>> good afternoon and welcome to the regular scheduled meeting for the ethics commission for january of 2018. i'm going to call the roll. we have excused absences on the part of vice-chairperson chiu and commissioner lee. commissioner renne? >> present. >> we'll proceed with item no.

2, public comment on matters appearing or not appearing on the agenda. >> good afternoon. my name is ellen. i am a psychiatric social worker for the department of public health for more than eleven years. i am a bargaining team member for the public services employees. we had approximately 16,000 public services employees. again, my name is ellen. that's ell-l-l-e-e-l-l-e-n. i am here today to ask you to do an investigation on the ethics commission department. i represent public workers. i brought five public workers who experienced the discrimination with the ethics commissioners. we reported to them between april to june 2017.

i was with them. i was with all five of them make the initial interviews. we provide with them a lot of reports, documentation to the ethics commission staff. three months ago, i was informed one of the employee from the ethics commission that they do not have our record anymore. i followed up with the ethics commission. they said there's no record to be found. five of us, plus myself, six people, still alive, still working for the city of san francisco. this is not acceptable. many of the siu1021 members and city employees from different departments spoke to the civil service commissioners and testify at room 400. many locations, many members between 2015, 2017. we talked about bribery. we talked about extortion.

we talked about retaliation, and we talk about ongoing investigation from the city attorney and the district attorney plus a federal bureau investigators yet the problem is repeated over and over again. the people who stood up and report extortion, it was never addressed. since i am a sub store i provide the services, and i took them and report. the ethics commission refused to follow up. the eeo department and the whistle blower and the dhrv refused to keep records. i was told from the last time, 2017, the ethics commission will get a subpoena to get the records, but now we're told there's no record to be found. this is insane. and this is not democracy. this is called corruption. i am here to ask you to do an investigation for the ethics commission who is not acting

ethically. that is not acceptable. we still alive. we still have a lot of work to do with retaliation and corruption. we stood up and said no to them. that's why they report. and myself, i'm a public services employee. this is not acceptable. i'm asking you to do an investigation for the purpose of record, i'm going to give you a copy of the record. >> could i ask you a question? >> yes. >> you said a number of things, but i'm particularly interested in one thing you said. you said that you gave the ethics commission staff, you and the people you represent, a bunch of records? >> yes. >> let me finish. you gave them the records, and then you were told later on that they never got the records? what were you told? >> i brought five people and myself, six people. we did initial interview. we provide them with documentation and evidence of corruption and retaliation. >> did you give records to the ethics commission?

>> yes. >> and then did they tell you that they never had the records? >> nothing. they said they do not have the record. >> okay. fine, thanks a lot. >> this is exactly what corruption is? >> do you have any response to that in terms of having been given records and then the records not being availability and then there were no records given? that's what i'm interested in. >> if we could handle it in closed is session, i'm happy to provide any in addition, but i think it would be appropriate in a private session rather than a public session. >> this is a public entity. >> we've heard from you, ma'am. >> thank you. >> i don't have any problem in regard to the substance of whatever these complaints are, but we're being told and the

public is being told that records were given to the ethics commission -- yes. >> you can sit down, ma'am. i need to talk here. records were given to the ethics commission, and the ethics commission has no idea about these records at all. i'm not asking about the substance of anything. we don't have go into closed session. i think that's significant. can you explain it? >> we did not receive records. we have no record of receiving records from the complainancomp. >> okay. that's the response. >> let me follow with a question to ms. -- >> zh-h-o-z-h-o-u. >> okay. what day did you deliver such records? >> i met with the ethics commission staff between april to june 2017.

