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Hearing on the status of the January 8, 2008, Order of Determination (OD) of Kimo Crossman against the Assessor's Office (AO).
Speakers: Kimo Crossman, Complainant, referred to page 23 of the packet and said that only the Prop. G calendar was provided; that he asked for all detailed calendars but they were not provided. He also said the names of employees were not provided. Zoon Nguyen, for Respondent, referred to her letter on page 17 and said she was here to answer questions.
Mr. Crossman, in rebuttal, said the AO still refuses to provide the names of employees, to provide a revised calendar, or to address how they will revise the process. He said he is uncertain that disclosing personal information is an invasion of privacy.
Public Comment: None
Member Craven asked if Assessor Phil Ting has a separate calendar from the Prop. G calendar? Ms. Nguyen said she has no knowledge of a separate calendar. She also said employees have asked not to be identified and that the calendar shows the employees' title and may also include the employees' initials.
Member Craven said there is no justification for non-disclosure of employees' names unless for whistleblower or anti-harassment protection. She said she doesn't believe tthe time and date of meetings or the time spent are attorney-client-privileged, that only what is discussed with the attorney is privileged.
Member Pilpel said he doesn't believe any additional information is required on the Prop. G calendar. He asked if other deputies were included in the 15 meetings with the City Attorneys. Ms. Nguyen said yes, that the meetings were mostly with the deputies of various teams, and that information was discussed pertaining to potential litigation.
Member Pilpel said he isn't certain if there is any further action needed.
Member Comstock said Ordinance §67.29-5 nor the California Public Records Act does exclude the disclosure of an employee's name; that the redactions were not justified.
Chair Knee said the spirit of the Ordinance, CPRA, and Prop. 59 is that there be a broad interpretation regarding disclosure and a narrow definition regarding withholding.
Motion to refer the item to the Task Force for a finding of a violation of Ordinance §67.21(b) against the AO. The Committee further recommends that the AO be referred to the appropriate enforcement agency for failure to keep withholding to a minimum, by redacting the date and time of the meeting and redacting and/or replacing City employees initials/names from the calendar with job titles. (Craven / Knee)
DCA Llorente said the City Attorney's Office (CAO), in interpreting §67.29-5, looked at the narrow view and the Task Force is looking at the whole of the Ordinance including §67.21 and the CPRA, which will be a recurring issue; that he's not certain whether this matter can be settled at this level. He said he's not certain whether the actions are willful but that the AO is following an interpretation.
Member Pilpel asked Ms. Nguyen if the department responded to the OD by the 5-day response deadline stipulated in the Ordinance. Ms. Nguyen said yes. Member Pilpel said that since the department has responded as per the OD he does not support a referral.
Member Craven said that at the time of the hearing Ms. Nguyen could not tell nor disclose to theTask Force what was redacted, so it is not reflected in the OD.
Amended motion, in light of the information provided at the Compliance and Amendments Committee about information that has been redacted, including the redaction of the date and time of the meeting with the CAO and redacting and/or replacing employees' names with job titles, the Compliance and Amendments Committee refer this matter back to the Task Force with a finding of a violation of §67.21(b) and if adopted that the matter be referred to the appropriate enforcement agency for failure to comply with the Ordinance. (Craven / Knee)
Member Pilpel argued that the proposed motion is a new format that requires a new hearing on the merits of an additional violation allegation. He questioned the appropriateness of the motion and whether the department would be denied due process.
DCA Llorente urged the Members to be guided by their OD. He said the AO has responded as requested and although the response is not acceptable, it isn't a violation of the OD. He said that since the Committee has new information and does not agree that redactions are justified, the department may be instructed to release the information and that the matter may be referred to an appropriate agency if the department does not comply.
Member Comstock said the AO set a bad precedent by not disclosing information earlier, and that referral is the best course of action.
Member Craven proposed a procedure suggesting that, since there was a lack of information at the initial hearing, the matter be returned to the full Task Force for a subsequent hearing recommending that the Task Force find a violation of the Ordinance for failure to produce the requested information under §67.21 (b). She said that if the AO stands behind its original arguments and will not produce the two categories of information, the Task Force could find a violation and immediately refer it because there would be no use in forwarding the matter back to the Compliance and Amendments Committee. She said that this is one way of returning the issue to the Task Force for a determination and resolving any due process issue.
DCA Llorente said he would totally agree with the proposed procedure.
Member Pilpel said he doesn't agree that a violation on a new OD or different OD could be made and referred at the same meeting without a waiver from the respondent without sufficient notice
Motion to refer to the full Task Force a finding that, based on subsequent information provided as required by the OD of January 8, 2008, the AO has impermissibly redacted and/or withheld information from the Assessor's calendar, specifically the date and time of the meeting with the CAO and redacting and/or replacing City employees' names from the calendar with job titles. The Compliance and Amendments Committee recommends that there be a hearing and a finding of a violation of §67.21(b), and that at the discretion of the full Task Force the issue be returned for further proceedings to the Compliance and Amendments Committee or if it appears from the department that their position has not changed that it be referred to the appropriate agency for enforcement. (Craven / Knee)
Ayes: Knee, Comstock, Craven, Wolfe
Noes: Pilpel
Chair Knee informed Ms. Nguyen that at the next Task Force meeting that the AO send a knowledgeable person regarding the calendar to discuss the redations that were made. Along with a detailed explanation of the two outstanding items.
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