basically states that any member of the compligs commission that dloez information before the probable cause so the commission has to go into closed session for the proposed settlement a that's a violation of the proposed chart similarly with item 5. under that provision as well as the commissions unregulations probable cause hearings have to be held in closed session there's incrimination we have to vote even though their notice latitude as item 67 i think that there maybe some discretion but

this truly is pending litigation and i think it would be, you know, possible to provide, you know, full and frank advise to the commission about that pending litigation in open session. >> is there a motion to going go into closed session. >> before we go into closed session i think at our last meeting we said weigh to explain why you should understand that when we are considering whether or not a complaint should be filed with the individual the individual has been informed he or she knows we're intending to discuss that matter if after in our closed session we determine that no complaints should be filed she or he has a right to

the privacy so it's like any kind of a legal process the government and the district attorney when it initiates a public investigation they don't go to the public so see he or she has compliment a crime that's an invasion of the their privacy the only reason in private if we decide that, yes there's probable cause it then gets disclosed and there's will be a public hearing that is the first step in the process not trying to keep the public out but protect the interests of the individual who's been notified that there's going to be this determination and he or she can come in and say hey, there shouldn't a probable cause determination invites to the about keeping something secret

from the public. that the public has a right to know until we ask. >> i'll move we go into closed session. >> in favor? i. opposed? hearing none that motion passes so for number 4 we're going into closed session. public comment with respect to item 5 discussion and possible action regarding the connection for complaints received or by the ethnics. ray heart i'll respond to the comments that are disingenuous and dishonestly honest saying in public those people say they know what's going on is a bunch of crap in march you had a hearing i was not invited and you had a hearing prior to me

come back so, yes there's this imaginary thing that people all know that's not the case and add to that the fact it need not my cased up by about which i as a member of the public or a party that maybe involved i should know which cases those are. those particular item here we have the same issue in triple we have three cases that no one has any idea regarding what cases are discussed, of course, i'm assuming that since no documents whatsoever were produced or provided for the public that the commissioners received nothing in advance that's the same issue we've talked about last week mr. goldman's case. what the public is asked to building you're going to discussing discuss 3 cases

without preparation they didn't send documents or tell you what was documents were you know nothing because if you did know something we're supposed to know anything that's not privileged. you don't know what the cases are don't know the scope of the discussion and you don't have any idea a that's the way it seems from the public's point of view if it's the case you don't know what to go into closed session if you don't know what you're going to discuss in closed session hallway can you decide that a closed session is required if you look at the yawned item we can't tell if a closed session is required sunshine ordinance section 67 pointed 8 stitsdz states it the agenda disclosureer should

specifically identify a case under discussion that's what the law says you can be as disingenious about it >> only tell us things like it's a legal case the law says you have to say with the specific case is if you don't understand that then our annual signing the sunshine declaration your falsifying it. >> patrick. it appears you have a short memory just a month ago t c a white advised commissioner renne that because the agenda and meeting materials had been deficient you had to postpone

mr. gross man's case mr. gross man informed you that your agenda more than likely violates the brown act it would be useful to hear d c white weigh in on whether or not items four and five sunshine be detailed another thirty days for the compliance for the agenda. you do remember what happens thirty days ago when item 6 was poinl for a month; right? >> the item a really confusing it's in connection with the complaint initiated or received by the ethnics commission is

refers to convince of anticipated litigation as plaintiffs so if you receive the complaint you would be suing that if you initiate the complaint you would still be suing. okay. i suppose that's the way it works and >> talk about the brown act i think i found the section i was looking for. it's a section if it's closed i'm reading now from section oh, it's a long one. i think that's referred to in the agenda. says based on existing factors you can go into closed session

with your attorney and have sections with the attorney-client privilege based on the facts the protective body has digging whether or not to initiate litigation and it says if the session is closed pursuant to subsection a the party shall state the identity of the litigation to be discussed unless the body says to do so will justices of the peace the agency ability to service of progress upon one or more parties or jeopardizes it's ability to include the

settlement negotiations you're talking about settlement in the agenda item. i thought. oh, stimulation i'm sorry oh, the point has been made. thank you. >> commissioners, comments or questions. is there a motion to go into closed session with respect to agenda item 5? >> so moved. i'll second >> in favor i. opposed. hearing none. that motion passes. agenda item 6 discussion regarding the status and background of pending litigation with gross man and the san

francisco ethics commission public comment? >> commissioners ray heart for open government api i've been wade for keen anticipation whether to handle this agenda item in full view of the public hell i'm curious whether you'll let the public have my opportunity to observe your discussion i'm good morning to go out on a limb they'll vote to hide and commissioner renne will vote to let the sunshine in. i win either way you choose to hide which proves this or you i'm wrong and you choose to be open which is my deserved outcome. i doubt i will be wrong that is but i sincerely hope i'm wrong.

