no violation at all. >> mr. king. >> if we were to go ahead and just make a finding that the department of park and rec violated the sunshine ordinance, and did not say anything about anything being done willfully, and did not say anything about mr. ginsburg, and didn't get into anything relating to whether his due process rights were violated or not, wouldn't that moot out all of this other stuff that we just, and we get to the heart of the question? of did the department of park and rec, violate the sunshine ordinance by not turning their stuff over? i think that is otherwise, we are going off into all sorts of things, standing of mr. ginsburg and due process of mr.

ginsburg, why would we bother to go there? >> i think that the... >> if we are not going to do anything to him and not having any finding of willfulness, why would we need to get into a big discussion about that? >> well, i mean, i think that the preliminary question before the commission is whether he personally engaged in a violation of the ordinance, willful or non-willful and so i think that that is something, that is a question that is squarely before the commission. >> do we have to answer that? i mean, that is not preliminarily to a conclusion as to whether or not the ordinance was violated? >> and anything about mr. ginsburg. >> and i think that, not not connected in that way. >> maybe another way of phrasing what you are asking me, is can you not address whether mr. ginsburg violated the sunshine ordinance but instead, come to some conclusion about whether miss gong. >> and i don't think that we

need to person allies this and i think that it comes from a department, and that is if we make a decision that they failed to take an action. >> it is all written in the language >> and we have to nail someone up there to the cross in order to go ahead and decide this question? >> we have to have a body to execute? >> i can only tell you what the sunshine ordinance says and i don't think that there is anything in it to suggest that a department as a whole is or can violate it, and i think that decisions are, and i mean that perhaps the decision could be made by more than one person and in which case, those people could be named as complainants but i don't and it doesn't, i don't think that it is, and i don't think that it is proper not to address the question of

whether mr. ginsburg violated the sunshine ordinance, but instead, speak on a different question. >> because that is not what the... >> the question of whether or not the ordinance has been violated, is not a different question. and that is the main thing that we have been talking about for the last hour and a half or so. >> but the... and but the... i mean the referral before the ethics commission from the sunshine ordinance task force is as a willful violation by mr. ginsburg. >> and here is why it matters, i think, at least arguably, is a willful violation of a department head is under different rules and regulations that is where we need to, that is why we are under chapter three and the burden is on the complainant, and so on and so forth. if this is a non-willful violation by someone, who is not a department head, and then the sunshine ordinance the task

force, will make their decision, and refer the matter and it is going to be presumed that it is a violation, unless the respondent carries the burden that it is not. and so i think that the upshot of this, if we were to find that there was no willful violation, by mr. ginsburg that this would go back and i would, and i would assume, or maybe, i should not assume but it is possible that the complainant could go, and bring this as a non-willful violation of a non-department head and the task force would then make the determination, and then it would come to us and we would then be in a position of, finding unless, the respondent carries the burden that it was a violation and that the record should be disclosed. but to me, that is a procedural hoop that we should go through. if we if we don't think that there is a willful violation by the department head. >> but didn't we just get advice from the city attorney, mr. chair, that we have the power to make the decision as

to the lesser included offense? >> yeah. >> and it was just a violation rather than a willful violation. >> did he kind of say that i am not sure that is right. >> what i said was that you can find a non-willful violation or a willful violation but i don't think that tonight, you can find a non-willful violation by someone else in the rec and park department. >> base $ed on the chapter three, we could find the non-willful violation of mr. ginsburg. >> right. under three, the votes of at least three commissioners are required to make a finding that they have created a willful violation or a non-willful violation. >> but i think that if you are going to talk about someone other than general manager ginsburg that is beyond the scope of what tonight is for.

>> i have a question for mr. pilpal. >> and i agree with mr. white on that last point. >> you said that it was your view of the task force that there was a problem with naming mr. ginsbuger and could you elaborate on your rationale for that? >> first the initial underlying complaint was against miss gong and she is the person that appeared at the various hearings and after the order was made and came back to the full task force, and we heard it at one meeting and continued it, and i suggested in there was in order, in there seemed to be an interest in naming mr. ginsburg, since he was not the named respondent in the underlying complaint and it was continued in part to give him notice, via the e-mail that was

