that, at approximately 3:00 this afternoon, pastor gavin sent an additional request for a continuance. this item has been continued three times, already. and at the june 24th meeting, the commission granted pastor gavin's last request for a continuance. but specifically stated that another continuance would not be granted absent a showing of good cause, the memo that went to the respond ant and complainant pointed out that it had to be in write and show good cause and had to be delivered no mater than monday, september 9th and since this game in today, and it is absent any reliable information as to the validity of the request, the commission will be well within its right to go with the

hearing tonight absent pastor gavin. >> this matter has been pending for quite some time. i am disappointed that pastor gavin is not able to attend our hearing based on her complaint. commissioners, any discussion? >> commissioner hur, you said that we should continue and give her a chance to present her case before us. >> well, i am not sure that i was on the side of continuing it then. but the commission did continue the matter, and i think gave sufficient notice to pastor gavin and so i am comfortable going forward today. >> and i notice in the letter that we received from pastor gavin, there is no request for a specific time, it is essentially to say, to continue it until further notice.

and a medical release from her physician. and as i think that i commented at the time when we did agree to continue it is that the defendants have some rights here as well as the complainant. and i think that to keep this matter open indefinitely, just is unfair to them. sosposed to not to determine the matter tonight. >> any other comments from commissioners? >> any public comment on this? >> and is there comment,? >> i don't think that there is public comment on this. >> required. >> you are going to take a action. >> and not continuing or dismissing it, there is. >> and unless there say motion to continue, then there is no action required to hear it tonight. >> i see.

>> okay. >> well, does someone want to make a motion on what we want to do about this. >> i will move that we proceed to hear the complaint. >> do we need a motion to proceed? >> no. >> so now, it would be the time for the hearing. >> right. >> which will include the statements >> you need a motion to continue not to proceed. >> let us proceed with the case. >> with the complaint. >> as pastor gavin is not here, there say representative of the supervisors here and we will give them an opportunity to present and the legislative board is here to represent the four supervisors. >> true who say representative of the four supervisors is here to present their case. >> good afternoon, and good early evening, matter chair

person and members of the ethics commission and executive director st. croix, my name is justin true, and i am the legislative aid to chiu and this is a long-standing case. and i did appear on the matter before the sunshine task force some years ago as well. and i officially only represent supervisor chiu, at least, some of my other colleagues are aware that i am here this evening and they can obviously see it now. and i don't want to go into a great deal of detail around the item, i think that the staff report is clear. and i think that the main point that i would make is that, at the land use committee meeting in question where supervisor chiu announced and introduced essentially changes to underlying development agreement that was before the committee through a resolution, that those changes, were within the scope of the noticed hearing. and very clearly, the hearing

described that there was a development agreement and not much else about it and the changes themselves, and technically, they are probably more changes than amendments and although president chiu will call them amendments were designed and although the substance is not relevant to strengthen what are already strong rent protections in that agreement to the park merced residents and i did want to make that point and although the substance is not particularly relevant. and from our perspective and the other offices as well. that the main fact at issue here is that the committee members and president chiu both asked for public advice from the city attorney and the issue was raised at that exact meeting about whether it was legal, and appropriate to proceed. and the advice given there and that has been given to us at all subsequent times that have come up was that it was entirely within the noticed hearing for the committee to

proceed and send those items on to the board of supervisors and for that reason, we don't believe there is any violation and we do take the issue seriously, and have participated in previous hearings on it. and mostly i am available to answer any questions that the commission members might have. >> thank you. >> questions? >> commissioner hur? >> i have a couple of questions. did the, when these proposed amendments were presented, at the committee hearing, and as i understand it, at least, from david chiu's point of view that the instructions were to give the copies of those proposed amendments to anybody out in the public and they were distributed, but were they the subject of comments by the committee itself? and by the public?

