six and zero 911 zero eight one six. we have recommendations. speaker: before we proceed with items five, i would ask the commissions permission to be excused from any of the proceedings actually with item five, six and seven as has been pointed out correctly my wife both as city attorney and in her private capacity has been closely associated with lieu gun awe hospital and is also chair of the lagoon awe /hopbd awe foundation. i for the record will tell you i have no

idea what any of those complaints are about , i have not spoken with any of the staff and have not looked at any of the papers associated with items five and six but i would think it more appropriate receipt if i'm excused. i am more than willing to go in the back while you are considering those items or with the permission of the commission that i be excused from the balance of the meeting as the items eight through twelve do not appear to be of census but i'm happy to stay if you want me to stay but i would like to be excused from the consideration of those three

items. speaker: i certainly have no exception to you being excused from the remainder of the items. anyality net view from any of the commissioners? thank you. we need to make a motion and vote. we need to make a motion as to whether -- is there a motion to except commissioners accuse al? we have to take public comment. speaker: i just want to understand further that the commissioner may have bias in the matter. i would urge a no vote on the motion and have commissioner continue to participate if he believes he might be biased in the matter then that would result in a different conclusion. in general, i would rather have people participate if it makes

sense that he can. i appreciate his cautions and that's my comment. thanks. speaker: thank you commissioner remy for being the gentlemen they are. speaker: all in favor everyone: i speaker: proposed? hearing none. we have recently received a memo that is from mr. shaw and we just got it over the weekend. and i confess i have not had an opportunity to efficiently review it. mr. shaw

i don't know if i can ask you some questions about it? speaker: commissioner may i draw your attention to the data on the letter? it should not have taken for over the weekend for you to look at it but be that as it may there are questions? speaker: is this addressed only to both the complaint against mr. saint /tproeu -- speaker: both memos are identical except towards the end. speaker: but your view is they are directed both to

saint /tproeu and [indiscernible] speaker: absolutely and both dated september nineteenth, um, pretty much in a nutshell indicate that because charter section c3 dot six nine nine dash one three applies only to the ethics laws and not to the public access laws as was held in the allen gross man verses san francisco ethics commission memorandum of points and authorities petition for preemptory mandate october fifth 2009 which was settled in mr. gross man's favor, c3 dot six nine nine dash thirteen was

relied on by both the controllers office and by the ethics commissioner mr. saint c r o y as being their main claim that they had an exception but it is not upheld by [indiscernible] and the majority of their case plied on this and because of that i am going to repeat what i said in public comment of this meeting tonight that i don't believe this matter should be before you whatsoever for a number of reasons which i'll get to. speaker: mr. shaw the other thing i've realized is that the

city attorney hasn't had an opportunity to review it either and it's not his fault and me not reviewing it is my fault. speaker: it's not entirely your fault because of the timeline speaker: mr. shaw let me finish. i don't think it fair to you or fair to the process for me to try to read it on the fly and figure it out. i propose that we put it over and i apology to my fellow commissioners for that request and especially with only three of us here i propose we pull it over. speaker: supervisor weener has claimed that the sunshine task force didn't happen their agenda properly

and that charge could legally be against the commission as well and if you are going to request to postpone which i would probably entertain, i would like you to consider -- speaker: we don't need to consult you. we're going to put it over. speaker: i know but i don't think you should hear this case at all. my case should have been assigned to a different jurisdiction for /-td entire process. it's not that another jurisdiction gets to write a recommendation which then comes back to you and while you still have a conflict of interest -- speaker: commissioner i'm going to stop you there. i understand your viewpoint. we may put this over at which point you'll have your opportunity to speak on it speaker: on whether it will be transferred to a different jurisdiction? speaker: yes

speaker: absolutely speaker: commissioners? are you okay to hold it over? in addition, i understand that there is precedent for the commission handling a matter that has been investigated by a different entity, a different body. i don't know before we take it up the next time if you can tell me whether or not there is such precedent? that would be helpful. speaker: off the top of my head i do recall one precedent. i think a couple years ago there was a filing complaint against the /eblg i cans commission of staff and at that time we asked and generously received a sis tense

