Mayor's Office Breaks Local Open Government Law				In Reverse Chronology: The Ruling: Office of the Mayor Violated the Law Sunshine Hearing Transcript: Shocking Guilt-by-Association Kafkaesque Proceeding The Sunshine Complaints Public Records Requests to P.J. Johnston: (E-mail Exchange Document)
Mayor Brown’s press spokesperson — one P.J. Johnston — who is also known as the Mayor’s press secretary when he is not alternatively referred to as the public information officer for the Mayor’s Office, waltzed into Room 408 of City Hall on October 28, 2003 and proceeded to use two strategies to try to weasel out of allegations made against him that he had violated San Francisco’s Sunshine Ordinance:  False statements and guilt-by-association.  Both strategies failed him, as the Sunshine Task Force eventually concluded its hearing by issuing an Order of Determination finding that the Office of the Mayor had, indeed, violated local Sunshine laws, as TheLastWatch had correctly alleged.

Before you dismiss this story because of use of the vernacular in its subtitle, you might want to read about the appalling lack of ethics displayed by both San Francisco’s Office of the Mayor and our local open government/open records oversight body, more commonly called the Sunshine Ordinance Task Force.

Johnston’s strategy — as if he had just finished reading Robert M. Pirsig’s 1974 classic book Zen and The Art of Motorcycle Maintenance, thinking he could resolve the horns of his law-breaking dilemma by creatively tossing sand in the eyes of the bull, or sand in the eyes of the Sunshine Task Force — included using a minimum of 20 false statements.  In the end, that strategy failed him miserably, as he got nowhere employing it, despite the dimwitted-and-dumber haze enveloping some Sunshine Task Force members on October 28.  Fortunately, they at least had their sandstorm protection blinders on.

And Johnston’s hip-pocket “Plan B” strategy was to pull out a tired, worn-thin old favorite of governments everywhere:  The old guilt-by-association ploy, which is normally reserved for criminal trials, which this case was not.  Luckily, this ploy failed Johnston, too, again miserably, hopefully because some of the more astute Task Force members recognized (as have legal scholars) that the First, Fifth, and Fourteenth amendments to the U.S. Constitution prohibit guilt-by-association accusations, precisely because they comprise malicious prosecution.

Oh!  Did I forget to mention that Johnston also twisted two simple rhetorical statements I had raised into alleged abuse of the Sunshine process? I had merely said “I assume English is not your second language. This time, I’m using very precise language that appears to have gone over your antennae the first time ’round,” innocently wanting to make sure I had been clearly understood regarding which public records I had requested.  And despicably, Johnston twisted these rhetorical statements — that I believe fall under First Amendment protections — into charges of abuse against City employees.  Sadly, the Task Force took seriously (at least temporarily), his counter allegation, and I found myself having to defend use of rhetorical statements.  When in doubt, City officials (at least in this City) appear all too willing to allege abuse of process in order to attempt stalling accountability activists who seek nothing more than access to official public records.

Just like in Alice in Wonderland, things got more curious by the moment during the hearing held to examine my complaint, including failures of the City Attorney advising the Task Force on technicalities of the open government/open records law at issue, and failure of the Task Force (after first ruling in my favor) to subsequently forward the complaint to the City’s Ethics Commission (where this case then deserved to be heard) regarding willful, official misconduct.  Johnston narrowly escaped a charge of official misconduct by the skin of his teeth, because the Task Force proved too cowardly to exercise current provisions in its own Sunshine Ordinance to forward the matter over to Ethics.

And as if matters couldn’t have gotten appreciably worse, when TheLastWatch submitted a public records request to obtain the audiotapes of the October 28 Sunshine Task Force hearing to transcribe the proceeding, we obtained a “redacted” audiotape; that is, [it wasn't actually redacted, it was purportedly “human error”] the Task Force had neglected to audiotape the complete proceeding, despite the Sunshine Ordinances’ provision at paragraph 67.14(b) that:

“Each board and commission enumerated in the charter shall audio record each regular and special meeting.  Each such audio recording, and any audio or video recording of a meeting of any other policy body made at the direction of the policy body shall be a public record subject to inspection pursuant to the California Public Records Act (Government Code Section 6250 et seq.), and shall not be erased or destroyed.”

