when we invite any other member, it's because it's been formalized as part of the agenda and they are either part of presenters or we are presenting that content. it is not discriminating members of the public from offering public comment in any shape, form, or fashion. >> but the manner in which they can present it is significantly inhibited from those as opposed to those whom you've invited. the ones you've invited, they can use the facilities. the ones you haven't invited can't use the facilities. so, they're not -- they're not able to get across the message in the same fashion as with presenters whom you've invited. that's a first amendment problem for you. >> commissioner andrews? >> thank you, commissioner keane, for framing what was rolling around in my head all
day within constitutional law. i was struggling with the fact that the equipment is there and it exists and it is being utilized by certain individuals, but not available for others. so, what i wanted to hear was a little bit more about the alternatives that you explored and why they didn't work and how, how aggressive and rigorous were you with that exploration. >> sure. and i'll ask our director of facilities to explain that. but we started with a very basic transparency and the set-up simply did not allow for it to show on the projection screen for both the commission and the public. so, that was disavowed. the second thing is we explored reconfiguring the podium that's at the public end so that we would allow a laptop to be used
for members of the public to use that laptop for a-v presentations. that is the matter where it would require some aa. go. a. accommodations, some recabling, i mentioned earlier, the a.v. equipment is on the stable behind the dais of the commission. ~ ada accommodations so, we certainly explored that, got contractors to give us a cost and determined that could be done. that would require an expenditure of $40,000 to do that. >> so, here's what i have a problem. you thought it was worthy enough of an idea to actually explore it, but when cost came into play and it made it cost prohibitive, that ultimately was the determinant of you not doing it, different than it's just something as a policy we are not going to do. so, you did entertain it enough
that it was an idea. >> absolutely. >> explore it and brought it back >> the commission engaged in a conversation and explored whether it was a policy decision. as i mentioned, its was not my call. i did due diligence and bring it to the commission for full discussion on whether they were willing to spend the funds to reconfigure to allow for that. and also weighed in on the city attorney's judgment whether we were violating or abridging any public right of speech by not allowing to engage in public comment. and based on those factors of the commission took action not to allow that. and their recommendation was to allow for any of the presentations to be printed, copied, and made available at the back of the room for the public. so, again, we feel strongly
that it does not abridge anybody's right for public comment. it is a significant expenditure. and, again, i do not have the -- based on the charter, the simple ability to say we're going to incur that expenditure. so, i feel i'm between a rock and a hard place in terms of not feeling that we're violating that sunshine ordinance. >> i'm still a little stuck. so, maybe you can help me out. you're standing on, i think it's 67.1 5a and b on the policy. to me it's enough to say we're already providing an opportunity, an access for the public and to the public and we are -- there is no need to even investigate this. there's no reason to even go down this road because we're going to stand on the merits of
this -- of this code. so, it seems like a slightly inconsistent to stand solidly on this, but yet still investigate opportunities or options. >> let me qualify that. i, as a city librarian, felt compelled to at least explore that. at the point when i sent a response to mr. hartz saying that in my estimation, my judgment, i declined his request, then he filed the sunshine ordinance complaint. at that compliance committee when they suggested that we take it back to the commission, i did just that. that's why it came back. and i also felt that because of the expenditure involved, it would be their judgment, their call and policy determination to do that. so, i felt that was, again, doing due diligence in having a full public hearing on that matter and they did that. and, again, it was a 6-0 vote
not to do it because they felt they were not in violation and they got some attorney, city attorney advice and also -- i mean, the brown act and sunshine ordinance did not prescribe a specific method of allowing the use of a-v equipment during public comment. so, they felt that they were going even beyond that by allowing the printing of any audiovisual equipment. and i want to qualify that. when we invite -- and it's really not an invitation. it's a described agendized item for any presentations. for example, during the branch library improvement program when we had peer reviews and we had a contractor sitting in the dais reviewing ski matt ictiontionerctiontion, those are allowed for the public to have full disclosure on the projects that are on hand. ~ schematics
either budget or report that comes from the friends of the library, those are the two examples i can give you, there have been limited additional individuals invited to present. again, it's a very managed agenda that the commission has prerogative to do. >> commissioner keane do you have any questions? >> yes. i don't want to keep -- i don't want to repeat myself, but that's simply not good enough. i don't know what the city attorney told you, but whoever told you that you were okay on this, they're wrong. you cannot discriminate on the basis of subject matter or content. the viewpoint, you're not discriminating. mr. hartz is saying, you don't like our viewpoint and therefore -- i don't buy that. we'll take that off the table. >> we're not discriminating on content. ~ commissioner, we're not discriminating on content. >> the presenters you invite who are presenting their content, they are using the equipment.