>> through, the chair to commissioner renne. i personally had copies, dozens and dozens of copies of the changes, to the development agreement, available that day and handed them out and i believe that i may have gone and made additional copies for other members of the public and so i handed out, i would venture to say 40 or 50 copies and then president chiu, specifically walked through, it was 14 pages and there are really four or five points of what the, four or five, not legal sense but a technical sense that changed with regard to strengthening rent control protection and president chiu did go through those and i believe that there is some comment on them from the public but the over all discussion about the project as a whole. >> and then, i take it the committee adopted the proposed amendments? >> the committee theater, they

did not need to adopt the changes but they were in an underlined development agreement and essentially the developer and i believe that the administration, and office the economic development had with our office's development had negotiated those changes and it became part of the agreement and what the committee does was forward out the resolution improving that development agreement to the full board. >> and when it went to the full board, it contained these changes and the public again, had a copy. >> yeah. >> the comment on them? >> yes it was in the file, but there was not a further opportunity for public comment. and if the changes were or if the city attorney had told the supervisors that the changes were subnative, which is not uncommon to make the changes, in a committee, then that will require an additional public hearing, and additional public comment and that is the threshold that these changes to the development agreement did not meet and that is why the

board was able to move forward that day. >> when you say that the board moved forward. it was a committee. >> correct. >> and it went to the board of supervisors. >> correct. >> for approval? >> correct. >> and when it went to the board of supervisors was there any opportunity for the public ad that time to comment on those? >> no, the board of supervisors takes all public comment on items, or not all public comment, but the vast majority of public comment in committee and if it has not been heard in committee, then there is opportunity in the full board but if there is public comment in the committee there is not any at the full board. >> thank you. >> commissioner hur? >> so am i right that there were two documents and a 14-page document and a summary document and that is correct, commissioner hur and there were two documents and were ier of those documents distributed to any of the members of the committee. prior to the meeting? >> i do not believe so and not

to my recollection. >> the first time that the committee member saw it was the same meeting that the public saw it? >> it was quite for them to get ready and if i remember they were ready just before the meeting. >> thank you. >> thank you. >> mr. true, so, is that the only reason why they were to be distributed during the meeting it was just taking so long to get them? >> there was obviously a very significant project that was a subject of a great deal of negotiation. and our hope was that we were going to get, you know, complete agreement that we were going to be making, you know, getting the developer to agree to the changes that would get, you know, a level of full agreement. that did not happen, but it was going right up until the last minute. >> in a scenario, where there

would be time? how would it play itself out in terms of distributing that? the changes and the technical changes to the committee? >> i am sorry could you repeat that question? >> if you had time to make those changes, produce the document and then there was still time to get it to the committee, how does that happen? >> is there... what if there were an opportunity to do that, would that have happened and is that the typical protocol. >> if i believe correctly, as a example for the shipyard project which was approved by the board of supervisors, around the time that i started working for president chiu, there were, i don't know, about dozens but over ten changes to the agreement proposed at the full board and some of them were, and accepted at the full board and no further public comment was given. and some of them were rejected by the board. but there was no, in a similar sense to this instance there

was no presumption that there was additional public comment based on changes to an underlying agreement and all of the over all arching principals and concepts of the agreement remained. i think that there are constantly changes to something like this development agreement up to the time that it goes to the board and so, i am not positive that it occurred in this case but there could have been changes made in the previous week and going in the file that is available to the public and the committee members up before the hearing. so it is a process. i hope that that answers the question. >> thank you. >> thank you. >> further questions? or discussion commissioners? >> is there a motion that we

wish to present? >> >> do you want to hear the public comment first or would you like a motion? >> i would like a motion first and then we can have public comment. >> so, there could either be a motion that the respondent has committed a willful or a non-willful violation of the ordination which will require three commissioner to make a finding of probable cause and you could alternative do a motion to find that the four supervisors did not violate the sunshine ordinance as to these

allegations. >> i move that we find that the four commissioners did not violate the sunshine ordinance as alleged. >> do i hear a second? >> i will second. >> thank you. >> any discussion on the motion? >> commissioner renne? >> i think that you accidentally said commissioners? >> supervisors. >> sorry. supervisors. >> sorry. >> let me ask, one question, if this had been an amendment which went beyond what the notice was, under the statute there would have been required to give a 72-hour notice on a special meeting >> yeah. and that would have to be an additional hearing, and if

