>> >> what would be the approximate motion to accomplish that? >> i think the motion would be to release the document as redacted by miss herrick. before we do that, this was calendared as a single agenda item. i do take mr. menat shaw's point that they are separately enumerated within item no. 4. but i do think we can take them together. is that right, mr. givner? >> yes. >> okay.

although it is sort of difficult to not take them in order. let's make the motion on whether or not to release the three pages as redacted by miss herrick. is there such a motion? >> so moved. to release the documents as redacted by miss herrick. >> second. >> all in favor? >> aye. >> opposed? hearing none, that motion passes and the record should be produced as redacted. as a result of having produced -- agreed to produces the record as redacted, i think we should address the issue of whether the failure to release these documents was a willful violation of the sunshine ordinance. i think i have given my view that in light of the effort we

made to review all of these documents, the discussion we had and arguments we heard with respect to this file and these records, that i certainly don't see willfulness here myself. i will open it up to my fellow commissioners to share whatever views that they have on the matter and we'll take public comment and go from there. >> i agree, i don't find a willful violation given the amount of time we had to spend in analyzing the issue ourselves. it was borderline, i think. >> i would be interested in hearing public comment first. >> public comment on this item. >> commissioner hur, i know you just want me to go away quietly. >> mr. met shaw, if i wanted you to go away quietly, i'm

sure i wouldn't have given you the opportunities to speak and present papers and review and delay, so we could fully hear your argument and understand them. i hope at a minimum, you feel that i have given you an opportunity. >> can the ethics commission that speaks the english language tell me how miriam webster's definition of "willful" has not happened? this case has dragged on for two years? before it got her it was willful foot-dragging while winding its way through sotf. as far as i'm concerned you are foot-dragging in agendizing my complaint almost a year after it was referred from sotf. that you are foot-dragging was

also willful. you could have scheduled a special meeting to move things along. it's willful that mr. st. croix and his staff, his deputy director, the entire ethics commission, i mean ethics department staff, more than likely had access to that file. they knew what was in that file. withholding it under misguided interpretation of 1040, and c3-699.13, all of that was willful. i think miss herrick made the recommendation that the material should be released, knowing that it was willfully withheld. that it existed in the file all

along. and that had you, as commissioners, done an incamera review of the entire file enstead of just an incamera review of 20 pages after -- three months after you made your decision on october 22nd. you could have looked at that file incamera before october 22nd. and you may have none then that it was willfully withheld then and maybe you would have reached a different outcome when you considered my case. instead, mr. hur prejudiced the october 22nd hearing. which with all due respect, sir was willful prejudice. >> dr. derrick kerr again. another issue that comes up

with these complaints and investigations is whether the ethics commission or the regulatory agency does anything? does any investigation? one way to find out is to request documents. the documents are not confidential. it's the information that is confidential. for example, if you request information about an fbi investigation, they might send you documents that are completely black with nothing except black on it. but you know that there is a document; that something was done. so if we ask for something, a document or some information, you could still give the public a document and

hold onto the information. that way we know that something was done on paper, but that we can't have the information. thank you. >> commissioners, ray hart, director of san francisco open government. i think it's kind of circular reasoning or some sort -- i don't know how to describe it -- to say that because it took us two years to get to this point, it obviously wasn't willful because it was complicated. the law says you have a certain period of time to produce documents or explain why you are withholding them. period. it doesn't say oh, well you got a couple of years to sort of toss it around and decide whether you are going to hear it or not and decide when you are going to hear and t and whenever. that is why i said it's a sipian task ppushing that rock up a hill and know your rights under the sunshine ordinance to actually follow them and

it's self-serving to say seas to complicated in our mind it took us two years to reach this point, that you can't say it was willful. and the reason i saw that i requests in customer service in the private sector for a number of years and if a customer came and had a complaint, you could do one of two things. you could simply ignore them or say let's actually have a conversation and talk. let's see if question figure out what the problem is, and come to a resolution that both of us can live with. and what i had experienced not only from the ethics commission from a lot of city boards and commissions is their unwillfulness to deal in good faith. in other words, instead of sitting down with you and saying okay what is it that you want and giving you what they are supposed to give you, giving you what they are allowed to redact, but still are required to give you, and then saying here is what we

have withheld and here is the law under which we withheld it. nobody does that. they simply say no. and if you force them to look into it, they will drag it on and drag it on and drag it on and drag it on, i guess hoping that you will get hit by a bus. there is never a good-faith effort to say look, you have said these documents are disclosable. i am sitting with you with all the documents, i'm giving all the documents that are disclosable and i'm giving you some additional documents, which are discloseable, but we have redacted some things, and i have given you a list of what we withheld and exactly under what law we have withheld them. that is the way public records requests are supposed to be handled. not you figure out what it is

