>> good afternoon commissioners, dr. derek kurr. excluding public comment from the body of a minutes is really an act of disrespect. it is a statement that says that the members of the public are inferior, to the people on a particular commission or board or other body. and this is a wide-spread problem. and it will be so easily fixed many of the citizens who speak are extremely knowledgeable about the issues that they bring to your attention. so, it will be easy to just put the comments in the minutes and please everyone. >> i also want to speak in

support of mr. hartz's point that if you do not find that some fault occurred, there is no reason for the library to not switch back to what they were doing before. because if they can get away by switching, and putting something in the body for a while, and just as easy they may decide not to do it, so really there should be some promise or some commitment from the agency to make the change a policy change, a permanent change. and thank you very much. >> who would have thought that ten years after the sunshine ordinance was adopted we would

be arguing over a legal term called attachment. the plain reading, the ordinary reading that any person would get would mean the inclusion in the body of the minutes. and that is what the public probably understood in 1999, when it adopted the sunshine ordinance. the concept is attachment is really a legal concept and it is actually said as attached hereto and incorporated herein and we don't get that i think that it is quasi legal ordinances in. the government guide is an unsupported comment from the city attorney, there is no

opinion, there is no justification for it and it is not worth the sense that it is written on. if it were, supported with some legal basis, of case law, differently. different results. it is the task force's job to determine these issues, not the city attorney's. that is what it is there for. it is the determinations are enforcable. the fact that mr. herrera has repeatedly poked his finger in the eye of the public about these written summaries, is an indication of the willfulness of this conduct. the final point i think that i should make is, prop 59 requires ordinances, laws, findings and so forth, that support public access to be

construed. requiring a change through the good government guide does not accomplish that purpose, it actually restricts the specific terms of an ordinance. the dictionary definition expressing the situation of something that is or appears to be enclosed or surrounded by something else. i don't see the word attachment anywhere in that. >> paula davis and i want to endorse what ray hartz said, i think that it is very important for the written summary to be included in the body of the minutes and i can speak to myself and the minute that it took place in a street art meeting on november 14, 2012

when i was escorted out of the building when i was speaking under public comment and it was less than 3 minutes and 153 words and what appeared in the minutes of that meeting was a statement underlined statement four times. no idea what that was about. but my words were not heard that day. thank you. >> peter wolf director of library users associations. the library abuses of the public through violations of the law is a long-standing one and you actually had a referal from the sunshine task force about a complaint that i made some years ago. it was the first one that was included by or within mr. grossman's legal case, which

was settled presumably out of court. the library's history of attempts to exclude or to blur, essentially silence public comment with which it does not agree is a long-standing one. the best example that i can think of from quite a ways back aside from the ones where it said peter warfield discussed his opinions about such and such was on a heated item in the past which had to do with an rfid issue. in which the participants got not a single word of summary in their own minutes including the aclu and the electronic frontier foundation which was opposed to the implementation of rfid. and the public was given five words or less in some cases of sentence fragments to summarize

what they said. in my case, peter war field, process used to consider rfid. that was the entire entry for what i had spent three minutes discussing march 4, 2004. i think that mr. herrera's history starts right from the very beginning of this tenure as city librarian, when he set up a so-called technology and privacy advisory committee to look into the question of rfid, the advisebility of rfid installation which people thought was intended to justify it. there, there was initially, no inclusion at all of public comment in the committees meetings it was not strictly required by sunshine. eventually, the public got to comment last. if you look on the website there are no minutes of those

meetings as the agendas were published and when the report was finally published, it was arranged that the final report had no mention whatsoever anywhere including in the table of contents that there was a whole section that they had intended to include with public comment and that is no mention there at all. there is a separate document which, of course is very easy not to find. this is a long-standing issue and we hope that you find in ray hartz's favor, thank you. >> questions, by the commissioners for either the complainant mr. hartz or the respondent mr. herrera? >> i have a question for mr.

herrera. >> would you mind returning to the podium? >> thank you. >> thank you, mr. herrera. so, the draft format that you distributed today, is that the policy and practice that has been adopted by the library commission going forward? >> it is yet to be adopted but that is what we are intending to do from this point forward. >> and it will be applied to all speakers? >> yes. >> thank you. >> while you are there, mr. herrera, a question. why were you so resistant to putting the 150 words in the body of the minutes as opposed to putting them on as an attachment. >> we had worked with the city attorney's office and followed the good government guide and so based on that opinion, we had basically continued to assert that we were in compliance by attaching them

and including them as an attachment. >> but you were aware that after the city attorney had issued that opinion, the sunshine task force said that opinion was wrong and wanted them to go into the body of the minutes. why did you continue to resist that? >> again, we basically went on the opinion and followed the city attorney's advice. all of the other commissions were doing the same thing it was not until your commission changed its practice that we followed suit. to do that. >> now, if a member of the public went to the library commission's website, it would get the minutes and it would also pull up the attachments? >> they are included as part of the minutes, that is correct. >> so that from the point of view of the public, the information which you are now proposing to include in the body of the minutes, to the public, it was a matter of just

