time, and if so, whether we analyzed this, i came on in 07, probably not in time for that item. and i think that it is fair for people to put us through... to ask us whether we have both an obligation and the capacity, legally to do it and to ask whether there is a conflict. but i'm actually feeling less room now to do something else. the advisory opinion, or some other options, we could listen on the merits and make a judgment at that time whether we want to decide, pause, or refer, or seek referal or seek advisorry opinions. given that we have miss herrick and mr. shaw here, one

possibility would be that we want to proceed and there may be complicated issues that we will want to know on the merits as well. i am not sharp and final, but i am actually what i am hearing is making me feel that we may have to do it, and there is... and less reason that we can't do it in terms of the direct, you no, do we have a conflict? we ask, you know, with regard to the city officials all of the time, who where the situation is sensitive and we are all working for the city, and we have those kinds of concerns. i haven't heard anything that said why we in particular would be unable to deal on the merits related to a member of the staff. >> commissioner liu do you have any thoughts on this? >> well, i think that was a

really helpful discussion, helpful from the city attorney's office to get the guidance we did. because i came in thinking, you know, if there is a way to transfer it to another adjudicatory body that might help with the perception issues, but if there is no mechanism of doing that and to be reminded that it is our ultimate responsibility as the san francisco ethics commission to adjudicate complaints before us, i don't really see, like commissioner studley was saying, any room to do otherwise and then the question of whether we try to seek an advisory opinion from another body is, you know, could be problematic in the sense that is it basically the same as the mechanism that we have laid out here? which is it is investigated by a different body. and you know, we are going to

take that, those... that opinion and decide what we want to do with it. so, and seeing less room to transfer the entire complaint to an entirely different body. >> i share that view. i mean that it is an imperfect system. obviously if you are adjudicating something that related to the executive director of the entity, there will be some perceptions of bias. and i think that is... i think that is clear that there is going to be some perception. the law does provide, though, that even some perception of bias is permissible in a situation like this where you have no legal conflict and we really don't have other options

that would allow us to have somebody else adjudicate it. >> may i complaint on that point? >> you will have that opportunity, mr., shaw. so, i am not sure that we have a choice. it doesn't sound like we have a choice. and i, i don't think that an advisory opinion will be particularly helpful if we have to readjudicate it. >> i agree. >> i am not sure that this is, where they have to make determinations related to the executive directors that they hire and work with and conduct

business together, that they investigate harassment complaints, whistle blower complaints they seek outside of the council to do that if they are well-organized. but they handle those because it is their job to do so. and i... so i raised it because we do want to be careful and thorough. but i think at this point it might make sense to proceed with the hearing from the attorney and mr. shaw and public comment and then decide at that point. there is no obligation for us to act tonight and see if we are prepared to do so if there is any part of this that we can't to explore further. >> i do have a question for you, commissioner studley, i think that is a fine way to

proceed. and i would agree that we should move to the merits. >> mr. gibner, i have a question for you that e-mail that mr. grossman identified. mr. grossman, do you have it? >> he started to show it to me. >> okay. in form and in substance, i think that the e-mail said something like, st croix could we disclose the analysis. do you have it? and you have read it into the record, i just want mr. gibner to have it. >> thank you, mr. grossman. >> the e-mail, obviously

reflects my view on miss herrick's analysis, i do think that it was excellent and certainly i had not received or read mr. shaw's response, but it did experience a opinion as to what i thought would happen with the complaint and it was directed to mr. st. croix. he is clearly the person that i typically deal with when trying to figure out procedural matters and what should be disclosed and what should be in the packet and what shouldn't. so i followed my regular procedure in sharing that with him. does that create a conflict that should lead me to recould yous myself from this matter? >> no it does not create a legal conflict or a disqualifying conflict that would require you to recuse yourself. >> it indicates that you reviewed her analysis and indicates your views of that analysis and my reading of it,

you were asking mr. saint croix whether it should be made public and nothing in the e-mail indicates that you are bias in any way that would prevent you from participating in this decision. >> do any of my fellow commissioners have a... >> please? >> issue a question of my involvement in adjudicating this matter? >> i do not. because i think that as mr. gibner said it reflects, sort of the after the fact, after you have reviewed the analysis, and how you felt about it, that it did not show to be any bias going into reviewing this matter. well, if i remember the words correctly, and i wrote them down at the time, the question about whether we whether to release the memo, which stands for the proposition that it

falls, not that you had made your final determination at that point. >> so, i don't think that you were describing or planning a result simply describing a memo. >> what do you think... >> mr. grossman, please, sit down. >> i did not... i have not made a final decision, obviously given that the matter had not been adjudicated. but clearly i did believe that miss herrick's analysis was right. i will say that on the record. i mean, when i read it, i evaluated, looked up the law and looked at what she said and i thought it was right. now saying that right now, again, that was before i got mr. shaw's response. but, i personally don't feel like there is... that i am...

