can go directly to you or they could go to court to get satisfaction. >> you are not seeing 67.35d as the basis for the commission authority to hear non-violations for the task force? >> it is not for the task force. it is for any person acting on their own volition. if you look at a, b, c, you have to start with a. it talks about any person who has a complaint. that is what we are talking about here. we're not talking about the task force, we're talking about any person. and there are many different ways a person can exercise their rights under the sunshine ordinance to be able to get records. one way is through the process, as outlined 67.21.

the other process is 67.35. >> ok, i see. >> ok. with all due respect, being the only lawyer on this side of this group, i have to re-state what i think i have stated a number of times. i first want to mention what i was getting to what i could not quite finished about this letter. >> mr. grossman, what we're trying to do here -- i appreciate you being willing to this -- >> what we're talking about is 67.34 and 67.35d, and that is what you have been talking about. >> right, but what we were hoping for was an answer to the commissioner's question. >> i am going to. >> if you could start there. >> you have to look at all of

those sections in order to understand what 67.35d is all about. there are three different ways a case can come to the ethics commission. two are described in 67.34, and one is described in 67.35d. of course, there is also the task force power under 67.30c to send it to you for enforcement. 67.34 talks about a willful failure to do a duty under any of the public records or public meetings laws. that failure, that will fill failure is official misconduct, the finding of that. official misconduct is to find that in the charter as a certain level of behavior, and it also

says that a finding of official misconduct anywhere else is an official misconduct under the section that gives you jurisdiction over official misconduct. there are 15 other places in the charter or official misconduct can be found. this is one of them, okay? that is a whole subset that is governed by a special set of rules, which you are going to deal with very soon. the second part of 67.34 deals with willful violations. that is different. it is focused on a violation of the ordinance, and that is a finding that can only be made by you under 67.34. ok? and that makes sense, because that is what these proposed

regulations deal with. then there is the non-willful cases, and those are the ones under 67.37c come to you because of failure to comply with an order is a task force of the ordinance. and when it is such a simple violation, it goes to the ethics commission. and that violation has occurred because the task force has gone through its entire process, two full task force meetings, a compliance and amendments meeting, and made a final determination that it needs to have this violation corrected and an order enforced. and that is what you are talking about when you are talking about jurisdiction. and that jurisdiction is found in 67.35e, which says if under

67 decimal 21, neither the attorney general or the district attorney do anything, for a certain time, the individual, the person can go to you or go to court for enforcement. for enforcement, because allows police. because if you did not have the pedal the language, then the court and 67.35a would simply do what it would normally do, which is order the record set out, you are entitled to be records after the attorneys' fees are paid. that is the structure. this confusion between a willful violation and it will fulfill your and simple violation, that has all been known to your staff when they did these proposed regulations, way back when. and that is a distinction we

were making in the draft that was submitted last august. >> thank you, mr. grossman. commissioner? >> i'm sorry. i think i am staying with the point. i feel like there are several here, and this is tricky territory, but there is something that has troubled me every single time, and that is the sentence within 67.30c that we have been talking about. i hate to obsess over race for letter connective word, but the crux for me is with enforcement power. this is very clear that the task force shawmut referrals to a municipal office with enforcement power -- this is very clear that the task force shall make referrals to a municipal office with enforcement power.

but it does not say, as mr. grossman said, it should have said for enforcement. but that is not the language of the ordinance. it says with enforcement, and that leaves me dangling. with this language i would have said, wait, to do what? so i am left saying, you are right, it is very clear, with enforcement power, we are one of them, whenever it concludes one of us, and it tails off, leaving me with that question that is so important about where we pick up our responsibility. i'm sure that i now have to go to our authority. this talks about the task force's authority. i have to find the second part of that passed through these

woods by saying, well, i got it, and the information with the authority, but what is it the ethics commission is supposed to do? i am left feeling this does not tell me, so i have to look at the ethics commission. 's authority, and we did not have something that just says you can and for somebody else's findings. that takes me back to feeling, or do began, commissioner, is a logical place -- the effect of the task force finding is to shift the burden. it brings it to us with a finding, without a work and a foundation that has been set, but we have to pick it up and do what is our job, which is to make a determination on our authority, and it is perfectly fair for us to do that, relying on the task force to shift the

