generally noted. the general conversations, they become a part of your interview process and your record process. when you are doing the work. and especially on the whistle blower side, and in the investigation, side of the house. and even with the audit, yes, we set up the meetings and again, the meetings are recorded in a very formal matter, when we are interviewing and documenting procedures and processes. >> and they become a part of the record of your work. >> have you reviewed this particular file for... >> yes. >> potentially non-privileged information that could... >> (inaudible) files of our whistle blower program. >> but this particular file? >> yes, i am very aware of the file? >> we have spent a lot of time regarding our files. okay. i understand you spent a lot of

time regarding files in general. >> but for this particular case you... >> we have spent a lot of time on the files. i mean, in light that have representation, it is unclear to me what benefits is going to be derived from having her redo what has already been apparently closely done and there is no mechanism that we can provide to ensure any greater accuracy. not like there is an encamera review procedure or anything. i am not sure what benefit is derived for her to going back and revaoe view the documents. >> are you saying that all of the notes, all of the documents in the file for this particular matter, is subnative in nature in that it reveals the notes and not... >> so what i will say to you in general, everything in that file is confidential. >> but i guess my question is,

is everything in the file reflective of certain, notes that you... you know, like you were just describing to chair her, that there are notes of meeting or notes of meetings of witnesses and so on and so forth? is that what you are saying? >> so, again, with all due respect, everything in the file is confidential >> that is not the response to the question. >> she is asking you a specific question about... and you can answer no, if that is the case. but i think that she is entitled to a direct answer to the question. >> thank you, chair. >> yeah, and the reason that i am asking it is because they have found miss herrick's memo, are the drafts and reports and i am trying to figure out is that what your representation is that everything in the file is a form of notes? and i thought that is what you are saying to chair hur and so i am not clear now. >> everything in the file is

record of our investigation. >> but the records of your interviews with witnesses is that what you mean and your analysis and your thoughts about... >> no everything in the file is ... everything records the investigation that we have conducted. and within our files. and i know that it is very... i apologize, and it is not totally due, but the point in case is that everything there represents the investigation that has occurred. through our process. and we have carefully conducted that investigation and documented it. >> and when you say investigation, what do you mean by that? you mean your interviews with the witnesses? or in your analysis or what exactly do you mean by your

investigation? >> the point in case is... i don't know if you can speak up... because again, from our as it relates... so i will put it like this. just as our charter f speaks to you, everything in there, either relates to any interviews, any notes that we take, are documented properly within our files. >> is there anything else that is not that? >> no, there is not. >> and i think that is really all that i was asking. >> i have a different question, and it is for mr. gibner if you could wait just a moment we may have others for you. >> i am not sure who to ask and let me start with you and you may have another approach. the request that is at issue here was for any and all... was

to two entities. and for any and all written communications between the ethics commission and the city controller's office regarding the complaint and the ethics commission file. and the closing memo authored by the ethics commission and we have been asking about the records kept by the controller's office and the answers that we are getting once they are in that file, they have a very heightened confidentiality standard. have we... so i am enclined to ask the same questions about the documents that are in the possession of the ethics commission. and for obvious reasons, i don't want to put the staff on the spot. but since miss herrick did not, so i guess... first question is

could miss herrick see the ethics commission files? i understand that miss ludichu, am i saying that correct, did not... understands that the whistle blower's files at the controller's office would not be available. miss herrick, could you or did you review the ethics files and maybe you know the answer to that as well. >> i don't know the answer to that. it sounds like the answer to that is no but i will let miss herrick speak to it but i could answer your question more generally commissioner studley. i do not advise the whiesle blower program on sunshine issues there are other lawyers that do that. nor am i familiar with the process for reviewing files in response to the sunshine requests. or advice to the ethics commission when they receive a