>> i didn't ask you for the total meetings. what is the you handed documents, allegedly, to anybody on the ethics commission staff? >> to be fair, i do not have a specific date because i met with them many different days between april to june 2017. but i do have the record. i did not bring it right now in front of me. i do. we have the documentation. we have the record recorded. >> where? >> inside ethics commission department with ethics staff. six of us still alive and still working for the city. >> all right. question to executive director. what is the customary practice when you receive written documen documents? >> if i could, your honor, judge

kopp. the practice is to keep them in a complaints folder. >> all right. do you record the date received? >> we do, yes. >> okay. and do you have any such recordation of date of receipt of any such records? >> there's a bit of a nuance, to what we told her. we told her we do not have record of complaints being lodged by those six individuals regarding retaliation. we have documentation that they gave us in the course of a different investigation that is connected to that investigation. but those six individuals were interviewed as witnesses and were never recorded as complainants. >> all right. so those documents relate to interviews? is that accurate? >> yes. >> and is there any document which records the date of

receipt of any document which could be a complaint? >> if we understand it to be a complaint, yes, it's logged as a complaint. there's a time stamp placed on it, and it's placed into a folder. >> and do we have any such? >> not from the six individuals that she mentioned. >> thank you. okay. any further public comment? >> hi, commissioners. i wanted to bring up an issue we brought up in the past. that's the state law requires agencies report publicly the disclosure of gifts they make available, tickets and so forth. that's a form 801 and 802.

801 is a gift to the agency, and 802 is a gift the agency makes. i would recommend those be filed with ethics, as well as different departments. it's very difficult to track what is going on. if you go back and look, for example, at the recreations and parks department, they're not reporting any gifts they've given since august of 2016, which seems unlikely. war memorial do it monthly, like they should. i would recommend for transparency that these be filed with the ethics commission. thank you. >> further public comments? >> good afternoon. my name is douglas yepp. i've lived in san francisco for a dozen years.

for the record, i have permission to be here. what i have to say is important. the first thing i have to say is i have to commend the present ethics commission for doing such a great job. i would like to put on the record that whatever you're doing is being closely watched across the country. the reason why it's on the record, so this way later on some of the bad boys can't say they weren't warned. due to a recent important death, i was told in a certain way that a judgment was made, and as one person told me, that person received the ultimate penalty. i guess in human language, it's called the death penalty. we're not here to judge that

person's character. all i have to say for the record is he's no longer here, and anyone can make their own conclusions as to whether that is good or bad, according to your own point of view. the first speaker, the lady that spoke just now, is very correct. i, myself, went through the same process way back when under the previous administration when i filed written documents regarding the so-called residency of sean elsbren when he ran for re-election. when it came down to certain departments in the city, including the city attorney's office, all of a sudden there was no paperwork to be found. so, of course, nothing was ever resolved because i took the attitude sooner or later we'll

get to the bottom of it. and like they say in the al capone case, if you can't go through the front door, we'll go through the window. thank you. >> thank you. any further public comment. if not, we'll then move to agenda item no. 3, discussion possible action on the draft minutes for the commission's december 18, 2017, meeting. commissioner kopp? >> it's the first page, the word should be citin-i-t-i-n-g and should -- it says sighti s-i-g-h-t-i-n

s-i-g-h-t-i-n-g. >> one other correction. in the sentence that follows -- or part of the correction cited by commissioner kopp, it says "within," and the within shouldn't have a space. >> i missed where commissioner kopp was, so i couldn't relate to what commissioner renne was saying to make the change. >> page three, slash, six. at the bottom. at least when i printed it out, that's how it came out. >> how did i miss that? >> okay. page three. >> item five, public comment, it's citing. it has sighti-i-g-h-t-i-n-s-i-g.