burden, which for anybody who had to go through this, you would know that as a big deal, the difference between you have to prove it or i have to prove it is quite meaningful and is respectful of the task force efforts to that point. but the sentence so clearly does not say "for enforcement" i feel like i have to find myself. clearly it is something you have talked about, but that is an important pivot for me. >> when i write the referrals, under 67.34c, what you are talking about, interpreting -- when we refer that, the intent is, why would refer to something with enforcement power? it could be interpreted to

anything other than to enforce it would be difficult. but we combine that with 15.102, which gives you the authority to carry out the purposes and provisions and ordinances regarding open meetings and public records. that gives you the authority. you are allowed at the ethics commission to write rules and regulations based on that open government laws. and because you did not hear a lot of them, one of the things that is different, don in court, is that all records are public. you don't have to prove they are public. the person who wants to withhold it has to demonstrate there is an existing exemption. that is why the burden shifts. you see what i'm saying? when you go to court and somebody makes an accusation, that person has to prove the accusation. when the complaint says i went public record or public information, and the california public records act and in the

sunshine ordinance, it requires the person who wants to withhold that information to provide a reason, an exemption. >> could i just say -- >> yes. >> i think the bird and i am describing it is at the next page. i understand what you are saying. -- i think the bird and i am describing it is at the next stage. it has to make that case to us. >> my point in saying that was just -- maybe i did not make myself clear, but i was trying to dress just what you are saying, and that is that our order is generally telling you this is public information, and you need to provide it. so enforcing it, the person would need to tell you why they should not have to turn it over. it would almost be the same

idea. when we send something for enforcement, we want them to turn over the document. we are not necessarily asking you to punish them in some way. say we send the order saying, we find the respond that it improperly withheld a document, and they will not release, they will not disclose it. so we refer it to you. when it came to you, we might say that we were referring this under 15.102, and under 67.30c, and what we want is the document. we want to the planet to receive their information. so you will still be faced with this idea, whether there is an exemption or not. it is a public record. i am just addressing how we combine that when we send them over.

>> the commissioner asked me how i saw 67.30c and 67.35d interacting. i can imagine some areas where we have made it the task force has made an order of determination. that order of determination is for a person to, in most cases, to receive documents that are public. so i think he could read 67.35d in such a way that that person has an order to be enforced and to bring that to the ethics commission. we are doing the referrals for that person. i'm not an attorney, on a college professor. -- i'm a college professor. but reading the plain language

of it, that makes sense to me. >> you mean the task force gives an order to the person, and the person -- >> the order is on the behalf of the person, the complainant. the complaint that has requested this public document. but they want the ethics commission to help that person obtained that information. that is the primary purpose. there are all kinds of ways city employees can violate the ordinance, and timing and not showing up at the meetings, but at the very bottom, the most basic thing is that the public its records and the public has access and public meetings. >> i'm very sensitive to that, and fully understand, but the goal here is to make sure the ordinance is complied with. i think now is a good time to move to the enforcement question.

i think it is one where we have already had a lot of discussion. >> can i ask one question, mr. grossman? mr. grossman, you said from your point of view, that when the task force issued an order, when the complaints come to them, and the task force says the documents and public record should be produced, and it is not produced, that is a separate violation of the sunshine ordinance? >> a violation. >> how was it a violation? the violation is the failure to turn over the document that they have been ordered to produce. >> i'm willing to accept that. either way, it is a violation. either the initial failure that has been determined to be a

failure by the task force, which then is a violation, which the custodian under 67.21e can remedy by turning over the records. if the custodian does not do that, it becomes a violation that can then be moved by action of the task force to another body for enforcement. it need not be the ethics commission. >> but what is being moved to the other body is the underlying violation? >> well, it is probably the failure to comply with the water. -- with the order. but the point i was just alluding to is the reference in 67.35d to a person seeking a

remedy before the ethics commission is for enforcement. because the task force is not always referred these violations to the ethics commission. it can refer them to other bodies, as it has. >> thank you. >> on the question of enforcement, i think two competing concerns, my perspective on this, the first is to expediently resolve the matter so the person -- so be a violation is remedied, the purported violation is remedied. the second concern on the ethics commission is when we enforce the matter, i think we have to have some review of what we were given. if a court were to receive a request to enforce, there would be some review of what we were asked to enforce. it would not just be and it

