this i found something that i think is highly questionable, it says respondents may make an opening statement, it is not clear if each can make it and what it looks like is that you are saying that there are multiple respond ants they get an opportunity to give a presentation and if there are multiple complainants they are not mentioned. you could have nine people in the last case there were a number that were listed and you are saying that they have to share whatever time and the complainants each get 5 minutes. >> that is totally agregios, it gives them five or ten times the amount of time to rebutte the cases. and if you are going to be fair, you have to let multiple complainants have the same, latitude to present as a respondent have, to rebut. and i would say that would also

have to carry on to any subsequent parts of the hearing in which someone or you are having rebuttal and you have multiple complainants and given one chance to reply or to rebut and all of the complainants each get to rebut and they can coordinate in the effort like in the last case it will mean that the nine complainants will have had one shot and the five supervisors would have had five shots. >> on that point, why did we not include each of the complainants? >> is that an oversight. >> there is no reason for us not to do it. so we can certainly do that. >> i think that makes sense.

>> yeah. >> and that... that makes sense to me. >> yeah. >> can i go ahead? >> yes. >> i'm not going to address the points specifically right now, i'm saving that for later. at the last one. but, i put in a records request, and i waited after i saw the notice to somebody at the ethics commission to send me copies of the proposed changes and the staff report. they were ready in july and they were more or less held for the meeting today. and i get this out of the few records that were produced in respond to my request. and so, the effect of what that is what i call the 72-hour

problem, which is when you have a 72 hour requirement in the sunshine ordinance and your meetings are on monday and you release the information on friday, you get two dead days in between. so essentially, there is almost no time for anyone to do a really good job of examining what the proposals are and how to prepare a proper response. that you had these two available for the longest time and it is dated september 11th and i know that they sent, the proposal on the last item to the city attorney in june, and the staff circulated it among themselves in july and yet the

sunshine ordinance task force the party most directly involved in having to deal with some parts of this, these changes never really ha opportunity to look at them, to review them, and to provide you with comments. and i really do think that there has been a lack of appropriateness in the way that it was set up. >> the records that i received in response to my request, and it included some e-mails, and copies of some of the way of the communication with the five commissioners and so i was wondering whether the commissioners actually ever saw this before they got their agenda, and the agenda package. and there is a serious problem

because part of this changed requires some really heavy, heavy legal thinking before it could be adopted commissioner >> patrick, and i bring attention to the fact that mr. grossman's testimony touched on the civil grand jury 2011 keeping watch doing report, and swre long been aware of this issue. >> any further public comment? >> commissioners? any further questions or comment on this first decision point? >> and i would amend my motion to add the word each before a complainant. with respect to the decision

point 1 a >> second. >> also. >> yeah, okay. >> call the question. >> all in favor? >> aye. >> aye. >> and motion passes. >> okay. section two. >> they must provide a response if they wish to the executive's report and no later than 5 business days prior to the date of the hearing. did i get ahead of myself? >> you should be on two a.

the five minute. >> this is a repeat, and the 2 a is a repeat of 1 b. >> it is not a repeat but it is the same principal fnondoes not comply with the statement. >> and yeah, on the date of the hearing. >> yeah. >> so presumably under chapter three as opposed to chapter two, you would want to follow that same principal that commissioner hur, put forward. and i think that the presumption is that you do not want 2 a. 2 a is doing to chapter three what it would have been to chapter two. >> it would be the same deal that we change to the business days and not about the change. >> and two b will shorten the

time limits to correspond with the chapter two. and so that there is five minutes and three minutes rather than three minutes and ten minutes and five minutes. >> any comments? >> does the staff recall why we had a ten-minute limit in chapter three? >> no. >> apparently not. >> okay. >> any other questions? >> i mean maybe the issue was

that in chapter two we have a show cause hearing where we are giving some presumption to the underlying body, or in chapter three, it is a original jurisdiction matter and, so arguably five minutes is a little short. and you know that said, if the paip and her if we have papers and that should contain most of the argument any way, okay? and i could be convinced to change it. but i think that in a matter where we are letting it for the first and the first instance, ten is not over kill. >> okay. >> so, 2 a and 2 b we are just going to move on past those. >> so we are going to move past section two. and i would propose that we

change the business days in two a but not adopt the rest of two a or 2 b. two a already has five business days, so there is no amendment there. >> okay. >> so we do not need to do anything on that one,; is that correct?? >> right. >> for the time being, we are going to leave those particular regs alone, correct? >> all right. >> and so there is no decision point, a or b? >> okay. >>; is that correct?? >> that is what i am hearing. >> and i agree. >> do we need a motion to that effect? >> no. >> okay. >> and the next decision point? >> decision point 3a deals with with drawals of complaints and so under chapter two, if a complaint is withdrawn, the commission takes no further action under chapter three,

where they conduct a investigation and prepares a report, if a complaint is withdrawn, the staff will forward and decide to proceed on the matter or to dismiss it based on the information provided by the staff and the fact of the withdraw. >> can the staff explain the rationale of this one a little further? >> >> with respect to complaints that are filed under chapter three, it basically would be the same process, it was just that we would include the information that the complainant had with the requests of the withdraw. and you know at the time of the meeting. so really it would not change, the procedures.

