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Minutes - February 25, 2013

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
February 25, 2013
Room 400, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102

I. Call to order and roll call.

Chairperson Hur called the meeting to order at 5:31 PM. Chairperson Hur stated that Commissioner Hayon was excused due to illness. He also noted that since all five Commissioners were not present, Agenda Item V would be deferred to a future meeting.

COMMISSION MEMBERS PRESENT: Benedict Y. Hur, Chairperson; Jamienne Studley, Vice-Chairperson; Dorothy S. Liu, Commissioner; Paul A. Renne, Commissioner. Commissioner Hayon was excused.

STAFF PRESENT: John St. Croix, Executive Director; Mabel Ng, Deputy Executive Director; Catherine Argumedo, Investigator/Legal Analyst.

OFFICE OF THE CITY ATTORNEY: Josh White, Deputy City Attorney (DCA) (excused ~ 6:45 PM); Jon Givner, DCA (arrived ~ 6 PM).

OTHERS PRESENT: Peter Warfield; Ray Hartz; Luis Herrera, City Librarian, San Francisco Public Library; Sue Blackman, Library Commission Secretary; Patrick Monette-Shaw; Robbie Clark; Dr. Derek Kerr; Allen Grossman; Paula Datesh; George Wooding; Phil Ginsburg, General Manager of Recreation & Parks Department; Ray Bellar; Nancy Werfel; Suzanne Dumont; Jane Kwok; Eric S.; Catherine Howard; Judy Burkowitz; Bruce Wolfe; David Pilpel; Mark Buell, President of the Recreation & Park Commission; Sarah Ballard, Director of Policy and Public Affairs, Recreation & Parks Department; Greg Miller; Anne Clark; Caroline Celaya, San Francisco Municipal Transportation Agency; Kathy Fowlis, San Francisco Municipal Transportation Agency; Frank Lee, Executive Assistant to the Director of the Department of Public Works; Howard Lazar, Program Director of the Street Artists Program, Arts Commission; William Clark; Robert Clark; and other unidentified members of the public.

MATERIALS DISTRIBUTED:
- Regarding Agenda Item III(a): Ethics Complaint No. 03-120402 – notice letters from the Commission staff to Complainant and Respondent(s); staff report with recommendation and attachments, and any documents submitted to the Commission by Complainant and/or Respondent(s);
- Regarding Agenda Item III(b): Ethics Complaint No. 15-111205 – notice letters from the Commission staff to Complainant and Respondent(s); staff report with recommendation and attachments, and any documents submitted to the Commission by Complainant and/or Respondent(s);
- Regarding Agenda Item IV(a): Ethics Complaint No. 15-111205 – copies of all documents received from the Sunshine Ordinance Task Force, notice letters from the Commission staff to the Respondent(s) and Complainant, and any documents submitted to the Commission by the Respondent(s) and/or Complainant;
- Regarding Agenda Item IV(b): Ethics Complaint No. 04-120507 – copies of all documents received from the Sunshine Ordinance Task Force, notice letters from the Commission staff to the Respondent(s) and Complainant, and any documents submitted to the Commission by the Respondent(s) and/or Complainant;
- Regarding Agenda Item IV(b): Ethics Complaint No. 07-120621 – copies of all documents received from the Sunshine Ordinance Task Force, notice letters from the Commission staff to the Respondent(s) and Complainant, and any documents submitted to the Commission by the Respondent(s) and/or Complainant;
- Regarding Agenda Item IV(b): Ethics Complaint No. 09-120703 – copies of all documents received from the Sunshine Ordinance Task Force, notice letters from the Commission staff to the Respondent(s) and Complainant, and any documents submitted to the Commission by the Respondent(s) and/or Complainant;
- Ethics Commission Regulations for Violations of the Sunshine Ordinance;
- Sunshine Ordinance, Chapter 67 of the San Francisco Administrative Code;
- Draft minutes of the Commission's regular meeting of January 28, 2013;
- Executive Director's Report.

II. Public comment on matters appearing or not appearing on the agenda that are within the jurisdiction of the ethics commission.

Peter Warfield asked the Commission to clarify the policy for public comment during agenda items III and IV. Chairperson Hur stated that public comment would occur during each sub-item.

III. Discussion and possible action on matters submitted under Chapter Three of the Ethics Commission Regulations for Violations of the Sunshine Ordinance.

Agenda Item III(a) – Ethics Complaint No. 03-120402 – regarding alleged willful violation of Sunshine Ordinance by department head (referred from the Sunshine Ordinance Task Force on April 2, 2012).

Complainant Ray Hartz stated that willful ignorance of what one ought to know is a mortal sin. He read a portion of section 67.16 of the Sunshine Ordinance. He stated that most people have agreed with his interpretation of section 67.16 – that the "brief written summary" provided by a speaker of his or her comments must be included in the body of the minutes. He stated that the Sunshine Ordinance Task Force ("Task Force") has determined multiple times that the summary should be included in the body of the minutes. He stated that the Library Commission and Mr. Herrera have repeatedly ignored the Task Force's Orders of Determinations on the matter. He also referenced a memorandum from the City Attorney and that office's Good Government Guide ("Guide"). He stated that the City Attorney stated that the summary may be attached as an addendum, but the Task Force is the body that is supposed to interpret the Sunshine Ordinance. He stated that Mr. Herrera would like to continue ignoring the Task Force's findings as he and the Library Commission do not like what has been said and would prefer to keep the comments out of the official record. He stated that he has been raising this issue regarding the minutes for almost two years. He asked the Commission to ask other questions, such as why the Library Commission has chosen to ignore the Task Force's findings. He stated that the City Attorney's advice is not accurate. He stated that Mr. Herrera chose to put his employees and others in a position where they had to ignore the recommendations of the Task Force. He stated that Mr. Herrera's willfulness was clear and that he has been acting in bad faith.