request for materials related to a complaint that involves, conflicts lobbying campaign finance and gofmal ethics is to review the entire file and determine whether any documents in it are must be disclosed under state law. and that is what the ethics commission does. so i think and i hope that answers part of your question. the second part and maybe this responds, is when the ethics commission investigates allegations of sunshine allegations involving other departments, they may, depending on the discorrection of the investigate or to review the documents that were not disclosed in order to determine what to do and how to proceed in their investigation. i think in this case, miss herrick could seek to review the files of the ethics commission to determine whether

those files are documents that must be disclose under state law. i can speak for the whistle blower program. >> miss herrick, did you review the documents in the possession that were maintained by the ethics commission related to this matter? >> i did not. and just in response to your... all of your questions, we did talk a bit about, apen disd3, 699-1 3a of the city charter which does make the city records confidential. and consistent with any advice that we would get from the san francisco attorney's office, about that, i was happy to review whatever was available. i just did not want to compromise the confidential nature of those records being a third party and reviewing that.

so i was happy to do whatever was appropriate. but under the law, i would be worried about compromise and confidentiality of a record that is protected by the city charter section. >> mr. gibner, would that compromise the confidential of the documents? >> i don't think so. you know, when the ethics commission is investigators and... if i am misrepresenting what you do... when the ethics commission reviews the files of other documents for the further of their investigations they may just go to the document and review the file rather than duplicating the file. i don't know whether that is practical in this case. >> would miss herrick acting as our attorney on this, in a way that would that we could

formalize in order to allow her to review the documents without breaching the confidentiality f that is indeed the protection that they are entitled to, i am talking about the ethics documents. >> miss herrick is not acting as your attorney, she is stepping into the shoes of the executive director. right. if you want... i mean i would happy to look into the question that you have asked, i don't think that i can answer it definitively on the files. >> i just have one more question for miss herrick. so miss herrick, one more question for you, what was your understanding of what was meant by a closing memo authored by the ethics commission? >> that is the way to request is framed, so i think that is why we are talking about it. i don't know if such a thing exists in practice, it may or may not. but that is the way that the

request is phrased. and so i think that maybe that question would be better distributed to mr. shaw. >> right, in terms of your analysis that you grouped it in as part of the investigation file because it related to the request was for a closing memo regarding a particular complaint. >> yes, i am sorry. yeah, i am sorry i understand your question, yes. >> okay, thank you. >> sorry about that. so to the extent that the memo is something that was intended to be public, then i think that it would be a public record. otherwise, if it were not intended to be public and it is an accumulation or a summary of information that would otherwise be considered confidential and not disclosable under the city charter, and then it would be protected by the city charter as well. so i don't know whether or not the ethics commission ever prepares a closing memo that is

something that is released to the public or not. >> no, i don't think that there has been any such memo. >> not that i have seen. >> okay. i think that our options are this, we can vote on a motion to make a finding as to the executive director and miss leturshu's conduct and we can make a motion with respect to part of the documents that are issued. or we can hold it over entirely. you know, i must say given how much time that we have devoted to it does strike me as counter inefficient to hold the whole thing over entirely. i don't think that there is any better mechanism to get to the controller's documents. now i may have my own personal

views about the breadth of that privilege and how little we can even be made aware of about the scope of the documents, but if that is the law and that is what the city attorney is going to tell us is the law, then it is hard to suggest otherwise. with respect to the ethics commission files, again, i mean, it appears that we have gone through the procedure of evaluating whether there are such non-privileged communications, the file does... i think clearly under the law appear to be protected. whether or not we want to ask and whether or not miss herrick is willing to review the ethics commission file to determine whether there are some

non-privileged communications, i would be open to a discussion about that. >> as i legal matter i don't think that it is a close call with respect to the investigative file. >> i would agree with that. so the only question is whether in her review, whether she should actually... if we are going to ask her to review the file, to see whether there are any non-privileged documents. i agree that with respect to the analysis, that it is sound and that would be, i think, these, the documents would be privileged and it is another question about whether someone should actually review it to see if there is anything that was non-privileged that should have been turned over. >> yeah, basically