>> and then within? >> it's within, not with space in. >> okay. thank you. >> okay. any other comments on the minutes? without objection, commissioner renne's change will be made. >> and i will second. >> all those in favor of accepting the minutes, please say aye. >> aye. >> opposed? the minutes are unanimously accepted. >> will there be public comment on the minutes? >> i'm sorry. yes. please. any public comment in regard to the minutes? thank you, director. okay. hearing none, we'll then go to item no. 4, discussion and possible action on amendments to the whistle blower protection

ordinan ordinance, san francisco government code section 4.100ed a sac. >> good morning, commissioners. i'm just going to be giving you a brief background that i'm sure some of you are all familiar with, but for the purpose of the pubic and any members watching, i'm going to do a brief background, and then i will leave it to director -- deputy director bloom and myself. if you have any questions, we'll relay those after i'm reseated. so this issue has come back up at the urging of the commissioners and the public because of the sort of long extension of this process. originally the whistle blower protection ordinance was reviewed as part of a civil grand jury report of 2014, 2015. based on ethics proposals, an

amendment or several amendments to the whistle blower protection ordinance were passed to this commission and given to the board of supervisors in 2016. following that, it was asked that we confer with the controller's office, dhr, and other interested parties to meet and confer regarding the whistle blower protection ordinance. we had those on going discussions over the -- on-going discussions over the past year. we're now prepared to finalize and have the final meeting. what your agenda item has in front of you today is a 2017 version that differs from the 2016 version that was submitted in 2016. i will run through that here, but we're urging that you all

today vote to go forward in approving the 2017 version of this ordinance as amended by staff. briefly going into the 2016 version, you will see on agenda item four, page two, there's a list of seven items that were amendments proposed both in the civil grand jury reports and by discussions in front of this commission. all of those -- all the items listed in the list you have in front of you did get into the 2017 version of the whistle blower protection ordinance. but the whistle blower retaliation protection regarding those filed with the city and also the state agency. after engaging the controller's office and dhr, the 2017

version, we believe, reflects the sort of best opportunity to go forward with the whistle blower protection ordinance. you will note that the 2017 version adds provisions when a when issal blower complaint is -- whistle blower complaint is given to the staff. when it's a revised version, it's a portion of the law in which the local agencies would be involved in a complaint that is made to a state or federal agency. both the controller's office and the department of human resources felt that because of a number of issues, that it would be almost impossible to track whistle blower complaints to the state or federal agencies or

offices. the difficulty comes with a lack of sharing of certain confidential information and a number of other provisions that we simply in working with them did not believe we could include in this item. however, going to the 2017 version, there's expansions in the clarification that rectify that revision, including, as i said, requiring supervisors to obtain training that we have all taken regarding whistle blower complaints and the proper method and procedure to identify those complaints and what they need to do when they receive those complaints and how to do that in a timely fashion. it delegates responsibilities amongst the parties who have oversight over the whistle blower thing or it clarifies the duties between the controller's office and our office for complaints.

it requires that any city officer or employee who retaliates for protected activities be disciplined. it clarifies the procedure and the discipline involved. so i think with that, i'm sure there's a number of questions. i know the public is very interested in this item. i think i will open it up to you all for questions or clarifications regarding the changes between the 2016 version that you passed and the 2017 version we're asking you to approve and go forward with as it relates to this item. >> commissioners? commissioner renne? >> what is the reason that whistle blower are not deemed to be protected when they blow the whistle through, say, a newspaper? why is it necessary to go to the supervisor rather than dealing

with the retaliation because they've disclosed something to a newspaper or to a state agency? >> so, as a general policy matter, across governments, local, state, federal, whistle blowing to the press is not something encouraged by whistle blower protection laws. people are free to exercise their first amendment right and they're entitled to damages in the court system but as a general policy matter, in the city, state, federal levels, they're trying to incentivize people to whistle blow internally so they can quickly deal with the misuse of city resources.

