>> if we have the quorum because you will not be here. >> i will not be here. >> if that is amenable we can propose that. >> we cannot propose anything. >> so i will take it there. >> we will keep it there. >> we will do that. and as far as that days, all of the other commissioners here will have formed and commissioner will be here and chairing us. okay. >> okay. >> all right. >> we will discuss in the next couple of weeks. >> all right. >> is there any public comment on items 9 aor b? >> could i have a point of clarification if we were talking about the next meeting? because we postponed that

abatement appeals with that one case today, we will have to meet again as an appeals board on that day, and could i, because it seems that we have a pretty full agenda all right. is it possible for us not to schedule other abatement appeals for that date? >> you mean the other ones in addition to that? >> right. because otherwise, we will be in the majority of the meeting will become the abatement appeals board. that is my concern. >> i am not sure but i will speak to the staff and the other city attorneys for the abatement *. i will follow up on that for you. >> okay item should be ten. it is the discussion and possible action regarding ongoing litigation. item 11 a. is public comment on all matters pertaining to the

closed session. and item, is there any public comment before we go to the vote to go to closed session? >> and seeing none, item b, vote on whether to hold closed session with legal counsel. is there a motion to go to closed session? >> i move. >> second. >> okay. >> >> commissioners in favor? >> aye >> any opposed? >> we are now in closed session. it is 11:54 a.m.. >> item 11 d. reconvene in open session to vote on whether to disclose any or all discussions held in the

closed session. >> is there a motion to reconvene in open session. >> move to reconvene and not disclose. >> i second. >> okay. >> all in favor? >> aye. >> aye. >> any opposed? with that item? item 12 is adjournment. is there a motion to adjourn? >> move to adjourn. >> second. >> all in favor? >> aye. >> thank you, commissioners. >> thank you. >> we are now adownedersinger, it is 12:10 p.m.

>> good evening and welcome to the regular meeting of the san francisco ethics commission and he will begin by taking roll. >> commissioner studley? >> here. >> khi, liu. >> here. >> commissioner hayon is sick and not able to attend. >> as a result, we are going to defer item number five, we think that it is better to have the full commission here for the election of the chair and vice chair. the first item on the agenda is public comment on matters appearing or not appearing on the agenda that are in the jurisdiction of the ethics commission.

>> the next item on the agenda is discuss... i am sorry. >> good afternoon, i'm peter war field director executive director of la bore users and if you could identify the agenda with respect to the public comment. you have under item three and four, a number of items subitems, so i wanted to ask what your ground rules would be for public comment. is there three minutes for each item, for example, 3, a, 3 b, or is it some other rule that you should in mind? >> and we will open that up for views from my fellow

commissioners. my thought was that we would take public comment after each subitem. >> that is my understanding. >> that makes sense. >> okay. >> thank you very much. >> you are welcome. >> the next item on the agenda is discussion and possible action on matters submitted under chapter three of the ethics commission regulations for violations of the sunshine ordinance. three a is regarding ethics complaint month 0 no, 03-120402 and the complainant is ray hartz and the respondent herrea. and we present them with ten

minutes and provide the respondent ten minutes as well and we provide the complainant with a five-minute rebuttal. >> i see the complainant, mr. hartz, is the respondent here? >> yes, here. >> okay. >> mr. hartz, ten minutes. >> >> members of the ethics commission ray hartz, director of san francisco open government, i will be using slides and so we may go back and forth here. throughout this i want to consider something that equinis teaches and that is willful ignorance of what ought to know is a mortal thing. 67-16 reads in this last sentence any person speaking during a public comment period

may supply a brief written summary of their comments which shall no more than 150 words be included in the minutes. i think that is a pretty clear reading of the language and i think that most people so far have agreed with my interpretation. but we will get into that later. now the city attorney has added some things and the good government guide and memo and says that the summary is not part of the body's minutes or for its accuracy and the minutes may expressly say so it may be included to the minutes and may reject the summary if it exceeds the word limit or not an accurate summary of the public's comment. the speak's public comment. memo from your staff sort of viewed this as one particular incident alone and if you look at it that way you might come

to one conclusion, but asking you to look at it in the context. after a year of asking public comment be changed to accurately reflect the public comments by speakers and have that denied by the library commission i took to the sunshine task force and on january 25th, 2011 i received a letter of determination, 10054, from the library commission that they stated that in the minutes means in the body of the minutes. that is what the law says and the reading of it says that and that is what is ruled. >> in the case that we are actually talking about, which is the second case on here, which i then took or i asked for the library commission discussed it and said can we do this and mr. herrera said you