Respondent Luis Herrera, City Librarian, San Francisco Public Library, stated that a memorandum from Commission Secretary Sue Blackman was submitted earlier in the day. He stated that the Library Commission has followed section 67.16 of the Sunshine Ordinance. He stated that the Commission has followed advice from the City Attorney and what was provided in the Guide. He stated that the memorandum from the City Attorney that Mr. Hartz referenced earlier was provided to the Commission. He stated that, following the lead of the Ethics Commission, the Library Commission has incorporated the summaries into the minutes and will follow the same modification. He asked that the Commission find no violation.

In his rebuttal, Mr. Hartz stated that Mr. Herrera has been presenting the same argument for the last three years. He stated that Mr. Herrera sent Ms. Blackman to Task Force meetings, as he did not have the integrity to explain to the Task Force why he did what he did. He stated that the Library Commission made a conscious decision to put the summaries somewhere else and the comments are taken out of context. He stated that his statements were also treated differently in the Library Commission meeting minutes than other speakers' summaries. He stated that there has been no discussion at the Library Commission regarding the example provided of the format of the minutes going forward. He stated that there is no evidence that the Library Commission will format its minutes this way or that it would not change the format again in the future.

Public Comment:
Patrick Monette-Shaw stated that the Ethics Commission is here to enforce provisions of the Sunshine Ordinance. He stated that the Ethics Commission is not here to allow Dennis Herrera's Guide to supersede or trump the Sunshine Ordinance. He stated that there are many things in the Guide that are not worthy of being used as toilet paper and gave page 89 of the Guide as an example. He also stated that backup tapes exist for daily use and are easily accessible when something is deleted. He stated that the Guide needs to be re-written.

Robbie Clark stated that he has attended Arts Commission meetings for 40 years. He disagreed with the practice of commissions using three minutes as a maximum for public comment, especially when there are not many members of the public present. He stated that the City Attorney was wrong. He supported a finding against Mr. Luis Herrera.

A member of the public stated that he submitted summaries to the Library Commission for many years and the summaries would not be included as required by the Sunshine Ordinance. He stated that the Library Commission only did things after being forced to do them. He stated that when rich people offer them money, they accept that money.

Dr. Derek Kerr stated that excluding public comment from the body of the minutes is an act of disrespect. He stated that it is a statement that the members of the public are inferior to the people on the boards or commissions and that it is a widespread problem. He stated that the Library should provide some commitment or promise regarding their proposed permanent policy change to the minutes.

Allen Grossman stated that inclusion of a speaker's summary in the body of the minutes is a plain reading of section 67.16. He stated that it is nonsensical to add in quasi-legal concepts. He stated that the Task Force's job is to determine these issues and its determinations are enforceable. He disagreed with the Guide. He read a definition of the word "in."

Paula Datesh endorsed Mr. Hartz's statements. She stated that it is important to include the summary in the body of the minutes.

Peter Warfield stated that the Library's abuse of the public has been a longstanding one. He stated that the Library Commission has had a history of attempting to exclude public comment. He asked the Commission to find in Mr. Hartz's favor.

Commissioner Liu asked Mr. Herrera whether the minutes provided (in the proposed format) had been adopted by the Library Commission. Mr. Herrera stated that the Commission has not yet adopted it and clarified that the format would apply to all summaries. Commissioner Renne asked Mr. Herrera why he was so resistant to putting the summary in the body of the minutes. Mr. Herrera stated that the Commission worked with the City Attorney's Office and followed the Guide and believed it was in compliance with the Ordinance by attaching the summaries. He stated that all commissions and boards appeared to be complying with section 67.16 in the same way. Chairperson Hur asked whether the summaries were part of the same document or a separate document from the minutes that are approved by the Library Commission. Sue Blackman, Library Commission Secretary, stated that everything was in one document.

Commissioner Renne asked Mr. Hartz whether the proposed format of the minutes, assuming they are adopted and implemented, would cure his concern. Mr. Hartz stated that it would not. He stated that there had been too many variations of minutes and that all speakers' comments were not recorded in a uniform fashion within the minutes of one meeting. He stated that the Library Commission has not established a clear policy of how it will handle its minutes.

Commissioner Studley stated that a violation of section 67.16, on the specific question of whether the summaries were included in the record of the meetings, was not included in the referral from the Task Force. She stated that the minutes provided were paginated as a single document, including the addendum. She stated that the Task Force cannot add or imply the words "in the body of the minutes" into the Sunshine Ordinance. She stated that there also was no mention in the Task Force referral that summaries from different speakers were being treated differently in the Library Commission's minutes. She stated that, as it was not part of the record, there was nothing the Ethics Commission could do about it during this meeting. She stated that the Ethics Commission changed its policy on minutes because it was responsive and that the public would find it as evidence of good faith, but not because the Ethics Commission was in violation of the law. She stated that she did not find such a violation. Commissioner Studley also noted that the summaries provided by members of the public are not validated by the Commission or Board. She stated that minutes are generated by the Secretary or Clerk of the body and approved as part of the business decisions of the body. She stated that the summaries are different from the minutes approved by the body. She also added that it was clear from the comments that there has been frustration with the Library Commission, but that the Ethics commission has to look at the complaint it has before it and decide on that matter. She stated that the complaint is about the placement of the summaries and not the 10-year frustration with the Library Commission.

