>> commissioner, you had a motion? >> i would propose -- i would make a motion that the commission finds that mr. herrera has sustained his burden of proof to showing that there was no violation of the sunshine ordinance. ~ commissioner renne >> is there a second? >> i second. >> commissioner hayon? >> i would like to ask to be recused from this vote as a former library commissioner. i don't want there to be any appearance of a conflict of interest. >> kind of should have done that before we he started discussing the question. >> oh, okay. so, what does that mean? >> you can still -- >> we would have to have a vote on the recusal. it would have been preferable to do it before, but i think if

the commission feels like it is appropriate to recuse you, it's better to do it now than not at all. >> i'd move that commissioner hayon be permitted to abstain if she wishes to abstain. thaictionv. >> she has to be recused, not abstain. ~ >> i'm sorry, recused ~. >> i second. >> public comment? >> public comment. yes. [inaudible]. because of the fact you commission operate under robert's rules of order, the chair cannot make a motion nor can he second a motion. it has to be first or second by one of the other commissioners. thank you very much. >> is that true? >> actually, i don't know. but it sound like there are two

-- there is someone else to second it. actually, that's not true. >> okay. well, -- >> i don't think that can be right at all because otherwise -- i don't think that can be right. [speaker not understood]. >> okay. any other public comment on commissioner hayon's request to recuse herself? all in favor? >> aye. >> opposed? hearing none, commissioner hayon is recused. you know, i wonder at this point whether the most productive thing to do might be to ask the city attorney -- the librarian to go back and explore whether there is other accommodation that can be made, whether that's wireless, whether that's battery operated projector with a screen. it sounds like those item have not been fully explored.

if the commission is open to that, maybe we can defer the matter, otherwise i stand by my second with commissioner renne's motion. >> i guess i believe that that suggestion is not necessarily germane to the motion. and although i might agree with it, i think we have to rule on the motion and then we can make some decision as to whether or not we want to give mr. herrera some guidance a to what we think he ought to be doing. >> okay. all in favor? >> aye. >> opposed? >> no. >> it passes 3 to 1. >> okay, the motion passes 3 to 1. i would strongly urge the librarian to try to figure out some way that this can be resolved. even if it's not a perfect solution, i would try it and at

least see what you can do. clearly you heard some significant concern about whether this was appropriate and how the public is reacting to this, so, any other -- >> i would join in that. obvious -- i mean, we all understand that a visual presentation is more persuasive, at least to the publicitying behind where they see it rather than a handout which they may or may not get a copy of. and i don't know, if there's no power to the lecturn and there is no outlet close enough so you can run an extension cord to allow them to have a transparency type and a roll-up screen, not very elaborate, but

something that would allow the public speaker if he or she had something that they wanted to show to the commission and to the public put up there to reinforce the argument i think it would be helpful. >> i concur. and i think it would go a long way in the ongoing discussion that you're having, and it would in its very low level introduce technology. even though we've had overhead screens for quite sometime, still, it's something that would move the needle and i think would be a good faith effort along with elevating public comment. and abiding by the time constraints as well. i think you can still do all of those things. >> commissioner keane. >> additionally, if you ever find yourself having to justify

content discrimination, which is what you're doing, one of the things that you would have a burden of doing is showing that you explored any less onerous options in order to get by with it. so, you'd have that burden upon yourself to show that, well, we tried -- we looked at all of these other ways and this is the only way we could do it. that's the only thing that would pass the kind of strict scrutiny test that you'd need for content discrimination. >> okay, thank you for your time. the next item on the agenda is discussion possible action on the [speaker not understood] audit for 2013. >> so, generally in march, each year we look back to the prior election to see what number of random audits we will do for that election. any candidates who receive

public financing automatically get a full comprehensive audit. we're asked to do targeted audits based on other factors. so, under the law, then, we are required to do a random selection for the remainder. staff has determined we have the resources to do five audits of randomly selected committees for this coming year from the 2013 election. under our previously adopted commission policy, we don't generally audit committees that raise and spend -- raise or spend less than $10,000. and then we have three different audit pools to choose from the rest. committees that raise between 10 and 50,000, 50,000 to 100, and above 100,000. in general, the commission has expressed preferences that we do more audits of the higher dollar value committees than the lower one. so, out of the five audits that we are proposing to do for this

year, we determined that we would do one from the lowest pool, one from the middle pool and three from the largest pool. and you have the statistics and how they play out in front of you. we've prepared a drawing box with these different categories in them. we generally ask a member of the public to do the drawing for us so that we have sort of a level of openness to that. so, if the commission has some questions. >> comments from the commission? public comment? dr. derek kirk. how do we know that every agency has a slip inside that box? ~ kerr >> because they're going to be read off by the member of the public who helps us to draw them. i see he. >> any other public comment?

