tv [untitled] April 17, 2012 8:30am-9:00am PDT
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this was what we're going to handle, will fulfill your of an elected official or a department head. lee felt constrained by the definition given the ordinance, and we thought maybe there is some room if we are open to a military redefining managerial city employers and some other way. while i am sympathetic to handling other types of official misconduct that is not perhaps enumerated in the ordinance, i also would like if we are going to go there, figure out what the parameters and boundaries would be if we are going beyond what the ordinance gives us the authority to do. that is my recollection of how we came to that decision. it wasn't necessarily of policy that the five of us just came up with are that the executive director just came off with, we were looking at the language of
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the ordinance itself. >> in my humble opinion, the ordinance does have some ambiguity, and i think that certainly, it is an evolving process for us and the staff. i know that the staff has worked extremely hard to figure out how to best to implement policies while being consistent and faithful to the language. if the view is changing and evolving, it is only natural in light of the complexity that we are dealing with here. >> as the newest commissioner, and one who does not have the background of the two or three years that the commission has been working on this problem, i decided to spend a lot of time going back to those earlier discussions, looking at the sunshine ordinance, somebody who
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had not spent any time looking at it, and high have concluded the horvath v position and that was expressed by you in your april 4 letter, is the position that i would come to, leading the statutes. for the ordinance. that 6734, it will be official misconduct. high view that it was sort of the signaling and that for elected officials, there can be no question about whether or not it constitutes official misconduct for purposes of the charter provision and that talks about the implications ahead.
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and 6735 is the paragraph that deals with enforcement. and under that, if you wanted to go and get some preventive relief at the front and, you fail to notice them meeting properly. trying to get the documents, you had to go to court to do that. if the procedure had been exhausted, the question is if they have to exhaust them, the complaint and would have a right
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to go to court or to the ethics commission. i see nothing in that the section that limits the ability of a complaint to come to the ethics commission to only consider a willful misconduct. the fact that i say that we have the jurisdiction, i respectfully, with all due respect to the staff that i agree with, does a wonderful job and is over-worked as it is. i can't agree with their conclusion as set out in the november proposed regulations that are before you. i don't think we're that limited in our jurisdiction. whether we choose to exercise
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the jurisdiction in every case is a different question. and so it is the first question if i were asked to vote, i would say that i think that we have jurisdiction to deal with any claim, violations of the sunshine ordinance, her whether willful or whatever her. whether we choose to do is maybe a different question, and if we do choose to do it, for what might be a more minor violation, they might want to have some summary processes so we can deal with it quickly. if that is where i am coming from. if i will address some of the other issues that have been raised when we get to it. >> can i respond briefly? i appreciate your comment about the legal analysis that is in the memorandum, but, you know,
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there is a history here. it didn't start in just in november. it goes back many years. i am sure that with three new members on the ethics commission, there may be a lack of sensitivity simply because you are not exposed to this history that goes back, i believe, to 2004 when the complaint went through the process of the task force. i was dismissed after a lengthy delay. and there were almost 40 records that have been referred to by the task force.
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it was made the subject of a civil grand jury report. i don't know if you are familiar with it. over the course of that time, when those of us that spent a lot of time looking at it, each of these dismissals was based upon a set of regulations that did not apply to sunshine cases. the regulations that were followed by the staff and were limited by what the charter said they applied to. if they are going to hear sunshine cases, let them differently and have some process. the reasons aren't evident.
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sunshine cases are totally open. there is no secrecy collected. sunshine cases are pretty complicated because of the statute. you are using the wrong regulations, this is not official misconduct. ultimately, the case was dismissed by the commission. they are very different in one respect. the staff has the right to review the complaint that it has filed.