>> i have a couple of questions. maybe my memory is faulty on this, as it is on many other things, but i had thought that last time when we talked about the whistle blower protection act, that we had talked about the fact that this commission did it quite a while ago, and it's not moving at all through the board of supervisors, and it seems to be dead in the water. we came to a conclusion last time that would therefore go ahead and put this on the ballot. there was talk about that and whether or not we needed -- if there was something that needed

meet-and-confer status, would that prevent it from being on the ballot? i've been looking forward to today to discuss putting this on the ballot. we can't do it anyway because we don't have four votes. we couldn't do it as a super majority, but what happened to the idea of putting it on the ballot? did that sort of just go up into the ether? >> yes. so this is addressed toward the end of staff's memo. the first is that met and confer is required before any city agency, whether it's the ethics commission or the board of supervisors, it must still be completed before proceeding as a ballot measure. that must come first. secondly, and this was discussed in the staff memo, some proposals could fall outside the

ethics commission's jurisdiction to place it on the ballot as a proposed measure. it's limited, as you know, to ordinances related to governmental ethics, campaign finance, conflict of interest law. and where certainly much of this will concern governmental ethingtethics issues, some may fall outside. >> thank you. we sort of had a very brief conversation about the whole idea of if there was a bar to putting it on the ballot because meet and confer requirements regarding some of the matters in here, that those matters could be separated out, and we could put the bulk of it, which is the rest of it that doesn't confer, doesn't have anything to do with meet and confer, we could put that on the ballot.

is that something that we've given up on? >> i don't think we've given up on that at all. i think to the city attorney's point, the first question would be -- well, the first question is which version are you interested in putting on the ballot? >> okay. >> we feel that the agendaizing the item today is to get clarification from you all about if this is a version that you want to authorize us to move forward with through the meet-and-confer process. on that note, we do have a second meet and confer scheduled for january 24th, next week. so i don't know how long that process will take, but this is the second of meetings we've had to discuss these issues. we want to make sure we use the version of the ordinance that the commission is comfortable with. once we know that, if the commission chooses to adopt this, we'll proceed with understanding from the city attorney, are there things that need to be bifurcated, and then

we can bring them back to the february commission meeting for the commission action at that time. to place something on the ballot for june 2018 would require the commission to provide that ordinance to the elections department by the end of february. the commission's next regular meeting is scheduled for february 16th. so there are some moving targets here, but there could be some time for the commission to do that in time for june 2018 meeting, depending on how the conversation with the meet and confer goes. >> mrs. bloom? >> i wanted to add that the part that's subject to meet and confer in the whistle blower protection applies to the report to the ethics commission.

there can be a fine to that. that expands the category of protectedtive from the departments where you have to file these complaints from four to 8,000. so if we removed that portion from the whistle blower protection ordinance in order to push it through the ballot and not go through meet and confer, we should substantially water down what we've attempted to do here. we've ruled that as not an option. we want to go through the meet and confer option, satisfy our obligations, and get the version whether through ballot or board of supervisors. >> well, that makes sense. by separating out parts that include meet and confer, we're just left with nothing that has any teeth, that's certainly not worth doing. it's just that we've now come on to two years since this was under commissioner renne's watch when he was chair, and we're

still futsing around with it. now we're going to meet and confer, which seems to be something that takes forever. it would seem like it's going to preclude us from getting it on the ballot, at least for june, maybe for this whole year. am i wrong on that? >> i have an update on that regard. i spoke with the department of human resources staff who is working on our meet and confer process for us. she seemed very optimistic that the january 24th meeting would satisfy the concerns the unions raised in the very first meeting, and perhaps it would conclude after the second meeting. she thought that maybe there would be a third, but she was pretty optimistic that this second meeting would conclude the meet and confer process. if that's the case, then we would be able to move forward in february with council recommendation to remove portions of this version that apply only to the controller and

have nothing to do with governmental ethingtonics, and we can then put that on the ballot. >> good. why don't we keep that in mind as a priority rather than just go back into the weeds for meet and conferring to get this thing in shape to go on the ballot and stay optimistic in regard to what you've been told, that it will be done at the end of january, and we can get it on, rather than having it drop down the rabbit hole for another couple of years or forever. so let's see what happens then. hopefully, if everything works out with the meet and confer, and if we could have this at our next meeting, which would be our last chance, really, to have a vote, get four votes and put it on the ballot for june, i think that's something we really should try our best at doing. that's my opinion. commissioner renne? >> well, as i understand what

