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tv   [untitled]    September 27, 2013 12:00pm-12:31pm PDT

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>> >> any further comment, on this matter? >> if not, commissioners. and any further questions or comments from you? >> well, i have got to say that i am... disturbed with the idea that the amendments could be introduced without the public having an opportunity to see them and digest them, and whether 13 or 14 pages of or should be deemed as non-subnative and it is a practice which i think that we ought to discourage and so that i am not prepared to find that they willfully violated the
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sunshine ordinance, but i am not prepared to say that their conduct was consistent with what i think is the way in which the board of supervisors and its committees ought to operate. >> what does that mean, that you think that the proposed amendments did subnative change the agenda item but that it was not intentional? well, i guess that the problem is that i tend to agree with some of the comments that have been made as to how you can determine 13 pages are
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non-subnative, because i think that one of the things that the public is concerned about is that you have developers who are wired into the political process and who have everything else and on the day of the hearing that they are to that the committee is supposed to deal with it, an agreement, and suddenly, changes come in. and they say, well, they are not, they are not subnative and therefore, there is not any reason why the public should have had 72 hours to deal with them. and that troubles me. >> okay. >> i don't know why it was that the supervisor chiu offered that morning why they could not have been proposed 72 hours earlier. and it is just that process that i am disturbed by and that i find i don't think we should
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give a message to the board of supervisors, that they can should have side stepped the public notice requirement. by simply saying to come up with amendments and whether they are non-subnative. >> i am not sure that the question is whether the amendments were subnative, i think that the question is whether the amendments changed the noticed agenda item and to me those are two different things. you can have things that are subnative that are proposed but don't change the broad notice requirement. and that is why i think we should make a finding of no violation of the ordinance. >> >> i will agree with commissioner hur. but to commissioner renne's point, that is where, that is sort of where i was headed. if indeed, it took a weekend or
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working all weekend to generate a list of changes, mr. true you used a technical, you said technical changes is that the word that you used? >> please. >> do you mind to come? >> that at some point in the weekend that somebody will say, well, these are significant enough that we will want to get them to the committee as soon as possible and that is why i want to hear that you said that it is a process and it is kind of ever-moving and it is dynamic. and i'm just not sure if there is a trigger any time in that dynamic process where someone does say, you know what? we need to like, halt the process, and make sure that we deal with these significant changes or these subnative or technical changes, in a way that does not hold up the
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entire process and so i wanted to hear more about that and that was leading to my first question is which was when you do have time, what typically happens? does it get to the committee, you said that they are just posted. is there a specific action that is taken that gets the information to the committee? i know that they are posted on the website for the public. >> for the development through the share, to the commissioner andrew's, i am from supervisor david chiu's office, it depends on the type of legislative item and the development agreements are approved generally and not always by the resolution of the board, and so the resolution, is you know, usually fewer than ten pages and described in broad terms what the terms of the development agreement are. and i have not looked back at this resolution specifically, but, it will describe, you know, the terms between the parties, and a little bit about the rent control for example, and on replacement units which was a big issue in this case.
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and so, if essentially whatever development agreement is in the file, behind that resolution is what the board is acting on and that can change, and even again, the day of the full board vote for example. >> as i mentioned for the shipyard. >> and i said earlier that it did not matter what the changes were and i think that i need to be able to be clear about that. and i have been to the two supervisor to work for the city for ten years now and if i had a nickel to ask the city attorney if changes to an ordinance usually were subnative i would have a lot of nickels. the most common easiest example is whether it is subnative or not, let's say a fine amount, you have an ordinance that establish $a program and if you violate the program and the fine is $100 a day, let's say. if that noticed amount goes up by one cent, and then that is a subnative change that will require an additional 72 hours for the public to understand that instead of $100, for violating whatever the new law is passed it is going to be
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$100.01. and if that fine in committee goes down $80, and someone thought that there could be a fine, but now it happens to be going down because of some supervisor thought it was too high or whatever, that did not require increased public notice. and i was just looking back and it has been more than two years, i believe, since this land use committee meeting happened. and i was looking back at the 14 pages of changes and again, and the title and this is exactly what they are, and we already believe that the rent control protections for replacement units at the park essentially the project was identification of the land use, and ever resident, at park merced was under the development agreement entitled to a new unit at the same rent control for life. and what we leave that the best protections were already stronger than those approved at the trinity project which is being built right now at 8th and market. but we thought that we needed to go further and so we worked