that we with withheld and why we withheld it and come here to present a casetor two years to finally get something and then we'll say, well we weren't willfully withholding it. david pilpel again. i think we're working through this issue and i appreciate your time. we have heard at least a couple of times from mr. menat shaw and we have not heard from mr. st. croix and as i suggested earlier and under the regulations that were adopted two months ago and took effect, if this matter were coming brand new know we would have had a report and recommendation from the staff and a chance for the complainant and respendent to speak. we have heard from the complainant and we have not

heard from the respondent and it would help me to hear from mr. so st. croix the rationale for disclosure. so i would encourage you to ask him that. >> other questions from the commissioners? commissioner studley, you wanted to wait until there was public comment. is there anything else that you want to share is in ? >> no, i agree with you and commissioner liu. i don't find this to be willful.

since the understanding -- that this was part of the investigative file and the degree to which it could have well been made with good faith and that we have teased apart this particular category of communication within the ethics staff as being the one place where there might be documents that were appropriately disclosed suggests to me that was a reasonable basis. >> would any of the commissioners like to hear from mr. st.croix on this? >> yes. &i think that would be helpful. >> mr. st. croix, can you come to the podium, please?

>> in terms of the three pages of documents in question once redacted they are rendered meaningless and as such, provide no usable public information. so just in defense of that, it's not withholding any information that is usable by the complainant or any member of the public. >> in that regard i found dr. kerr's comment informative. my organization files for requests and record requests with the state and think there is a difference between a document, however frustratingly redacted and no document at all.

with that said, i can understand that that determination was made in good faith by the commission in applying what they understood to be the standard. >> mr. givner? >> just jumping in and following on what i said earlier. mr. st. croix is right. and in that the city, when we such a sunshine complaint, the department is not required to produce page after page of entire redacted information. but if there is substantive information in the document, and can be revealed with minor -- released with minor redactions, that is when we would suggest redacting. so there is a fair amount of judgment in that. and that goes to commissioner studley's point. >> we are not -- are we prohibited from releasing a document with no substance?

>> i think when this document is produced, in my view it would fall on the end of the redactions that i would categorize as so severe as to be virtually encompassing the entire document. because miss herrick conducted this investigation for us, because i didn't find the information that was not redacted to be privileged, i think in this instance, production is appropriate. but i certainly do not fault the commission for not producing a document in this form, which the public can evaluate it once they see it, but i think they will find it to be not particularly useful as a publicly disclosed document. thank you, mr. st. croix.

>> is there a motion with respect to whether we should find the failure to release these three documents in redacted form to be a willful violation of the sunshine ordinance? >> i move that we find that the failure to release these documents was not a willful failure -- a willful violation of the sunshine ordinance. >> is there a second? >> second. >> all in favor? >> aye. >> opposed? motion passed. i also want to say in response it to a number of the members of the public that i understand the frustration with not being able to see what we get to see, what the controller's office sees, and what the commissioner itself sees.

these investigations are fact-intensive. the commissioner spends a lot of time on them, and i would really like for you to be able to know and to prove that to you. we are bound by rules of non-disclosure. we are bound by the charter and state law and there is good reason for confidentialitis, i think as i set at the last meeting. we need to protect whistle-blowers and need to protect people who talk to commission investigators and controller's investigators, in order to try to make this system work. so i don't think i'm alone in that. >> next item on the agenda is discussion and possible action on the ethics commission budget.

>> mr. st. croix, would you like to introduce this matter? >> so the numbers break down as before you in the memo. we have been asked in the past several budget years due to difficulties with city budget to make cuts so substantial that would prove damaging to the commission's commission. this year, although budget news is good, it's not fantastic and the mayor's office is requesting what seems to be very minor cuts for the next two fiscal years. approximately $34,000 each of those years from us.

our prior custom has been to respectfully request that our budget not be cut, but not ask for increases so that we maintain our independence as an independent agency in making these decisions. but yield to the realities of the budget year. i have not made that recommendation this year. it's really going to be a policy call for the commissioners, if i have to make a $34,000 cut i believe it would cause us some pain. but i believe it's doable. on the other hand, there are things that we need to do that just aren't getting done. so looking in the long-term, we just don't have enough staff for everything that is going on. so a possible approach would be to accept the cut in the spirit of cooperation, but direct me to work with the

mayor's office and the board to try to get it restored through the budget process, which would again be a sort of the solution of sorts. it would accede to the mayor's budget demands, but it would also leave open the possibility that we could possibly work something out. i would like to introduce our new budget officer, mr. cunningham works for the mayor's budget office and jason, if you want to come up and introduce yourself. we have this sort of revolving chair with our budget analyst and sometimes i think it goes to the person who is the newest in the shop, i'm not sure. but i'm suggesting that as a likely possibility. if you have any questions for the budget analyst, now would be the time to ask. >> and i would state that i have only been in this job for about a month. so i may or may