staff is asking us first, because we originally had a 2016 version, which is the one we sent to the board. after their meetings, they made some revisions, and they're now proposing the 2017 version which they want us to use yes, that's the one we want to go forward with or, no, we want to go with 2016. >> i understand that. >> so the first vote -- >> but i've got some questions. i understand that, but my point is whichever one we decide, whether it's the 2016 one or 2017 one, let's move it to get it on the ballot. >> absolutely. but i have a couple of questions about the meet and confer. suppose you meet and confer and

the agency says we don't like this, or we want that, and we don't agree to what they say, can we ignore them? so it depends on a lot of factors, obviously. at the next meeting, we'll see what the concerns are about, if anything. maybe they just need an update. maybe there won't be any further dispute, but a meet an confer doesn't require complete agreement on all points. exactly what would be required to satisfy our meet and confer agreement short of full agreement depends on -- at least it's my understanding -- depends on the category of employees affected as well as the mous that govern those categories of employees. it's a moving target, as far as those variables and what we need to proceed with and considers their objections and concerns, if any. >> it's hard to say at this point in process. >> but legally is there any way

that they can block us if they don't agree? >> i mean, i think it's more of a procedural requirement as opposed to a substantive requirement. if we go and complete all the legally required procedures, then we satisfy meet and confer. if we ignore those procedures or don't comply with those procedures, i believe there's other actions they can take to keep us from doing it, but, it's more about crossing all the ts, dotting all the is, and taking care of the steps we need to take. it's not my understanding that meet and confer requires all agreement by all interested parties on the proposal. >> my understanding is agreement is really irrelevant, as long as you've met and conferred and covered all the items you have to meet and confer on, that's what is required. both sides can be in complete agreement. you move on, then, to the next step. the meet and confer process is over. it's been met with. >> right. it's more of a procedural

matter, going through the process. >> well, you articulated the point i wanted to ask a question about. meet and confer, you meet and confer once. there's no veto power over the action of this commission. i mean, how many times do we have to meet and confer? >> again i'm not sure i can provide you with an answer today. there's a lot of variables. >> well, i would like an answer. >> we have to know what concerns we have, what objections they have. >> okay. could you give us a written answer by our next meeting? >> i can certainly provide you with further guidance. that guidance may not simply be a number. >> who are we meeting and conferring with? name the unions. >> the first meeting involves

several different unions. the ones expressing interest were 1021. they will be present on january 24th. and then the department of human resources staffer advised that a couple of other additional unions who weren't there the first meeting were interested in coming to the second meeting as well. i will say that i put to her the question of how many meet and confer meetings are required. she said generally a rule of thumb is two to three. >> that's just a rule of thumb. we're up against a time deadline. >> right. there's nothing in the memorandum of understanding a required set number of meet and confer. >> i want to vote on february 16th. submit this to the voters in june. this is like a free for all. >> i agree. >> two unions at first and then two more are going to jump on and say, well, we only got one meet an -- and confer.

so we want three. >> whoever we have to meet and confer with, please meet and confer with them before the next meeting, get that over with, get that out of the way so we can move forward. if they say, well, we want more meetings to meet and confer, our position is we've met and conferred. >> i will say, if i may, for what it's worth, i have found the meetings to be constructive. in the first meet and confer, the unions pointed out some language that perhaps didn't mean to them what the people implementing the law, what we thought it meant. we were able to make changes to the language in order to address their concerns strengthened the law. i think they have be constructive. i just wanted to point that out. >> i think you're quite correct. oftentimes meet an confer comes through with valuable results for both sides. our problem is now we're up

against a deadline of something that we would like to move forward that has been just sort of floating for the last couple of years, and we want to fish or cut bait on it. yeah, meet and confer can provide some valuable stuff, but we've got more important priorities in terms of putting this thing on the ballot. and we want to put it on the ballot by june. in order to do that, we have to vote on it next time. so can we -- do we have that understanding? that emphasis being made to the unions as well, we're meeting, we're conferring. after that, god bless you, good-bye. it's over. >> no. i think we're very clear on the commissions message. >> the second question: how long will it take to ascertain any portion of the drafted ordinance