Commissioner Renne agreed with Commissioner Studley's conclusion in that he did not find a willful violation. He stated that he agreed with Mr. Hartz about how a summary may be an inaccurate summary of the speaker's comment. He stated that if the Library were to retreat from its policy of including the speaker's written statement in the future, then the Library would be willfully violating the Sunshine Ordinance.

Commissioner Liu agreed with the conclusion. She stated that, as there was ambiguity between the advice of the City Attorney and the findings of the Task Force, there was no willful violation. Chairperson Hur agreed.

Motion 13-02-25-1 (Renne/Liu): Moved, seconded, and passed (4-0; Hayon excused) that the Commission find no violation of the Sunshine Ordinance with respect to Agenda Item III(a).

Mr. Hartz asked the Chair to address the comments of the Commission.

Agenda Item III(b) – Ethics Complaint No. 15-111205 – regarding alleged willful violation of Sunshine Ordinance by department head (referred from the Sunshine Ordinance Task Force on December 5, 2011).

Complainant George Wooding stated that the hearing would have been unnecessary if Olive Gong had contacted the Department of Technology and looked for the department's archived records. He stated that Ms. Gong provided the e-mails 141 days after he made his request. He stated that the Task Force had asked Ms. Gong to contact DT and that she had not done so. He stated that the information provided on page 89 of the Guide likens DT files to something that would be found in a dumpster. He stated that Recreation and Parks Department (RPD) abused the First Amendment rights of private citizens and deliberately deleted documents. He stated that RPD changed the title, panelists, and content of a presentation at the Commonwealth Club. He stated that the program related to the commercialization of the public park, specifically mentioning installing artificial turf at the Beach Chalet. He stated that Sarah Ballard wrote a letter to someone at the Commonwealth Club and asked them to change the meeting. He read the e-mail from Ms. Ballard, dated April 20, 2011. He stated that Phil Ginsburg and Mark Buell also contacted the Commonwealth Club regarding the presentation and they stated that the panelists were "inadequate" and "biased." He stated that the Club "caved in" and then he received documents from the Commonwealth Club. He stated that he requested documents from RPD and was told that none exist, even though he was in possession of copies of them. He stated that RPD wanted to protect itself and did not want conflicting viewpoints. He stated that the RPD is a public agency and it was going after private citizens. He stated there was a bigger issue than section 67.35.

Respondent Phil Ginsburg, General Manager of RPD, asked the Commission to adopt the findings of staff and dismiss the complaint. He stated that there has been no violation of the Sunshine Ordinance and the charges lack merit. He stated that the RPD has a tremendous amount of respect for the Sunshine Ordinance and that the department responded to 175 records requests in 2012. He stated that RPD devotes almost an entire full-time employee to requests. He stated that, in this case, there were no documents. He stated that the charges have been separated for the other named Respondents. He stated that the Club was having a public discussion about Golden Gate Park and the RPD asked for representation on the panel. He stated that he deleted the e-mail, where he was copied, as it was not an essential or legal record and did not require any departmental action. He stated that Mr. Gooding made his request on June 3 and Mr. Ginsburg responded on June 6.

In his rebuttal, Mr. Wooding asked the Commission to look at the bigger picture. He stated that one of the communications involved a lobbyist and that the matter involved saving a field. He stated that the department attempted to limit public discussion. He added that the previous Chair of the Task Force, Hope Johnson, stated that the documents should have been retained. He stated that public officials were signing e-mails with public titles and that Mr. Ginsburg was clearly complicit as he was getting e-mails from Mark Buell, the Commission President. He stated that Mr. Ginsburg helped plan it or helped orchestrate the effort and that Ms. Ballard acted at his request. He stated that these actions were a group effort.

Public Comment:
Patrick Monette-Shaw stated that Mr. Ginsburg is being disingenuous. He stated that Mr. Ginsburg told Ms. Gong that he did not have any e-mails, but he could have told her that he had already deleted responsive documents. He stated that, in that case, Ms. Gong could have immediately turned to DT backup tapes. He also stated that state law prohibits department heads from destroying a record less than two years old. He stated that the Ethics Commission needs to notify Dennis Herrera that he needs to rewrite the Guide. He disagreed with staff's recommendation that there is no requirement in the Sunshine Ordinance for departments to refer members of the public to private entities. He stated that Ms. Gong should have referred Mr. Wooding to DT.

Ray Bellar stated that Mr. Ginsburg and other City officials and employees went out of their way to use their official titles to influence the presentation at the Commonwealth Club. He stated that he was disturbed that Ms. Ballard stated that the scheduled panelists were unqualified and biased. He stated that this case deeply undermines the public's faith and desire to work with the government. He stated that the records should not have been deleted.

Dr. Derek Kerr stated that the e-mail Mr. Ginsburg deleted is not the kind of correspondence that one deletes because it is of no value as a record. He stated that one would delete the e-mail in order to conceal what it contains. He stated that this matter could be reduced to a technical, legal point that would make it easy to dismiss, but that this is an ethics commission. He stated the ethical dimension should be considered and not just loopholes.

Nancy Werfel stated that Mr. Ginsburg is guilty of a willful violation of the Sunshine Ordinance. She stated that Mr. Ginsburg is a former City Attorney and he objected to the panel at the Commonwealth Club. She stated that he did not want a discussion about a controversial decision to be discussed in a forum he could not control. She stated that Ms. Gong should have referred Mr. Wooding to DT. She asked the Commission to consider all of the relevant circumstances, including Mr. Ginsburg's motive. She stated that the Commission should find him in willful violation in order to assure public confidence in the body.