that that disqualifies me from adjudicating this matter, given what the city attorney has said, and in light of the response from my fellow commissioners, i am prepared to continue on. but. >> i do... >> mr. shaw you will get your chance. i am telling you, you will. >> commissioner studley, if that changes your view as to whether i should be adjudicated then i would listen very carefully for your opinion. >> all that i can say that in any given moment, i know, my own consideration of a matter, whether it is a policy matter or a legal determination, i read a piece, and i have a view of the piece and i read the other piece from the other side and i read the opposition and the reply brief and i read the memo in support and i read my ballot initiative and i think that sounds compelling until i

read the other piece and i say i didn't think about that, yet, now i need to rethink it. so, i think the question is, any commissioner's open mind as to the total set of legal presentation argument and public comment that comes before us and that our obligation is to take that all in to account not that one piece of the evidence led us to think one way about an issue or, you know, i think that e-mail is again, it is something that i am glad that you opened, and i appreciate and i respect your doing that, because i think that it is useful to have said what it stands for. but i think that the legal advice is right. as long as for any of us, we feel that we have an open mind on the merits of an issue that is before us. people can judge from the conversation and the analysis and the decision that we make.

>> mr. shaw? we... i will give you a chance to talk now on the... whether we should handle the matter issue, which is the preliminary matter and also the merits. if you would like to so address. >> thank you, because the my advice of how you perceive from mr. chat field is that i would only have public comment not any kind of presentation. >> and to that extend, the fact that you are rushing this thing through before adopting the final guidelines for referals of this sunshine cases should be waiting until you hammer out that process. instead of catching me the tail end of a old process that you don't like and you have not finished the other process. but i find it interesting that

gibner said that he was not consulted before this was shipped off to miss herrick in san jose. apparently the commission members themselves did not know that. it sounds to me, particularly from the phone call that i had with miss herrick that she had a phone conversation with mr. saint croix, i find all of this beyond the pail. mr. gibner says, at there has not been a past practice of shipping things off. the case against maibl went to oakland and oakland developed a final recommendation after conducting an analysis and send it back and you did rubber

stamp that. you have a past precedent of shipping case to another jurisdiction despite mr. gibner's off-the-cuff opinion which he did not site you any opinion number or the memo from the actual city attorney. so i think from my point of view, it sounds like mr. gibner is winging it and that is he offering you his personal opinion not a legal opinion. and certainly not a legal opinion as issued by the city attorney. so i remain concerned on the decision of whether you should be hearing this case and i'm not really quite ready to jump into the merits without, you

know, some kind of reconsideration. it stinks to high heaven whether you can see the perception or not, that there is a perception of a conflict of interest in this case. you should not be hearing it. and i should not have found out from miss herrick that i had a conversation with mr. st. croix. nor i did know that miss herrick was being dragged into this, simply to give you a recommendation. i thought that i would be headed towards the san jose ethics commission. but it appears they don't have one. and i am very disturbed that it went to an ethics commission it should have been referred to a

jurisdiction that has a ethics commission, it should have went to oakland. i can't sit here and say that every election's commissioner has been trained, even remotely, in ethics. i am not sure that you are required to be trained in ethics before you are appointed for that matter. you may all have law degrees or some of you may not. but i don't know that having election staff review an ethics case, is really where you want to take this. as for, merit, in my september 19th, memo, you know, the one that you read after you, concluded that she was correct?

and i note in my memo that miss herrick in the ethics commission itself, keeps stumbling over section c3.699-13. you lost that case, mr. grossman brought against you, because it was clear that 699-13 only applies to ethics laws, not the public records access laws. my complaint involves that the sunshine task force and and the public records access issues,

not ethics laws so starting with mr. croix who submitted documents early on in the process and the fourth page set of citations that the city controller issued all focused quite heavily on 699-13. with you all forgetting that citation doesn't apply to public access records law. and all along the defense in stalling production of the records that i have asked for, has hindged on the wrong application of ethics laws to a public records case. it has been noted that a narrow construction of 699-13 compels, the conclusion that it applies only to ethics laws.

