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Public Hearing, complaint filed by Myrna Lim against the Ethics Commission for alleged violation of Sunshine Ordinance §67.21 for failure to provide requested records.
Speakers: Myrna Lim, Complainant: She received a warning letter from the Ethics Commission stating that they had sufficient evidence to find her in violation of conflict of interest laws. When she requested the evidence, they refused to provide it.
John St. Croix, Executive Director, Ethics Commission: Responded that the Charter Section C3.699-13 (a), allows the Commission to keep investigatory files confidential "to the extent permitted by state law." This is a broad standard. CPRA protects investigatory files for law enforcement purposes. The Allowing the documents to be made public would allow a roadmap into the strategy of investigative procedures, which could guide people in how to break the law and suffer minimal consequences. They not only may be withheld, they must be.
Rebuttal – Myrna Lim: California Civil Procedure, Implied Waiver Fairness Exceptions. "an implied waiver of the privilege may occur where the party claiming the privilege displays a published communication directed at issue and its candid disclosure is essential for a fair adjudication of the issue." Kaiser Foundation Hospital v Superior Court. In any free society, an accused person has the right to see any evidence against them. The letter from the Ethics Commission accuses me of violating conflict of interest laws, which is a crime. This is a violation of civil procedure and my civil rights.
Public Comment: Sylvia Johnson commented on the matter.
Paul Graham: Felt that the Ethics Commission lost the exemption privilege when they wrote the letter.
Member Pilpel: (To Mr. St. Croix) The letter states that the Commission has sufficient evidence – does that refer to the five member Commission, or to the staff? Is there a written process for this kind of matter?
John St. Croix: that refers to the staff, the Commission would not have made that letter public, Ms. Lim made it public. The Commission created a process where, when we find minor violations of the law, in order to save resources, We have this warning process as a way of dismissing complaints that have merit. The process is part of the investigatory process document, which is a public document, available on the website.
Member Pilpel: Is Ms. Lim allowed to complain to the Commission?
John St. Croix: We encourage people who are unhappy with staff to complain to the Commission.
Member Wolfe:(To Mr. St. Croix) Why doesn't this letter say "confidential" on it?"
John St. Croix: I don't know if the envelope was stamped "confidential" it would be advisable to stamp the inside as well.
Vice Chair Craven: (To Mr. St. Croix) The law you refer to that allows exemption to disclosure is the CPRA? Are there any other laws?
Member Knee: (To Mr. St. Croix) Ms. Lim has asked for records in her own file, and you contend that they are protected? Who benefits from keeping these records confidential, other than the complainant?
John St. Croix: Yes, name of the person who complained and documents that reflect the investigatory process are not discloseable.
Vice Chair Craven: And the names of persons with whom the investigators spoke are confidential.
Member Knee: Those are redactable.
Member Williams: (To Mr. St. Croix) Is there some secret process that the Ethics Commission uses to investigate matters?
Member Cauthen: (To Mr. St. Croix) Ms. Lim states that the law you found her in violation of was not effective until after she was on the Planning Commission.
John St. Croix: That is not correct. The law was in effect, it was moved from one location in the codes to another, but it was the law.
Member Wolfe: Is the Ethics Commission a law enforcement agency? Is that the same as the Police or Sheriff's offices?
Member Sheppard: There is a question of law here; I don't see how this TF can make a judgment without an analysis of the law and cases that Ms. Lim cited here.
Vice Chair Craven: We don't have that information.
Member Sheppard: That seems critical to any determination. Until we have our legal counsel's judgment about the issues we've heard here.
Member Pilpel: (To Mr. St. Croix) Is that term "law enforcement." Are you suggesting that any agency which enforces laws can and must protect their investigative files?
Vice Chair Craven: The provision that specifically deals with law enforcement information in the Sunshine Ordinance, on which we relied for the tax collector and the Sheriff's Department is 67.24(d) the pertinent parts:
"Records pertaining to any investigation, arrest or other law enforcement activity shall be disclosed to the public once the District Attorney or court (this is the problematic part) determines that a prosecution will not be sought against the subject involved, or once the statute of limitations for filing charges has expired, whichever occurs first. Notwithstanding the occurrence of any such event, individual items of information in the following categories may be segregated and withheld if, on the particular facts, the public interest in nondisclosure clearly and substantially outweighs the public interest in disclosure:
(3) The identity of a confidential source;
(4) Secret investigative techniques or procedures;
(5) Information whose disclosure would endanger law enforcement personnel; or
(6) Information whose disclosure would endanger the successful completion of an investigation where the prospect of enforcement proceedings is concrete and definite.
So the question before us is how does this section apply to the Ethics Commission. How do the exemptions claimed by the Ethics Commission match up to the requirements in the Ordinance? And is there some nebulous state law other than the CPRA on which Mr. St. Croix relies that allows these exemptions. So if we are talking about the CPRA, we get back to the Sunshine Ordinance, because CPRA does not trump the Ordinance.
John St. Croix: I think it would, the list includes, "the Attorney General, the Department of Justice, any state or local police agency or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement or licensing purposes."