okay. so, [speaker not understood] from our staff is going to administer this. can we have a volunteer? ~ from the public? anyone? dr. kerr? no? [speaker not understood]. >> all you need to do is read off the names, put them in the box, read the names, pull them, put them in the box, and draw one out. [speaker not understood]. >> can you pull the microphone so that we can hear you? let's begin with activity level 1. what we'll do is we have these pieces of paper here ~. you'll be reading the names off of these pieces of paper. i can read them for you or you can read them and then you can check them off. you read them and i'll check them off. >> and then what i'll do is i'll hand it to you so you can

confirm what i read is correct and you can find it up and put it in the box. all right. so, the first one is sierra club san francisco bay chapter against bmc. and idn is 136 118 7. ~ would you help us fold, please, and stuff them in the box? thank you. the next one is cisneros for treasurer 2013, 1 355 7 88. ~ okay. [speaker not understood] and managers association of san francisco [speaker not understood] for action committee ballot issues a.k.a. boma s.f. p-a-c ballot issue. san francisco labor and neighbor, member education political issues committee. i'm going to read the id number because this organization has many committees. 97 06 30.

committee for a brighter san francisco future, 136 20 60. ~ latino democratic club san francisco, 134 26 52. standing up for working families, a coalition of teachers, nurses, firefighters, public employees and health care advocates, 132 9001 ~. san francisco young democrats, 96 19 46. ~ [speaker not understood] san francisco p-a-c, 124 155 3. san francisco municipal executive association p-a-c, 127 120 3 ~. national union of health care workers candidate committee for quality patient care and union

democracy, 131 82 00 ~. asian pacific democratic club political action committee, 93 1-5 58 ~. building owners and managers association of san francisco political action committee independent expenditures p-a-c aka beaumont sf p-a-c ie, 87 05 59 ~ [speaker not understood]. golden gate association p-a-c, 12 99 3 [speaker not understood]. san francisco building construction trades political organization of worker for employee rights, power p-a-c, 1 23 71 01 ~. harvey milk lgbt democratic club pack, 92 1 683 ~. san francisco alliance for jobs and sustainable growth p-a-c, 1

341 7 96 ~. san francisco sponsored by san francisco chamber of commerce, 891 575 ~. so, we just read all the names of the committees that fell in activity level 1 and according to the staff memo we're going to be selecting one committee from this level. so, without looking at the committees, i'd like a member of the public to select one committee. would you please read the name of that committee? latino democratic club san francisco idn1 34 265 2, committee type, rcp, financial activity level 1. >> thank you.

you're more than welcome. >> so, we're going to move on to activity level 2. would you like to continue doing this? or would you like to switch places? okay, all right. dennis herrera for city attorney 2013. 1 355 7 81. ~ alice b. [speaker not understood] 842 0 18. san francisco apartment association political action committee, 84 30 2. san francisco police officers association issues p-a-c, 131 755 4. ~

committee on jobs government reform fund, 98 28 683 ~. now we will be selecting one committee from activity level 2. san francisco apartment association political action committee, committee id 84 00 02, committee type, rcp, financial activity level 2. >> thank you. you're welcome. >> [inaudible]. the committee on fair drug

pricing - fair/san francisco yes on d, major funding by aids health care foundation, 1 35 37 42. ~. san franciscans united to protect retirees and tax payers, yes on a, a coalition of labor, business and retirees with major supports from the san francisco police officers association issues p-a-c, 1 35 91 43. ~ no wall on the northeast waterfront, b and c support bid local property owners, tenants, neighbors and environmentalists, top contributors include richard sac barbara stuart, 1 34 82 26 ~. san franciscans for parks, jobs and housing yes on b ask c with major support from pacific waterfront partners llc cahill contractors incorporated, building and labor.

1 35 66 86 ~. katy tang for supervisor 2013. carmen chiu for assesser 2013. protect our benefits, 990 028 ~. san francisco labor council labor and neighbor p-a-c, 94 15 62 ~. ua local 38 [speaker not understood] fund, 94 -- sorry, 74 6 875 ~. the level, you'll be selecting three committees. yes.

san francisco for parks, jobs and housing, yes on b and c with major support from pacific waterfront partners, llc, cahill contractors, inc., building and labor. id number 135 66 86. committee type, bmc, financial level 3. ~ no wall on the northwest waterfront. no on b and c, supported by local profit owners, tenants,

neighbors and environmentalists. type contributors including richard and barbara stewart at committee id, 13482 26 ~. committee type, bmc. financial activity level, 3. ~ walls protect our benefits. committee id 990 028. committee he type, rcp. financial level, activity level, 3. >> thank you. you're more than welcome. >> okay, that's it. okay. the next item on the agenda is

the question and possible action regarding ~ discussion and possible action regarding how to handle settlement agreements [speaker not understood] enforcement process. and mr. keane has withdrawn the specific resolution, but i do think it's worth some reconduction on the policy issue. [speaker not understood] would you like to introduce the matter? >> yes. as a matter of policy, this is given staff a great deal of discomfort. the idea that we would revisit a settlement agreement we think contradicts the purpose of the settlement agreement. in particular, the settlement agreement itself contains language that says a stipulation will be the final disposition of the matter. there is certainly language that can be put into settlement agreements when we bring them before the commission and perhaps the commission doesn't think they go far enough.