can and the city attorney said that it is okay and they decided to discontinue and disregard the order of the task force. i then brought the case against specifically mr. herrera and under the facts and findings of fact and conclusions of law, the task force stated specifically that the task force further noted that the statement should be in the body of the minutes to prevent the public officials from unlawfully abridging critical public comment. >> at that point, and i made dozens of points before the library commission for which he extended and i asked you to look at the law and read the law and determine what it means to you and look at the who decisions that have been issued by the task force saying that in the minutes means that in the body of the minutes and

stated why they did it. but the only thing that the library commission wanted to ask is can we ignore the finding? because the city attorney says that we may do something, can we continue to ignore what the task force has said on two occasions and official rulings and directed us to do? you might make an argument that they were saying that mr. hartz is asking one thing and the city attorney may do something else and that is one choice, by the second order, there was a clear decision. shall, we simply do what we are doing because the city attorney has said we may do it, as opposed to what we have now two declarations from the body, who is by law, determined to be the ones who decide what this

ordinance means. their choice was to advice the library commission let's keep doing it. the questions they never asked is should we ignore the finding? in other words, we have two findings now, one is against the library commission and one against the city lie braeer an and both of them state in the minutes means in the body of the minutes and they then continued and failed to ask, why do we want to ignore the finding? and i think that is the key question here. why did at the want to ignore these findings in my position having experienced this for the last two years, is that they did not like what we said and they wanted to keep it out of the official record. and when they couldn't do that, they wanted to marginalize it by putting it as an adeda and putting it like a footnote and saying that we are not going to

voge for the accuracy of all of this which i think was prejudicial. >> and so we go back to the time line and when they continued to do this, i took the city attorney to the task force. and the city attorney's office tried to defend their good government guide in memo and the task force clearly on december 14, 2011 more than a year ago said that we have made this very clear, we have interpreted the ordinance which is our job to read that in the minutes, means in the body of the minutes. addendas do not apply. in fact they issued a letter to agencies stating that that if another case is brought to us where the 150 summaries are not in the minutes we will rule against you. and here we have another decision point where the city

librarian said i don't care what they say i want to keep them somewhere else other than what the law says they should be. i have another case there, ray hartz verses the public library, in that the public library found luisherrera in violation of withholding public records and this has been referred to the board of supervisors. >> what i am saying is this is a consistent pattern of behavior. this is not just one time in this one instance where he said, oh,, well you know, la, la, la. it is a continuous pattern for two years or more where he said, i'm not going to follow it. i don't care that it is a choice between a legal document that i have received on three occasions telling me what the proper thing to do is. i'm going to ignore that and go with what it says we may do.

i would challenge you, to ask those second questions. why did the library commission and mr. herrera choose to ignore these findings? >> why did they want to choose to ignore the findings? very frankly, i think that any person has a good, safe basis to reconsider previous decisions if they get something that has changed the equation. if i get an order saying, library commission is in violation, i need to look at that and decide whether or not i wanted to just stick my feet in the ground and drag them. when i get one against myself, finding me in willful violation, do i wa to just stick my feet in the ground and drag them?

when i get a third one saying that the city attorney's advice is not accurate, do i want to stick my feet in the ground and simply drag them? and i would submit that if you asked those questions, which they have refused to ask, to get to the point where you realize they don't like what we are saying, and one the only person and this is something that i find extremely eggregeous in this whole matter. mr. herrera as a city managal employee covered under this ordinance, choice to put his employees, sue black man, who is a direct report although she works for the library commission and others in a position where they had to ignore these situations and directed them to continue to do something other than what was clearly directed to do three times by the task force.

how much more willful could someone be? i guess, you could force me to take into superior court or federal court, since this is clearly a constitutional issue protecting political free speech. and say, oh, well, if he gets an order from a court, then i guess he is going to have to do it. mr. herrera has dealt with me on all of these matters in totally bad faith. >> the respondent? >> good evening, herrera, city librarian, we have a memo a packet that was presented to you today. i am going to keep my statement relatively brief. but to say that the library

commission has followed section 70-60 of the sunshine ordinance which requires that any written summary provided by a speaker of no more than 150 words may be included in the minutes. the commission also has followed the good government guide and the city attorney has advised the policy bodies that because it is not part of the official minutes adopted by the body it may be included as an attachment or an aden um to the minutes and there is a city attorney stated june 4, 2011 as part of the packet that we provided for you. >> the library commissioners included the 150 word summaries submitted by mr. hartz as addendum and which each summary was commenting on. they are not separate attachments but follow the agenda items in the same document. despite this, the sunshine ordinance task force has filed willful failure to include the

150 summary in the body of the minutes. >> the library does not agree with the findings of the sunshine task force and continues to assert that the preparation of the library minutes follow the law. however, following the lead of the ethics commission in the modification of the own minutes, the library commission has adopted similar modifications to the minutes, in other words, we are incorporating into the minutes. you can see how we are going to follow the modification. therefore the library asks that the ethics commission find that the city librarian luis herrera did not violate the sunshine ordinance as to the allegations and also to have the library commission secretary sue blackman in case you have further questions, thank you.