it would just be at the discretion of the commission and at the beginning of the meeting to decide whether or not they wanted to hold the hearing in full. >> so under what circumstance do you think that we would want to hold the hearing on a complaint that has been withdrawn? >> i have not thought of the hypothetical that would fit that. >> if i may add, under chapter three, it could be that the commission or the commission staff would take on the investigation and decide that there is just sufficient merit to go forward. and so we would conduct the investigation and provide a report to the commissioners and even though the complainant may have withdrawn, the complaint, the staff may have seen that there is sufficient evidence that showed that it may be a probable cause and at that stage, the commission may want

to go forward. does that make sense? in a chapter two complaint, it is really the complainant, i mean, really the respondent has the burden of showing that he or she did not violate the ordinance. and therefore, if the complainant or referring entity, in that case, in the chapter two case, said that i withdraw, and it means that maybe there is insufficient proof, we staff do not get involved in that, and it is only the commissioners who get involved in that, so, if the complainant or the referring entity with draws the complaint, there is probably no basis for the complaint. so it would make sense for the commission to dismiss.

>> so, how often is this happened in the last year? that you have found cases that were withdrawn but also after investigation had merit? the staff had after they had done an investigation. because these rules are new, we have not had any of that and we are thinking ahead >> generally speaking, we are an agency that acts on complaints and, we don't do proactive investigations, per se. and so, we do. sometimes we do. >> and generally speaking it is a complaint based it is going to be rare where a complaint is withdrawn and we will

investigate it nonetheless, right? >> and do we really need that kind of a amendment or regulation in writing? >> we could hold off on consideration and see if it becomes an issue. >> i could see, if there is wrong doing, would you want to pursue that and to leave it alone, it kind of counter intuitive to why we exist. as a body, it would seem. and trusting that the staff, and in this expertise, will find merit. and it would be hard to look

away from it. at the same time, it is new, and i know that it is forward thinking. >> yes. >> and you know, you are planning for the best to prepare for the worst. >> it is true, and if the staff has information, no matter where it came from, that indicates the investigation is warranted we can initiate a complaint on our own. >> and so this would effect the situation where you did not initiate the complaint on your own and you did an investigation and you decide that it should proceed but the complainant for one reason or the other dismisses. i mean, i guess, technically, you could just start your own investigation at that point. and submit the same memo. >> yes. it would be >> no different. >> so. i mean, i am not, i am kind of, if that is the case, then i am kind of with commissioner hayon on this one, if they dismiss it and you think that it should go

forward then you file it as the complainant and we know who thinks that it should go forward. >> okay, i am in agreement with that. >> okay. >> do we need a motion? >> yes. >> can i ask one more question then? >> so, how often has that happened? >> and on rare occasions complaints have been withdrawn. >> and but, then, and the staff finds merit and then you follow your own formal complaint? >> maybe, once or twice, that i would remember. >> i am sorry, could i just get a clarification. i know that the second paragraph that we are talking about on page 3, we are going to delete that and the first part deals with the chapter two complaints and so, if it is withdrawn, and then what should the commission do? generally speaking, we do not

take any action, staff does not take any action on chapter two complaints they just come before you. and if the referring entity or the complainant withdraws, do you still want it to come before you or should it just be gone? >> dismissed? >> it is just that these are two different types of complaints. and i just need clarification. >> fair point. >> i am of two minds, if the complainant has established before the task force that there was a violation and if the respondent's burden, and then i am not sure that it has changed that they are no longer pursuing it, i think that they have a better chance if they dropped it and is not going to show up and is not going to

pursue their case. but, i suppose that i could imagine a situation where that were to happen. as a practical matter that seems unlikely that would happen. but, i could see it. >> let us, lets the staff discuss it further and if we, have concerns we bring it back, there could be a situation where the complainant filed and it is the burden of the purpose of the respondent and you find out in the complainant and ultimately there is no investigation under chapter two. >> okay >> there is not a staff investigation. >> no. >> okay. >> okay. >> and so, moving on? >> moving on to the next point. >> we don't need to do anything with that one.

