would see it. had the a that you would see it? they cover those kind of first amendment activities. there are some different rules on the federal level. how would you know? >> they would know what they are looking at, and perhaps a representative can answer your question about what they include in those binders that the staff reviews. >> this is to adopt or pass the consent item. your inquiry might be a little bit beyond the scope of what they are reporting on. >> these are hot directly under

the purview -- these are directly under the -- >> we saw things approved up to the chief's level. >> i move we accep ttht the report. president mazzucco: public comment. on item number three, hearing none. any objection? roll call vote on approval of consent item. >> [roll call vote]

>> i will vote aye with that caveat. >> [roll call vote continues] motion carries five to one. president mazzucco: let's proceed to item number four. >> assignment the disciplinary charges against sergeant ernest tachihara to a commissioner for evidence taken. >> i represent a special patrol officer tachihara.

>> commissioner kingsley, i turn it over to you. commissioner kingsley: i think that we ought to have a telephone conference to get the procedures rolling. if you gentleman with a coordinate with the lieutenant, he will coordinate with the three of us. we will get the ball rolling. thank you, gentlemen. president mazzucco: public comment. hearing none, item number five. >> commission announcements.

tomorrow night at 6:00 p.m., some of the commissioners will gather to receive public input on characteristics and traits people would like to see in the next chief of police. lee will be at a similar meeting and will be in the process of scheduling a joint meeting between the police commission and the public safety committee. of >> who is covering tomorrow night? president mazzucco: i am. commissioner chan. >> parent teacher conference. >> we left one open for you, i

thought. >> item number five publeic comemnt. -- comment. item number six. >> closed session disciplinary cases, including the public comment on whether to hold the item in closed session i. >> we will come back into open session to handle some more matters. any public comment on items in closed session only? is this public comment on how

atoms in a closed session? >> i request -- i understand weakene can request open sessio? i just voice my concern that it should be held in open session. >> item number seven. >> so moved. >> we move into closed session. can we please clear the room. anybody object? >> the commission is moving into closed session. we

>> item number9 is to vote whether to disclose any items in closed session. >> moved and seconded. >> why don't you call items 10 and 11 and we will vote? >> i will call the first one. >> item number 10 is the discussion and possible action to grant or deny motions for dismissal of this summary charges filed against when d hurley -- wendy hurley. >> i have asked commissioner slaughtered to provide --

preside over the public portion. >> i would move that -- be recused from this item as well as item number 11. >> without objection. >> counsel, please state your name. >> -- >> thank you, counsel. we will proceed to consider your motions to dismiss. we have received your briefing and the commission has reviewed it. we have established a scheduling order for the proceedings. we have received, red, reviewed

your papers. >> this is the case of my client and this is a very serious matter. the first motion is in motion that we filed to dismiss this case because the prosecution did not present evidence. the rules require that the department provides this evidence.

but the officers might have been present. the prosecuting attorney indicated that he had the indication and it would have been two months for him to get it to us. first, he would make the prosecution turned over the evidence but after -- indicated that it would take two months to do so, our motion was denied. this case should be dismissed. and that is all i have to say on that particular issue. >> please go ahead and address your comments. if you have anything else you want to say,. .

-- if you want to say anything else, go. >> on the overall motion to dismiss, obviously the prosecution was put on the case. they did not put on one witness. there was 91 witnesses interviewed. the burden of proof is on the prosecution. the officer is guilty until proven guilty. it seems that the prosecution started out saying that she was guilty and she had to prove her innocence. california law and the u.s. constitution affords the officers to process protection

before they are disciplined in the workplace. hear, the protections are not provided. there should be an independent review of the facts. there needs to be a separation between the prosecutor, the hearing officer, and the decision maker. here, there has not been an independent review of the facts. up

all the prosecution and when it was present a video. they did not even bring in the officer. there was no witnesses. this is conduct which brings discredit upon the concept. no witnesses brought forth who had direct knowledge of anything.

they simply paid a video that was not authorized. -- played a video that was not authorized. no particular evidence was presented. with respect to specification number 5, harassment, there was no evidence to suggest that any harassment took place. there was no complaints for bringing such a specification.

in fact, the lieutenant in -- >> you have had your five minutes. >> this was not enough time. there is no policy on this. >> that is how this hearing will proceed. >> i did not have the time to make a record. >> we have received your arguments that we have. we have had the ability to consider it. >> i think that i need more time. >> your objection is noted.