Peter Warfield stated that he supported Mr. Wooding's request and position. He referred to section 67.29-7 of the Sunshine Ordinance.

Suzanne Dumont stated that RPD is aware of the Task Force and RPD's obligations under the Sunshine Ordinance. She stated that it is most egregious that the public is paying people to deceive it. She stated that RPD is abusing the public trust.

Allen Grossman stated that this matter reminds him of the missing minutes from the Nixon tapes. He stated that, when the request came into RPD, there was an obligation to look through everything. He referred to California Government Code section 6252. He stated that it was a violation that Olive Gong did not look at the backup tapes.

Jane Kwok stated that Mr. Wooding really loves San Francisco and devotes his time to the City. She said that he is held in high esteem.

Eric S. stated that Mr. Wooding told him that RPD is raising revenues at the expense of the public. He stated that the Task Force found a violation and he was unsure how their findings could be overturned. He stated that RPD should have kept these e-mails and that this case is similar to Watergate. He asked the Commission to come to the right conclusion.

Ray Hartz agreed with the comments of many other speakers. He stated that the department feels no responsibility to correct mistakes. He stated that RPD staff should not be allowed to unilaterally decide when to delete records. He stated that Ethics staff has a clear conflict of interest in this matter, as the Task Force found a similar violation against Executive Director St. Croix. He stated that the Commission cannot have someone giving it advice when he is unwilling to be honest that he may be affect by the Ethics Commission's decision. He stated that the City Attorney has no right to interpret the Sunshine Ordinance and that job lies with the Task Force.

Catherine Howard stated that the City planned to remove seven acres of living grass and add artificial turf and also have lighting on until 10 PM daily. She stated that RPD tried to stifle free speech and then denied that they tried to do it. She stated that the Commonwealth should have been permitted to hold its discussion.

Judy Burkowitz stated that the Respondents violated sections 67.21(c), 67.25, 67.26, and 67.27 of the Sunshine Ordinance. She asked the Commission to cite them accordingly. She stated that the event was a private one and it was organized at a private venue. She stated that it was irrelevant whether the Commission believes the documents were deleted.

Bruce Wolfe stated that RPD relied on its own records retention policy. He referred to San Francisco Administrative Code section 8.1. He stated there was no label of "essential" records, as Mr. Ginsburg mentioned. He stated that if the Ethics Commissioners have not read section 8.1 of the Administrative Code, then the Commission should continue this item.

David Pilpel stated that he agreed with most of Mr. Wolfe's comments. He stated that the e-mails in question were improperly deleted, as they were in relation to a continuing matter. He also referred to section 67.29-7 of the Sunshine Ordinance.

Commissioner Liu asked Mr. Ginsburg what the RPD's protocol is for looking for backup data when responding to Sunshine requests. She stated that the request was made just a few weeks after the events in question. Mr. Ginsburg stated that the department worked with the City Attorney, but that he is not sure whether looking at the backup tapes at DT is a routine practice. He stated that the department would do it when asked to do it. Mr. Ginsburg stated that he did not remember whether he told Ms. Gong that he had deleted any e-mails. He stated that there were no e-mails from the "sfgov" account from DT's search of the tapes. Mr. Ginsburg explained how he searched his records when the request came in from Mr. Wooding. He stated that he has about 50 file folders, but that he can perform a search through his entire account at one time. He stated that RPD's e-mail is kept on a centralized server.

Commissioner Renne asked whether there is a standard of time used to delete a document when Mr. Ginsburg decides it belongs in Category 4. Mr. Ginsburg stated that he would delete it the next time has a chance to manage his inbox.

Commissioner Studley asked whether there is a standard City-wide policy when handling Sunshine requests. She stated that it seems unreasonable for the public to know to ask for documents from backup tapes or from some other source. DCA Givner stated that he was not aware of a City-wide policy, but that departments search their own records. He stated that departments do not ask DT to look at backup tapes. He stated that DT's search is a time-consuming process, especially considering how many requests come into the City every day. Commissioner Studley noted that once documents are deleted, they are no longer that agency's documents, but possibly DT records. She asked what the agency's responsibility is and the standard practice. DCA Givner stated that the City Attorney generally advises agencies that the Sunshine Ordinance does not require the City to look at backup tapes for documents that were deleted properly. Commissioner Studley stated that it is hard to know what responsibility each agency has when there are not common standards regarding both deletion of records and what records to search.

Chairperson Hur stated that the question before the Commission is whether Mr. Ginsburg committed a willful violation of the Sunshine Ordinance. He stated that the main question is whether Mr. Ginsburg conducted a search for the records. He stated that his reading of the retention policy is that the e-mail received would fall under Category 4. He stated that whether the category is acceptable under the Administrative Code is not one that can be adjudicated now. DCA Givner stated that the City Attorney works with departments on their own records retention policies. He stated that the City Attorney ensures that the policy complies with local and state laws.

Commissioner Renne asked Mr. Wooding whether he received the same documents from DT, after they performed the search. Mr. Wooding stated he received only 2 or 3 documents from DT. He stated that Ms. Gong did not know what was going on and that Mr. Buell, Mr. Ginsburg, and Ms. Ballard never spoke for themselves. He stated that RPD never treated this as a serious issue and that he did not believe Mr. Ginsburg.

Chairperson Hur referred to an e-mail, dated April 25, 2011, on page 235 of the December 2011 Task Force packet. He stated that the e-mail clearly expressed Mr. Buell's opinion about the panel, but it does not suggest some official action. He stated that this e-mail falls under Category 4. He stated that he understood Mr. Wooding's frustration, as the deletion could have been for the reasons he said. He stated that, however, it does not appear that retention was required.

