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tv   [untitled]    October 7, 2012 3:00pm-3:30pm PDT

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us under 6735-d, if they wait the 40 days. they can do that. and it can fall under something directly initiated with us. and the supervisor of records, i have not found in the sunshine ordinance. i could be wrong. something that can send it over, and like the task force section. i think it's different. but someone has the right under 6735-d to come to us, as long as they wait for the 40 day provision. >> if a referral is made from the supervisor of record to the district attorney, for example, and nothing happens for 40 days. then the complainant can bring the claim to us. if the supervisor of record doesn't make a referral, then what? >> if the supervisor of record makes no referral to the district attorney?
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>> right. >> well, they have to. and if they don't, nothing stops the supervisor of record to us, and that would fall under the ethics commission. nothing to limit it. and there is nothing to stop it. >> and also i realize some of you may not have the actual provision in front of you. and i can pass around my copy. >> that would likely be helpful. >> okay. what is staff's view of whether
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we should include this supervisor of records office in the definition of complaint? >> it's perfectly fine. we would take the referral. so there would be no issue of including that in there. again i don't know, and "g" may be worded broadly enough of the document to the commission, to initiate the complaint if it came from the supervisor of records. but there is no specific issue with adding language to identify that office. >> i guess the substantive question becomes, are we going to give it the same presumption that we will give a sunshine ordinance task force fining? >> i think we have that provision that mirrors closely to the task force in "e." >> all right. >> when you start adding, you know specifics of who can take an action.
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you're -- you kind of also need to say, suggest the list is not exhaustive. so if you put some things on there and not others. there is not a presumption in the future it's not there. >> okay, but we are giving special presumption of finding to the task force of violation. i think we have to be specific when we talk there. and whether we add the custodian of records finding to that. >> just to add one more thing, the supervisor of records provision is essentially setting forth i think a different option. setting forth an option for a person that has a question for the question of public record. separate from the task force. separate from the ethics commission. certainly the ethics commission can try to incorporate the supervisor of records into the
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enforcement scheme. i would echo the observation that there is no history of the supervisor of record referring matters to the ethics commission. and much so over the last two years matters coming from the task force. but not a limiting factor. >> any views from the commissioners on this? i mean i am sympathetic to that, and i am also weary of adding things in one place. without fully vetting the consequences of doing so. in the document. and if we haven't had any referrals, it seems like we would be potentially legislating an issue that might not occur. and given us no reason to expect to occur. >> commissioner studley. >> i was going to suggest that if i understand where you are heading, that we not make
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changes now. because we would have to follow through all of implications. but that we create a list of issues that we want to talk to the sunshine task force about when they are able to meet again. and see if they, just because something hasn't happened, doesn't mean it won't. or that we shouldn't have a home for it. but i think it's more important that we get as far as we can with this tonight. and flag that later. it doesn't stop anybody from doing anything they want to. it doesn't foreclose any opportunity to bring something to us from the task force or that came through that procedure. maybe we should put it on what my organization calls a bike rack, and understand that we want to check that through again. ideally when the task force is able to consult with us on it. but that we not try to do something now in one place that might be more complicated than
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we realize. that would be me -- my thought. >> i think that's a good suggestion on something that far-reaching. garric, can you take down the list for the bike rack? >> i already started. >> thank you, the next issue raised by the public. n and o as being necessary. you know i don't think, i think we should include them. i mean we are not suggesting that there is this information but to define it is helpful because it's used subsequently. the lettering should be fixed. current letter "o," public records. so what does staff and the city attorney think of changing the reference to a sunshine
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ordinance rather than a cpa ordinance? >> i think that falls on the list to look at later. so we can do some background comparison before we make a change. >> okay. anyone have a different view from the staff? or city attorney? >> the definition that we mirrored in 6720-b of what public information is. 720 is broader and it does define what records should be disclosed. i don't know if that's a necessary problem. but again it's something that we can address later if you want. >> mr. shin? >> i don't have much more to add. i am not sure as a practical matter whether using public information very public records
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is different of how a commission would address a complaint before it. and i would note that sunshine ordinance does use both terms as well. records and information is referred to interchangeably. >> 6720-b of the ordinance directly mirror 6252-e? >> it incorporates and i believe you have it in the page i handed out. in case you need a copy. >> i have 67 -- >> it's actually 6724 that defines what records must be disclosed. the state law into what public information is. >> so i need 6724. >> 6724.