referenced of the subject hearing so that his due process was addressed. and i am not sure if that was sufficient, and i think that we are now, at that question, precisely, and i think that we need to have some clarity between this commission and the staff and the task force, about what steps needs to happen, in order for the things to be perfected and properly before you, and i have tried all that i can, at the task force and i am fighting the losing battles over there on these issues and if we are not getting the right facts or the right information for you and then obviously the thing is going to fail as it may well, tonight and i understand all of that. as a said earlier, i think that there was a violation, i don't think that it was willful and i am sure that he was not the proper person. >> why wasn't that notice enough. if he got the e-mail notice... >> maybe he didn't. >> that is a question for the,

or for you to decide is whether there or whether the due process concerns have been quieted and whether you have sufficient grounds to make the determination that was just explained under 2 b3 and whether willful or non-willful on mr. ginsburg's part. and i spent a huge amount of time after, or between the hearings, preparing, findings and explanation of all of this that i think would have been helpful as part of the referral and the transmittal and the chair elected not to use that and so what you have before you is just the information that was before the task force, which does not really tell, the full story, and does not tell it well, and in fact, mr. maionchi came before the task force and explained the thing about the list and his belief and which factored heavily into the decision of the task force, i believe and we have

procedural problems. >> i got it. >> thank you. >> any other questions? >> okay. >> sorry. i am sorry for all of these questions. for the staff, i mean, what other than this concern that if we find a willful violation and a serious finding and what is the due process if we find a non-willful violation? >> mr. ginsburg was and they requested that he and his ballard attend the meeting. but at no point were either of those people ever the respondent and the named respondent. so, while they were invited to come to the meeting, and there was no information that mr. ginsburg. >> i thought that she was the named respondent? >> she was and the letter to

miss gong from the sunshine task force, requested that mr. ginsburg and miss ballard also attend >> and if not named as a respondent he does not have notice. >> could i speak to that, and i have a different view of whether this is a due process violation and not all government decisions are violations of the due process clause and even if there was no notice and no hearing, the due process clause only atriggered if there was a liberty or a property interest that was affected by the government action. and here, the referral by the sunshine ordinance task force even assuming that it is a reputation interest, that alone is not sufficient to trigger or to invoke a need for a notice or hearing and the supreme court has been clear that you need a reputational interest and plus something else and so

i have serious questions that this will be a due process and an actual constitutional due process violation for the ethics commission to proceed on, and non-willful or the willful ground against mr. ginsburg because he had notice of tonight >> your view is that it is not a problem because we could find the willful and non-willful and that would not and, that would be proper and appropriate, assume thating there was the underlying subnative basis was there. >> i do. >> and could you speak to that? >> yes, miss ballard. >> thank you. on behalf of the department, i think that it is important to add a little context here and which is that we received over 200 sunshine requests a year and many of them personally asking for mr. ginsburg or myself. and many cases i think that because our names are associated with things that are

in the news paip and her so people know that there is an individual person that they can ask for. but, it is important to know that throughout this case, while it was hey, can they come, there was never an official naming and there was no notice before the sunshine ordinance task force officially added the general manager of the department, who whom they are very serious consequences under the charter of willful misconduct. >> there was no notice. >> i don't think that we are contemplating willful. >> what about non-willful. >> i am sorry? >> i don't think that we are contemplating willful. >> i will argue that a person should be and it is a person should be availed their rights and that is difficult as a manager or a general manager of a department that manages 4,000 acre and 34 rec center and 9 pools and are responsible for 1800 employees, you get a lot of requests. and that is a very different things than being normally

noticed by a commission, which is charged with over seing open government. and those are two very, very different things, and to attach the general manager's name to this, at the last minute without any notice to him,... >> he had notice of tonight, right? >> correct. and he could not be here because of a personal conflict. with his daughter, his daughter's school is on a camp trip that he is long planned to be the chaperone for. again i apologize for that. >> we would not be disagreing with anything that you said, and in regard to mr. ginsburg in my opinion. if we were to say that the department and mr. ginsburg is the one that is ultimately in charge of the department that mr. ginsburg not willfully, but, did not comply with the

sunshine ordinance, as he was required to comply with it and as the department and i don't think that there is anything pajoritive there. and let me just finish, and i think that both you and mr. ginsburg could rest easy that we would not be in any way trying to tarish mr. ginsburg or say that he is a bad person, or has done gerer or say that he is a bad person, or has done something evil,that they represented by the decision for

him. >> and it is helpful if it is between the ethics commission or the sunshine ordinance task force for the clear direction to the department that does this apply to all 80,000 records that we have, is this specific to this case, because, you know, as i have tried to represent here, weengaged as he represented and we have conflicted advice from the sunshine ordinance task force and our city concern... and i think that will be helpful so that we don't find ourselves spending the same evening having the conversation if it is the will of the commission to provide the direction does this apply to all 80,000 addresses? >> so in terms of do you have

to have some general attorney over everything, and based upon our decision tonight in this context? my opinion would be no, but in this situation, you do. if that is, if that is going to be the will of the commission. >> understood, thank you. >> and