Commissioner Renne stated that sections 67.26 and 67.27 of the Sunshine Ordinance were inapplicable and that he did not think section 67.21(c) of the Sunshine Ordinance required that RPD advise Mr. Wooding to go to the Commonwealth Club. He also stated that, with respect to section 67.25 of the Sunshine Ordinance, there was no doubt that the response the RPD gave was a correct response, as there were no responsive documents.

Commissioner Studley agreed that there is no requirement in section 67.21(c) for an agency to send the requestor to the Commonwealth Club. Commissioner Liu stated that the request came in only a few weeks after the e-mails and there may have been recollection at the time that he had deleted an e-mail. She stated that, as there is no City-wide policy regarding backup tapes in response to Sunshine requests, there cannot be a finding of a willful violation.

Motion 13-02-25-2 (Renne/Studley): Moved, seconded, and passed (4-0; Hayon excused) that the Commission find Mr. Ginsburg did not willfully violate sections 67.21(c), 67.25, 67.26, or 67.27 of the Sunshine Ordinance.

Commissioner Studley stated that it would be helpful to identify issues regarding the interpretation of rules or agency practice. She stated that the Commission could speak with the City Attorney regarding these issues and have future meeting discussions regarding possible law changes or guidance on how City agencies could be more consistent. The Chair agreed.

IV. Discussion and possible action on matters submitted under Chapter Two of the Ethics Commission's Regulations for Violations of the Sunshine Ordinance.

Agenda Item IV(a) – Ethics Complaint No. 15-111205 (referred from the Sunshine Ordinance Task Force on December 5, 2011).

[Respondent Olive Gong was not present.]

Respondent Mark Buell, President of the Recreation & Parks Commission, stated that he reviewed his e-mails and responded within 12 hours of receiving a request from Ms. Gong. He stated that he did not find any e-mails. He stated that he heard about the panel and saw the title and felt that the panel was one-sided. He stated that he contacted the Commonwealth Club regarding representation from the RPD. He stated that there was no conspiracy with staff and that he reluctantly agreed to sit on the panel. He stated that he has changed his personal habit and now does not delete anything. He stated that these e-mails were communication with people he had communicated with in the past. He stated that it was not a Commission issue. He also stated that the e-mails accurately represent what he felt then and now.

Respondent Sarah Ballard, Director of Policy and Public Affairs, spoke on Ms. Gong's behalf. She stated that Ms. Gong's role in the department is to receive document requests and ask people whether there are any responsive documents. She stated that she had searched her records and stated that she keeps her e-mail similarly to how Mr. Ginsburg described his e-mail account. She stated that her inbox was her "to do" list and she keeps all others in file folders. She stated that she searched her records and did not have any responsive documents.

Complainant George Wooding expressed his disappointment in the way the Commission bifurcated the matter. He stated that Sunshine will suffer and the public will suffer if the public loses confidence in the government. He stated that Ethics now represents the City family more than the public and that he has little confidence of any fairness.

Commissioner Studley asked whether the documents he received were provided by RPD staff. Mr. Wooding declined to answer the question.

In his rebuttal, Mr. Buell stated that he searched all Commonwealth Club meetings for two years and could not find any title that had a similar degree of bias or where only one side of an issue was being considered.

In her rebuttal, Ms. Ballard stated that RPD's archived e-mails are now kept in the department. She stated the archived e-mails had previously been maintained by DT.

Public Comment:
Greg Miller stated that Ms. Ballard stated that the people involved with the panel would incite the community. He stated that Ms. Ballard had asked the Club to cancel the event. He stated there was clear evidence that members of RPD directly reporting to the Director tried to prevent the public from meeting and speaking. He stated that City officers and employees should not use their titles to try to prevent members of the public from meeting independently.

Bruce Wolfe stated that he was very concerned. He stated that DCA Givner was wrong and that documents are stored and the law states that retrieval must be had whether in storage or not. He stated that the only things that cannot be retrieved are those that can be destroyed. He stated that the City Attorney cannot represent any one individual, except for litigation. He urged the Commission to continue the item and read Administrative Code section 8.1.

Nancy Werfel stated that a response that says "we have no responsive documents to your request" means that "we never had any responsive records." She stated that if there is a record, the public needs to know that there is somewhere else to go, such as DT. She stated that Ms. Ballard accused the panel of being deeply biased and that Ms. Ballard has no interest of hearing or speaking of the facts. She stated that Ms. Ballard has been found guilty and that she is not being forthcoming with this body.

Anne Clark stated that these local and state laws exist because government activity must be transparent as possible. She stated that the government could be saying things about members of the public without their knowledge.

Judy Berkowitz stated that she has been in every Supervisor's office and met with every aide and the Mayor's aide. She stated that she does not know anyone who deletes e-mails. She stated that RPD appears to be the only department that does.

Catherine Howard stated that the Commonwealth Club often has issues that are one-sided. She stated that Ms. Ballard wrote an e-mail and used her title. She stated that, without being provided with copies of the e-mails, no one would have know they existed. She asked what would happen when a whistleblower is not there to provide the documents. She asked the Commission to help the public get accountability.

David Pilpel stated that he believed there is a violation, but not necessarily of the sections listed by the Task Force. He also stated that he was unsure whether the violation was willful. He agreed with Commissioner Studley's suggestion to catalog issues to discuss in the future.

Chair Hur asked Ms. Ballard why she did not retain her e-mail from April 20. Ms. Ballard stated that she does not retain sent e-mails, regardless of the importance of the e-mail. She stated that she had no sent file folder in her e-mail account.