Nonetheless, the audiotape I received contained a Rosemary Woods-like missing gap in the proceedings consisting of 10- to 15-minutes, so a goodly portion of the audiotape — in which Johnston mounted his guilt-by-association defense — was lost and heard orally only by me, the defendant (Mr. Johnston), and nine of the eleven Task Force members who had deigned to show up for this hearing.  [Notably absent were both Bruce Brugmann, publisher of the San Francisco Bay Guardian,— who has a keen interest in Willie Brown’s compliance with local open government laws, so Brugmann’s absence was conspicuous — and member David Parker, who would have had to recuse himself from the proceedings anyway, since he had previously “misalleged” that he and I had had prior interactions.]

By following the links on this page to the partial transcript of this hearing, you can learn that Johnston’s guilt-by-association strategy included alluding to “hate speech” that he claimed others had subjected him to, and his baseless fear that I would do the same thing.  As this hearing unfolded, I kept waiting for Johnston to falsely allege that I had set a cross on fire on his front lawn; he stopped just short of such nonsense.  It was clear that Johnston hoped to taint the deliberations of the Task Force, and his twenty or more “false statements” illustrate his desperation in trying to justify the fact that he had knowingly, and willfully, engaged in official misconduct by having filaed to produce the records I had sought.

Luckily for me, and sadly for him, his tactics backfired, as those Task Force members present eventually did not buy into Johnston’s two misguided defense strategies, ruling 8.5 to 0.5 (OK, 8 to 1) in my favor.

Member Brugmann — whose rag, the San Francisco Bay Guardian, waxed eloquently on November 5 in an editorial entitled “Save Brown’s files” (just 8 days after this Sunshine hearing) about its justifiable concerns that Mayor Brown might simply waltz out of office and take every scrap of public records created under his eight-year reign, depriving the public of our right to know what had transpired behind closed doors during Brown’s administration — might now wish that he had been present as an appointed member at his Sunshine hearing on October 28, in order to have forced this matter in front of the San Francisco Ethics Commission, where it subsequently deserved to be heard.

After all, Johnston had violated the Ordinance flagrantly in order to push his agenda (abuse of Sunshine process), which counter-claim of so-called “abuse” the Task Force eventually rejected.  Meanwhile, if Johnston had brazenly violated the Ordinance (and the Task Force let him off the hook by citing Johnston had an insufficient amount of time remaining if office in order to press Ethics charges before Johnston’s final day of work as the mayor’s press secretary), how does Brugmann expect that the Mayor will honor the Sunshine Ordinance, if Johnston had not?   [I address a parallel to whether other crimes can be dismissed due to the “number of days remaining on the job” in the link to the transcript, above.]

And if Brugmann is correct that Slick Willie is notorious for being hostile to “sunshine” laws, what makes Brugmann think that his absence on October 28 will compel the mayor to stop cleaning out of his office records that the public has a right to learn of, simply because Brugmann’s staff wrote a mere editorial asking Brown not to do so, since both Johnston and Brown will soon leave City employment?  If Brugmann is so concerned about the public’s right to retain historical records, Brugmann should have attended the October 28 Sunshine Task Force hearing and strongly advocated in front of the remaining asleep-at-the-wheel Task Force members to refer my complaint victory to the Ethics Commission, where it deserved to be forwarded.

After all, the Task Force dislayed a laspe in ethics by not displaying the courage to forward this case to the Ethics Commission, where it belonged.  And young master Johnston displayed an ethical lapse by cold-cocking the Ordinance in order to advance his specious claim of “abuse of process.”

In the end, TheLastWatch and ultimately other accountability activists in San Francisco were cold-cocked by the Task Force, too.  Disturbingly, government accountability was stonewalled in the process, too.

Is this what Publisher and Task Force Member Brugmann wants:  To have Sunshine cold-cocked by Mayor Brown when he takes his final walk out of the building at One Dr. Calton B. Goodlett Place, otherwise known as City Hall?

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Copyright (c) 2003 by Patrick Monette-Shaw. All rights reserved. This work may not be reposted anywhere on the Web, or reprinted in any print media, without express written permission of the author.  E-mail him at pmonette-shaw@earthlink.net.