provided for in the ordinance. that you should strike "or supervisor of record," from the definition of referral and the referral would only mean a document from the task force to the commission finding a violation of the ordinance. >> mr. pillha your point being that the supervisor of records cannot make a referral? >> under the ordinance, correct, the supervisor of the errors does not have the power to make a referral in the same manner as the task force. >> in the same manner of the task force? >> the task force has the specific power to do so. the supervisor of record does not. the supervisor of records is only a place where a petitioner may seek review of an agency determination not to release a record. there is a two-track process. you can go to the task force, to the supervisor of record or both, but only the task force

has the power to refer under 67.30. >> mr. sheffield? >> mr. pillpais correct there is no specific provision. however, i believe through the conversations that we have had, one concern was say the supervisor of records makes a determination that they believe there was a willful violation. it would not necessarily prohibit them from bringing it forward to hear. it was a cover all basis kind of thing so we didn't preclude something that may have come from a different body. it certainly could be stricken, but in event it may happen that way, although it hasn't ever, the commission didn't want to foreclose on that option. >> would the question then be

whether the definition referral presumes a particular handling and whether something sent to us, let's not use the technical term "referred" but sent to us from the superintendent, but handled in the same was from the task force? are they the same basket of definition? >> right now they are? >> the supervisor the records makes the same types of determinations that the task force would. if they were to find that there was was a non-willful violation that a record was public and should have been produced, but it wasn't, they are supposed to send that to the attorney general or the district attorney, just as the task force is supposed to. the task force gets an extra step under 67.35b, but believe that the commission looked at that pro[stro-eugs/] apply broadly to anyone. so the

supervisor of records might also say here, we also find this, you know? they are not mandated to, but they certainly might. and the last conversation that the commission had, i believe it was sort of leaving the door open for that. if we did get a referral from the body, we would not just say we could not do anything. >> if i could just clarify. my reading and understanding of the ordinance is perhaps a little different that the supervisor of records only makes a determination whether a record is public or not, not whether the conduct of any individual was in violation or to the extent it was in violation, whether it was willful, only whether the record is public and if so, to order that the record be disclosed. the last conversation i had with the individual who currently serves as supervisor of records indicated that that person has never and never intends to make a referral to

the commission believing that it's not within that person's power to do so. just to make the determination of whether a record is public. and just really following very closely to what the powers and duties are of the supervisor of records, which is really extremely limited under the ordinance. i don't want to belabor the point anymore. if you want to leave it, leave it. i would like to see it stricken. >> thank you. >> any further questions or comments on the definitions? was there anything else you wanted to weigh in on? to me i'm fine with leaving supervisor of records there. i think -- i understand how people could read the

provisions differently, but i support this particular definition. is there a motion to adopt chapter 1 of the proposed regulation as reflected? >> so moved. >> second. >> all in favor? >> aye. >> opposed? hearing none, motion passes. chapter 2 is referrals to the ethics commission. are there any questions or comments from the commissioners regarding chapter 2?

>> the only comment i had and it's not very serious, but under "d" whether 2 and 3 should be reversed? 3 sort of sets out what is to be determined and then 2 is a vote. it just seems to me that the determination come before the vote. i don't feel strongly about it. >> i think that is a good point. >> yes. >> and i also have a question on that same paragraph, paragraph 2 under section d. so it refers to findings of facts and conclusions of law. and so i was just wondering what was exactly contemplated by that? is that something written or just orally? when the vote is taken? it's sort

of a companion question to commissioner renne's point and then i see later in section e, under "orders," it says, "the commission will instruct staff to prepare written order reflecting the commission's findings." so then i was wondering if what was contemplated was the findings of fact and conclusions of law to be incorporated in that order, which we would instruct, based on our vote and finding, verbally. or is there a more extensive process that is contemplated with respect to preparing findings of fact and conclusions of law? >> i think they just contemplated the commission doing it during the hearing. >> okay. >> that was my understanding as well and certainly if it was a complicated issue where we wanted to make written findings

and that the summary order was more involved, i think we could do more. but i think the idea is that we can hopefully make them orally to get to resolution quickly. >> yes, that sounds good. >> and in that regard though, when you go to f, the public announcements. why is it that the public announcement doesn't need to include written finding of fact and conclusions of law? >> i think that was just to give flexibility. i mean one thing we're trying to figure out is what form the announcement will take. i mean if you were just doing a press release, i don't know that we want to be required to, if it were a five-page order to release the whole thing with the public disclosure.