there were substantive changes. and a new notice of the hearing and at that new hearing, it would be in public comment. >> as you point out in your report, the claim violation under section b, does not apply because this was a special meeting. as opposed to a general. >> yeah, there are, and there are more requirements for procedure during the regular meeting. >> but the special meeting does require that the agenda be submitted in 72 hours in advance to the public. >> yeah. >> so that the real key question here is whether or not the language of the notice of the special meeting and the subject matters that it talked about park merced if that was broad enough to put a reasonable person on notice,

that subject matter which included the language that was in these amendments, was going to be the subject matter of the hearing. i take it that was a basis of the city attorneys. >> right. >> and the city attorney is frequently called upon in cases like this to determine, is this substantive enough to require a second noticing or not? which is one of the reasons why there are city attorneys at all of these meetings to provide such advice. >> and another discussion or question. commissioner hur? >> no, i mean i think that it was within the noticed language, i also thifrpg that the document distribution issue is a bit of a red herring, if documents are not provided to the policy body even a 57-6 b applied. and i don't think that those documents had to be distributed ahead of time in light of the

fact that they were not shown to the policy body or provided to them. it does steam that 67.6 is applicable here. and as commissioner renne has pointed out, i think that the main question then is did the amendments fit within the agenda item and i think that they did. >> public comment? >> ray hartz, i find it agregus when people have to go before the sunshine task force or this ethics commission and are not given any option other than sometimes wait for years before they get a hearing, and yet you seem to be hell bent on getting this concluded because you want to give the city more time. the city does not respond, they don't show up for hearings, i have had 22 cases before the sunshine task force, 19 of

which i have won. and in most of those cases i had to go back multiple times because the city did not send anybody and i would also like to correct a few things, mr. true said. and number one, these were 14 pages of subnative changes and he was very careful, although he failed to do so, to try to avoid using the word subnative and they spent and they said before the actual meeting the same afternoon of the committee meeting at the full board meeting they said that we spent the entire weekend, hours and hours and hours working on this, and i find it hard to believe and hard to swallow that you could spend that much time working on something and not have it be subnative and the second thing is that when you are the person on the receiving end of the stick and in other words, all of the people in park merced i think that your perspective of what is subnative would be different than what the city wants to consider when they are hell bent to pass legislation that

they want done because it is worth billions of dollars. >> i would like everyone to notice that i am reading from a summary prepared in advance of this hearing and the findings of this commission are so predictable that it makes me feel clarvoyant and the only thing that i am clear on is whether it is covering the back sides or kissing them and again, what difference does it make, the end rault is the ethics commission finding in favor of the city and against the values and interest of the citizens of san francisco. in this case the board of supervisors managed to discriminate against and violate the rights of so many protected classes that it is impossible to enumerate them, the elderly, single parents, people of color, veterans and disabled and the list goes on and i have told this to the board of supervisors directly, and this commission today s from what i can tell, going to

put its perimeter on those actions. they wanted to pass this and they didn't want the bad subpolicety of having all of these disenfranchised people showing up and making public comment and you can't tell me when you hand out a document that the summary of the points and it takes the complainant another year to get the actual 14-page document that you handed them out at the time of the hearing and that is nothing but pure unadulterated... >> and patrick shot and another mal able point of... is the frequency with which this committee and in its complaints and never discusses any of the rationale in the ordinance of determination from the sunshine

task force referring to the matter to you you never ever, ever, discuss their rationale of why the referrals even end up here and so physical therapies... that you don't take into consideration in the findings and you never discuss them and you never let them effect your esteemed judgment. >> i would like to add that this is being broadcast on public television and if we could keep our language to such that does not have to be bleeped i would appreciate it and so would the audience. >> absolutely, right we should continue refer to it as amulta cult er and stop the public raid of the library and don't give money to the friends of