simply reading what was attached to the official minutes? >> that is correct. >> that is correct. >> thank you. >> mr. herrera, i also have a couple of questions. and so if a member of the public were to go on to the website and download the minutes, would the minutes, or would the 150-word summary be in the same document as the rest of the minutes or a separate document that would be attached to the minutes. >> i would defer to the commission secretary, i am speculating that they are part of the minutes, but i can verify. >> blackman, library commission secretary, yes they were all part of one document. so you stroll through the minutes and we actually put in the minutes where the speaker made his comments please see addendum for the 150 word statement. >> so in the library commission's minutes the

speaker made a comment there would be a shorter summary of that speakers comments and a reference to later in the minutes where the full 150 word summary was provided. >> correct. >> thank you. >> any further questions for miss blackman? >> yes, i have a question of mr. hartz. yes, commissioner. >> have you reviewed the draft that mr. herrera says is going to be the form that the commission is going to adopt going forward in so far as including public comments? >> i have reviewed it yes. >> and assuming that they adopt it and implement it, does that cure your concern? >> no. >> why. >> because the similar simple

fact is that they did else wise for two years, i would like to point something out on those particular minutes that you are seeing, up until these minutes another member of the public, mr. james chavy submitted 150 word summaries also and his remains as an addendum through december of last year. and their statements that they put it in the addendum and then noted in the thing that has changed, that has been so many variations, if you go back through and look through the notes, sometimes it was a blue numeral i, as he mentioned you had to click on that and once you clicked on that you could see my comment but you could not get back to the rest of the minutes. >> my question is if they adopt this, going forward n spite of all of your complaints about the past, i want it know whether this cures the problem

that you believe existed? >> no. >> and the reason is that if you look at the two cases i'm talking about, mr. chafy's comments are listed as a summary of his comments provided, mine is listed as a statement read by. which is not accurate. i did read the statement, but that is not all that i said. and up until this set of minutes, they would add additional comments. they would put additional comments before me 150-word summary or after the 150-word summary or sometimes both. so basically they had been all over the place and for them to come up here and answer a question by one of your members and say this is the way that we have always did it and they have been all over the board. all of these are approved documents and if you go back and look at them, they have handled this in every possible way, that is different.

now you are saying is this, you know, i think trying to make it sound like i am being unreasonable. >> no, i'm trying. >> what i am saying is they have not established a clear policy on how they are going to handle these because even in the minutes you have got they are handling them in two different ways. >> how are they handling them in two different ways? show me. >> saying that he read the following statement and if you go back to page number one, you see mr. chafes submission and it is proceeded with the following written summary as provided by the speaker a citizen and the content is

never generated by or subject to approval of the verification of accuracy >> that is a copy, starting with the word stop over to the word check, at the top of of the second page, that is a verbatim of what the written statement was, correct? >> in which page are you talking about? one or three? >> that is page one, it says a written statement was provided by the speaker. >> right. >> and then it goes on and it was what appears to be the written statement starting with the word stop, right? >> yes. >> ending with the word check on page 2. >> yes, that is the entire 150-word or less statement. >> right. >> right? >> that is all that you are asking them to do, isn't it? is to include the statement itself, the written statement that was handed to the

commission during the time of your public comment, that that be included? >> and what i am saying is that is not the limit, the limit is that all members of the public who submit a statement should have it included in the body and it should be treated in the same way not arbitrarily we are going to put in one person and proceeding comment and put in another comment and add something to it and another person's comment in. you know it is supposed to be, a policy, and there is nothing here that says, they are going to even establish or even take this policy let alone make it one that is fair. >> i guess that i just don't understand what i thought your complaint is that a member of the public hands in a written statement of not more than 150 words and you want that

150-word statement verbatim to be included in the bod y of the minutes. >> yekt >> if they do that, haven't they complied with the requirement that the written statement be included in the body of the minutes? >> but they have not done that. >> if they do. >> it is a hypothetical question. >> i know that your complaint is that they did not do it for everybody. what mr. renne is saying, that if they included everyone's 150-word summary in the body of the minutes, would that in your mind, remedy the issue? >> going forward, yes. but it does not answer the fact that they spent the last two years avaiding it, avaiding it, and i don't think that the law is intended to be something where they go along for two years, and only when mr. herrera has the chance of being found in willful violation,

does he actually even show up at the hearings. he sends miss blackman to the hearings to represent him and that is the lowest and the biggest exhibit of lack of integrity, sending a subordinate to answer for your behavior. >> commissioner studley? >> i don't have any questions. i am prepared to speak to the issue when you are ready. >> okay. >> mr. hartz i have a question for you, assuming that a speaker says something during public comment, submits a summary that is radically different from the statement that they gave but submitted it as part of the summary. would it in your mind be satisfacotry to submit it? >> a summary is not the same