correspondence between the two entities. >> right. >> so you are inviting a motion with respect to the controller's office documents? to wrap that up and the possibility of a further review or a rereview of the ethics documents? >> my suggestion and if we are going to limit it, if we are not going to make a motion on the entire matter, my recommendation would be to find that both the commission and the controller's office that with respect to anything in the investigative file, that they did not commit a violation or that they did not commit official misconduct for failing to follow the ordinance. carving out, only correspondence that the ethics

commission had with the controller's office for miss herrick to review. i mean, the entire investigative file i don't think that she needs to review, given how... given the protections that are clearly afforded to that file. i mean, to the extent that there is correspondence, however, between the entities, there i could imagine, non-privileged communications existing and that is what i would want to be rereviewed to the extent that we were going to ask for that. >> yes, i would agree with that approach. >> commissioner studley, do you have a view? >> i think that sounds reasonable. >> can we ask whether or not it would be okay to ask miss johnson a question? >> sure. >> miss johnson? >> yes. >> could i ask you a question.

>> since you particularly focused on in attention-getting way, your comment that some correspondence does not fall within the investigative process, does this sound like the kind of... >> yes. >> suggestion to rereview that you were making? >> yes. you are talking about what you were discussing. you are having almost the exact same discussion that we had. saying that you have an e-mail that the controller's office said that we received... >> received, or the procedure is for distributing a piece of information. i don't understand... i understand that they are saying that they don't do redactions. but i am a paralegal i do redactoins all day long and some of that is related to why would the date that the controller's office took something in be privileged? why would be that part of the

investigation that this was a date that this was taken in. i don't know what their procedure is. but if there was some kind of a e-mail or something, everything within it, may be privileged. but, the ethics commission sending it over to making and making the decision that is goes to the controller's office or if it is just received, that does not seem like it would be privileged. there would be no knowledge of what it was. and i will remind you again that at the time this game to us, arnold schwarzenegger posted names, and dates on-line. i am not saying that he broke the law, i am pointing out that it was a policy decision and so i think that legally there is some question as to whether internal memos of where they go is part of an investigation. it is procedural, if that makes sense. >> that there are... >> i have an idea. i have a thought here.

what i would propose is we make a finding based on what we know, that neither mr. st. croix or miss lediju, have committed a willful violation of the sunshine ordinance, i think that we will ask if miss herrick will do so and we have asked a lot of her already. to review the ethics commission correspondence with the city controller's office. if she finds any correspondence that is not privileged, i think that we... i, will especially set a hearing either to occur in conjunction with the regular meeting or especially set to determine whether the existence of those documents should require a finding of willful failure by the executive director to not... to turn

those over. and that way, i think, if there is something to talk about in the file, we will talk about it, if there is not, then it seems that we have spent a lot of time and i think truly exhausted the issues and we are finding will then stand. >> i would be fine with that approach, i think that it is a good balance of what we have discussed tonight. it seems like you have other thoughts. >> i think that it ultimately it does what i would like us to do which is relook at the documents. the ethics commission documents. and pausing at the process of saying that there wasn't... i

am making a finding and then looking at the document and then undoing that if we don't that there were. and i realize that... i am wondering if there is another way that we could preserve where we got to tonight without a crisp finding or a subject two kind of finding that would make it it is all over, take the heat that would i expect from people saying that you did it before you were finished, not to script our friends. in case we do have to come back. >> yeah, i was not... i was not suggesting that we would find an advance, that there was a failure to disclose the documents. i just saying that we should find what we can find today and that if there are documents that need to be turned over, then we... >> could you say again, what it is that you think that we could find today? >> i think that we can find that there is no willful violation of the sunshine