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with the attorney to see what we can do and looking at state law, and basically you know said that this is what we thought needed to happen for president chiu to be supportive and there is already a presumption and understanding on behave of the public and this is disputed of course but it was noticed and the development agreement said that those replacement units everyone was entitled to the unit at rent control replacement unit and so what we did is to tighten that screw down a little bit more and the bulk of the 14 pages is stronger provisions around liquid ated damages and the court would find that what we are doing was not, or was beyond what state law allowed. and so, we think that they were important and we saw them as an important policy move, but, in no way, did they change the underlying fundamentals, you know, of the development
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agreement and the bargain that we believe that the development agreement struck from a policy standpoint. and so, to commissioner renne's point, i believe, that it is very important and we believe that it is important that the public have a full opportunity to debate and discuss, and issues of this import and these issues before the board for some months, and in fact it has been continued from earlier in the year when it was at the full board on a sequa appeal and so there is a lot of public discussion around the issues. and i myself talked about it in front of public groups for months, afterwards. but, we strongly believe that the development agreement, and the disscreption of it in the resolution was covered by the agenda and that the changes were that made to it, only so to speak to use my med fore, decreased the cost of the fine and therefore did not require an additional continuance and i
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do want to say to commissioner renne's point that i will take back to president chiu and some of another supervisors the point around the amendment and changes that were made. it is part of the administrative process and i think that the supervisors try hard to get their changes out there, and you know, in a way that provides a full debate as possible. but we do take seriously these rules around public comment if there are subnative changes. >> i have a follow up question, it was brought up in the public comment something that will refer to a narrow scope of expertise around the development projects. with the city attorney's office. you said that you were working with the city attorney's office. was the same representative that you have been working on in the project there, the same
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attorney there to answer any questions? and to your recollection can you remember, if they were ever called on? >> i thank you for that question, commissioner andrews. and i did not look back at the transskipt before tonight. >> i have before the hearing but the city attorney who was... and the primary real estate drafting attorney, on the development agreement. and he worked and consulted as i did with the deputy city attorney who was a friend of the board of supervisors so i believe that both of them were at that hearing and one of them spoke and i want to say that it was the one that usually speaks to the board but i think that they both might have been was it sullivan, or do you remember? >> sullivan was the... (inaudible) and adams is the one who answered. >> it is typical for, and occasionally a deputy city attorney who worked on an issue will talk but it is typical for the deputy city attorney who
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works on the board of supervisors be the one to make the final comments. thank you. >> thank you. >> call the question. >> any further discussion? >> all right. could you restate your motion, please? or could you read it back to us? >> i can restate it. i move to find that there was no violation of the sunshine ordinance task force, strike that. what is going on here? >> commissioner renne? >> the motion was that the supervisors did not violate the sunshine ordinance as to the current allegations before the
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commission. >> the current allegations before the commission. >> all in favor? >> aye, aye. >> all opposed? >> aye. >> the motion passes. thank you for your comments. and thank you commissioner renne. >> >> and the next item is discussion of handling of draft regulations that are come to us from the sunshine ordinance task force, mr. st. croix? >> most of these are for the purposes of clarifying some
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language that is not precisely clear. and we can go through them section by section. the commission considered the decision points individually or in block or you can do them section by section. >> so the first decision point deals with show cause hearing. the section is not clear as the memo points out whether each respondent will make a 5 minute opening statement or if it has to be shared. so we are proposing that each respondent are able to make 5 minute statement and three minute rebuttals when the commission hears these cases. and then, decision point 1 b, clarifies that a party that fails to submit written
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documents by the deadline, is allowed to bring them to the actual hearing and request permission from the commission to submit said documents. and so it gives each party a little more latitude in responding. >> that is section one. >> okay, i think that we should take them one by one. >> okay. >> the first one, decision 0.1 a. commissioners any questions or discussion on that? >> so, commissioner, chair, ad hand, one point i am fine with the change to add each respondent and complainant with
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respect to seeing that any party who fails to submit the documents by the deadline can bring them with the hearing. i don't see any need to at that. the chair at her discretion can grant a party the right to provide the documents when they are here. i think that if you put in the regulation that they can do that, it is going to make it unlikely they are going to present them ahead of time the way that we want them to. i think that it behoofs the public and helps us to have the documents ahead of time and under the circumstances that they can't be brought to the end and i think that we could present that then but i don't think that beshould put that in the regulation. >> i would agree with that. >> so, i am just trying to figure out, is it easier if we vote on each one or should we vote on all of them at one point? >> i think that it is probably east fer we do it as a group.