Commissioner Studley asked Mr. Buell about his search for responsive documents. Mr. Buell stated that he looked under Dalton and Commonwealth Club, but that his e-mails seemed outside anything before the Commission and that he knew Mr. Dalton well so that was why he had e-mailed him. He also clarified that the City Attorney had not represented him in this matter. Mr. Buell stated that he had searched his Blackberry and thought he searched both sent and received e-mails.

Chairperson Hur asked Mr. Wolfe about the RPD's retention policy. Chairperson Hur stated that an employee who follows his or her own retention policy cannot be found in willful violation of the Sunshine Ordinance. Mr. Wolfe stated that the RPD's retention policy is not correct, but stated that the e-mails should have been retained under Category 2. Chairperson Hur stated that these specific violations alleged do not reach whether the document should or should not have been retained. He stated that Ms. Ballard may not have been following her record retention policy, if she does not save any e-mails she sends.

Commissioner Liu stated that her focus is on section 67.21(c), whether any of them should have informed Mr. Wooding that there were e-mails and they were deleted. She stated that the e-mails were not in their custody anymore.

Commissioner Studley stated that all three responded, but that Ms. Gong responded for the department and responded late. She stated that the Sunshine Ordinance is not about whether one remembers, it is about production of records. She stated that it would be excruciating to draw a line between something that was so voluminous or old or some other thing. She stated that Ms. Gong was going to be held at risk for failing to compel the rest of her colleagues to do something other than what was the department's records retention policy.

Chairperson Hur asked Ms. Ng to add the issue of searching backup files in response to Sunshine requests to the list of future discussion topics. He asked DCA Givner his view on the failure to retain a document that should have been retained. DCA Givner stated that the Ordinance requires department heads to retain records in a professional manner, which the City Attorney's Office has always interpreted as consistent with the department's records retention policy. He stated that section 67.29-7 (as interpreted by the City Attorney) does not require that a department head keep every one-line e-mail that crosses his or her desk. DCA Givner also briefly explained the "rule of reason." He stated that the department has to make reasonable efforts to find a document. He also stated, however, that it would be unreasonable for a department to find every e-mail from the last 20 years. He stated that the general rule may also apply to the backup tapes, as the search would entail a large amount of resources to be used for that request. He stated that the purpose of the Sunshine Ordinance was to deal with disclosure of documents that have been retained. He stated that a separate chapter of local law deals with records retention.

Chairperson Hur stated that there was a violation of section 67.25 by Ms. Gong with respect to failure to provide documents within the required time period. He stated that Mr. Buell, Ms. Ballard, Mr. Ginsburg, and others responded and Ms. Gong did not provide a response to Mr. Wooding in a timely fashion. He also recommended that Ms. Ballard maintain some documents that she sends, but found no violation of sections 67.26, 67.27, or 67.21(c). DCA Givner stated that, as the Commission was conducting a hearing under Chapter Two of the Regulations, there was no need to determine willfulness. Chairperson Hur asked why Ms. Ballard had been included in the referral from the Task Force under willful failure.

DCA Givner stated that, when the Task Force makes a referral under Chapter Two of the Regulations, the Respondent (a City official or employee) has the burden to show that the violation did not occur. Commissioner Renne agreed with DCA Givner and stated that the Commission could find there is evidence of a violation, but not a willful violation. He stated that it may be a violation, but not something that requires great admonition. He also stated that the department is required to check its files when requested. He stated that a department is not expected to respond and say "no, we do not have any documents and we may have deleted it."

Motion 13-02-25-3 (Studley/Liu): Moved, seconded, and passed (4-0; Hayon excused) that the Ethics Commission find Ms. Gong violated section 67.25 for failure to respond in a timely fashion to an immediate disclosure request and that the Commission did not find a violation by the other Respondents as to the other three section codes referred by the Task Force (sections 67.21(c), 67.25, 67.26, or 67.27 of the Sunshine Ordinance).

Chairperson Hur then stated that the department was late in its response, but it was not particularly egregious. He suggested that staff write a letter to the department telling it to comply with section 67.25 in the future and that document requests need to be responded to in a timely manner. Commissioner Studley agreed. She suggested adding the topic for future discussion of how a City agency may respond to an Immediate Disclosure Request.

[Break from 9:18 PM to 9:31 PM.]

David Pilpel stated that he, as Chair of the Education and Outreach Committee of the Task Force, would be happy to work with staff regarding the items listed for future discussion.

Agenda Item IV(b) – Ethics Complaint No. 04-120507 (referred from the Sunshine Ordinance Task Force on April 30, 2012).

Respondent Caroline Celaya stated that she had submitted a response to the Commission last week. She stated that she and Kathy Fowlis, who responded to part of Ms. Carter's original request, were available to answer questions from the Commission. She acknowledged that the department was late in providing some of the documents, but stated that they had attempted to work with the Complainant. She stated that she was following a previous ruling by the Task Force, where a privacy waiver had been required to be signed prior to the release of documents. She stated that she was the point of contact for all document requests made to SF Municipal Transportation Agency (MTA). She stated that the complaint had stated that she had not received her personnel files, which is why Ms. Fowlis responded, as she is the custodian for MTA personnel files. She stated that the department disagrees with the Complainant's assertion that she did not receive her own personnel files.

[Complainant Cynthia Carter was not present.]

Public Comment:
David Pilpel stated that he did not necessarily agree with MTA's analysis that labor is required for certain records. He stated that MTA has a single point contact to coordinate responses to document requests. He stated that he was not sure if a violation of 67.21(c) occurred and that it is debatable whether a violation of section 67.21(e) occurred.

