business like manner all document and correspondence, including letters, e-mails. >> and that is right and we have advise and always interpreted that to mean consistent with the records retention policy. >> okay. >> not every on-line e-mail that crosses your desk must be kept in a file. >> okay. >> other comments? questions from the commissioners? >> well, like the failure to retain a document when should have retained question, what about is there a good faith search and failure to find a document that might have been there? standard?

>> so, i... >> initiating a blackberry problem. >> what do you mean? sorry i didn't follow. >> do you mean... >> mr. buell does not think that he deleted it, he says that he looked for it. >> he says that he lookd for it and he did not find it. >> there is an exchange that he does not dispute took place that was provided in another way is a good faith search. but it is standard. >> i would think so. yeah. >> and the standard as we and the city departments applied it, there is also that there is a rule of reason, here, that the department have to make reasonable effort to find a document, but if you are receive a request, say for every e-mail from the last 20 years on the x, topic if it is unreasonably difficult to find, you should work with the

requestor for figure out what the more narrow search could be. >> i think that general rule may also pertain to the back up tape question that you are flagging for a future day, the amount of resources and the effort that you are suggesting, would take. >> right. >> i think that we are not suggesting a policy out come. we are just saying that people ought to understand what they are required to do and what they are going to get, or where in between it gets decided whether to go that next step. >> i cannot find in here a requirement for a non-department head to maintain

the records. >> and that may be because as mr. pilpal said the purpose of the sunshine ordinance when it was on the ballot was not to deal with the records retention issue but disclosure of documents that have been retained. we have a separate chapter of the admin code that deals with record retentions and i think that probably answers the question. >> in light of that, the way that i preliminary would come out was that there was a violation with respect to the failure to provide the records by the end of the next business day, by miss gong. she had a response, from miss buell, she claims to have gotten a response from mr. buell, miss ballard. sorry there are a lot of people i'm learning about today.

and there was a response from miss mcauthor reflecting that mr. buell had done the search and a response from mr. ginsberg as well. but held on to the or did not give the response in a timely fashion when she had them on june 6th. so, there i would find that there was a willful violation of 67.25. i don't think although i am some what surprised i must say that there is not a requirement and frankly, miss ballard, i highly recommend that you create some mechanism whereby you maintain important documents that are sent the notion that they are just deleted is not very... not earning a lot of sympathy from me on that. but i don't know that based on the decision that was made by the sunshine ordinance task force, i don't think that is before us. although, i think that it is a

problem. so i would preliminarily find that there was no violation of 67.26, or 67.21 c. >> for all of the other reasons that we discussed. earlier. >> just to clarify, because this is a hearing under chapter two of the sunshine, you don't have to find a willful violation, this chapter just asks was there a violation? >> well, right, but the and maybe i am looking at the wrong thing, but i am looking at the december 5, 2011, sunshine complaint? and the notification by the task force and says that the task force provides willful failure against ginsberg and sarah ballard. >> right, and just not, i believe that is the task

force's long standing practice to forward complaints to you when the task force finds a willful violation, but, that question is not before the ethics commission under chapter two, the only question is whether there was a violation of the ordinance in this case. >> okay. >> what i was looking at was i think that we are all looking at the december 5, documents? where it speaks to willful failure and official misconduct against ginsberg and ballard and then a referal for failure to comply with the order for buell and gong. >> it would not change my view because i think that the... why

is ballard included under willful failure? is there any... that just is how the complaint was... >> that is my understanding of how the task force operates. i have never attended a task force meeting and we refer may find willful violations if they refer them to you. but, i mean commissioner studley is right, they did refer this and did refer buell and gong to us for simple failure to comply with the order. >> mr. pilpal do you have something to help us through this? >> looking at the december 5th transmitter there was a finding of willful violation, the

language is not as precise as it could be in regards to ginsberg and ballard, but a failure to comply with the order and presumably a violation. and i would also note on the page 5, 1 a, 1 a and d make some distinction between willful and non-willful violation and later on in your determination, that distinction is lost. so, i think that you could further delineate between miss ballard and miss gong. and mr. buell on this. >> okay. well, in my view, i would think that my view is that miss gong's failure to comply was

willful, it certainly would be non-willful as well. it would still be a violation in my view. with, mr. buell, i don't frankly don't see the violation, it appears to me that he searched and did not find the documents and i don't find the deleting of the documents that he had to be problematic even if that were relevant to our discussion. and at least as it relates to the sunshine violation. with miss ballard, it appears that they were alleging willful violations and so, but, again, i don't think that the failure to save the document is necessarily at issue in light of what the sunshine ordinance task force found.

