tv [untitled] May 3, 2012 3:30am-4:00am PDT
>> to not get too far past the previous point, one of the reasons i've mentionedje thewel gomez -- the jewel gomez case, the staff had red 1634 in one direction so that the second sentence that says he will fall violations by elected officials shall be handled by the ethics commission limited them to those only. perhaps it means that those are definitively heard by the ethics commission but doesn't limit what the ethics commission can hear. i did not see that addressed in the staff memo. i would certainly like to hear the views as we go along for a
more broad light. they direct you to read it in more of our broad sense. >> i think if i am remembering my understanding correctly, it provides us with enforcement power over the willful or non- willful. i don't take we need to necessarily get to 6734 to deal with the situation that you described. >> it is not just elected officials. >> is conceivably those under there. >> 6730c deals with this in a
much better way. they are not wanting to come to the task force if they want to go about it in their own way. in the middle, it says the task force with enforcement powers. any provisions of this ordinance or the acts. that is where we talk about non- willful issues and where we are directing our vehicle for finding enforcement. we are choosing your commission to be the enforcement body to do that. we can choose any number of other ones, but we don't feel
how to do enforcement on these particular items. this is where the thrust of the task force as non-woeful comes from. >> i agree with you that the task force can make that determination. they have one of two choices as a read this. you can either go the court or you can come to the ethics committee. and i heard your earlier
statement about the only role that the ethics commission would have is that they would have to accept your finding as a matter of law and would just impose a penalty. no court -- if you said to enforce this determination there has been a violation, the judge might give some presumption to the agency, but he or she would make an independent judgment whether or not your determination was correct. coming up with some mechanism that would allow the determination to come before the ethics commission has and possibly in some kind of much more streamlined procedures so that it can be dealt with, i
would never say that the commission cannot make its independent judgment as to if that determination is correct. >> let me stop you there. i think it would be productive for us to discuss what enforcement looks like. i think whether it should handle non-willful violation and willful violation, i view it as the most important issue. whether we should have a discussion about our jurisdiction in that regard. >> this is just a matter of
information, but i would like examples of non-willful violations. that is not clear to me. i think that is one issue. the willful and non-willful. who are the individuals that we have jurisdiction over? that is obviously very important, but to me, i have a lot of trouble with the non- willful because we ensure a lot of violations occur that are non-woeful. -- non-willful. i'm sure non-willful violations at lower levels of managers is where it occurs to a much larger extent. the their managers or employees of departments that are not really familiar with what these
violations are. >> i can give you a quick and recent example of one that we just found. it involves an elected official that redacted some information of bauhaus -- about some records and cited the california constitution has the right to privacy as the reason for redacting that information. that is not an exemption under the california public records act. we are not redacting them purposefully, unknowingly, they thought that they were following a particular exemption that did not apply. that is an example of something does not necessarily well full
glare they know they should not be redacting that kind of information. that is one example. >> in an instance where is remedied and comes before you, do i have that about right? >> they are improperly redacted or redacted under an improper exemption. we have our compliance and this committee monitoring whether it was complied or not. it may end up being referred to ethics. if there was compliance, we resolve that. >> i don't think as a commission
we necessarily expect to handle a lot of non-willful violations where the task force is able to enforce the ordinance. >> there are times -- sorry, i saw a picture of myself. [laughter] there are times that the willful violation will come to win the respondent is refusing to comply or disagreeing. they won't turn over the records, disagreeing with what ever it might be, they may disagree that certain things and don't apply, that the exemption should apply, and they refused to turn it over, that is something that might have come before the ethics commission. >> what is the volume we are talking about in terms of the past year or two? if there are non-willful
violations the you would have referred to the ethics commission? >> i would say that we have made referrals to other agencies like the district attorney and the state attorney general. there are provisions to go that route first. but we have -- there are a number that we would refer to the ethics commission if if -- if they were to be enforced. if >> like more than 10, more than 50? >> i don't think so. >> each one as a little bit different. it we had a large volume of cases this year, it was a little bit unusual, but i can't remember off the top of my head. i will look out into the audience for a minute for someone who has been researching these cases. the and know how many were referred to this year? i am asking patrick.