if it made sense to do so, i think we would. but with that said, i don't feel strongly if people want to release the whole order. that is fine with me, but the order will be publicly available. i think the only question is in a press release or on a list, is it it helpful to the public to have all of the detail rather than just the headline? commissioner studley? >> it may be a technical regulator's question, but unless we need to give ourselves the authority by saying that we may include findings of law and conclusions of fact, is that sentence even necessary, sense without it -- i agree that we should commit ourselves or require ourselves to make a public announcements because these are important. but i wonder whether we need that sentence at all to say

that we may, but need not include findings of fact. >> i think it's a good point. >> does it answer a particular question? >> i think it's a good point. we have had had occasions where members of the public have asked for things to be in a certain format and sort of repeatedly demanded that they be in a certain format and when we're ambiguous or when we're silent, then it leads to confusion. >> so the emphasis that i think i hear in your comment is that we need not include the findings of law and fact in this document is the permission not to do it, not the fact that we may do so when we want to? it might be very cumbersome and they will be publicly available in other ways? >> so me that is the benefit of the language.

>> okay. thanks. >> any other questions or comments from the commissioners on chapter 2? i had a question about c2. we don't permit -- it doesn't appear that we permit email exchange there, like we do in the corresponding section for willful violations of department heads. although perhaps i -- covered in chapter didn't we have

something in 3 that it could be sent by email? >> yes the last sentence of d2 on page 10.

>> is there a reason we didn't include that? okay. having gone through the process we went through this summer, i found email service to be incredibly helpful and would encourage it. and so, if we're going to include it in chapter 3, i would include it in chapter 2 as well. public comment on chapter 2? >> for the record knee, first of all in the question of the press releases including entire texts of orders of

determination in electronic releases there is no reason not to provide an electronic link to the orders. presumably they are drafted on computers and microsoft or some other program. so the electronic aspect of it is already there and with the text, there is no reason not to provide that link. a couple other things. in decision points 2-chapter 2, ii, section d for david, subsection 2. that and chapter 3, iii, section b, subsection 2 differ in setting the majority threshold.

majority vote threshold to determine whether a respondent violated the sunshine ordinance. 2, ii d2 states three votes would be required to declare that the respondent did not violate the ordinance. 3, iii b declares three votes are required to declare that the respondent did violate the ordinance. consistency this language is really always the better option. in decision point 2, ii e, and 3 iii c they do not address what would happen if a respondent failed to comply with an order from the commission or if the respondent's employing entity refused to pay a commission-imposed fine and, by the way,, i will add that i do not believe in fining a respondent's employing entity a

good idea. if there is a fine, it should go to the respondent. >> david pillpa, again. to the extent it makes sense i think chapters and 3 should have parallel language where there are differences in burdens and what not, and they should be different, but otherwise i agree and feel strongly that they should have exactly the same language covering how things work. i also was going to point out the 3-commissioner vote, but actually from a different perspective. in the event that a commissioner is absent, and the commission were to deadlock 2-2. it's not clear what happens then. if a matter would be continued? it it would be -- if there is some presumption under chapter 2 that there was a violation or under chapter 3 that there

wasn't or just what would happen? i understand that it requires a majority vote of the body to make a substantive action. i'm not questioning matters that are seeking to do anything different, but just to clarify what would happen in other sorts of events? i have no quarrel with not including the findings in a public announcement. i do agree to the extent that they exist as a written document they should be referred to or linked. and again, the public announcement section 2f is not exactly the same as 3d at the end. so just trying to create some parallelism there. i am also a little unclear and perhaps, we could have some discussion on the item that is

left in the order a to cease and de desist and/or produce the record. i'm still struggling in my head to find where the commission would actually have the power under the charter or the ordinance to so order. i get you that make a finding and post it on the website and send it to whoever you want, send warning letters and all of that. it's just the power to order a respondent to cease and desist a violation or produce the record, i'm not sure i'm finding that explicitly in the ordinance or in the charter. and so i'm just trying to figure out where we grab that power from. we have already eliminated the financial penalty, but i'm just struggling to find that here.

