>> miss herrick, would you mind staying on the line? >> sure. >> i think that we should take public comment on this matter. >> i would like one minute rebuttal to miss herrick. i promise to keep it short. >> okay, mr. shaw i will give you that. >> so. what miss herrick may have missed and what you may have missed is when dr. ker r's complaint came before the ethics commission and was submitted to the ethics staff, you guys sat on it for six months and after those six months, you then rejected that case and you sent it right over to the city controller's office who finally got off their rear end and conducted an audit, after you said that you would not take jurisdiction over it. >> your point being? >> i am truly trying to understand what the consequence of that is. >> i just find it quite strange. that you first rejected any jurisdiction of this case at all and now you are quibbling over which sections of the file are releasable and which aren't. >> if the matter is closed, any correspondence related to this complaint is not confidentia

i mean the basis for miss herrick's analysis is 1040 b2. she is not claiming that there is an act of congress that forbids this. she is claiming that the necessity for perceiving confidentiality out weighs disclosure. >> commissioner hur, let me respond to that question and that is, sunshine ordinance, if you have ever read it specifically bars every agency in san francisco from exerting the official information privilege under that balancing test. >> didn't you just tell me that state law trumps the city charter and all city ordinances? >> i mean, what you just were arguing one minute ago. and ber raiding my legal knowledge on the basis of that is how you accurately interpret the law. but you can proceed on whatever additional subtanive additional arguments that you have. >> the sunshine ordinance is quite clear. you cannot use that balancing test, any balancing test with 1040 or 6254.7 and,.13. you can't use balancing tests, not in san francisco. >> i believe somewhere along the lines, the ethics commission in their response which the sun

herrick or mr. st. croix. i think that we are trying to ask her how much we are asking her to review. i want to know the size of the correspondence file. >> right, again, i can't speak to the controller's office's files, i can speak to the ethics commission's file and i don't see a problem with the ethics if the people here know the ethics commission saying that we are talking... >> just ballpark. >> an inch ten boxes. >> right. >> i am sorry i really have no idea and neither does miss argenito. >> a banker's box? >> i believe that is not... >> okay. i think that we should make a motion along the lines that we have described. is there a motion to find that mr. st. croix and miss lediju, have not committed a willful failure to comply with the sunshine task force with respect to the investigative files of the commission and the control's office. we are particularly carving out, however, correspondence, that might be in the ethics commission's files relating to the complaint and with the controller's o

but since miss herrick did not, so i guess... first question is could miss herrick see the ethics commission files? i understand that miss ludichu, am i saying that correct, did not... understands that the whistle blower's files at the controller's office would not be available. miss herrick, could you or did you review the ethics files and maybe you know the answer to that as well. >> i don't know the answer to that. it sounds like the answer to that is no but i will let miss herrick speak to it but i could answer your question more generally commissioner studley. i do not advise the whiesle blower program on sunshine issues there are other lawyers that do that. nor am i familiar with the process for reviewing files in response to the sunshine requests. or advice to the ethics commission when they receive a request for materials related to a complaint that involves, conflicts lobbying campaign finance and gofmal ethics is to review the entire file and determine whether any documents in it are must be disclosed under state law. a

given that we have miss herrick and mr. shaw here, one possibility would be that we want to proceed and there may be complicated issues that we will want to know on the merits as well. i am not sharp and final, but i am actually what i am hearing is making me feel that we may have to do it, and there is... and less reason that we can't do it in terms of the direct, you no, do we have a conflict? we ask, you know, with regard to the city officials all of the time, who where the situation is sensitive and we are all working for the city, and we have those kinds of concerns. i haven't heard anything that said why we in particular would be unable to deal on the merits related to a member of the staff. >> commissioner liu do you have any thoughts on this? >> well, i think that was a really helpful discussion, helpful from the city attorney's office to get the guidance we did. because i came in thinking, you know, if there is a way to transfer it to another adjudicatory body that might help with the perception issues, but if ther

>> i am. >> thank you, miss herrick. could you talk a little bit about, or respond to some of the comments that we heard about whether there is a distinction, whether tlao there could be a category of correspondence that is not swept up under the exemption, from disclosure and this is in reference to 08110816 with respect to the controller's office. the correspondence between the controller office and the ethics commission. >> yes. so, not having, access to the file, i think that there is possibly could be, i don't know. i thought that in reviewing the file that there has been in information that was provided to mr. shaw, but i could imagine that there might be some information that would not fall within the exemptions that we have discussed. so i would have to go through that on a you know, document by document basis. but it is possible. >> okay, thank you. >> sure. >> i don't mean to intrude. if the commission is interested in hearing about my conversation with mr. st. croix, i would be happy to explain that as well. t

very much. >> and any other questions for miss herrick on this matter? >> no. i don't have any. >> commissioner studley, you had raised this as a potential issue, do you... how would you recommend that we proceed? >> well, i will make a suggestion... i mean i am... i do find it meaningful that the city attorney reminds us that we have no legal conflict either individually or collectively. i have no obligation to the executive director, the executive director obligation is to the commission as a group and to the city and county, not personal. i can understand why we don't have staff to investigate their supervisor, that makes complete sense. so in trying to... i just want you to create a window where we didn't just rush to do something that thoughtful people were flagging for. but as we were trying to construct it, as a question of legal conflict and of our confidence to do it and our responsibility to do it, which is the other part mr. gibner raised. there is the past practice, the past example involving the deputy director, where we did seek counsel from other

i am lisa herrick and i was asked to review the referal from the sunshine task force, sunshine ordinance task force and

miss herrick as soon as possible. >> you're welcome. >> thank you. >> thank you, truly. >> thank you very much. >> certainly. >> thank you. >> i am going to sign out, now, then. >> thank you. >> i cannot blame you. >> thank you. >> good night. >> it is time for a baseball game. >> i have not gotten my update here. >> the next item on the agenda is discussion and possible action on drafting amendments to cfro and i understand that we cannot decide this without four members. my initial thought was let's discuss it any way. but, since in light of the depth of the discussion on the previous matter, i would vote to defer it until we have a full commission or at least four commissioners to discuss it. any objections from the fellow commissioners? >> no objections. >> if we are going to go on for an extended time i would respectfully request a rest room break. but if you think that we will... that would prolong things undually... >> i was thinking that we would not need much additional time to get through the rest of this. but, i am happy to take a break. >> no. >> i don't want to make anyb

. >> perhaps we can ask miss herrick if san jose was asked to take the whole matter and if that is something that they would even consider doing. >> i don't know whether the city attorney staff person will be able to speak for the commission. >> perhaps not. but perhaps she could answer the first question, at least. >> unless we know, does anybody... do