>> i know. i have it here. >> i know he was doing that recently. >> between 2005 and november of 2011, there were 35 cases. approximately five a year. >> have a non-willful ones, what am i trying to do? sometimes, the willful ones are because of the respondents in won't appear at our hearings. and we need somebody to back us of that they need to appear in and respond. this is not just a local lawyer, this is a state law. the local law requires them to appear. some of the locals were involved and are some of the state laws. you will sometimes get those received, those kinds of peripherals.
>> you won't necessarily claim them as being willful, even though people are not showing up, willfully, more or less, but is really important, we don't have the authority or the ability to force them to come. that is why it everywhere, it talks about finding another agency or referring to another agency for enforcement, and so here, if they were to come before you, not necessarily for a penalty or anything, but for you to order them as the enforcement agency to appear. that becomes a matter of record. and we think is important that they be put through those strokes and because we take what we do very seriously as you do. holyfield that the public oppose the right to have their due process to have the records they want and have the respondents be
present. it causes extreme backlog for us to meet able to move forward when folks don't come and we have to continue. it gets a little tenuous for everyone. >> respondents have sometimes had sent a person to appear that doesn't have real knowledge and can answer no questions. that is difficult for us to be able to hear. that is part of the reason why, back to the jurisdiction of part of the reason why we are hoping that you will take very seriously our consideration of its not just being elected, with greater frequency, people don't fall under those categories. if you walk in, you have a huge
number of documents. it is not just that they are violating the law, but sometimes they're intent is to delay the documents until they are not useful to the person anymore. this happens a lot with journalists. taking into account those kinds of things, when we only meet every 30 days, and they don't have any knowledge, it makes it difficult and is not always the apartment had that does that. -- the department head that does that. >> briefly, can i flesh out mr. grossman's -- the referral from the past five years, part of the concern about whether it is willful vs. non-willful is that warner to of those 35 cases may have been dismissed by the
ethics of staff finding that the complaint and at the time that they filed their complaint had knowledge whether it was willful or not willful, but the task force determined that it had been willful and referred it to ethics. he may have been dismissed because the complaint and hadn't alleged at the outset that it was willful. >> partly because of some omissions in the ordinance, and partly because of some differences in interpretation between and the task force and -- and there have been some questions as to who is and is not required to appear as a respondent.
the difference is dealing with public meetings, it does not say that in the ordinance. the task force has determined this is a question of the spirit rather than the letter of the law. the ethics commission staff says, it doesn't say so in the ordinance, so we are not going to find that that section of 67.21 was violated. there are some differences of opinion there, in the interest of brevity, be aware that those inferences exist. >> to want to make sure the ethics commissioners, if anyone
else would like to speak on the issue of whether the commission has jurisdiction under the ordinance of non-woeful and willful violations and not involving department heads, we welcome comments. >> i would be interested in learning a little bit more about how you think you would reach it, 67.35, both you and the other proponents. because we're struggling with the drafting of 34, and the usual interpretive the standard is that the differences make a difference. and there is a difference. if you can explain a little bit more about how you would use 35 define the jurisdiction? >> if they don't mind taking that question, i think that he
-- >> as i read the ordinance as a whole, obviously, it has got to have some enforcement procedure. there are some administrative procedures, 67.21, one of these provisions is to go to court to get enforcement. when you get to the section called the policy implementation, specifically 67.34, when i read the first sentence, i think it is the key sentence. that is focusing whether or not the violation of the sun shine ordinance, a willful violation would be deemed to be official
misconduct. that is the concern because the official misconduct when you go to the charter for elected officials is a very important phrase. and without that language, one could say that the elected official can violate the sunshine ordinance, and it might be willful, but there would be an argument on his or her part. it doesn't rise to the level of official misconduct. that is what the paragraph was concerned about. and the next sentence saying that it should be handled by the ethics commission, that is the way the charter provides.
it goes to the ethics commission. when you get to 67.35, a much more broadly worded section, d says "any person may institute proceedings for enforcement and penalties under this act. that there has been some order somewhere, or he or she has made application for public records, and they have been rejected or ignored." regardless of who that individual is, so long as it is public record under the control of any public official, it can go to court, or they can go to the ethics commission.