thanks. >> there were some good points raised. with respect to enforcement, i think it gives us some enforcement authority. exactly what kind i agree is ambiguous. i think if it means anything it has to mean the ability to actually enforce. and demand that the records be turned over. with respect to the two different standards voting whether it's three commissioners vote and that there is no violation or vote there is a fining of a violation, that has to do with the burden of proof, because in a show-cause hearing that the respondent bears the burden of finding that there is no

violation, we, the commission, will be voting on whether he has met that burden of showing that there is no violation. and that is what requires the three-vote majority. on the flipside, when we're handling something pursuant to chapter 3, we are voting to determine if there was a violation and therefore we need a majority vote for that. so that is why my understanding that we have those two different standards in terms of whether it's three commissions voting for or three commissioners voting against. were there any comments from the public that caused the commissioners to have additional questions or comments about how things should be addressed? is there a motion to adopt decision point 2 subject to the

following amendments: 1, to change subsection 2d3 and make that subsection 2d2 and flip it with what currently exists as 2d? >> i'm lost. >> commission renne's suggestion and to add email language to subsection 2c2. other amendments that were proposed? is there a motion to

adopt decision point subject to those changes? >> so moved? >> second. >> all in favor? >> aye. >> opposed? hearing none, the motion passes. decision point 3 has do with chapter 3. any comments from the commissioners on decision point 3? >> i think we might want to make the same change that commissioner renne suggested earlier in 3b, reversing 2 and 3. >> agreed. >> b2 would become b3 and b3 would become b2. >> right.

>> any other issues? i had a couple of questions. do we have any provision for the situation where something comes to us originally, we dismiss it, and then the same complaint goes to sunshine and comes through their process? >> we have not addressed that. >> okay. or visa versa, if it comes through sunshine and they don't like that and they come

directly to us. it would be, i think, helpful to have language that would prevent that. because i don't think we want to handle the same complaint twice or have it go through both processes, if we don't have to. i mean, are there pitfalls there that i am missing about that? >> just one comment, chair. i think it would be difficult in the ethics commission regulations to address what the task force would do in terms of what it would hear, even if it is something that has been considered by us already. i think that may not be received necessarily well. >> and we couldn't enforce that anyway. >> right. at least one of those two eventualities we may not be able to address in these regulations. >> but what we could do is say

that we will not take up a referral from the task force that has already adjudicated pursuant to chapter 3. >> right. right as a practical matter if we already decide there had is nothing there, even filed directly with us and went to the task force and got a referral back to us, even though they have a lesser burden of pervasion, i persuasion. >> theoretically it's a little easier for them the second time around, but we'll probably come to the same place. >> maybe it's not worth putting in. i agree it does seem unlikely.

i had a couple other questions. in a5, i think this is a little inconsistent with a2, but maybe i'm reading it wrong. but i understand that in chapter 3, we are handling complaints alleged violations of the ordinance by elected officials or department heads, but also those that come directly to us and don't go through the task force. is that right? >> i think this language was included just to make sure it was clear that any referral from the task force or in the

off chance by the supervisor of record. this is not something that would come directly to the commission. >> but a referral, where the order of determination is a willful violation of a department head or an elected official would still go under chapter 3; right? >> correct. >> and this is just referring to allegations of non-willful. >> okay. >> so katherine is right in one aspect that the potential exists and the other part of this there was a concern that if something that staff was not

a party of interest, if you will and a referral. so the only time that staff would be a party of interest is if we initiated the complaint and therefore, the executive director wouldn't have a role apart from providing you a legal recommendation on what was presented to him. that shows the intent of this. so that if a referral came alleged a willful violation against an official, staff would through the executive director through staff would present his legal findings, but would not be an arguing party, if you will at the hearing. >> i see. okay. i think i understand. i mean, anything that falls under a1 [#2*-/] would not be a referral by definition. right? okay. my last question had to do with the scheduling of the hearing. and i know we talked a lot

about this at the last meeting. having had to work on -- and commissioner studley knows, having to work on the agenda and figure out how to fit things in, i think it would be helpful to add a caveat about when these things get scheduled. if we could add something, like, at the next regular meeting, if practical, it would be helpful. it should be our intention to do these as quickly as possible. in the event that we have an unexpectedly large agenda for a particular meeting, we may not be doing the respondent or the complainant any favors by adding them on at the end of a long night. so i think something like that might provide the