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with it, the executive director analyzes the information that has been blamed by the members of the staff, and he writes a report to the commission which contains a recommendation of either probable cause or no probable cause. if two or more commissioners don't ask for a hearing, from the time to receive the report, it automatically is not hurt by the commission. it is a default type of arrangement. the case gives the dismissed under those regulations. >> let me stop you right there. >> you are jumping ahead of where the discussion is. at the moment, we are just
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discussing if we have the power to deal with it. we may get to, and i am sure we will, what might be suggested as a weighted deal with these things in the past. i agree with the jurisdictional issues. >> this is not a jurisdictional issue, sir. >> please don't interrupt, mr. renney. >> if we get to the decision that is made and that the ethics commission should deal with any claim filed by complaint about a violation of the sunshine ordinance, will deal with the question whether or not there should be at different or special set of procedures.
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interesting enough, the june proposed regulation took the position that we didn't have jurisdiction to deal with non willful violations. >> i don't need to do it now. >> to not get too far past the previous point, one of the reasons i've mentionedje thewel gomez -- the jewel gomez case, the staff had red 1634 in one direction so that the second sentence that says he will fall violations by elected officials
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shall be handled by the ethics commission limited them to those only. perhaps it means that those are definitively heard by the ethics commission but doesn't limit what the ethics commission can hear. i did not see that addressed in the staff memo. i would certainly like to hear the views as we go along for a more broad light. they direct you to read it in more of our broad sense. >> i think if i am remembering my understanding correctly, it provides us with enforcement
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power over the willful or non- willful. i don't take we need to necessarily get to 6734 to deal with the situation that you described. >> it is not just elected officials. >> is conceivably those under there. >> 6730c deals with this in a much better way. they are not wanting to come to the task force if they want to go about it in their own way. in the middle, it says the task force with enforcement powers.
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any provisions of this ordinance or the acts. that is where we talk about non- willful issues and where we are directing our vehicle for finding enforcement. we are choosing your commission to be the enforcement body to do that. we can choose any number of other ones, but we don't feel how to do enforcement on these particular items. this is where the thrust of the task force as non-woeful comes from.
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>> i agree with you that the task force can make that determination. they have one of two choices as a read this. you can either go the court or you can come to the ethics committee. and i heard your earlier statement about the only role that the ethics commission would have is that they would have to accept your finding as a matter of law and would just impose a penalty. no court -- if you said to enforce this determination there has been a violation, the judge might give some presumption to the agency, but he or she would
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make an independent judgment whether or not your determination was correct. coming up with some mechanism that would allow the determination to come before the ethics commission has and possibly in some kind of much more streamlined procedures so that it can be dealt with, i would never say that the commission cannot make its independent judgment as to if that determination is correct. >> let me stop you there. i think it would be productive for us to discuss what enforcement looks like. i think whether it should handle non-willful violation and
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willful violation, i view it as the most important issue. whether we should have a discussion about our jurisdiction in that regard. >> this is just a matter of information, but i would like examples of non-willful violations. that is not clear to me. i think that is one issue. the willful and non-willful. who are the individuals that we have jurisdiction over? that is obviously very important, but to me, i have a lot of trouble with the non-
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willful because we ensure a lot of violations occur that are non-woeful. -- non-willful. i'm sure non-willful violations at lower levels of managers is where it occurs to a much larger extent. the their managers or employees of departments that are not really familiar with what these violations are. >> i can give you a quick and recent example of one that we just found. it involves an elected official that redacted some information of bauhaus -- about some records and cited the california
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constitution has the right to privacy as the reason for redacting that information. that is not an exemption under the california public records act. we are not redacting them purposefully, unknowingly, they thought that they were following a particular exemption that did not apply. that is an example of something does not necessarily well full glare they know they should not be redacting that kind of information. that is one example. >> in an instance where is remedied and comes before you, do i have that about right?