it seems to me that the section was intended -- go to a court or go to the ethics commission, and the ethics commission and it whishes -- it does what it wishes to do at that point. i just, i don't see how you can read 67.34 as a limitation going to 67.35. >> if i could just jump in quickly -- >> could you please come to the microphone, for those who have hearing disabilities. >> i will.
i apologize the public could not hear that. what i said was i agreed largely with what he eloquently described. i think it is 67.34 is not necessarily exclusive. it does not preclude the commission from handling broader matters. that is not to say -- there is ambiguity. you could certainly potentially read this as limiting the ethics commission to willful misconduct because of this phrase, "under this act." i think that is part of the reason this is so complicated, there is language that is ambiguous and potentially problematic. i think it can be read both ways. i think we would be implementing
the purposes of the act more consistently under one reading vs. the other. >> so, i agree in part. i think we need more clarification. for me, 67.34 is siloed. it is specific to willful fair year, and it is a concept that does not come up air we're -- it is specific to willful failure, and as a concept that is the, any place else. it is a term that is specific to the ordinance. but it states that willful failure, whether it is state law or sunshine ordinance, "shall be deemed." those are important three words, "shall be deemed" as willful
misconduct. that is not " "may." it is "at shelby" which means that it is. the question, which i agree with, is it what it rises to willful failure at that point? our stance on this is when we come to the point of finding willful failure that we have taken great pains, we have gone through a complete process. it is not just done in one stroke. it is done up through numerous amount of weeks at it and trying to get a violation settled, whatever the complaint is to be settled. and if it does not come to pass and the person does not respond, it does not comply, then they are actively refusing to do it. then it rises to the level of willful failure.
that is where the ethics commission comes into play, because willful failure shall be deemed official misconduct. those issues under the charter are handled by you. that is where i see 6734, silo for those particular purposes and violations. for 67.35, that is exclusive of the sunshine task force. that is where somebody, individually on their own, is able to go out and actually try to get this resolved on their own. that is why in every sentence, it pretty much asserts that it is any person. indeed, the act is the sunshine ordinance. it is not just 67.35, is the entire body of the ordinance itself that is the act. it claims to be the same as the brown act or the public records
act. that is where the ordinance gets drawn, draws its authority from. and its jurisdiction. so i would see there that is exclusive of the ordinance, the sunshine taskforce, that somebody did not want to go through that process and want to go straight to court or they could come straight to do, but it is only after they have made contact with a senior state official. that is supposed to take action on it. and the last part of that sentence. so they cannot come to you until they have exercised or exhausted their complete with a city or state official. -- or exhausted their complete with a city or state official. >> i just want to remind
everyone, 67.30c, which is where the ethics commission has the jurisdiction to hear cases that we sent to you for enforcement. i think the plain language of that is very clear, that it is in our purview to hold hearings about complaints that are brought to us, and we have a very lengthy process for doing this. then when we decide the order has not been complied with, after all of this time and effort, we refer these cases to you for enforcement. i guess this does not seem to specify whether it is willful or not willful, or a city official or the head of a commission, so forth. >> following up on that, how do
you read a 67.30c, the provision you were talking about, where you would get the task force seeking referrals to the ethics commission for nine willful violations -- non-willful violations? how does that interplay with 67.35d that we were just talking about in terms of a person being able to come before the ethics commission, but only if action is not taken by a city or state official? how do you will see that? >> can i answer that? can i answer that? >> i just want to clarify, and then i want to hear from mr. grossman. you have to look at the process. 67.21e, that is the hearing.
we provide a method for hearings. once the hearing is done, if we wish to defer to another municipal body with enforcement power, that is where 67. c -- 67c is about. at 67.35 is to circumvent all of that, not go to supervisor records, not go to the sunshine ordinance task force, where they are actively trying to adjudicate them selves on the run. but say they cannot get a record. they then called the city official, they call the mayor's office. if the mayor's office does not take any action on it 40 days, under sunshine ordinance, they can go directly to you or they could go to court to get satisfaction. >> you are not seeing 67.35d