ordinance with respect to the investigative file of the ethics commission or of the controller's office. >> okay. >> those documents are protected. >> okay. >> so you are basically saying that number two, with regard to the ethics commission and the files. >> with regard to the ethics commission and the controller's office? >> okay. >> all of it. >> now, whether or not there is correspondence between the ethics commission and the controller's office that are not privileged or should not be in the investigative file or is not in the investigative file perhaps there are such documents and if there are such documents and they are turned... and miss herrick finds them, then i think that we should have another hearing about it. >> and that would be just to reserve as a separate category of documents. >> right. >> that this exist. >> right, i think that what we are all appreciating as a practical matter that it is difficult to determine

confidentiality of documents that you cannot see. >> exactly. >> right. >> unfortunately that is where law puts us in, and it is odd and frankly i think unfair, but,... >> she would let us do that. >> that seems to be where we are left. >> what it sounds like you are suggesting is that you make a finding on part of the records that there was no willful violation of the sunshine ordinance or other public records laws and then continuing the hearing for a determination on the remaining documents, the correspondence between the two departments is that right? >> i guess that is right. yeah.

>> sir, sir, public comment is closed. mr. shaw i will give you a minute, and i am not sure what you have. >> i just want to note, mr. gibner indicated that miss herrick was stepping into the shoes of the executive director, right? >> can you get to your point, please? >> you are going to let the acting in the shoes executive director, determine herself the contents of those files? why can't you carve out the time and you examine them? so that it is not a member of the staff filling in for something the ethics commission apparently doesn't want to do itself? >> you would rather have us review the documents? is that your position? >> absolutely. >> you could use a hearing officer. >> sir, not i am going to hear from you. >> i am not going to hear from

you, please, shut down. >> i want to object to one thing only. >> if i let you speak everybody has to speak. and we are not going to go forward with this. >> on that part of the voters we said that 6724 is part of the law of this county and you cannot just throw it out... >> can i make myself clear? >> no. >> i want an ethics commiting commissioner not a deposit city attorney to review those files i want you to look at those. >> could we turn off that mic? >> i would be prepared to make a motion along the lines of mr. gibner's suggestion if that reflects what you are suggesting >> miss herrick? >> yes. >> yes, i am. >> would you be willing to review the file that the correspondence file to determine whether there are any

non-privileged documents there in? >> yes. >> thank you, very much. >> right and we will need to report to the commission explaining the results of your review. if that would be okay? >> certainly, yes. >> to the extent that you find documents that... well let me also ask this question, can we the ethics commission know the volume of the correspondence file with the controller's office? is that something that is publicly disclosable? >> is that question to me? >> i am sorry that is to mr. gibner. >> okay. i think that what you are

asking is when miss herrick reviews the documents whatever documents they are, can she then describe them to you in a way that is generic enough not to disclose whatever confidential information is in them in order for you to make a determination as to whether they are issued in the public documents? i think that the answer to that is question. that would allow you to make your deliberation. could i also, and can we know in this public session the volume of correspondence between the controllers office and the ethics commiting on this matter? >> are you asking, i don't think that the answer is available for miss herrick now. >> no, sir from miss herrick or mr. st. croix. i think that we are trying to ask her how much we are asking her to review. i want to know the size of the correspondence file.

>> right, again, i can't speak to the controller's office's files, i can speak to the ethics commission's file and i don't see a problem with the ethics if the people here know the ethics commission saying that we are talking... >> just ballpark. >> an inch ten boxes. >> right. >> i am sorry i really have no idea and neither does miss argenito. >> a banker's box? >> i believe that is not... >> okay. i think that we should make a motion along the lines that we have described. is there a motion to find that mr. st. croix and miss lediju,

have not committed a willful failure to comply with the sunshine task force with respect to the investigative files of the commission and the control's office. we are particularly carving out, however, correspondence, that might be in the ethics commission's files relating to the complaint and with the controller's office that are not privileged. and we are directing miss herrick to review those files. nso moved. >> is there a second. >> second. >> all in favor? >> aye. >> aye. >> aye. >> opposed? >> none, the motion passes. >> miss herrick, thank you for your time. thank you for agreeing to look at the documents. we appreciate that. we direct the commission to