words that were spoken, it is your interpretation of the words you spoke. and radically different is a very subjective term it is not an objective term. so, yes, if it was radically different, they could raise that argument. not once in 3 years, they have attempted to either say my statements or anyone elses were more than 150 words or that they varied from what we actually said. so yes, it may be a hypothetical question but it is a hypothetical question that has never come up and i am not sure why it is coming up now. >> it is coming up in my mind because in some ways, summary in the or at the time that the statement is made within the chronology of the minutes provided by a reference of 150-word statement provided actually can arguably provide the speaker more explanation for what was said because minutes in the body will

reflect the quarters interpretation of the summary and then the addendum would provide the actual 150-word statement, it is not clear to me that in all cases the 150 word statement included in the place at which the statement was made provides the greatest form of or the most speech for the speaker. in any event,... >> but my question is why do they get to approve my summary and they don't get to approve anything else in the minutes? it is a member of the public gets up and says that the moon is made of green cheese. why can't they then proceed that with a statement saying that we are not verifying the accuracy of this statement. it is obviously inaccurate. because the minutes are a record of what actually happened not... >> i don't think that they are saying that... i think that the point is that the 150-word

summary is submitted as a summary and not verifying if that is a summary or said at the meeting. >> the real question is why are they doing it and mr. lee the vice president of the library commission when he appeared at the sunshine ordinance task force listed a number of reasons, we don't like what they say, we don't like what they say, how long they speak, how often they speak and he basically said, we don't like it, which is the reason that the brown act and the sunshine ordinance say they can't abridge these. >> okay. >> i don't have any further questions for you mr. hartz. >> unless someone else does? >> thank you mr. hartz. >> commissioners, the issue on this agenda item. commissioner studley? >> simply and others can build on this. when the referal from the

sunshine ordinance task force i do not see a violation of 67.16. on the specific question on whether the 150-word summaries provided by speakers were properly or improperly included in record of the meetings. the word in the minutes, seems to me to be satisfied by the fact that the documents were pagenated in the examples of of issue here through one through 9 or one through 16 including the addendum, that seems to me the clearest lay version of what is a document? it is a thing that is in a set of continuous pages. they are referred to in the text that were generated by the recording secretary of the meeting. the sunshine ordinance task force cannot add or imply the word in the body of the minutes.

that is one way to read it. but that is not in the under-lying law and requirement. we have heard some comment tonight about whether everyone's summary was included whether people were treated the same, whether their summaries were included in the same sort of way. and that might be an issue, i see them going back that it was listed as one of the uncontested/contested facts in the memorandum of august 17th. but, i see no reference to that issue in the sunshine ordinance task force findings. so there is nothing before me that i can find that raises that issue. although it has been raised here tonight, and it will trouble me if different members of the public were treated differently or if the statements were treated differently but that seems to have been mentioned but never addressed by the sunshine task force and therefore, there is nothing that i see before me that i can do anything about.

when the ethics commission itself, changed our practice, to put the 150-word statements in the body of the document, we did not do it because we thought that we were in any kind of violation up until then. we did it because we thought that it was responsive, because we thought it would reduce frustration and the members of the public would find it evidence of good faith. but not because we thought that it was required. so i think that it is a good thing to see that the library commission is now prepared to raise for its future practice doing the same thing. but i don't see it as required or nor do i see it as abrogating the filing, if there were a filing before now that would not solve that, i don't think that there was such a

violation, i think that mr. hartz was right about that. on two other points that were raised and then i will wrap up. the statement that the 150-word statements or summaries as the ordinance provides, are not generated or validated by the city commission, that whose minutes they are part of, does seem to me to be a useful notification to the public. to understand the difference between minutes that were generated by the official recording secretary, or responsible employee, and approved as you know the report of the meeting or the business decisions that were made. as distinguished from statements prepared by the public. as long as that is done consistently with regard to every statement that comes before them, i don't think that that is an effort to be demissive. i think that it is truly saying that these are something

different from the minutes that we wrote. their statements were written by someone else. all of that said, i think that these comments were very revealing about the statement of frustration that has led us to this point and i shout on that his comments were interesting talking about the decade-long spiral i'm tempted to say. i apologize. mr. chavey? i have confused your name... far too long. i won't say another good looking speaker because that will get me in trouble. mr. chafey's comments, i think did present a picture amplified by some of the rest of you, about the frustration that has

brought us to this point, but our job is to look at the complaint before us and the finding by the sunshine task force and... >> this the under the second. this is our original jurisdiction. >> so then they are revealing to us, and i understand that there is not a presumption that they are correct in this, but the complaint that we have is about the placement of these materials. it is not about the ten-year history of frustration, and on that basis, i do not see a violation of 67.16. >> commissioner liu or renne? >> i would join in commissioner's studley conclusion that i don't find a willful violation. i am troubled by the fact that

the city attorney had issued its guidance saying that it was sufficient to attach them as an addendum. but, i think that clearly, if they were then an addendum and as a testimony was, that a member of the public pulling up the minutes would also pull up the addendum, the whole purpose of sunshine ordinance and the brown act, is to make government activity as transparent as possible. now, i agree with mr. hartz that the difficulty with having just a 1 or 2 line summary in the minutes, which may be an inaccute