>> mr. hartz. >> members of the ethics commission, as mr. pilpal, has appeared in behalf of the defense i would like to make a couple of things clear, a department head like it or not is responsible for anything wrongful that happens in his department and yes he can sit there but mr. ginsburg got notice, and he knows that this is going on, he decided, or told somebody else who decided who to send here to answer on his behalf. and if they are unable to answer those questions, sufficiently that again is his responsibility. the bottom line if you are in command in an organization, you are responsible, period, whether you like it or not. and to say otherwise, is dishonest. now i would say one thing to the members of the ethics commission, mr. pilpal while a

member of the sunshine ordinance task force, often comes to meetings like this, saying that is he a member and then, under cutting the decisions of the task force, about matters with which he disagreed during the initial discussion. and i would suggest that you look at the decision and issued by the task force, or any documents that included the full discussion by the task force, and not depend on a bias opinion from someone always, always side with the city. and in fact, he has been in the process here of giving advice to the city's representatives, while he is up here trying to give advice to you and that is not in any way, a fair situation. i also want to raise one question, because it happened to me last month. did this staff, make any effort to find out whether mr. i

pronounce his name incorrectly, maionchi was going to be here and if not, why not? i really find it hard to believe that you think having hearings without one of the parties present and not asking any questions about what that is, does not furnish any image that you want to build as being a fair body, the good government guide specifically says that anybody in this city has to give the factual appearance as well as the appearance of being fair. holding a hearing, for one of the parties of interest is not there, and simply because you can, and simply because the executive director chose to write the rule to let you do it, is not going to pass anybody's muster as being fair. >> could i follow up on that and just ask, what sort of notice did he have of our

proceedings tonight? >> on behalf of the staff, both the complainant and mr. maionchi were given notice by e-mail on fril four and this also mailed the information on the fourth and the notice of the hearing and all of the documents that you have and mr. ginsburg was sent that inner office mail and i personally reminded them both, on friday when the agenda came out that the hearing was tonight. and mr. maionchi never respond and never requested a continuance. >> thank you. >> and a presume that the city attorney finds the notice for both parties was sufficient? >> yes, based on what mr. chap field just said. >> any other discussion or is there a motion? >> what, this is, and i think that this is just a question on the standardization of the

procedure. and for the sunshine ordinance task force. and are we saying that a blanket statement that if there is an employee, a city employee whomever that city department head is, they should always be named? or, are we making that for this particular decision, i feel like, if it turns out that we don't have right respondent named that we should really go back all the way to it and solve that and i have a feeling that we have, a more clear understanding and a decision that we will make on the violation itself and i feel that we are less clear on this, and i feel to leave it alone to just sort of think that it is fine and he is the head of the department and i as a person who has the organization and i get that the buck stops here. but at the same time, i don't want to necessarily take undue credit or responsibility for things that may not have been fully my responsibility. and if there was another opportunity where it would have

been more accurate to name a respondent, and have we sufficiently, discussed that? and so that we would make a decision whether we should move forward or not? >> i am reminded that we had this same problem last month, and mr. herrera was here and he said that i am simply following the directions of the board. and i gave them the problem and this is what they told me to do. and we said does that pose a problem and i sort of joined in mr. andrew's comment is that, is mr. ginsburg being named only because he happens to be head of the department? or is he being named because he personally performed some act and i look at the referral here and it was a referral that says, in that, to find the recreation and parks department in violation of the sunshine

ordinance. for enforcement and then it says referral for the enforcement specifically naming phil ginsburg, director of recreation and park department responsible. which is sort of i don't know, if they are saying that we can simply say that we think that there was been a violation, and hold the department responsibility and mr. ginsburg in his capacity as the head of the department, is responsible, because i mean, clearly, i think that none of us are going to find a willful violation, and so if we are talking about a non-willful violation, and what we are really doing is giving some direction to the park and rec department and its employees, that when you get a request and you are dealing with that issue, you have got

