the city and the bay whether e-mails sent concerning city business on the officials private e-mail account are subject to the private records act we're monitoring it internally but that's what is referred to recommendation 11. >> okay. and so we think it's depending on what the california supreme court decided this could affect other electronic communications >> that isn't about e-mail but to the take the opportunity extending stent an official can use private e-mails and text and otherwise and claim because its not on the public communication system s it is automatically not subject to the private act so that question which the district

attorney's office is advised they shouldn't make the argument but it the definitely a gray area and an ear where the law is developing that's all when a the commissioner is trying to get at. things will become clarified especially with the new communication technologies >> has it been auditor yet. >> no, i don't believe so. >> this is another one where i would like to revisit it once you know so if you could keep us advised when it is argued and decided. any other questions or comments for the commissioners on 11 >> i wanted to check in the commissioners and staff and perhaps the public as well we're

now almost anothers 1 o'clock. we're not halfway through i believe the recommendations. >> we have 29. >> do we want to take a lunch break. >> yes. he let me address this to the chair i understand i think we have this room until 3 or something. i made a contempt for another legal matter that requires me to be at a 3 o'clock so i'll asked to be excluded from the afternoon session >> any that is certainly fine with me i don't know if any other commissioner has a comment. okay. so should we take 45

minutes? okay. let's plan to come back at it >> good afternoon we're going back from recess for the special meeting of san francisco ethics commission. we were about to begin finding and recommendation 12. a couple of things want the record would reflect that is commissioner is executed and sfgovtv that the touching of the microphone at the podium is causing a lot of noise for the viewers on tv i understand but try not to touch the microphone >> finding number 12 any

questions or comments for commissioners. i understand that number 12 was not directed at the commission and perhaps is better addressed by the executive director in my event so i will propose removing the finding and recommendations since this really don't it was addressed to the executive director. so i would say that i think the recommendation for what did director will do, i.e., notify the downstairs and see if we can rectify it and i hope that's what the director has in mind >> mr. chair again, i understand and i don't

understand why they would address something to the executive director who is an employee of the commission and if this is a civil grand jury looking at the commission i think that in terms of the propriety of the responses on the part of the commission are with the civil grand jury the responses should be between the commission and the civil grand jury not by an employee of the commission to the civil generalizing. it's just a motivator of the prototype and adds to the unfortunate criticism that is often made which i don't agree with that by some members of the public i think they're totally wrong about this the commission is run by the executive

director. that's not true we shouldn't do anything that foster any indication of that and certainly in terms of of a discussion between a body as important and as a sill grand jury regarding the business of this body i think the response should be by the commission. >> commissioner. the commission has been asked to respond to the large majority of those finding and recommendations but not all of them. in 13 cases they've asked for a response from the executive director i don't believe i have a choice of not responding when they ask inform a response directly from me.

>> well, i disagree with that, i think. >> you disagree with who they ask. >> let me finish. >> okay. >> you'll get the answer. >> i'm sorry. >> i disagree with that in regard to the fact you do not have an option to respond i think it is improper of civil grand jury to make an inquiry relating to a particular that goes to a particular employee of a vice president in a civil grand jury has a question or some information it wants from the department it should seek that through a query from the department and a responses to the department. i think in regards to the specific questions specifically

addressed to the executive director i think the commissioners we as commissioners should instruct the executive director not to answer those but to have the answer be given by the commission. i think it's a violation of protocol by the department to try a address matters directly it an employee of that vice president and an internal problem for us in terms of the whole manner in which the commissioners and the executive director of this vice president carry out their functions. i'll say out of respect for the

civil grand jury we should answer the questions even if in terms of answering them in the words that mr. sincroy with answer them if we choose to do that but the answers should be that the commission responds as such not the executive director responds. >> other comments from the commissioners. >> i'm very much in agreement with that we very may well as commissioner keane choose to use the words of mr. sincroy but this is the governing body and there are secret responsibilities and functions that the commission holds and i do building this will go a long way we take a unilateral

approach to the body to that 0 particular department. >> i was going to make the recommendation that if we do respond to finding number 12 that the commission would instruct the executive director to direct his staff to notify all staff to notify the departments and make sure the information is on the websites that's the protocol with a governing body. >> mr. sincroy. if you are going to adapt that language the second sense i've have conflicting advise on the interpretation of that session and probably b would be best to delete that sentence.

>> sentence the sunshine ordinance section sited doesn't apply to the vice president only individuals. >> correct. >> i would welcome the views of the city attorney or the staff on commissioner keanes and commissioner andrews questions about whether it's even appropriate for the grand jury to direct inquires to an employee rather than the commission and therefore, whether the commission should respond to everything as asserted. >> deputy director i'll defer to the city attorney on this but i know that the governing provision in the pencil penal code it says the list of public

entities that are required to respond to the judge. >> i on says it all it's not a public entity we're the public entity. >> yeah. jessie i want to definitely see the actual language that i can look at a row this is a brief summer in the grand jury report. >> yeah. to in my experience at least my own experience i have not seen many grand jury report they seek a response from the department head and commission itself. perhaps mebsz members of the grand jury can shed light and speak to that >> and certainly i can just know can see if there's anyone in my office that has experience with that this seems like a