Commissioner Liu asked what documents the Complainant had yet to receive. Ms. Celaya stated that the Complainant had received her personnel file. She stated that the Complainant requested copies of certain documents and those copies were sent to the Complainant via certified mail. Ms. Celaya also stated that there were privacy concerns for other documents, such as medical files or workers compensation files. She stated that some redacting may need to occur, but that the Complainant must sign the waiver. Ms. Celaya also stated that the Complainant had signed the waiver, but added some language which made it illusory. She stated that after signing the waiver, the documents could be released to any member of the public who requests her records.

DCA Givner stated that the City could perhaps provide the documents under other laws, but not through a Sunshine request. Commissioner Studley asked whether the matter belonged in front of the Ethics Commission at all. DCA Givner stated it did not. Commissioner Studley then asked about other, non-personnel or medical records that the Complainant requested. Commissioner Renne asked what kind of information was contained in other files. Ms. Fowlis stated that the files would contain the Complainant's medical diagnosis, any treatment she received, any illnesses she may have had, and any requests for leave that she may have made. Commissioner Renne asked whether the Complainant could obtain these records outside of the Sunshine Ordinance. Ms. Fowlis stated that the Complainant could and is also able to review every document at her request. She also stated that, if it were not part of a Sunshine request, it would be different. Ms. Fowlis stated that the Complainant came into the department to review her personnel files and was told of this in person. She stated that there is an alternative path for the Complainant to obtain those files, without signing a waiver. Chairperson Hur stated that it appeared to be a better alternative for the Complainant to get the documents without going through a Sunshine request. He did note that the response was not made in a timely manner, but did not find a violation of sections 67.21(c) or 67.21(e) of the Sunshine Ordinance.

Motion 13-02-25-4 (Renne/Liu): Moved, seconded, and passed (4-0; Hayon excused) that the Ethics Commission find Ms. Gong violated Sunshine Ordinance section 67.21(b) for failure to respond in a timely manner to a records request; the Commission also did not find violations of sections 67.21(c) or 67.21(e) of the Sunshine Ordinance.

The Commission directed the staff to issue a letter explaining that MTA should provide timely responses to document requests in the future.

David Pilpel noted that neither of the Complainant's original written requests referred to the Sunshine Ordinance.

Agenda Item IV(c) – Ethics Complaint No. 07-120621 (referred from the Sunshine Ordinance Task Force on June 20, 2012).

Respondent Frank Lee, Executive Assistant to the Director of the Department of Public Works (DPW), stated that his department responded fully to the Complainant's request. He stated that the Complainant received hundreds of documents and was also asked to meet with DPW staff if he had further questions. He stated that he had prepared CDs with responsive documents and provided them.

[Respondent Mohammed Nuru was not present.]

[Complainant Lars Nyman was not present.]

Public Comment:
David Pilpel stated that DPW has gone above and beyond with respect to this document request. He stated that, as Mohammed Nuru was listed as Respondent, this matter should have been bifurcated and Mr. Nuru should have been handled under Chapter Three of the Commission's Regulations. He suggested with handling the matter with respect to Mr. Lee only.

Deputy Executive Director Ng stated that Mr. Nuru was the acting department head at the time, but that this matter was not referred to the Ethics Commission as a willful violation and therefore is being handled under Chapter Two of the Regulations.

Chairperson Hur stated that it was shocking that there were no documents explaining the approval for a $100,000 project or that the project went over 130%. Mr. Lee stated that DPW was shocked as well. He stated that he had contacted the people in charge of the project, when seeking responsive documents.

Commissioner Liu stated that it appeared the department had conducted an exhaustive search of documents and it appeared that there were no other responsive documents. Chairperson Hur agreed.

Motion 13-02-25-5 (Liu/Renne): Moved, seconded, and passed (4-0; Hayon excused) that the Ethics Commission find that Respondents Lee and Nuru have met their burden and find no violation of sections 67.21(c) or 67.21(e) regarding this complaint.

Agenda Item IV(d) – Ethics Complaint No. 09-120703 (referred from the Sunshine Ordinance Task Force on July 3, 2012).

Respondent Howard Lazar, Program Director of the Street Artists Program at the Arts Commission, provided written statements to the Commission at the beginning of the meeting. Mr. Lazar stated that he acknowledged that he failed to respond in a timely manner during the Task Force hearing. He stated that a representative read a prepared statement from Mr. Lazar and provided the responses to the Complainant. He stated that he had drafted a reply, after receiving the request, but the reply failed to be sent. He stated that he had apologized. With respect to the alleged violation of section 67.21(e), he stated that the City Attorney's Office had advised him that a representative may attend the Task Force meeting(s), as long as the person could accurately provide the Arts Commission's response. He stated that he had prepared the statement that his representative read and it was reviewed by DCA Adine Varah.

Complainant William Clark stated that he started the street artists licensing program forty years ago. He stated that Mr. Lazar and his representative left during the July Task Force hearing. He stated that he had been waiting for years for artist spaces in Hayes Valley. He stated that Mr. Lazar simply had to respond yes or no and he would not have filed a complaint. He stated that he simply wanted an answer.

In rebuttal, Mr. Lazar stated that the Task Force also charged that he had willfully violated the Sunshine Ordinance based on his "pattern of repeated violations." He stated that he had personally responded to over 100 requests during the last two years, spending approximately 227.5 hours. He stated that the Task Force Order is subjective and contrary to the advice of the Office of the City Attorney. He disagreed with the Task Force's finding that there is an "evident lack of intent to comply with the Sunshine Ordinance in the future."