>> mr. hartz, rebuttal? >> commissioners, this is the same argument that he has been presenting for the last three years. the city attorney says we can do it. and the bottom line is why do they want to? why were they so determined forcing me to go to the sunshine ordinance task force on three separate occasions delaying, delaying sending miss blackman to answer when mr. herrera was the one calling the shots. and mr. herrera did not have the integrity to show up and say to the task force here is why i am doing this. i think that speaks volumes. i think that it speaks to the fact that if i am doing something which i probably know is questionable, i certainly don't want to go before a body who might ask me why are you doing this? i have repeatedly and so have other members of the public asked mr. herrera and the

library commission, why are you so determined to stick to this action? and they refused to even discuss it. the only thing they discussed is they asked mr. herrera can we do this, and mr. herrera says, the city attorney says you can. but the city attorney did not say you can, he said you may. it was a choice. i made a conscious choice to exclude these statements to put them some elsewhere. they put them somewhere else because of an addendum it is less likely that someone will read them, it is less likely that someone because they are taken out of context willfully understand them and the relationship of the comments to the other comments that were made by members of the library commission, the city librarian or other members of the public. and mr. herrera wants to make it seem like, well, we did all of this stuff it was a pulling teeth exercise, first they would not put them in at all

then they put them in as an addendum and after two and a half years of going back and forth we are finally agreeing to do it right and we want you to just ignore the fact that for two years we did it wrong. as far as i can tell the document that you have been presented this is the first time that they have included 150 word summaries from other members of the public. for a while they included some of mine, but didn't include others. so it was like, mr. hartz gets special treatment and his go in the body of the minutes, but

these other people can be addendaed. they keep changing their position and changing what they want to do and what, you know, what the requirements are and at no time have they made any decision at the library commission stating that the example that you have is their policy going forward. so basically, as far as the reality goes, they could simply go back tomorrow and change these right back to where they were and very frankly having dealt with mr. herrera for the last two years, and actually having public records withheld from me, had him drag that out for 18 months, finally having to go back to the task force and having them rule it, yes, you did not follow the determination and you still withheld this and we are going to refer to the board of supervisors for action speaks pretty clearly as to his approach to this. he did not like what we had to say. the library commission did not

like what we had say. if if they could not shut us up, and i will remind you this was the same library commission where you voted to recommend to the mayor that the president be removed for silenting public comment. well that kind of taught them a lesson that they are not allowed to silence public comment but if they can marginalize it or depreciate ate they are determined to do that. the simple fact that they have now after all of this time decided to provide you with an example that really has never been discussed at the library commission and mr. herrera has constantly raised one thing he has constantly raised the idea that i don't get to determine these things, the library commission does. and yet now we have these minutes, which are the library commission minutes and he has changed them without any discussion with the library

commission. he talks out of both sides of his mouth. >> i thought was to take public comment and then for the commissioners to ask whatever questions we might have of mr. hartz and mr. herrera? is that an acceptable procedure for the commission? >> public comment? >> good afternoon, chair hurtado i'm patrick and here as my private exercising the first amendment rights to free speech. it is troubling, mr. herrera gets up here and talks about 150-word summaries, i believe that the language in the sunshine ordinance that if you submit 150-word written public testimony to be incorporated without being summarized by

anybody. submitted in 150 words and have you to publish it exactly the way that it is submitted. you are here to enforce provisions of the sunshine ordinance. you are not here to allow good government guide to supercede, trump, the sunshine ordinance. there are many things in mr. herrera's good government guide that are not worthy of being used as toilet paper. you will see the parallel to the problem mr. hartz is encountering with the good government guide similar issue in your next agenda item and mr. wooding's case in which the good government guide also contains material on page 89 that is not worthy of a public

rest room. page 89 of the good government guide says that departmental destruction policies for material that remains on back up tapes or analogous paper records that the department may have lawfully discarded but may be found in the city-owned dumpster, these are the public records act that would be separate. and the sunshine ordinance requires to search the trash for such records that is pure nonsense, the back up tapes are there for daily use, speaking as an experienced secretary, i know that almost every secretary in this city understands from the get-go that if they lose a document,

it can be pulled from back up tape. if they inadvertently delete a document, a memo or a draft version of a memo or a version of a document going through a revision cycle. the secretary inadvertently is a human makes an error and deletes something, departmental is there to recover it immediately. i have done so over the 14 years of my career. none of it has been intentionally and it has always been restored from back up tape. mr. herrera good government guide needs to be rewritten and you need to tell them to rewrite it. >> i'm ron mcclock and i am a citizen and i have been going to the city meetings for 40 years with the arts