not be able to help you out with your questions, but i will definitely be ready to listen to anything that you say. >> we appreciate you coming nonetheless. >> not a problem. >> i don't have any questions. does anybody on the commission have questions for the budget analyst? >> not really, no. >> was it mr. cunningham? >> i look forward to working with mr. st. croix and we'll see where we go. thanks. >> thank you. >> thank you. >> i have a question. >> commissioner hayon. >> when you say there are things that you would like to get done, that you aren't to get done currently, what are some of these issues. >> we have two extremely competent investigators, but we

could do more with more. right now we audit all candidates and random sampling of all candidates and eventually i think we should be able to audit every single candidate. auditing is one of the most effective tools we have, anti-corruption tools. and we want to continue to provide the services to the public in overseeing. the audits that we do right now are taking longer. we're trying to do more, but the mayoral audits, for example, we only had one real audit to do in the last mayoral election. and in this one we had a lot more and mayoral audits take longer than supervisorial audits, for example. we have gotten much better about giving out notices of fines, and other responses to infractions.

but i would like to do more than that. we want to move forwards monthly reporting of consultants, like we do with lobbyists. so that is going to take a little more effort on things like that. >> any other recommendations or comments for the executive director with respect to the budget? i think given what we want to do, i think given the public concern about our investigatory budget, given that the public wants us to do more investigations based on certainly what we hear in front of us, i would be fine with you doing what you have typically done and not proposed a budget cut.

i think certainly the public relies on us to some extent for our investigatory work and we want to continue that and certainly not diminish that result of budget cuts, in my opinion. any other comments? is there public comment on this matter? >> david pilpel, a number of items starting with memo. i don't know why commissioner renne fell off the letterhead here. i apologize and i hope he is still with us and perhaps it's just an oversight. plus the date should be 2013. this is actually not a lot of detail. it's like no detail. and this is actually a required annual hearing on the budget pursuant to the charter.

i appreciate commissioner hayon's question and the director's answer. i think in whatever transmittal comes from the commission and the staff to the mayor and controller should include some of the that language about things that aren't getting done, could be done, could be done better. i think that very much supports the budget request. and i think that in general terms, that the commission should not acsaid accede and probably not make additional requests for funds, but note there is additional work that could be done with other resources. and hey, i will continue to say if there is a need for a cut, i think we should reevaluate the cost of being on sfgovtv and reserve those funds for only those public hearings like the mirkarimi matter last year which were of great public

concern. i think tonight's meeting is a good example of why we don't need to be on tv. sorry. i would also note that some of the programs that the commission runs have fees that don't fully cover their costs, and i have said many times before, whether it's the consultant program, the lobbyist program or other things, that we should either set fees to cover the full costs or at least know what the full costs are, and acknowledge that we are supporting those programs, with general fund dollars to some degree. and where there are differences try to level them off and say, rather than covering 18% and 32%, we're going to set as policy that we're going to cover about 25% of our program costs through program revenues. i would also note there is a new state law that now requires campaign filers to pay -- what is it? a $50 annual

registration fee to the secretary of state. i don't know if we would be able to do that here, if we were, that would be interesting. and we could cover some of our campaign filing-related costs through that program. i'm not suggesting that the audit or public financing program costs should be covered, but there are certainly costs related to filing of statements that are now being born by the general fund. so i think we should look more carefully at what our general fund costs and what could be program costs. i will leave it at that, unless there are questions. thank you. >> there is no action that needs to be taken, is there? >> normally you would have a vote. >> a vote. >> from the action that the commission is acting me to take. >> is there a motion to affirm the executive director

submiting a budget that does not include the requested 1.5% cut in the department's funding? >> so moved. >> second. >> all in favor? >> aye. >> opposed? hearing none, the motion passes. the next item on the agenda is discussion and possible action regarding a complaint received or ebitiated by the ethics commission, possible closed session. public comment on all matters pertaining to agenda item vi, including whether to meet in closed session. >> yes, i would just like to request that you be as specific as possible regarding the arraignments for reconvening the meeting and the minimum time it might take.

>> the minimum amount of time it might take -- difficult to determine. i would -- do with give these estimates? >> probably half an hour. >> probably half an hour would be my guess, but it's very difficult to determine in advance. is there a motion to move into closed session under chapter section c3-699.13? >> so moved. >> second. >> all in favor? >> aye. >> opposed? hearing none, we will move into closed session. >> with all due respect you didn't answer the other part of

my question, are we going to leave and are you going to notify people in the hallway? do we wait here and you retire to another room? >> so, if you would leave, that would be great? >> and will you notify people in the hallway when you >> we're back in open session. is there a motion to keep