that's outside the jurisdiction of the san francisco ethingtonics commission? -- ethingtcs commission? >> by when? >> by the next meeting. >> logically, you should have it before so staff can then revise the draft. we don't have to try to work through it. i request through the chair that that opinion be rendered a week before, by february 19th. >> and by working through the proposed ordinance actually meant to include -- i should have been more clear -- should have meant that i was going to include staff in discussion of the review. as with all projects, i work closely with the staff to get

their views as well. >> okay. so we have, then, to make the decision as to whether or not we want to adopt the staff's recommendation that we go with the 2017 version as opposed to the 2016 version. do we have a motion to that effect? >> so moved. >> i will second it, but i have a couple of questions. >> sure. >> friends of ethics has pointed out some things that they would like changed in the 2017 version. one is the substantive motivating factor to contributing factor. what is staff's response to that? >> staff has not researched that as a policy option because in

2016, the commission considered that in context with that version of the wpo, the original version that you passed, and declined. so we did not view that as something that the commission was supportive of pursuing. >> well, the requirement that the whistleblower who has been retaliated against, they do have the burden of proof, but under this version, 2017 and 2016 as well, they had to prove that it was a substantial motivating factor as opposed to a contributing factor. >> the way the commission dealt with that in 2016 was to clarify in the whistleblower ordinance is that it doesn't apply to the review complaints and if that's

if the complaints meet other criteria from protection for retaliation, from investigation that, the staff would stand in the shoes of the complainant, and the investigation would circle around whether or not retaliation was a substantial motivating factor. and the language is retained. staff has already implemented that change, and as a result, we've been able to open up quite a few more negotiations than we had in the past. essentially what that means is when somebody can prove they engaged in protective activity, we'll investigate to determine whether they adverse employment action was a result of the whistleblower complaint. >> so the contributing factor is at the initiation stage. they don't have to prove that it

was a substantial motivator at that point. >> as a practical matter, they never have to prove anything. the staff investigators stand in the shoes of the plaintiff when prosecuting before this commission. there's no role in actually prosecuting the case, so the party that has to prove is us. we're entitled to subpoena the records they say they can't get. we can get those records. we can send preservation letters, subpoenas, interview witnesses. so, to the extent that the complainant himself is not entitled to see the records is somewhat irrelevant if they can establish that they were demoted, fired, or suffered a bad performance appraisal after they filed a whistleblower complaint. so the substantial motivating factor only comes into play when the commission or the staff at the commission administrative level? >> exactly.

>> requires it by preponderance of the evidence? >> exactly. >> and i think that may be consider with case law. >> yes, that is correct. >> the other question that they brought up is whether or not there should be whistleblower protection against retaliation by city-funded agencies. in other words, that if maybe they don't lose their job but they get kicked out of public housing, and the reason they get kicked out of public housing was because people were upset, but the fact that they were whistleblowers, are they covered under the present version? >> i do not think so. whistleblowers can only be city employees or city contractors. we could maybe make an argument that a lessor to public housing

is a contractor, but we would have to examine the case. >> but it's an employee that lives in public housing. >> so the retaliation would be kicking someone out of their house? >> yeah. >> that would not be covered under the 2017 version. it only covers adverse employment action. >> commissioner kopp? >> is there any case law in these two standards, contributing factor and -- what's the other one? substantial motivating factor? >> there is. there's a lot of case law on retaliation. >> i'm surprised. so we're not going into the unknown. >> exactly. right. >> and your conclusion and recommendation

recommendation as a practical matter is substantial motivating factor is justifiable? >> we have not put together a position on that issue because the commission adopted the language as-is in 2016. it did not affect the stakeholders we were working with, the department of human resources or labor unions. so we've just left it the same as it was in 2016. well, i will apprehend i will hear from mr. bush on contributing factor. i've never read any cases which involve either phrase. so maybe you will be asked to prepare a brief for us. >> okay. >> thank you, mr. chairman. >> so we have a motion, and it's been seconded to approve the 2017 version.