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>> they are improperly redacted or redacted under an improper exemption. we have our compliance and this committee monitoring whether it was complied or not. it may end up being referred to ethics. if there was compliance, we resolve that. >> i don't think as a commission we necessarily expect to handle a lot of non-willful violations where the task force is able to enforce the ordinance. >> there are times -- sorry, i saw a picture of myself. [laughter] there are times that the willful violation will come to win the respondent is refusing to
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comply or disagreeing. they won't turn over the records, disagreeing with what ever it might be, they may disagree that certain things and don't apply, that the exemption should apply, and they refused to turn it over, that is something that might have come before the ethics commission. >> what is the volume we are talking about in terms of the past year or two? if there are non-willful violations the you would have referred to the ethics commission? >> i would say that we have made referrals to other agencies like the district attorney and the state attorney general. there are provisions to go that route first. but we have -- there are a number that we would refer to the ethics commission if if -- if they were to be enforced. if >> like more than 10, more
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than 50? >> i don't think so. >> each one as a little bit different. it we had a large volume of cases this year, it was a little bit unusual, but i can't remember off the top of my head. i will look out into the audience for a minute for someone who has been researching these cases. the and know how many were referred to this year? i am asking patrick. >> i know. i have it here. >> i know he was doing that recently. >> between 2005 and november of 2011, there were 35 cases. approximately five a year. >> have a non-willful ones, what am i trying to do? sometimes, the willful ones are
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because of the respondents in won't appear at our hearings. and we need somebody to back us of that they need to appear in and respond. this is not just a local lawyer, this is a state law. the local law requires them to appear. some of the locals were involved and are some of the state laws. you will sometimes get those received, those kinds of peripherals. >> you won't necessarily claim them as being willful, even though people are not showing up, willfully, more or less, but is really important, we don't have the authority or the ability to force them to come. that is why it everywhere, it talks about finding another agency or referring to another agency for enforcement, and so
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here, if they were to come before you, not necessarily for a penalty or anything, but for you to order them as the enforcement agency to appear. that becomes a matter of record. and we think is important that they be put through those strokes and because we take what we do very seriously as you do. holyfield that the public oppose the right to have their due process to have the records they want and have the respondents be present. it causes extreme backlog for us to meet able to move forward when folks don't come and we have to continue. it gets a little tenuous for everyone. >> respondents have sometimes had sent a person to appear that doesn't have real knowledge and can answer no questions.
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that is difficult for us to be able to hear. that is part of the reason why, back to the jurisdiction of part of the reason why we are hoping that you will take very seriously our consideration of its not just being elected, with greater frequency, people don't fall under those categories. if you walk in, you have a huge number of documents. it is not just that they are violating the law, but sometimes they're intent is to delay the documents until they are not useful to the person anymore. this happens a lot with journalists. taking into account those kinds of things, when we only meet every 30 days, and they don't
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have any knowledge, it makes it difficult and is not always the apartment had that does that. -- the department head that does that. >> briefly, can i flesh out mr. grossman's -- the referral from the past five years, part of the concern about whether it is willful vs. non-willful is that warner to of those 35 cases may have been dismissed by the ethics of staff finding that the complaint and at the time that they filed their complaint had knowledge whether it was willful or not willful, but the task force determined that it had been willful and referred it to ethics. he may have been dismissed because the complaint and hadn't alleged at the outset that it was willful.
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>> partly because of some omissions in the ordinance, and partly because of some differences in interpretation between and the task force and -- and there have been some questions as to who is and is not required to appear as a respondent. the difference is dealing with public meetings, it does not say that in the ordinance. the task force has determined this is a question of the spirit rather than the letter of the law. the ethics commission staff says, it doesn't say so in the
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ordinance, so we are not going to find that that section of 67.21 was violated. there are some differences of opinion there, in the interest of brevity, be aware that those inferences exist. >> to want to make sure the ethics commissioners, if anyone else would like to speak on the issue of whether the commission has jurisdiction under the ordinance of non-woeful and willful violations and not involving department heads, we welcome comments. >> i would be interested in learning a little bit more about how you think you would reach
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it, 67.35, both you and the other proponents. because we're struggling with the drafting of 34, and the usual interpretive the standard is that the differences make a difference. and there is a difference. if you can explain a little bit more about how you would use 35 define the jurisdiction? >> if they don't mind taking that question, i think that he -- >> as i read the ordinance as a whole, obviously, it has got to have some enforcement procedure. there are some administrative procedures, 67.21, one of these provisions
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