administrative matter, ok, here is, stamped it, wanted the next one. one thing i had in mind was to have a hearing where the respondent -- i'm sorry, where the complaint, who had an order from the sunshine ordinance task force that was not being complied with would submit directly to the commission, no involvement of staff, and we would have a show cause hearing as expediently as we could, at the next regularly scheduled meeting, where the matter would be adjudicated. i certainly have concerns with staff has a lot to do, not enough time to do it, and i think this could be one way where we could enforce these matters in a timely, expedient manner, but also provide us with

some review of what went on so that we could, in confidence, in the public's confidence, enforce the order. >> a quick question. you mentioned that the complainant. sometimes that is exactly who wants to do with and who should do it. i wonder about putting the burden on somebody, for those complaints whom it is for a burden, to keep appearing are returning or who are not as skilled. have you thought about the possibility where the sunshine ordinance task force could choose someone to stand in the shoes of the complainant, with the complaint's permission, to at the show calls, if that was the more expeditious or more comfortable for the plaintiff. i don't want to make it harder on somebody who has been frustrated.

>> right, that is exactly right, and i apologize, i think i misspoke. in an instance where a referral is made to the commission, respondent would be ordered to show cause as to why the order should not be enforced. if the respondent did not appear at that, i think we would be left with no choice but to go with the record we have and enforcement would be made. i think it would be helpful for the complained to appear at that proceeding. but certainly the burden is on the responded to show cause as to why it should not be enforced. >> i would say that the order of determination, while it is maybe a few pages with an encapsulation of what had happened, it is not the complete record. what you receive as the complete record will be the advisement of legal counsel, will be all of the evidence that has been

presented, either by the complainant and/or the respondent, and then there could be some other documents that might be supporting that. so by the time we are through with our process, as you receive it, you will have a very complete picture of what has happened, and then you will have the opportunity to review the minutes and/or the testimony by audio, if you feel the need. so there is plenty of information that you will have. and it will it should be fairly expedient because it leads all the way up to the point of the respondent having to prove their case why they should or should not have been in violation. i do not think that you should be concerned too much of it

being organized pretty well. you will have documents and time because they would have been sent to you well in advance. we can appear to answer any questions and it would be a great idea that we would be there on hand to answer any questions that you might have said that we would be knowledgeable about it. >> you would have a single person? >> yes, it can be a member of the task force or whatever. sure, we can do that. >> this is the reason why this task force recommended a two- pronged approach to your recommendations. that is what you will see when you leave out the response over proposed regulations. this might 8 be a good point -- this might be a good point to

think about that. that is what it involves these two separate lines. >> thank you, ms. johnson. i tend to agree with you, but the procedures outlined in the staff memo for both of the violations, i think both of those are good and we should use those. we should be following our mandate as well. is there any other comments. >> i agree with what you are

suggesting, but rather than holding off until the next regular commission meeting, how about the idea of on a rotating basis, the chair appoints one of the commissioners to conduct the hearing and give a recommendation. we can't do it after a couple of days. >> my suggestion is that perhaps another way to speed it up is that to have the hearing before a single commissioner.

we are making a recommendation at the next meeting as to what should be done. >> if you want to do that on a voluntary basis, that is fine but i'm not a position to take that on a mandatory rotating basis. >> i think the chair can take care of that. >> thank you very much. >> i would like to hear from staff as well on this. it seems that given that all your doing, this is something

that might work well and better in terms of your timing and the best utilization of staff resources. >> the staff is anxious to move forward and get new regulations in place and an idea proposed sounds workable to me speaking for the staff. we are interested in making it work. hopefully it will. if there are problems or unintended consequences, then we can revisit how we handle it. >> i but it least see some role

for south -- fit for staff. being the body that receives the records, scheduled the hearing, so on. the idea is to not additionally burdened staff with making recommendations or investigated the matter. >> the proposals were in response to a draft submitted by the task force. that draft represented the collective view of this group on what should be in that the

regulations. that is what triggered this a very significant departure. in that draft, a staff member said these two tracks of a willful and a non willful violation. this is a little different than what the task force perceived that should be. i think that the willful aspect of it, it would be helpful if the staff looked at that so that when and if they go forward on that, they will see what was of interest to the task force and if they would comment on it rather than doing it all over

again, it would speed up the process. i have personally look at the proposed regulations dealing with those violations and there are a number of problems with them but i don't think this is the place to hear those. >> i'm sorry, i missed what you are suggesting that we do about that. >> there was a draft that the mission staff prepared following your meeting. that was not responded to by the task force until august of last year. and rather than commenting on the draft, staff come up the draft, staff come up basically took over the