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>> yes. on voting. >> yes. >> section by section. so, for example, commissioner hur might make a motion to accept recommendation 1 a and reject recommendation 1 b. >> so moved. >> second? >> i will second. >> thank you. >> and make a clarification? >> sorry, one 1 b offers with changing five days to five business days. so that it will allow the staff time. >> yeah, i'm fine with that. >> okay. >> okay. >> and it makes sense to me. >> okay, so the motion is to not approve the decision 0.1 a to approve the change to 5 business days in 1 b. >> i think that you want to
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accept one a. >> accept one a. and except in one b the change to five business days and reject the remainder >> we have a second on it. >> public comment? >> public comment on this point? >> yeah. >> commissioners, ray hartz, director of san francisco open government and as we are doing this i found something that i think is highly questionable, it says respondents may make an opening statement, it is not clear if each can make it and what it looks like is that you are saying that there are multiple respond ants they get an opportunity to give a presentation and if there are multiple complainants they are not mentioned. you could have nine people in the last case there were a number that were listed and you are saying that they have to
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share whatever time and the complainants each get 5 minutes. >> that is totally agregios, it gives them five or ten times the amount of time to rebutte the cases. and if you are going to be fair, you have to let multiple complainants have the same, latitude to present as a respondent have, to rebut. and i would say that would also have to carry on to any subsequent parts of the hearing in which someone or you are having rebuttal and you have multiple complainants and given one chance to reply or to rebut and all of the complainants each get to rebut and they can coordinate in the effort like in the last case it will mean that the nine complainants will have had one shot and the five supervisors would have had five
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shots. >> on that point, why did we not include each of the complainants? >> is that an oversight. >> there is no reason for us not to do it. so we can certainly do that. >> i think that makes sense. >> yeah. >> and that... that makes sense to me. >> yeah. >> can i go ahead? >> yes. >> i'm not going to address the points specifically right now, i'm saving that for later. at the last one. but, i put in a records request, and i waited after i saw the notice to somebody at the ethics commission to send me copies of the proposed
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changes and the staff report. they were ready in july and they were more or less held for the meeting today. and i get this out of the few records that were produced in respond to my request. and so, the effect of what that is what i call the 72-hour problem, which is when you have a 72 hour requirement in the sunshine ordinance and your meetings are on monday and you release the information on friday, you get two dead days in between. so essentially, there is almost no time for anyone to do a really good job of examining what the proposals are and how to prepare a proper response.
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that you had these two available for the longest time and it is dated september 11th and i know that they sent, the proposal on the last item to the city attorney in june, and the staff circulated it among themselves in july and yet the sunshine ordinance task force the party most directly involved in having to deal with some parts of this, these changes never really had an opportunity to look at them, to review them, and to provide you with comments. and i really do think that there has been a lack of appropriateness in the way that it was set up. >> the records that i received in response to my request, and
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it included some e-mails, and copies of some of the way of the communication with the five commissioners and so i was wondering whether the commissioners actually ever saw this before they got their agenda, and the agenda package. and there is a serious problem because part of this changed requires some really heavy, heavy legal thinking before it
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could be adopted commissioner >> patrick, and i bring attention to the fact that mr. grossman's testimony touched on the civil grand jury 2011 keeping watch doing report, and swre long been aware of this issue. >> any further public comment? >> commissioners? any further questions or comment on this first decision point? >> and i would amend my motion to add the word each before a complainant. with respect to the decision point 1 a >> second. >> also. >> yeah, okay. >> call the question. >> all in favor? >> aye. >> aye. >> and motion passes. >> okay. section two.
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>> they must provide a response if they wish to the executive's report and no later than 5 business days prior to the date of the hearing. did i get ahead of myself? >> you should be on two a. the five minute. >> this is a repeat, and the 2 a is a repeat of 1 b. >> it is not a repeat but it is the same principal fnondoes not comply with the statement. >> and yeah, on the date of the hearing. >> yeah. >> so presumably under chapter three as opposed to chapter two, you would want to follow that same principal that
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commissioner hur, put forward. and i think that the presumption is that you do not want 2 a. 2 a is doing to chapter three what it would have been to chapter two. >> it would be the same deal that we change to the business days and not about the change. >> and two b will shorten the time limits to correspond with the chapter two. and so that there is five minutes and three minutes rather than three minutes and ten minutes and five minutes. >> any comments? >> does the staff recall why we had a ten-minute limit in chapter three? >> no.
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>> apparently not. >> okay. >> any other questions? >> i mean maybe the issue was that in chapter two we have a show cause hearing where we are giving some presumption to the underlying body, or in chapter three, it is a original jurisdiction matter and, so arguably five minutes is a little short. and you know that said, if the paip and her if we have papers and that should contain most of
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the argument any way, okay? and i could be convinced to change it. but i think that in a matter where we are letting it for the first and the first instance, ten is not over kill. >> okay. >> so, 2 a and 2 b we are just going to move on past those. >> so we are going to move past section two. and i would propose that we change the business days in two a but not adopt the rest of two a or 2 b. two a already has five business days, so there is no amendment there. >> okay. >> so we do not need to do anything on that one,; is that correct?? >> right. >> for the time being, we are going to leave those particular regs alone, correct? >> all right. >> and so there is no decision
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point, a or b? >> okay. >>; is that correct?? >> that is what i am hearing. >> and i agree. >> do we need a motion to that effect? >> no. >> okay. >> and the next decision point? >> decision point 3a deals with with drawals of complaints and so under chapter two, if a complaint is withdrawn, the commission takes no further action under chapter three, where they conduct a investigation and prepares a report, if a complaint is withdrawn, the staff will forward and decide to proceed on the matter or to dismiss it based on the information provided by the staff and the fact of the withdraw. >> can the staff explain the rationale of this one a little
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further? >> >> with respect to complaints that are filed under chapter three, it basically would be the same process, it was just that we would include the information that the complainant had with the requests of the withdraw. and you know at the time of the meeting. so really it would not change, the procedures. it would just be at the discretion of the commission and at the beginning of the meeting to decide whether or not they wanted to hold the hearing in full. >> so under what circumstance do you think that we would want to hold the hearing on a complaint that has been withdrawn? >> i have not thought of the hypothetical that would fit that. >> if


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