Public Comment:
Robert Clark stated that he was present during the July Task Force meeting and that Mr. Lazar did not stay during the entire meeting. He stated that all of the other complaints that he and his brother have filed against Mr. Lazar have ended up with violations against Mr. Lazar and the Arts Commission. He stated that Mr. Lazar's representative had no knowledge on the issues involved with the complaint. He asked the Commission to listen to the Task Force meetings. He stated that Mr. Lazar always knew the response to the question asked and he willfully withheld the information.

Paula Datesh stated that she had made document requests to the Arts Commission and not received a response. She stated that she had been slandered and the Arts Commission staff does not respond to e-mails or phone calls. She endorsed the Clark brothers.

Chairperson Hur asked Mr. Clark whether his Task Force complaint accurately reflected his request made to Mr. Lazar in that it was "not a document request." He asked DCA Givner whether the public may request a written response to questions. DCA Givner stated that the Sunshine Ordinance does not require City departments to create a document in response to a request. He stated that departments, under section 67.22, must work with someone who is requesting oral information.

Commissioner Studley stated that she also had the same concern, as Mr. Clark stated that he was not requesting documents. DCA Givner stated that section 67.22 requires a department to provide public information in a timely way, but does not have to sit down and provide a lengthy discussion. He stated that the department is not required to spend more than 15 minutes for these types of requests. He reiterated that the Sunshine Ordinance does not require the City to create any records.

David Pilpel referred the Commission to section 67.20(b), which defines "public information." He stated that the department could have responded, even if Mr. Clark had not made a records request.

Paula Datesh stated that Mr. Lazar is trying to justify his actions. She stated that he has stated that money has been squandered on Sunshine complaints.

Mr. Clark stated that if an employee knows the answer or can get it within 15 minutes, then that employee is required to provide it. He stated that Mr. Lazar has known the answer for over a year and has deliberately refused to give them the information.

Chairperson Hur closed public comment.

Mr. Lazar stated that he attended the July Task Force meeting with a representative. He stated that he had an asthmatic attack and the letter he wrote to the Task Force about it is on file. He stated that he did not attend the next Task Force meeting as he did not trust his nerves and did not want to suffer another attack.

Commissioner Liu stated that there is an obligation for a request for public information. Chairperson Hur asked whether a phone call would be a sufficient response. DCA Givner stated that the person asked or someone else in the department could be available to answer the question. He also stated section 67.21(b) addresses situations where the custodian receives a request for a copy of a public record.

Chairperson Hur asked Mr. Lazar why there was no communication from the department. Mr. Lazar stated that he did not know why and that he was not going to deny it.

Commissioner Liu stated that she was troubled by the Task Force's finding that the willful finding was based on a pattern of practice as there is no evidence of it presented to the Commission. Chairperson Hur agreed. The Commissioners agreed that Mr. Lazar had overcome his burden regarding sections 67.21(b) and 67.21(e), but not section 67.22(b). Chairperson Hur stated that sections 67.21(b) and 67.21(e) were not applicable.

Motion 13-02-25-6 (Studley/Liu): Moved, seconded, and passed (4-0; Hayon excused) that the Ethics Commission found a violation of section 67.22(b) and that, under the Regulations, the Commission makes a finding of no violation with respect to sections 67.21(b), 67.21(e) and 67.34.

David Pilpel asked whether the Commission would issue an Order under Chapter Two, section II.E of the Regulations.

Motion 13-02-25-7 (Renne/Studley): Moved, seconded, and passed (4-0; Hayon excused) that the Commission directing staff to issue a letter to the Arts Commission to notify the agency of the violation and instruct the agency to cease and desist from such conduct in the future.

Public Comment:

David Pilpel suggested that the letter from staff be as specific as possible, as this process is new.

V. Discussion and possible action on election of Chair and Vice-Chair.

This agenda item was deferred to a future meeting.

VI. Discussion and possible action on the minutes of the Commission's regular meeting of January 28, 2013.

Public Comment:
David Pilpel suggested the following changes: DCA Josh White's presence during the January 2013 meeting should have been recorded; on pages 2 and 3, Commissioner Renne's vote should have been noted on the motion regarding his recusal; Commissioner Renne's vote should have been recorded as recused, not abstained for motions 3 and 4 during Agenda Item IV; and the names and titles of those present during closed session should have been noted in accordance with section 67.16 of the Sunshine Ordinance.

Motion 13-02-25-8 (Liu/Renne): Moved, seconded, and passed (4-0; Hayon excused) that the Commission approve the minutes from the Commission's regular meeting of January 28, 2013, as amended.

VII. Discussion of Executive Director's Report.

Public Comment:
David Pilpel asked whether there were any other pending Sunshine matters. Executive Director St. Croix stated that there are two more pending cases.

VIII. Items for future meetings.

Public Comment:
David Pilpel suggested a future discussion regarding how the Sunshine matters went tonight, including procedural matters. He also asked to know about any possible regulations regarding the new electronic filing requirements.

Commissioner Studley asked whether any of the Commissioners would be able to attend the Interested Persons' meeting scheduled for Wednesday, February 27, 2013. Commissioner Renne stated he would attend. Commissioner Studley also stated that she had spoken with someone who told her that it was her first time attending an Ethics Commission meeting. She stated that it would be nice if there are other citizens to attend meetings and broaden the pool of interested persons who attend Commission meetings.

IX. Public comment on matters appearing or not appearing on the agenda that are within the jurisdiction of the ethics commission.

None.

X. Adjournment.

Public Comment:
None.

Motion 13-02-25-8 (Studley/Liu): Moved, seconded, and passed (4-0; Hayon excused) that the Commission adjourn.

Meeting adjourned at 11:04 PM.