the library, and i am a little bit shagrined or shocked that you fail to understand what really is at stake here. first of all, the words subnative and the words substantial are not synonyms. and what we are really talking about is something substantial. and the crucial point is whether at the time the public had its only opportunity to make public comment, that they knew the substance of what they were commenting on. if come before the final action, that the public should ahave an opportunity to comment on, then that is substantial change in the public should have been given an opportunity to comment again, that is the law. and the reason that it is the

law is because the body itself needs to be informed of the testimony, judgment, perspective of the citizens that this applies to. this is why we have public comment provisions. it is not for the benefit of the commenter. it is for the benefit of the deliberative body that needs that perspective and that input. and that just plain evidence. and to make its determination. now, when they made changes, claimed that they were not subnative, and therefore, they could be passed without the public, having its chance to determine for itself, whether that was meaningful or not, you have basically disenfranchised those citizens. and so it is not the

interpretation of what is a document, or what is substantial, even. the issue is whether, it is something that the public could ask and should ask, had the opportunity to comment about. and when you say, that they don't, you are taking a very strong step, i should tell you that this is not the only incidence of this. this happens all of the time. i don't, or can't or don't have time to go to the indenses now, where they basically make, changes, on their feet, the opportunity for public comment was months ago. and it goes through... >> thank you. >> peter warfield.

i'm not a party to this, and i'm disappointed that pastor gavin has not had a chance to state her case here. but i think that it is a very dangerous matter to leave to somebody else, a definition of what is and what is not substantial and therefore, what does the public have a right to notice on and what does it not? i would like to know why doesn't this body discuss the substance of those 14 pages and then, on the basis of your own judgment, determine whether those were in the category of requiring, notice and public comment appropriately. and the sunshine task force evidently did do that. and its finding of fact and conclusions of law on page 2 of

its august, 23rd, determination said that the task force concluded that the introduction of 14 pages of proposed amendments without providing copies or adequate review time to members of the public should have prompted supervisor eric mar as chair of the committee to try to continue the meeting. and there is also reference of a two-page summary. and how insubstantial are changes that occupy 14 pages and require two-page summary. and according to the pastor gavin's testimony it says on the second page of that same letter, she said that the public and sen sit tenants were given only a two-page summary of supervisor chiu proposed amendments to the development agreement and denied the opportunity to read the actual text of t4-page-pages of amendments. why don't you ask what happened to someone who was there.

and there is someone here who has given testimony, who was there. i was not. >> and further, in another order of determination, of november 1, 2011, the task force again found, and i will read from the decision and order of determination. found that president, david chiu, and supervisor weiner and violated sunshine ordinance section 67.7 b for not providing the public with copies of the development to the agreement and which were provided to the policy body. >> and if you are not willing to discuss the contents and then how can you be prepared to say that the contents were not substantive. and i also would like to say that the supervisor testimony initially said that the public was able to comment, the public, i think that he corrected himself. it should be clear that the public is not allowed to

comment at a board of supervisors meeting when it has been held at a committee meeting. >> thank you. >> with all due respect for the city attorney's office, the single deputy city attorney sitting in front of the podium, is not necessarily the best person to determine what is substantive and what isn't, is this agreement. and if the change took 14 pages, how long was the entire agreement. i really think that the roll of the investigator in this matter, should have been to put himself in the position of the lawyer, who is going to decide whether it was substan ard or not. the task force had two lawyers, and i believe at the time that

this case was heard. and neither of them were business lawyers. and so the whole issue, what is the subnative change to a long, long, development agreement, is not something that could be handled off the cuff. push >> and i think without that, in this separate investigation. what the law says and what the agreement provided for. and what the changes to that are two different issues. >> >> any further comment, on this matter? >> if not, commissioners. and any further questions or comments from you? >> well, i have got to say that

i am... disturbed with the idea that the amendments could be introduced without the public having an opportunity to see them and digest them, and whether 13 or 14 pages of or should be deemed as non-subnative and it is a practice which i think that we ought to discourage and so that i am not prepared to find that ey