>> i would just caution the commission against you know, this matter. separate finding willful violations that is not what the ordinance or what your regulations specifically authorize, you do it is not how this issue was agendaized. >> chapter two, referals to the egg ethics commission. >> of what the task force considers willful violation. >> right. >> and in sections d and e, on page 6, of chapter two, the regulations explain what the ethics commission can do in making its findings and issuing orders. and there, it is a matter of finding violations or

non-violations? your point is that we don't have jurisdiction to handle 1 a, 1 aand, and b and under dand e our findings don't require of willful or not. >> exactly. >> you do have jurisdiction over it, i would recommend if you are going it find a violation that you just find a violation. >> my only concern is that since we are dealing with a referal, if the task force found a willful violation in order to determine whether the burden was meant, don't they have to i mean would we have to use that same standard? i mean? when they make the referal under chapter two they have the burden to find that the employee did not violate the ordinance, in the way that the

task force found that he did. it would be one thing if that employee had to prove that it was not willful. it would be a different thing if he had to prove that the violation did not occur. so i don't think that it is... you can't, does that make sense? to determine whether or not they have met their burden of overcoming the finding of a willful violation? >> i guess that the way that i would read these regs. whenever you receive a referal that alleges a willful violation, you can find that the person has committed a violation and issued the orders that this section allows. >> and maybe, it it calls out

for willful conduct for certain parties i don't think that they fall under that provision, but that because of that, it will be symbolically significant whether it is willful or not. >> for the public who is listening to us muddle through this, these are new regulations, we knew that today would be a challenge, because we are applying them for the first time and we appreciate your patience and participation here. >> let me make a clarification in support of mr. gibner on this. >> sure. >> when the task force sends you anything with regards to willful failure which shall mean official misconduct, it will usually state 67, 48 in it

and in this case, it didn't, for the reasons that he is explaining to you, that it is more symatincal. that this was willful, they found it to be willful of that particular non-department head of it, general employee. and so it is just really, they could have said, they did deliberately. instead of using the word willful, which will be a red flag for you, they felt that it was done deliberately and so i would just, i would agree with mr. gibner having served on the task force during this particular time, that that is what the intention was. >> thank you. >> any other comments from the commissioners? >> commissioner renne you have been quiet, anything to add? >> no, but i would tend to agree with the city attorney,

on his interpretation that we under section 2, can find that there is evidence of a violation but not a willful violation that may be a technical, i mean, i am troubled by saying that whether you get 24 hours and they do it in 36 hours, saying that that is a significant factor. >> but where a significant factor and it may be a violation, technically of the 24 hours but i don't find that it is something that requires great admonition. >> i guess one of the reasons that i have been quiet is that you know, in litigation, when you have a document production request, you are asked for

documents and then you say, if the document ever existed, but no longer exists please identify it, well, that is not what the procedure is at the city level, and these people are literally asked, do you have the documents? and they check their files and the ordinary course and came back and said no. it turned out that the documents had at one time been in their files. but they were not and not expected to respond by saying, no, we don't have any, but, we deleted them. >> i mean, you know, maybe they should. but there is... i don't think that there is any requirement on them. that i am aware of. >> yeah, i'm not sure that there is a hook for the situation where a employee does not retain a document that

should have been retained at least not through the sunshine ordinance as mr. gibner suggested. is there a further discussion? or should we make a motion? >> is there a motion to find that miss gong violated 67.25, with respect to failure to respond in a timely fashion to the request, but no violation by any of the three respondents as to the other violations that were found by the task force? >> did i say that much correctly in light of the standard?

>> yes. >> so moved >> is there a second? >> a second. >> >> all in favor? >> aye. >> aye. >> opposed? >> hearing none, that motion passes. >> i think that we then need to determine what order is issued for the finding of the violation. here, i think that it is appropriate first of all, i think that commissioners renne is right, in a situation where they are late by two days, because they are trying to get additional information to provide to the complainant, i don't think that is a particularly egregious problem that requires a lot of remedying activity on our part. i would suggest a letter to the parks and rec saying that they

should comply with the 67.25 in the future and that document requests need to be responded to in a timely manner. >> i just like to add, i like the way that you put that, that the letter is to the agency because this is one of the questions on this perhaps, lengthy list, is the responsibility of the agency had to see that it is possible to carry something out. and that the people are trained and had the ability to do it. verses the most junior person in this situation being the only one as to whom we found a violation, because it is technical and crisp violation. it may be that that good practice, that we in the