john the executive director pattern of the hiding as much as possible it getting truly tiring not plaza items properly on the agenda and not providing the documentation, etc., etc., etc. it didn't seem like mr. sin country feels any obligation to follow any aspect of the law we come back case by case and issue after issue you sit up there and look like a bunch of no see no evil and speak no evil monkeys. i believe the members of the ethics commission need to give the executive director to be as open as possible. i don't think you're going to do that you like the fact he keeps everything hidden so this constant refrain you're not

trying to hide everything you are. it's rather than stupid to sit up there and say you're not trying hide something your successful you won't thrills what the 4 or 3 cases if you want to complete the first two and the only reason you did mr. gross man because he won't call you hide and hide and hide and if there's my any member of the public don't that that's the truth they should come here. you notice people don't bother to come here they know you're a bunch of politicians that are appointed by the politicians your supposed to hold accountable i'll raise the question i want one of you to get up and honestly tell me how

anything you've done to improve the ethics of this city you confuse activity with accomplishment you do dozens of things and accomplish nothing. >> patrick. we were here thirty days ago and your memories have slipped by. we invited you thirty days ago you're not the defendant in this case your agenda continues to assert you are you're the plaintiffs in this case. which i'm sure even commissioner hayon living in the richmond understands the difference between plaintiffs and

independents. commissioner keane last month wanted to quickly move to ignore deputy city attorney whites advise to postpone it for a month. commissioner keane according to the audit wanted to jump into an open session on the spot i believe it struck me then and now to the extent commissioner keane elected to attempt to ignore deputy city attorney josh whites city attorney advise. found it like appoints to the sunshine task force. where supervisor tang is using a witness test of undying loyalty to city attorney advise. so if commissioner keane can

ignore whites advise why can't the sunshine task force who overall had reached a simple interpretation of city attorney advise. as many city policy bodies often do during open session they found ways to get around the advise presented by the deputy city attorney. but what happened no commissioner keane's idea of gap government transparent and holding it in closed session particularly on a pacing says that's not pending litigation anymore. all that needs to happen is the appellate court is to release it's opinion. litigating is done. it's not pending litigation

anymore. and i should hold this session in open session. so we can hear what kind of advise you're going to get since you took no action to authorize mr. sin country to file this case in superior court he did that without our explicit permission. >> i want to read i something from the brown act section 54946.9. but i want to mention after the last meeting i put in a records request inform mr. sincroy that was provided to the commissioners before the placing last meeting i got copies of everything that's listed but one

was withheld because of the subject to the attorney-client privilege asserting that the attorney-client privilege on the material that was provided to the commissioners afforded. this is what 549.6.9 says for purposes of this chapter all expressions of the lawyer client privilege other than those provided in this section are here we go abrogated. this section is the inclusive session of the attorney-client privilege for the privileges of having the closed session sessions but it says that anything that you get before the closed session meeting is a public record flu disclosureable if

>> lawyers don't agree i'll be happy to have the debate. so let's suppose there is a decision from the court of appeals you win. it's going to go to the supreme court i think you should ask your lawyers what their clans are because i will ask mine. but if you think about all of the work that's been done and the money spent by me and by you representing the taxpayers so far and this is the first meeting you're ready to talk about this case. this is going to be huge. in costs whether i think i think or you win i think you should keep in mind. the last thing that's important and it's about time i came to grips our bylaws say you'll

comply with the sunshine ordinance. what happened to that inclines what's it going to do to the way your conducting our business when it comes to the referrals and the task force. you're going to overturn them every time the respondent relied or the complainant relied on the nowlogically provision in the sunshine ordinance? i don't think so should think about it and hard >> good evening hope johnson i want to urge you to hold this in open session that have we've gone on for many years longer than that 4 years around the ethics commission hand to hand