the presenters who are -- the other presenters whom you -- that you allow, staff and individuals or individuals and organizations invited to make presentations to the commission. that's your language. there are individuals and organizations invited to make presentations to the commission. they are allowed to use the equipment. the rest of the public isn't. >> and it isn't during public comment. >> they're making presentations. we're talking about presentations here. [multiple voices] >> commissioner keane, i mean, i will say that we often have presenters who speak much longer than the three minutes allocated for public comment. for the benefit of the commission to introduce an item, it's to explain a situation. so, r it's not -- i don't think we need to necessarily hold presenters to equal access as
public comment. and i mean, one of the things that distinctly -- in the actual ordinance, it says you can't do it on the basis of reasonable time constraint. so, if your view is accurate, then you couldn't allow anybody to speak, invited or otherwise, for longer than three minutes. >> mr. chair, actually the language is much more guided than that. it says the only way you can limit things is on the basis of time constraints. that's -- >> right. >> so, let me just finish. since the language is specifically saying the only way you can limit presenters is on the basis of time constraints, they're limiting presenters on the basis of whether or not they can use the equipment. so, they're violating the language in this limitation itself. they're going to something other than time constraints and saying, we're going to limit it in another way. you can't use the equipment to make the presentation. to me, this is just black
letter law in regard to the fact that it is content based, subject matter based discrimination in a public forum. you can't do it. >> i think mr. herrera's point is there is a difference between presenters and public comment. in public comment i agree with you entirely that it's got to be equal for everybody. if somebody in public comment can use the a-v equipment, then everybody's got to be able to use it. but just as a presenter can speak for 10 minutes or 20 minutes or half an hour, which is much longer than you can in public comment, the rules are not the same for public comment and for presenters. >> [speaker not understood]. >> but time is the one thing that they do say you can't do it on. and my point is even on that, you are committed to discrimination between those who present and those giving public comment. >> don't we already have, don't we already have examples of folks who are very -- who are
very adept at participating in public comment who use a-v all the time? we have it here, we have it at the board of supes. it's not like we don't see this every day. so, that's why i'm wondering, again, and i agree with commissioner keane that i think it's the time that can be the limitation, not necessarily the the a-v equipment because i see many great presentations are done in three minutes. >> right. but, meaning that, meaning that that should be allowed just as much for the invited guest, for the staff, or the sophisticated public who is willing to do that ~. >> we have -- at city hall we have the equipment built in to allow somebody to come in with their laptop and put it on our screen. and their problem is that they're in a different building and the staff presentation which is where the a-v is, the only way you could do it would be to have the public comment
come to the staff thing. and i think where i agree with commissioner keane to a certain extent is that if you have an item on the agenda that you are allowing some outside party to use your a-v equipment because say it's your architect or whatever else it is. if somebody in the public came to you and said, we would like to in response to what they're going to say, we would like to show how the drawing should be different. the only way now they can do it is come in with hard copy or something and hold it up and put it in the record. and it would seem to me that if you invite somebody in support and somebody comes to you and says, we would like to be invited even though we're not going to support you, no, we wo