global question that won't precluded the commission from going forward and i'll find out this information. >> i think the general recommendation that the commission responds to finding regardless whether the executive director needs to separately respond this perhaps you can figure out but it sounds like the commission wants to respond and i understand the rational the separate question of the whether the executive director can respond i'll look forward to input mr. chair. >> sure. >> we don't have to go figure out that today. >> any other changes to recommendation 12 other than striking the second sentence of finding 12? is there a motion to adapt

finding and recommendation 12 as amended >> so moved. >> second. second >> public comment? >> ray from san francisco open government one of the problems i have with some of the issues it's we're talking about the sunshine ordinance and the brown act and you know the laws that have been in place for more than a decade and we're going to send out on the memo to the departments to tell them to follow the law. i mean einstein said it the best definition of insanity is doing the same thing with a different outcome we'll send out a memo to the departments to tell them what they ought to know they are to do how many times do you tell

them to do it and they ignore it and you simply say let's sends them other memo what do they do with the 5 or 6 or 7 or 10. it begs any sort of common sense to simply say to departments obey the law the department heads have to insure they carry out the duties i file the sunshine laws against the department head they're the ones that are accountability and their bottom line is they're accountable i don't care who

don't or does do something in the navy if you walked into a board of inquirey and said someone under my command i'm not responsible they'd laugh you out and find you in violation just for saying that and then make it clear our responsible if they did it under our watch whether you know about it or not you're responsible and the sapg e same thing with the departments. they know those requirements exist we didn't talk about 11 or 10 but we're reinventing the wheel telling me the departments to keep records and they do that with consistency. it can't be this arc try thing we're not keeping this type e-mail but not that one and getting into an argument whether

or not private e-mails is before the supreme court that public computers with public records ought to be from department to department and a citizen shouldn't be figuring this out the departments should >> in favor of the motion. >> it passes 4 to in terms of

it is i know it's saying it's not clear we don't need to say that we don't need to consecutive that we maine maybe in a situation we're asking other departments to report particular items of misconduct that are not precluded by state confidentiality and constitutional confidentiality rules we don't want this this sentence come back to haunt us later on. any other comments on recommendation 13? i concur with what you said

commissioner keane as well. is there a motion to adapt finding and recommendation 13 as amended by is commissioner keane >> so moved. public comment? >> commissioners ray director from san francisco open government i agree with commissioner keane we can't disclosure this because it might ask other to violate a law obviously if you can't disclose something but the page 9 the categories non-exempt are one person who takes the public funds and so forth and i'm looking the case we had at the f pc at the city librarian there is absolutely nothing to prohibit putting open the ethics

commission website he was found to have pursue injured himself and he admitted that the $5,000 a year from the friends and filed a statement saying he got nothing from the friends. and he filed amended statements that's all public record we're not disclosing anything that is personal or confidential things so we want the public to know a public official broke the law and did see

time he was and government guide

i think there's a general consensus that is not sort of general advisory but not a source of law it didn't do the level of analysis that we're looking for. and, you know, you do list the categories non-exempt from

disclosure i don't see why you can't as departments report violations in those categories. to the ethics commission. thank you. >> any further comments from the commissioner commissioner commissioners? i take it that the challenge with asking the departments to self-report those that are exempt it is that it would require us to analyze them separately anyway and that you wouldn't have any sense that all of the - that the ones that are

discloseable are being shared by departments is that the general concern? >> i'm not sure there's a problem with asking for self-reporting. if they report and we disagree unless you're getting inxanlt violations what is the burden that we're worried about >> we can ask in the report the question how often do we have to repeat ask them and how do we know i mean some might decide to do it and some might not we don't know what we're getty think it's going to be a lot of work to keep on top of it. >> mr. chair.

it more goes back to some public comment made if there's not a consequence built in you're spending a lot of times on monitoring and remonitoring and basically north not getting the information you need. unless we're all willing to design a consequence for failure to report after we've dipped how often they should report once a year a competitive submission flls unless there's a consequence we're having the same conversation how often do you send out and memo and how did it effect our effectiveness in being in body and carrying out your work >> i mean here the consequence

would be it would be publicly disclosed this is a repel consequence but i'm understanding the smechl they're going to look at this language. so unless we require that i see there would be probably not an effect >> all in favor of the motion made i commissioner keane. >> i. >> i. >> opposed. hearing none the motion passes. >> can we take 14 and 15 together that is they relate to one seven hundred any questions or comments related. >> commissioner keane. >> yes. my comments are to 14.

in regard my disagreement with our proposed nation. it is has to do with recommendation 14 b of the grand jury that says the ethics commission should recommendation dismissal who fails to file 90 days after the deadline we proposed it not be implement if so outside of the ethics commission jurisdiction under the state law only the f p pc can conduct enforcement matters regarding form seven hundred this is not an enforcement matter to recommend something we don't have the power to enforce

anything unless a person fails to file in 90 days we recommend they be dismissed our recommendation maybe go forward in many instances so the reason we can't do this we will be conducting enforcement that's not enforcement recommendation is not enforcement so the reason didn't make sense. i think it's a good idea and i would move that we adapt the recommendation of the grand jury that we recommend dismissals for any employee that fails to file after the deadline