sunshine task force. the way that agencies are given information on training, maybe it would have been better to provide a partial answer within the 24-hour period and say that not all of the responses are in. is that, would that be more transparent for that which is available and meets the needs of people and the other is teaching people how to search both what to retain and search. i realize that these are boring and unpleasant responsibilities and that we have a lot of departments and employees who have different levels of experience or technical capacity and maybe a constructive thing that we can do with the sunshine task force would be to collect these kinds of questions and get them to the people who do the training and advice for the agencies. i am not saying that we should do it or take it on ourselves but at least identify some places where we think that

there are or we hear about the good practices or we spot things that they could be helpful to the city agencies about. and i don't want to take on something that we don't have the expertise or the capacity to do or it may be as simple as saying, with a 24-hour turn around, how can you get people who are trying to write a story or going to a hearing or follow up, is there, or would it be better to hold them in violation for missing the deadline or get people something? and i may be off base about the solutions but at least try to point up some of these things so that the people who have the training responsibilities are aware of how these things actually are playing out. >> i think that is right. and you know, i have a lot of concern about getting too, or providing too much kind of providing too much direction as to search the terms in the light because having done it in litigation it takes on a life of its own and it leads to, or

it will not lead to a fast resolution and providing a document that you identified as the whole point here. but, it definitely something that should be on the list and something that we could continue to work on resolving. >> okay. should we take a quick break? before the next two items? >> any objection from the commission? >> okay, let's take ten minutes. >> okay. >> could i also just say as the chair of the education and training of the force i am happy to work with the staff to try to sort through what you just talked about, it is not going to be easy. >> we appreciate twe will be adjourned for ten minutes.

[break] >> we are back, in session. the next item is 04-120507. respondent croline celaya complainant cythia, carter >> the respondent is here >> please, have you five minutes. >> i'm the public record manager for the sfmta and we sent a letter to this commission last week detailing, i do apologize for length but we wanted to detail our

response and within that response, we also had some attachments to provide some background for the letter. and due to the late hour i will not go through the entire thing, just wanted to let you know that myself and cathy falis who was also named in part of this complaint, are available for questions we, do i go knowledge that with item 1, failure to provide in a timely manner that we were late in providing some of the documents. we did. attempt to work with miss cart ter to provide her with everything.

there is only one point of contact that is designated to work in the agency with all of the various divisions and get back to the requestor, and the requestor is not required to go to each division and that way makes it easier. so we would not have referred her to any other divisions. i was working on it for her. it did not receive her personnel files, and so it made the most sense to have the representative from the human resources department present at that meeting so we disagree

with that finding. >> thank you. >> and just to make sure, the complainant, miss cythia, carter is not present. correct? >> not seeing, anyone. okay. let's take public comment on this matter. >> i am david pilpal and will leave it consistent with your just passed item if you want to find a violation as to the timeliness, i think that they have already conceded that. i think that the original request was dated may, 13th, and in their response, from last week and indicated that they produced all non-responsive non-privileged records by october 24th, that

seems to be a considerable period of time, i'm not sure that i agree with their lengthy analysis about a waiver being required for the discloser of certain records. i am not sure if we need to engage in the discussion about that tonight. i personally believe that the mta does have a contact through miss celaya and so i am not sure if a violation is warranted. and whether or not a 21 e violation is warranted by not sending the right person to the meeting is another matter that you could debate. i think that there are a lot of complicated responses in regard

to the personnel files and when an employee requests information from a department particularly in connection with what appears to have been either litigation, or a separation action or a matter before the civil service commission, what the department's obligation is with respect to the personnel file, with respect to other records that are not formally within the personnel file that might be covered by 6255 k. it gets very complicated. and again, i am not sure if you want to get into that tonight. the complainant underlying complainant is not here. and i'm not otherwise familiar with the case. >> i was on the task force in 2007 when the original matter with miss ward came up. and i don't currently recall all of the details around that shs but there were reasons why we suggested a waiver at that time, i believe that the circumstances were different, i believe that she was a management employee and not a

driver and so, i would have to think back about the facts about that. again, unless you have questions. >> good evening, on this issue of the waiver, there are documents that you have not given to her yet, because she has not signed a waiver >> we did know vied to her what is considered by the agency the official personnel file, she did come and review her file and and the copies were made and she was informed that she could pick