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>> 6724 actually tells you what -- >> okay. put that on the list for now. that is a fairly important issue though i think. as we define what the public records are, we need to be confident we have that right. >> through the chair an additional point on l. misnumbered l. i will be really brief. >> really brief. >> at the tail end of the sentence it says that a willful violation of sunshine ordinance by elected official or department head occurredment i think you are continuing to drop
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the key phrase of 6734, that it's elected official department head or city managerial employee. and you should not drop the term, managerial here or throughout the rest of the proposed recommendation. >> okay. referral. means a written document from the task force to the commission initiating an ethics commission complaint. i think that definition can be modified to reflect that the referral is a document from the task force finding a violation of the sunshine ordinance. >> earlier you said alleging a violation. >> i mean they found a
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violation. whether we agree is a different story. but i think that a referral indicates. we wouldn't consider in a show-cause hearing a referral that did not find violation. we need to be clear that the task force found a violation to treat this with a show-cause procedure. okay. so then the last thing on this issue is what mr. shaw raised, the department head issue. >> one thing that came out of the last meeting, 6734 omits the employee from the referral part. it mentions it and drops it. and that we only do willful
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under department heads and all others fall under "b," elected official. >> we don't have a definition of department head, is that clear or refer to the city term of department head? >> i don't know if staff thought about defining department head, because it seems relatively clear, but we could add a definition. >> if trying to figure out who is a department head and that is available in city log. >> there is. >> okay, then we don't need to address that. thank you. >> okay, you know -- i have some concern about the 6724 issue. do you have it there?
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can you read it for the record? >> 6724? >> whatever it is you are saying this definition of public information. >> 24. well -- >> where is the definition of public record? >> it's a list of things that are public. basically. so it's not one simple definition. >> 6720-b defines what a public information is in reference to government code. but 6724 provides a list of documents that must be disclosed. it depends on how you want to deal with that. if you want to define a public record as all the things listed in 6724 is okay. >> can you make a copy of the actual ordinance (inaudible). >> look, i appreciate --
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>> (inaudible). [gavel] >> (inaudible) my copy if you want to read the law. >> look, we have public comment and there is an opportunity to speak. we can't take public comment while we are doing this deliberation. >> you but want to do the right thing. >> mr. grossman. >> i just mentioned it. >> okay. so the issue is -- >> no, i was going to see if you want to look at 6724. >> yeah, i would like it. do we have it? can we put it on the overhead for the rest of the commissioners to see it? i am disappointed that i left my
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-- at the office. there it is. >> at the beginning of it. and then after we get to "b" little 2. it goes over to the next page. (inaudible) personal information. all the lists. and that's seven. and then to law enforcement information. (inaudible) >> i think we are familiar with it and have read it many times. what we are trying to find is what the right source of law is to refer to. we know that the list is there. it's which is the right section to create that umbrella. >> 6720-b is the definition. you want to use that as the definition, that's fine.
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i don't think that staff has objection to that. what other public comment was 6724 outlines documents that must be disclosed. if you rather tie that into the definition, that would be fine too. >> okay. >> one thing they don't quite understand. it appears to me that the -- 6720-b is arguably narrower than what we have. it has an exclusion for what
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public information is not. i am not sure is contained in 6252. i am not sure that we want to make narrower than what is already in the definition. it's potentially broader in that it defines it as documentary form or oral communication. but i presume that cpra 6252 -- well, it may not cover oral communication, does it. and -- >> look, i am sorry. i will have to ask again, we appreciate your participation. obviously you can hear that we are taking serious what you guys are saying. and we can't proceed with random outbursts, and we will ask you
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to leave if there is a random outburst. >> i don't know offhand if that is provided in the state provision. i can look. but if you want to have a specific guideline of what is public record. maybe 6724 is what you want to define. it looks at what the city can. >> yeah, i think we are better off with something like 6720-b or what is already in there. i think you want a general definition. do the commissioners have -- commissioner renne? >> mr. chairman, isn't our desire to have the definition of public records to be as broad as possible under the pertinent statute? isn't that what our definition
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is to be intended? not a limiting definition but a definition that says if 6724 is broader than what might be covered under the 6252-e, why not insert language, in/or the 6724 definition. and when it comes time to determine whether or not the task force is correct if there is a violation. they will identify what section they are relying on in their determination. >> so your proposal is to include 6724, basically as an or. if either/or, then it's public
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record. mr. chatfield. ? >> i don't have opposition with that, i think we agree with commissioner renne, the idea is to make it as broad as possible. if it comes to the language of both, i think that will be fine. >> i think that's a reasonable proposal. any objection from the commissioners? okay. so public records i think should be amended to add or 67.24 after public records act. obviously with the correct
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statutory language. okay. is there a motion to adopt as amended the definitions and language in decision point 1? >> so moved. >> second. >> all in favor? >> aye. opposed? what is that? >> we already had public comment. opposed? hearing none, that motion passes. the next issue is decision point 2. i had a few proposed revisions here as well. under 2-1-a. this may seem nit picky, but i
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think it might clarify issues a little bit. under "b," i think it should read, willful violations of city officers and city employees. other than elected officials and department heads. is that accurate? because we have the and city employees at the end currently. and i found that confusing. >> would you restate what you would change it to? a-2? >> yes. this is a-2 little "b." you know what? actually a probably better way to do that is to put the other than elected officials and department heads in parenthesis.