but to actually reopen them obviously recreate aid hornet's net in a specific case here. but we also think if the commission were to do this in any case that it would be very difficult to negotiate future settlement agreements because the respondents would very clearly say, why should i enter a settlement if i know you can just bring it up again some day? and, so, that's the crux of our concerns. and setting aside the individual case that's been put aside, we have -- we think this is a troubling avenue for the commission to consider. >> i would just respond briefly that, again, not going -- certainly going not going into the individual situation we had tonight. i did not see this as reopening any matter. i saw this as a matter in which

we had done our job and clearly based upon the findings, the particular agency here was under an obligation to do something. and we were taking up a separate matter relating to what i saw as the ethical failure of another agency, another city agency, to do its job, which is under our mandate. that's why i put in that whereas language that we have that mandate to make sure that the departments of government operate ethically and that the public also has our recommendations and that we educate the public as to the ethical obligations of other departments. i did not see this -- i still don't see this -- as -- in

terms of that stipulation as precluding us from going forward and saying some other agency had an obligation now to do something ethically. they didn't do it. we as the ethics commission see that as an ethical failure. if there is a finality to something, i agree. i didn't see this as reopening anything that had been made final. it had moved on to another level. >> commissioner andrews. >> so, could we within the stipulation more clearly outline what we thought should happen, disciplinary action, that we would only agree to the stipulation if indeed -- and not necessarily saying that it would be termination, but it would be some [speaker not understood] whatever disciplinary action were toke

tab enwere taken, or even have an understanding of what that could be while we were knit md l of settlement agreement ? >> in my opinion we would be better off doing that in the future ~ in order to make sure that we have, indeed, finalized something to the extent that my fellow commissioners are uncomfortable that it was finalized and that this was reopening it. so, some language might be added that might address the problem in the future so that it wouldn't come up. >> and i guess if i could just add, if there is a stipulation before the commission that you did not agree with because you felt that there should be some recommendation, your one course of action would be to reject the stipulation or propose an amendment to the stipulation, but that stipulation would then

have to be approved by whoever the respondent was. there is nothing that would preclude you from doing that. >> and we probably couldn't in the stipulation mandate any sort of disciplinary action by the department head because the stipulation is just between us and the respondent, right, or the other party. >> right. and the range of possible disciplinary options. >> right. >> -- here did not include discipline. you did have the authority to, you know, make a recommendation to the puc or whoever, but i think the best practice going forward is that everything be included in one agreement and that if there is no recommendation without any kind of discipline, that perhaps some additional language could be added to the draft stipulations to kind of tighten it up to make clear that, you know, there will be -- that

final action -- the final disposition includes any subsequent consideration of anything related to that particular -- >> well, i think if we decide as a body that if we're going to make some recommendation that we just include it in the settlement. >> exactly. >> so that we are also going to send this letter and make it clear that everybody is on notice as to what we -- >> and that if there is no such recommendation, that there will not be a subsequent recommendation. >> right, right. >> just wanted to point out, though, in terms of reading the regs for the commission, there is a particular section dedicated to stipulated orders specifically and it's section -- looks like 14 b which say that the stipulated order -- sorry, stipulation shall set forth the pertinent facts and may include an agreement as to

anything that could be ordered by the commission under its authority pursuant to charter section c3, et cetera, and that section in turn talks about -- i have it here -- excuse me for a minute while i get it. so, in other words, it seems like our regs contemplate that, you know, whatever we can do under the charter provision is what would be included in that stipulation. and that is cease and desist the violation, file any required report, statements, et cetera. pay a monetary penalty of up to $5,000 usually. there is a provision here that says with respect to city officers other than those identified in 8.107 of the charter, which is probably out of date, that reference, when

the commission determines the basis of substantial evidence that a violation has occurred, the commission may recommend the appointing officer that the officer at issue be removed from office. and that's it. so, i guess without moving forward and having, you know, just sort of looking at it right now, my one concern would be to the extent there is additional language, that's sort of outside the scope of what's provided for in the charter, it might not be allowed for under the regs. i don't know if the city attorney has kind of a question on that. >> it sounds like if there was a recommendation for termination, then that would be contemplated in the language you just read. >> well, only if somebody -- only with respect to particular city officers and only with respect -- a recommendation to an appointing officer. i'm not sure if that's a defined term or not. at any rate, it seems like it might be an issue for us to take a look at. >> sure. i mean, i still think that

there is nothing -- i'll look at it. >> commissioners, any further comment? >> one of the concerns i had as i was listening to all the public comment was that we didn't have any hearings leading up to this stipulated settlement. neder, its was the fppc and as far as i know, there was little or no activity by the ethics commission and its staff to do a complete investigation. >> i think we did investigate. >> yeah. >> we did our own investigation. >> i mean, in other words, there was never any investigation as to how serious the offense was. i mean, we all react to the

fact it's a conflict of interest. but whether or not it was -- rose to the level that somebody should be fired because they committed a conflict of interest, i didn't feel i as a commissioner was in any position to do any value judgment on that. that was up to the agency who -- to make that determination, absent some record that i had in front of me that would cause me to either think this woman should be fired or she shouldn't be fired. i mean, it's -- i think if we're going to make recommendations concerning what the agency should do, we've got to have a lot more information about -- and understanding of what investigation the agency made