and so, we think that they were important and we saw them as an important policy move, but, in no way, did they change the underlying fundamentals, you know, of the development agreement and the bargain that we believe that the development agreement struck from a policy standpoint. and so, to commissioner renne's point, i believe, that it is very important and we believe that it is important that the public have a full opportunity to debate and discuss, and issues of this import and these issues before the board for some months, and in fact it has been continued from earlier in the year when it was at the full board on a sequa appeal and so there is a lot of public discussion around the issues. and i myself talked about it in front of public groups for months, afterwards. but, we strongly believe that the development agreement, and the disscreption of it in the resolution was covered by the agenda and that the changes

were that made to it, only so to speak to use my med fore, decreased the cost of the fine and therefore did not require an additional continuance and i do want to say to commissioner renne's point that i will take back to president chiu and some of another supervisors the point around the amendment and changes that were made. it is part of the administrative process and i think that the supervisors try hard to get their changes out there, and you know, in a way that provides a full debate as possible. but we do take seriously these rules around public comment if there are subnative changes. >> i have a follow up question, it was brought up in the public comment something that will refer to a narrow scope of expertise around the development projects. with the city attorney's office.

you said that you were working with the city attorney's office. was the same representative that you have been working on in the project there, the same attorney there to answer any questions? and to your recollection can you remember, if they were ever called on? >> i thank you for that question, commissioner andrews. and i did not look back at the transskipt before tonight. >> i have before the hearing but the city attorney who was... and the primary real estate drafting attorney, on the development agreement. and he worked and consulted as i did with the deputy city attorney who was a friend of the board of supervisors so i believe that both of them were at that hearing and one of them spoke and i want to say that it was the one that usually speaks to the board but i think that they both might have been was it sullivan, or do you remember? >> sullivan was the... (inaudible) and adams is the

one who answered. >> it is typical for, and occasionally a deputy city attorney who worked on an issue will talk but it is typical for the deputy city attorney who works on the board of supervisors be the one to make the final comments. thank you. >> thank you. >> call the question. >> any further discussion? >> all right. could you restate your motion, please? or could you read it back to us? >> i can restate it. i move to find that there was no violation of the sunshine ordinance task force, strike that. what is going on here? >> commissioner renne? >> the motion was that the

supervisors did not violate the sunshine ordinance as to the current allegations before the commission. >> the current allegations before the commission. >> all in favor? >> aye, aye. >> all opposed? >> aye. >> the motion passes. thank you for your comments. and thank you commissioner renne. >> >> and the next item is discussion of handling of draft regulations that are come to us from the sunshine ordinance

task force, mr. st. croix? >> most of these are for the purposes of clarifying some language that is not precisely clear. and we can go through them section by section. the commission considered the decision points individually or in block or you can do them section by section. >> so the first decision point deals with show cause hearing. the section is not clear as the memo points out whether each respondent will make a 5 minute opening statement or if it has to be shared. so we are proposing that each respondent are able to make 5 minute statement and three minute rebuttals when the

commission hears these cases. and then, decision point 1 b, clarifies that a party that fails to submit written documents by the deadline, is allowed to bring them to the actual hearing and request permission from the commission to submit said documents. and so it gives each party a little more latitude in responding. >> that is section one. >> okay, i think that we should take them one by one. >> okay. >> the first one, decision 0.1 a. commissioners any questions or discussion on that? >> so, commissioner, chair, ad

hand, one point i am fine with the change to add each respondent and complainant with respect to seeing that any party who fails to submit the documents by the deadline can bring them with the hearing. i don't see any need to at that. the chair at her discretion can grant a party the right to provide the documents when they are here. i think that if you put in the regulation that they can do that, it is going to make it unlikely they are going to present them ahead of time the way that we want them to. i think that it behoofs the public and helps us to have the documents ahead of time and under the circumstances that they can't be brought to the end and i think that we could present that then but i don't think that beshould put that in the regulation. >> i would agree with that.

>> so, i am just trying to figure out, is it easier if we vote on each one or should we vote on all of them at one point? >> i think that it is probably east fer we do it as a group. >> yes. on voting. >> yes. >> section by section. so, for example, commissioner hur might make a motion to accept recommendation 1 a and reject recommendation 1 b. >> so moved. >> second? >> i will second. >> thank you. >> and make a clarification? >> sorry, one 1 b offers with changing five days to five business days. so that it will allow the staff time. >> yeah, i'm fine with that. >> okay. >> okay. >> and it makes sense to me. >> okay, so the motion is to not approve the decision 0.1 a to approve the change to 5

business days in 1 b. >> i think that you want to accept one a. >> accept one a. and except in one b the change to five business days and reject the remainder >> we have a second on it. >> public comment? >> public comment on this point? >> yeah. >> commissioners, ray hartz, director of san francisco open government and as we are doing 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 had an 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