to comply with the statute that says that you have to cite your specific basis of why you are redacting the information that you are redacting and i don't see the need that it is personally directed at mr. ginsburg, and it is directed at him in his role. and if he had been named initially as the respondent at the task force would that change even if it did not have anything to do personally with the record request? >> i think, well, i would say, so, because what ultimately, you are left with is this amount of internal conversation that we don't know about that happened that he could have been a part of one or ten meetings and it could have been his decision or idea or someone else's decision that he just endorsed and signed off on and i think that there is a role that he plays and he has played in this in terms of the

discussion that ultimately led the department to make the decision that they made and on the advice of the city attorney's office. and so, yes, i think that, i think, he probably could be named among other respondents within the department but to attach his name to it because he is the head of the department and it feels like it is not the right thing to do. >> it appears that we have a disagreement, the attorney is saying that is not a problem and the staff is saying even for a non-willful violation and it is, and maybe we should clarity from the staff. >> and with respect to a non-willful violation. >> and they agree, they agree in regard to a non-willful violation with the attorney. >> and is that right? >> well, justin, manarty, deputy executive director and i

think to be frank, with respect to the legal bases for the due process violations, and if it is basically just a reputational harm, and you know, i will take what the city attorney says, as true, and i mean that i think that we will say as a matter of fair dealings, that if you are going to say, somebody violated the law, specifically one person, and then you don't give that person the opportunity to respond, that you know, you want to go back to point one, where that person can actually mount the fence. and so as a legal matter i think that we would rely on the city attorney but we would urge that that person be given the chance to respond, and now, i guess that day is today. they are not necessarily here and it does seem unfair at the end of the this process where there were three hearings and at the last hearing someone has just sort of tacked on and the

merits at least with respect to the task force were never addressed by the person actually being accused of doing something wrong. >> yes, commissioner? >> i just like to speak to what you said and, that is, in regard to our concerns, that i think our concerns have to be governed as to whether we are doing something in violation of the law, violating due process and we can agree with you as human beings and this kind of unfair to phil ginsburg that is fine and it may be. but, in terms of whether or not there is some sort of legal constraint upon us and there will be one upon us if we were violating his due process rights and as the city attorney has said and i have come in here tonight with the thoughts about are we violating his due process rights and the city attorney reminded me of that question relating to whether or not someone's due process rights are violated if it is

only a reputational mat and her they are not, and there is, and there are several, supreme court cases directly on that. and there has to be some actual injury and that is addressed to it and i don't know and i don't even go to the threshold point that there is any kind of reputational tarnishing of mr. ginsburg by us saying, non-willful but they violated the sunshine ordinance and, mr. ginsburg, as head of the department, the responsible person, the department violated the sunshine ordinance because they should have disclosed this stuff, i feel nothing legal, and i feel sorry for mr. ginsburg, and he should have been in it from the beginning and had a right to give his two cents, yeah, that is okay. but, that is not, that is not anything that should hold us back, legally. >> and i agree, when it comes

to finding, what is in front of us, is there a willful violation, to me it is like a more complicated question because what we are contemplating is making a decision that is not, that, adjudicating the referral that was sent to us and so we have the discretion to find there was a non-willful violation and we don't have to, do we think that the policy reason that they have articulated is important enough that we should have a procedure where you do name the person, at all levels so that they have a chance to make the case at the sunshine ordinance task force, rather than, if, and you know what i am worried about, is if we now, find the violation of mr. ginsburg, and you never have to name the person that you ultimately named to the ethics commission, and at the task force. and so, you kind of never have that mr. ginsburg or whoever the department has or the head is next time never has the chance or may not have the chance to make their case in

front of a task force in the future, and so if it is discretionary and i think that the policy matters and i am becoming persuaded that maybe we should just adjudicate this matter and find no willful violation of mr. ginsburg and let the task force and the complainant sort it out and clearly they have heard our viewpoints, and i think, you know, that the complainant would be emboldant, in light of what we think and maybe this is a safer course. >> i would like to follow up on what the chair has just suggested. and put it in the form of a motion. if we find that the sunshine ordinance was violated, by the department of or by mr. ginsburg, as head of the department of rec and park. and that it was a non-willful violation, and that would be