>> mr. shaw, can i ask you a question about that? >> i may defer my answer to mr. grossman who is the expert on this, if you don't mind, because unlike you, sir, i am not a lawyer. >> okay. my question is, i am not sure that i quite understand, it seems like apple and oranges. i mean, my understanding... let me ask my question and you can answer the best that you can. my understanding is that 699.13 refers to a number of areas that the ethics commission has the authority to investigate such as campaign finance, lobbying, conflicts of interest and governmental ethics. doesn't this investigation relate to the commission's authority to investigate governmental ethics violations?

>> my complaint, alleged that the records that i sought between ethics and the city controller on the laguna patient gift fund were being withheld. >> doesn't the laguna honda matter. why isn't that a investigation relating to governmental ethics? >> because it was an investigation about... i would frame it more that it was elder financial abuse and not ethics. it was a misappropriation of funds. it was not per se, about ethics. funds were misappropriated from a restricted use fund and was spent by staff and when the

city controller finally was pushed into conducting an audit, $350,000 of that misappropriated funds was restored to patient use. it was more about financial issues, not about ethical issues. >> let me ask mr. shaw a question? >> sure. >> isn't part of your point that it doesn't matter why you wanted them? that it is simply a public records request and you don't have to tie it to elder financial abuse or... >> that is right. >> you could not look and see what letterhead they used. >> miss studley you are right. when you file a sunshine complaint you don't have to specify, is it public access? is it ethics clause, you don't have to say. >> curiosity, or did you think that something was going wrong, right? you don't have to tie it.

>> the sunshine ordinance quite clearly states that the record request do not have to specify why they are asking for records, you are right. >> and i understand that, as well. i guess, i thought that your argument is that c3.699-13 does not apply because this is not a conflict of interest situation. >> it is not a conflict. i have not alleged a conflict of interest issue or an ethics issue in my initial 30-page sunshine complaint. believe me that 30 pages was because i developed a table and went through the four pages of citations that i was first given by the city controller's office and then, as i started objecting to those particular citations they started out... they started rolling out new citation and changing the old citations. but i did not start out on an

ethics complaint on this. it was strictly about access to public records and if the city controllers audit is finished and assuming that the ethics commissions investigation of the patient gift fund is complete, those investigations are complete, and the records have to be released because the investigation is over. >> any other questions for mr. shaw? >> were there any other subnative points that you want to make, mr. shaw? >> again, 699-13, indicating that investigative records have

to be kept confidential applies only to ethics laws, not public records access laws. >> miss herrick for her part, all be ignores campaign and government code 4.105 d. states that the ethics commiting shall investigate complaints under the section that alleged violations of local campaign finance lobbies and financial interest and government ethics laws, which commissioner hur pointed out. however, section 4.105 a, states. any person can file a complaint

with the ethics commission alleging that a city officer or employee has engaged in improper activity by, again, violating campaign finance lobbying, conflicts of interest, or government ethics laws, regulations. the difference between them is that the complaints can be filed under 4.105 a. alleging many different violations of improper activities but under 4.105 d, not all of them are investigated pursuant to procedures in c3699-13. so the whole thing in my opinion is moot. . i believe that miss herrick,

may have also have wrongly claimed that the california evidence code 1040, and its definition of official information, may have been misquoted and she may have incorrectly relied on deputy city attorney improper letter to the sunshine ordinance task force in which he wrongly combined two or three of dr. derek kurr's complaints under one ball of wax wrongly. he made a mistake when he did that. in section 1040 is not whether

disclosure is permitted, it is whether disclosure is forbidden. jerry made that lettering error. how a deputy city attorney can confound forbidden can permitted and then, deputy city attorney herrick fell into the same mix is really disturbing. >> let me ask you about that mr. hau. because c3-699-13, appears to use the term to the extent permitted by state law. >> i draw your attention,

commissioner hur to section 1040 b. i'm assuming that state law takes precedence over 699-13. i would assume, sir, that you would know that 1040 should take precedence over the city charters or this particular government conduct code which is not even at the city charter level, if i am right. >> 1040 b, clearly states, a public entity is a privilege to refuse to disclose official information... unless disclosure is forbidden.

there is nothing >> in the act of the u.s. congress or any other statue that forbids the disclosure of the information that i am seeking. >> except that there is another paragraph, mr. shaw. i mean the basis for miss herrick's analysis is 1040 b2. she is not claiming that there is an act of congress that forbids this. she is claiming that the necessity for perceiving confidentiality out weighs disclosure. >> commissioner hur, let me respond to that question and that is, sunshine ordinance, if you have ever read it specifically bars every agency in san francisco from exerting the official information privilege under that balancing test. >> didn't you just tell