which provided a recommendation which came back before this commission. that's the only one that comes to the top of my head. i don't remember. i think there may have been others but that's the one that comes to my mind. speaker: okay so in light of all this let's put that over. i apologize especially to you mr. shaw for bringing this up now. the next item on the agenda -- do we take public comment for holding it over? okay public comment: doctor occur i was one of the whistle blowers that

reported miss appropriations from the patient gift fund. mr. shaw is accurate here that deputy city attorney jerry made an error in his memo, instruction al memo and it's easy to make that error because we had two whistle blower complaints, one a conflict of city interest and one miss appropriation of patient funds from the gift fund and mr. freight mixed those up and this request for documents related to a complaint of the gift fund, miss appropriations does not have anything to do with conflict of interest. speaker: war field, i am very

disappointed that at nine forty at night we learn that something that was known at the beginning of the meeting is cause for skipping an item on the agenda. perhaps the chair thought that he would be reading mr. shaws letter and analyzing it some time during the meeting. from what i know, i doubt it. my sense of him is that he's attempting to be thorough and fair so i'm very disappointed that this couldn't have been announced at the very beginning of the meeting. thank you. speaker: can i get public comment on my own item, two minutes of your time? speaker:

i would like to apologize to you on behalf of mr. weener. you were dragged down here and thrown into over time when it could have been avoided. now potentially the city controller may have misled you on flex time since she is not being paid time and a half for whatever her hourly salary is whether that's fifty dollars an hour or eighty dollars an hour. soup vicar weener was quite per /terbed that cities employees time was waited in front of the sunshine task force when respondents wouldn't show up. where is san jose city attorney? how does that work? speaker: she was going to appear by phone. maybe that's

who was trying to call. speaker: yeah so because your proposed regulations say that you are going to transfer these cases to another jurisdiction as they come up i would like to remind the deputy city attorney, his name escapes me at the moment, that while you may have one precedent in front of you this doesn't mean that it was handled in an ethical manner. you may want to this time refer the whole case to the oakland or berkley or san jose ethics commission and let them hear the complaint. you shouldn't be involved in it. you are too close to your own executive director to hear and

adjudicate this matter without a perception of a conflict of interest. when you deliberate this when you put it on your next agenda i'm going to be back here asking you to put it on another jurisdiction so i can handleage ethical point of view on both of these cases. speaker: i believe i heard a suggestion that the city attorney provide the precedent for your hearing a case involving discipline of your own executive director. if the city attorney provides you with that information i would hope it's made available to the public as well. i think it's important. thank you. speaker:

johnson i quickly wanted to say that um, please take into consideration that it's not just a member of the staff. this is more of the executive director who is managing all of the staff and i think that that leads to a bit of a conflict of interest for you to decide to dismiss it or not and to send it over to a different ethics commission. the city attorneys office i'll say is technically supposed to have ethical walls, fire walls, but there was some question as to whether our own deputy city attorney for the task force could help us with some of these ethics commission matters. that leads me to believe that there could be a conflict. i encourage you to send it to a different

jurisdiction based on the fact that it is a department head managerial employee. thank you. speaker: david, i do recall the case and i don't actually recall the case but i do recall the executive director, the oakland commission did perform this kind of recommendation on a prior manner when the staff was conflicted and i think that's the case that was referred to. with regard to these two items i believe they are properly before you. i do believe that you followed and the staff followed the procedures for what happens whether it's a conflict and until we have rights to handle sunshine refederals these appear to have been handled consistent with the regulars

for handling investigation matters so it appears to be procedurally you seem to be in a good place and we'll deal with that in future meeting. thank you. speaker: one other thing i'd like to clarify for the public who think that i decided at the beginning that we were going to move this and didn't notify you until now, that is not the case. i did not have an opportunity to look at it until the break realizing how sub stan tiff it was i think i need to study it more and i apologize again for the delay but to me that's a better course than to do it on the fly so again my apologizes. the next item on the agenda is closed session. do we need a

vote to hold it over? we're holding it over, right? we're good. okay. the next item on the agenda is a closed session how pursuent to section c dash section [indiscernible] can you anticipate how long this will take so we can judge if we should stay for those of us interested in the following items. speaker: i was going to say three hours but i don't think it should take long. is

there a motion for me to close session? all in favor, i. everyone: i. speaker: okay.