do we have public comment on those? >> good afternoon, commissioners. i'm dr. derek kerr. i'm a whistleblower. no time has ever been substantiated by the ethics commission. perhaps the burden of proof placed on whistleblowers is too high. in order to show retaliation by a preponderance of the evidence, whistleblowers needs access to the evidence. and to show that our whistleblowing was a substantial motivating factor for getting fired, we need access to the evidence. the trouble is that that evidence is in the possession of the retaliator, not the

whistleblower. what happens with retaliation is that the retaliation is applauded and arranged by a group of people who communicate in email and meetings about how to go from excreting somebody from the organization. the only way to get that information is by discovery process and by subpoenas and depositions. i know this because my claim was rejected by the ethics commission, but when we went to court and had all the emails and deposed all these people, it all came out. ethics investigations of whistleblower retaliation do not include subpoenas and depositions. so you're imposing a legal standard of proof but without

the mechanism for accessing the evidence that you need. that's why ethics has been a dead end for whistleblower retaliation claims. osha faced this claim also. what they've done is lower their burdens of proof. instead of requiring a preponderance of the evidence, they accept evidence that provides a reasonable cause to believe that retaliation occurred. and instead of having to show that retaliation was a substantial motivating factor, whistleblowers can just show that it was a contributing factor, that way osha can increase from 3% to higher than 5%. so if you keep the current evidentiary standard, nothing will change, is my prediction. and i do appreciate all the work and effort gone into improving the ordinance. thank you. >> thank you.

>> may i ask a question? >> yes, commissioner kopp? doctor, commissioner kopp would like to inquire. >> do you use the phrase reasonable cause, is that the same in your presentation as contributing factor? >> reasonable cause is a counterweight to a preponderance -- no. no. >> well, you want contributing factor as the standard, but you also use reasonable cause. >> yeah. >> i want to understand whether that means the same as contributing factor. >> okay. so you have substantial motivating factor versus contributing factor, and then you have preponderance of the

evidence versus providing evidence that gives a reasonable judge reasonable cause to believe that retaliation occurs. so that's where osha is going. they're sort of lessening the burden of proof. >> i know it's lessening. >> doctor, the osha handbook is a handbook for investigators, not for administrative judges. as i understood what was said, we're essentially doing what osha said. and that is, if they look at what the whistleblower claims retaliation was, what he or she presents to the staff, if there is probable cause that there's

merit, it then becomes a matter for the ethics commission to hear as an administrative judge and the staff has the burden which you say you had to do when you got out of civil court, but that the staff does have the power to subpoena records. >> but they haven't done so. and that's why your record is zero over 23 years. >> i understand that, but what we're hopeful -- >> okay. and that's good. yeah. >> this ordinance, assuming it's accepted by the voters, that we'll be able to do essentially what osha and its investigators guidebook was, that all the investigator had to do was satisfy himself that there was probable cause, and it then would go to an administrative law judge. and that's exactly what, as i understand based on what was said, this ordinance would do. thank you. >> good.

>> larry bush, for friends of ethics. a couple of points. i was not aware of, until just now, that the whistleblower ordinance only applied to employment issues and not the other actions that the city can take that are retaliatory. i'm well-aware of the fact that when we've had complaints of mismanagement of assisted housing developments, where the waiting list was rigged, and bribes were paid, that people who filed those complaints then were expelled from the housing. and your ordinance, as you've got it drafted, would not cover those kind of situations. so if it's not going to be covered here, it needs to be covered somewhere so those kinds of things don't happen. i would point out that some of these complaints are filed with