>> and 3 b is addressing complaints against the ethic's commission itself or the ethic's commission staff and basically, puts a procedure in, if we received a complaint regarding the staff or the commission, we will return the complaint to the referring entity, and take no further action on the matter. and then, the second part of it, if someone brings a direct complaint to the commission regarding a commissioner and staff, the commissioner now and the staff will inform the complainant of other remedies available under the state and local law. and again, take no further action. and the ethic's commission will not be investigating itself or arranging investigations of itself. >> i certainly agree with that, and i think that it is awkward

at the very least that the ethics committee should be investigating. >> in the past was it the practice to refer them to some other agency to handle? >> yes n general we have tried to find outside agencies that have capability of doing investigations but ultimately those recommendations are referred back to the commission for a final decision. >> so what you are suggesting, or what this amendment will do is that procedure will no longer be followed, but, what would the complainant be told to do? >> well, whoever, and either the complainant in a direct complaint, will be given advice on other entities that will be appropriate to investigate a complaint against the commission or its task and referrals from another agency specifically the sunshine task force would be sent back to them to refer it to another agency, and specifically the

district attorney or the attorney general. >> which are, you know, notated in the ordinance, as appropriate places to refer complaints. this to me is a difficult amendment. i understand why, we should, or why the staff wants to do it and what the logic is for it, but the problem here is that there is no good solution. and if we adjudicate it, there is an appearance of inpropriety and we don't, i think that as a practical matter, people will say the da and the attorney general will not take it up. >> and so, i am not sure that what is being proposed is better than what we have which, although, is not perfect, at least has an outside agency to the extent they are findable and conduct an investigation.

but i, i have certainly think that it is a tough issue. >> i don't know what the write solution for this will be for this. i can see a referral coming before the commission for discussion. on the other hand, if it is a complaint about a commissioner, i don't see how we could handle that. we could certainly discuss a complaint against staff. but, in the end, i don't think that we would or should make a decision on that because of the basically it is between a rock and a hard place for us.

but, in the end, i would say that it needs to be referred to another agency. and the question is what would be appropriate. >> and could you do a hybrid or at least a step in process so that the complaint that they would come to about one of the commissioners and then we will develop a protocol by which one other commissioner will be assigned to work with the district attorney or the city attorney to figure out what the best process? >> and with the... that we will develop a protocol or a process by which another commissioner or two commissioners would work with the city attorney's office to figure out the best remedy. it seems that if you just have one body trying to figure it out, or if you look or let me flip it. if you have one body trying to

figure it out, you stand to a chance of coming to a resolve in terms of an investigation going forward. and i know that that is not a process that is in place, now, i mean we would be developing that. but... >> one potential issue will be that, so right now, they, it can be referred to the da. or the city attorneys, or maybe the district attorney. >> and or the attorney general. >> yes, the attorney general. >> and they can decide or not decide to adjudicate it or not. if we could see the benefit of involving other commissioners but there is also the down side of sort of tainting the process, and if it is one of the fellow commissioners, are you really in aa position to advise? >> yeah. >> well, it didn't we have a situation where something was referred to an ethics

commission in another jurisdiction or city or county? >> oakland. >> okay. >> and it is not the possibility of it. sni. we have done it for another jurisdiction and that is the current process. >> have we communicated with the district attorney to find out if he would be receptive to taking on that task? >> no, it is again in the ordinance, mentions them as appropriate agencies of

referral. if they were to reject it, then the complainant has nowhere to go and i am wondering if there is any way that we could give any assurance to the public that if they feel that they have a complaint, that they are going to get a hearing by someone. >> we would need to do the work on something like that. >> could we ever get assurance? >> filing a complaint does not assure you that you are going to get a hearing. there has to be merit. >> if the typical practice is not to take these up, then, i don't think that we can do

anything to change that behave or. >> i agree. >> can we have them play a different role in determining the permit of the complaint >> that then would be forwarded to another ethics, or another ethic's commission? >> that is outside of our jurisdiction. >> i would be interested in hearing public comment if there is any. if there is... >> commissioners? >> thank you, commissioners what you are doing is blai tantly attempting to use your authority to issue regulations to over turn the role of the voters who passed an ordinance

that clearly said, in the referral, willful misconduct will be referred to a municipal agency for enforcement. the da investigates, criminal matters. and the ag is not municipal agency, but you are. there is your reality. that is what you should be thinking about right now. not, striking a deal to arrange some other body to handle it. it is their responsibility and i am shocked commissioner hayon, that you can't have a commissioner accuse of willful misconduct or an ethics violation and have to take the side chair while you deliberate.

if they are guilty and the sunshine ordinance task force has issued determination that they have violated some ethics provision, it is your responsibility to investigate your co-commissioners, no bones about it miss hayon. >> i was one of those cases referred to another jurisdiction and it did not go to an ethics commission t went to a district attorney.. who did not have any training in ethics. you may remember the two words oliver luby. whose complaint against this body, was outsourced to oakland. and you have done it before. and you should