the sunshine complaints what i was on a task force the board of supervisors told us we violated the sunshine ordinance but this commission has memos that says our referrals from the sunshine task force wore not valid our finding were not valeted even though none of you heard it it was not heard or voted on so the charter so mr. sincroy writes them and the city attorney vetted they were never voted on by the ethics commission itself so the staff was passing those and it happened for years. and i appreciate that the commissioners did a roof work to try to bring that around to change it so there was an open meeting about the sunshine complaint i know your working

hard but that's public policy and in the administrator code it's a black letter law but voted on by the volunteered they had an opportunity to see it was one small section of the attorney-client privilege they're dealing with and the city attorney's office represents the people too the departments belong to the people. we don't want the city attorney's office to be able to tell the departments how to avoid giving records to the public the records are presumed discloseable it's at the responsibility of the people that think they should not be disclosed it should fall under an exemption so this is a public policy discussion. that needs to be in open session people need to be able to go back and refer to it the general

public shouldn't have to will i i rely on what the commissioners say. it's frustrating for us to say that over and over again, i had to hear it for two years at the 5 and 6 hour meetings because there was not openness about how the sunshine ordinance task force reversals were handled when 33 it came to enforcement it went on and on and only what way to stop it is to show how your deliberating air there's 3 possible things to do but i welcome my fellow commissioners and city attorney and staff. one option is to receive from mr. sincroy a background on the case the president of the united states what's been happening and going on no attorney advise.

i think the second option to do that in open section and go into closed session where we can solicit advise from starz and the third option go into closed session i think and get the advise of the city attorney. thoughts from the staff or fellow commissioners? >> sounds like all right. to me. city attorney. i think those all sounds like options to consider >> i think those are all options you can consider. >> well, i supposed there's another option to have a public hearing not limited as you limited the public portion of it. >> i supposition there's an

option we can wave the attorney-client privilege and have the advice in open section i would strongly oppose waving the take advantage attorney-client privilege that's at issue. >> did you say oppose. >> i would oppose it. >> i'm with commissioner renne i mean we've talked about this long enough and everybody seems to want including, you know, the principles in this to have an open hearing let's have an open hearing. now as to the attorney-client privilege with legal advice i'm prepared to take our advise

commissioner hur's >> i appreciate you're using the mike. >> okay. so maybe i'll ask it this way is there a motion to receive from the staff an upgrade on the case in open session but then to move into closed session for any attorney-client privilege advise that we seek from the city attorney? commissioner hayon >> i'll second that. yeah, i'll agree to that. >> does that is there a motion

to do so? >> so moved. is there a second? >> i'll second it. >> all in favor, say i. >> i. >> (inaudible). >> i think you've had public comment on whether or not to go into closed session there's no reason for a second round of public comment. >> the city attorney has advised we've already had. it says on every motion that's the motion before we had a discussion of the agenda >> including whether to meet in closed session. did we just vote? okay >> okay. we are going to - >> why don't we do the public

discussion so those folks don't have to wait until we do the other stuff. >> does the public prefer we do that? >> yeah. >> let's do the public session on item 6. gentlemen you want to give us some background and status on the matter that's pending >> this case went to the court of appeals earlier this year. there was a certain amount of time when briefs were submitted by both parties back and forth oral argument were heard on may 1st and a decision due by the first week in august. the basis for this agenda item was at some point commissioner keane requested for may the

briefs filed pertaining to the appeal i offered him all the documents related to the can i he didn't want them and requested that we calendar a decision on those briefs that he asked for and that i sent him those are the briefs you've received as part of the agenda packet for this meeting i'm not sure what he wants to discuss but wanted to have a general discussion about that. after the court of appeals releases its decision as mr. gross man alluded to there's a certain amount of time when the party that doesn't win the case can file with the california

supreme court this case can remain pending e pending for a matter of months to come >> questions from commissioners? any status or background of the case? i have a question about what the supreme court judge did. did he review the in camera the underlying documents? >> no. >> whaes was it stipulated that the documents were attorney-client privilege and the issue was whether the sunshine ordinance allowed disclosure of the attorney-client privilege in the recorded documents. >> it was not stipulated there's an assertion of the privilege do you - there was an assertion of the