the fbi and with departmental inspector general's office. i think people should be protected against retaliation if they file a complaint in those places. i understand the argument that the city wants to channel complaints through city agencies, but that's for bureaucratic convenience. that's not to benefit the person who's facing retaliation. i think you need to put the focus on who it is that's at risk. a bureaucrat is not at risk. the person who loses their housing or loses their job or the conditions of their employment is at risk. we just had a case in the newspapers of a police officer who won a $100,000 judgment, according to the examiner two days ago, for retaliation after she took the story to the newspapers. that was a case that did not go through city channels. it went directly to court because she did blow the whistle

to the press that there was an official in the city police union who was embezzling funds and that the city did nothing about it. she was right to take the case forward, but why should it always fall to hiring an attorney and going through all of that when we have a provision that protects people against retaliation except in those cases where the complaint is not lodged with the city agency? so what we are requesting is that when you look at this in february, that you ask for a version that includes protection against retaliation, complaints that are taken to another agency, federal or state, or which go to the press, and where there is, then, a case of retaliation that is lodged and it comes to ethics, which handles other retaliation cases. and we also think that those should not be limited to employment.

you've had testimony from witnesses who came, losing their houses conditions because of their complaints. we know what those conditions are. people should not lose their housing because they brought that to the attention of officials. >> thank you. >> thank you. >> can i ask the city attorney if we adopt the suggestion of mr. bush, if we refer to u.s. government agencies and the press, is that something that's sort of outside our jurisdiction? because it's not really dealing with a claim from somebody that

they got kicked out of housing. that may not be in the jurisdiction. i don't know. when you address the question of those things being outside, if we were to adopt the amendment suggested by mr. bush, would it be a provision that is beyond the jurisdiction of the ethics commission? >> i'm not sure if i could answer that question now. i think i need a little bit more time to think about it and get the staff's view on it as well. i would observe that it would be a fairly significant change of this ordinance. >> fairly what? >> significant change of the ordinance. i think as referred to, in terms of retaliation, it refers to adverse employment action. so if we start bringing other types of action, that would be a pretty big shift in the ordinance's focus, but we can take a closer look. >> but if it was an employment action, suppose some employee went to the press, and he or she

gets fired for going to the press and making the complaint, that's retaliation possibly. >> right. >> it wouldn't be covered under our ordinances, as i understand it. >> correct. >> all i'm saying is if we expanded it to protect -- even if you say eviction from an abode may not be an employment action and that this whistleblower thing is focused on employment action, i'm just curious as to why if the policy is by some of the city agencies, well, we don't want to encourage people to go to the fbi. we want to encourage them to go to the inspector general or somebody else. we want them to come to the

supervisor. and the employee is frightful of doing that because a supervisor is the one that can kick them off the job. so they say, i will go to the fbi. i'm sympathetic to the idea that whistleblowers should be protected regardless of who they went to if, in fact, they uncover or they disclose some wrongdoing by the city and they lose their job as a result. >> i think this may be more of a policy issue. so i will defer to deputy director bloom. >> so if you whistle blow to any state agency about state or federal matters, state money, federal money, state housing discrimination rules, you are protected by state and federal whistleblower statutes. so it is not that the city is

denying those people a right by excluding them from the city law. regarding first amendment whistleblowing activity, those people who are fired for engaging in first amendment protected conduct can file federal actions in federal courts and obtain damages that far surpass anything that this commission could impose of a single violation of $5,000 for a retaliation activity. i think if you talk to dr. kerr, you would find that the damages he won in his lawsuit far exceeded the $5,000 we would have zinged his employer with. to me, not including first amendment protection in a retaliation context like this, is not a negative. i don't see how our law would be additive in that scenario. if someone is whistleblowing to the press, they're claiming

federal court is much better than anything we could do to protect them. >> commissioner kopp? >> can you distinguish the situation from other complaints to us under which within 10 days city attorney, district attorney have a right to say, i want to investigate this, and we give them 90 days. if there's no action, then we reassert our authority. here you have somebody filing a complaint with whatever state department it is, fbpc, do they handle retaliation? no. i don't know which one