>> you should have their opportunity to look at the points that mr. mccoy has raised. there are a couple of new things that i would like to highlight that perhaps might not have come across as well. the issue of whether or not discovery is properly provided is discussed in the various -- i should point out that this very same issue uses the same precedent, same arguments, was litigated in another case, a motion to continue.

the commission and denied that motion and i don't see any reason why the result in this case should be different because this is based on the same facts, the same argument, the same law. for consistency's sake, the commission is bound by this decision. in addition, one of the several arguments that the defense makes with respect to their claim of the sufficiency of evidence was that a variety of points were made during the course of the hearing and through the investigators in the case explaining interviews they had made with other officers, primarily with the two accused officers.

you have to keep in mind that granting the defense motion would be effectively reversing the work during the course of the commission hearing and would be a substantially challenging president to set in terms of managing your case in the future. in addition to that, --

>> i am moved that we move into closed session to deliberate. >> do i have five minutes for rebuttal? >> you had five minutes and you spent in the argument. we have a motion and a second. >> public comment on the motion? >> public comment on whether the commission should hold up the item in closed session. >> we're not dealing entirely with it just a 10 a, we are dealing with the motion to dismiss.

is there public comment on this? a hearing now -- hearing none, we will move into closed session. counsel, we will now move into closed session and we will alert you when we e >> if each of you can confirm that you have read the motion papers as well as the transcripts. and >> i have read all the documentations for both the

motions and the hearing of evidence. >> i confirm that i read everything. >> i have read everything. >> we have read your papers and we deliberated and we voted to deny the motions to dismiss. we would move into oral argument on the merits of the claim. you have five minutes for closing argument whether to sustain or not sustain the charges. >> we reserve the right to present witnesses in this case. if you deny the motion which is pursuant to the rules related to

the trial. we would like for the commission to grant a request to be able to the bring witnesses. we would like for the commission to rule on that request. >> my recollection from the transcripts was that he made that point during the transcripts and you had the opportunity to present your witness at the time and you chose not to. we will now move into consideration on whether to sustain or not sustain the closing charges. >> kiln we wanted to come to the commission for redress entity commission turned around and precludes my client from bringing her witnesses. this commission knows if it has read the papers that the officer had authorization from captain bruce to produce this video. the officer had authorization

from the chief to produce this video. obviously, if you read the transcript, dino that the lieutenant wanted to talk to the chief related to whether or not she authorized -- to make this video. you also know that he could carry the camera at in his car every day. he was authorized to -- members in the department. you would know that the -- testified on cross-examination. the officer had the ability to shoot officers of the department. the officer should not be disciplined. if you have read the declaration of captain bruce, who was the retiring capt., he stated that

at the time that officer cohen began working at the station, i defined his duty as primarily working in a radio car but his duties included that he carried his video camera with him at all times and to take what video he felt appropriate in the course of his duties as a police officer. while he was working at the station, his duties including the carrying of his video camera and the filming of other officers or other things which were of interest. the station had moral issues. i retired from the san francisco police department at the rank of captain.

they had been working on the project which i personally requested. these were done on duty. they had the implicitly authority to use props and his video. the officer used department supplies and accessories to film and direct his video clip as well as his personal equipment. you will see that he signed away requisition forms so that he could get a videos or anything he needed.

this was part of his job at the bayview station.

the officer had the permission to film anything in the department. i have nothing further. i reserve. >> we will give you a minute for rebuttal. >> this case is really about what the officer chose to do in each of these videos which in many cases is she created, directed to come up pyridine as an actor -- and directed, appeared in as an actor. the defense is trying to deflect you from thinking about the issues that are raised in the specifications. in particular, it is important to note that the the only evidence was the declaration from the captain done several years after the fact.

he did not approve any of these videos. he had seen them and was very upset by them. he would not have approved them. at the best, he had some inkling that the officer was filming something that might be comedic but certainly did not approve the content or behavior. that is consistent with the fact that the captain could not be in a position to authorize the violations that you saw, the rule mine violations, the un safe use of firearms that you saw in these videos. that would have been done on lawful order even if he had granted it. the issue is not about authorization. the captain did not authorize this. you can infer from some of the comments that he makes is that

he had reason to come up with a different story two years later when he was doing a declaration after he retired from the department. i think in a case like this, it might be tempting to attempt to distinguish some of the arguments that council makes on behalf of their client with the argument about the case. the testimony that we heard from the officers shows that she really thinks she did not do anything wrong. she believes that she is being persecuted. if you choose not to sustain any of these charges, you will be telling her that she is right. the things she chose to do on the video, the un safe use of for firearm, that these things were okay. -- the un safe use of her firearm, that these things were okay.