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i want to make it clear that we are talking about different sets of individuals. >> i found myself all the way through this understanding i think the genesis of why "a" and "c" are separate. but i think down the road, people trying to understand what we are talking about will wonder why nonwillful violations by is not followed by four entries. but in fact is separated into two different categories. i think it makes something already complicated harder to track. there is history why they are treated separately. but once you get to this point, we will conduct a show-case hearing. this language happens over and over again. and it's the willful violations
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by these particular people. and nonwillful violations by four categories of people. and i wonder whether it's adding clarity, being more clear to leave it this way. or would put all of the nonwillful violations together. otherwise you try to find out what is different about those two kinds. it's a drafting question that would be a search and replace. and i don't want to do it if it loses something or makes it harder to go forward. but if it's just an artifact of how we got here. >> i think it was intended to provide clarity. ironically. because we didn't want there to be ambiguity of what we would
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take up and not. and we wanted it to be clear that we would take nonwillful violations by department heads. and we were concerned if we didn't specify that, there would be ambiguity. >> would specify it, and the language, would conduct a show-cause hearing of any task alleging, "a," willful violations by city officers and city department heads, and "b," nonwillful violations by elected officials and department heads. >> that's good. >> otherwise we know how we got to this set of questions. otherwise people that pick it up for the first time will say, what is the difference between those two expectations. why are they separate. and we can separate them when there is a consequence that is
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different. but i think it tangles you up as it currently stands. >> commissioner renne. >> i agree with commission studley, that to combine "a" and "c" into one "a," make it "a." >> or "b." i was putting willful first because it's more severe. >> you would do willful first? >> because it's a higher order. >> i would make what is now "a" and "c" read, nonwillful violations by elected officials, department heads and city officers and employees. and that gets them all. and then say willful violations by city officers. and i agree it's confusing and your paren probably takes care
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of it. rather than a paren, i may say willful violations by city officers and employees other than elected officials and department heads. >> that's what i had originally. but i think it's six half, either way. >> and during public comment i would be interested to hear if anyone thinks that we would lose something by merging those. i think it would make it easier for people to understand. willful and nonwillful in all categories. >> agreed. 2-1-b. >> i have a -- are you finished with "a"? >> i was. >> and going to "b." go ahead. >> let's address all of them in "a." commissioner renne if you have one for "a." >> i have a comment about the
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heading. i don't quite understand the use of the word "made" in the second line. >> second line of -- >> alleging violations of sunshine ordinance made by. it seems to me that made is grammatically incorrect. by any city officer employee. >> i am sorry? where are you? >> at the top, referrals 1, "i," the heading. referrals from the sunshine ordinance task force alleging violations of the sunshine ordinance made by. it's a violation by. >> it's the heading in the actual regulation draft. >> if you look at the draft. >> on page 4.
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>> may i ask a question for information only? i am curious which document we are referring to? >> yeah, we are trying to figure that out too. >> we are looking at the draft, which i think is exhibit "a." >> right. >> page four. >> doesn't say exhibit "a." this one here? >> yes. >> thank you. >> could you read the title? >> referrals from the sunshine ordinance task force alleging violations of the sunshine ordinance made by any city officer or employee other than elected official and department head. >> yeah, it's the word "made" is not grammatically correct. >> it's unnecessary. >> okay,


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