Vice Chair Craven: To the extent that the Sunshine Ordinance says something different than the CPRA, Sunshine trumps state law, to the extent that withholding is discretionary or more specific. The charter's ethics provision refers to "to the extent allowed by state law." So the question is what is the state law that deals with these kinds of records. I know that my law firm has secured investigatory files from the Department of Real Estate, arguing that 6754(f) does not apply to closed investigations in the non-police law enforcement context. So while you rely on CPRA, which leaves us with an open question, as to whether CPRA applies to your agency, while the Sunshine Ordinance has greater disclosure requirements and trumps state law.
Member Pilpel: So does that make disclosure discretionary or is it prohibited?
John St. Croix: Nothing shall require disclosure of any of the following&
Member Pilpel: So it is discretionary, you can disclose it if you wish?
John St. Croix: But the charter says "to the maximum permissible" and after extensive discussion with the city attorney, we have concluded that there is not discretion to disclose this.
Member Pilpel: You must, by operation of these requirements not disclose?
John St. Croix: Correct.
Member Williams: The Police Department or other law enforcement offices allow someone who is being investigated to defend themselves or bring in some representation don't they? Was Ms. Lim given this right to dispute the charges?
John St. Croix: It is very common for us to investigate people without telling them they are under investigation.
Member Williams: Why?
John St. Croix: Because it allows them to cover their tracks.
Member Williams: Doesn't the Police Department give you the righ?
John St. Croix: Not necessarily, law enforcement agencies investigate without knowledge. Only if charges are being brought, do these rights come into play.
Member Williams: So you are saying that these allegations are not charges? You say here that she was found "in violation."
John St. Croix: It says we have "sufficient evidence to find a violation." We did not charge her, but gave her a letter of warning, so that she would not repeat the violation.
Member Williams: To me that is still a charge.
Member Sheppard: Based on the dialogue that Commissioner Williams just pursued and laws cited here, I would want to see an articulation and application of the law. It is not clear to me that the exemptions Mr. St. Croix claims are exempted by various provisions are, in fact, not exempted by the Ordinance. I do not see how the Task Force can responsibly vote on a matter like this without an opinion by our counsel.
Vice Chair Craven: We make our decision based on the facts and the laws that we have before us or that are detailed in the hearing that define the law. We need to determine that the exemption Mr. St. Croix is claiming meet the definition of the CPRA and the Sunshine Ordinance. The TF's legal counsel presents the laws that govern and then directs us to look at the facts and make our determination. He won't give us the ultimate answer.
Member Sheppard: From what source can the TF draw an authoritative legal opinion where a decision can only be made when we are going to apply an interpretation of the law?
Vice Chair Craven: If there are cases that show how a particular law has been applied, Mr. Llorente usually cites them. However, there are many situations where we don't have cases that have applied particular provisions of the law. This is what I was exploring with Mr. St. Croix – what are the other state laws that might apply in this arena. This is a semi-adjudicatory body, and often we have only the laws and the facts and we must decide whether the facts in a situation fit the laws.
Member Sheppard: Ms. Lim cited, in support of her position, which may or may not be distinguished with regard to exemptions claimed. How many members of the TF have the time to read, digest and draw conclusions from the cases cited? We would be operating blind as to whether we were making a valid conclusion. I would think that we need the advice of our counsel, who would digest the cases cited to assist us in reaching a conclusion, as any executive council would, based on an analysis of the law.
Vice Chair Craven: You make an excellent point. Both sides are given the opportunity to present the laws and points of authority in their complaint, so that Mr. Llorente can do that analysis. These cases were mentioned for the first time, this evening, and there wasn't even a real citation to the Code of Civil Procedure, it may have been 1040, the official information privilege, it may not, so that's one problem, We often have an issue where the City Attorney will prepare a memo and we'll get it during the hearing and it cites a lot of cases.
DCA LLorente: In my several years at this position, I've tried to guide the TF by presenting the laws and cases that exist without putting my imprint on the complaint before us. I did not do that in the beginning, I gave a jurisdictional letter that stated the laws as I knew them and attempted to focus the facts in the complaint. As the meetings began to go longer and longer, I decided to make memos to help focus the TF on the issues and laws that need to be considered. There are not a lot of cases that center around the issues of public records and meetings, but when there are, I definitely include those cases, or an analysis of those cases. With regard to the Code of Civil Procedure, I do not know if that citation applies to the facts of this case, we are talking about disclosure to third parties. It is frustrating that we often don't have the cases until the meeting takes place.
Member Sheppard: Thank you, I wasn't suggesting that counsel should tell us what to do, and I certainly wasn't aware that this is the first we have heard of these cases. In this case, where we are to determine if documents were privileged I would expect counsel to present us with a memo that explores the laws as they apply and says something to the effect that "while there may be doubts in this area, the best interpretation and most recent authorities would say that the Ethics Commission documents were or were not privileged" and then we would make our decision. We should have the benefit of the advice of counsel as to what would be the better view legally, not what we should do under the Ordinance.
Member Cauthen: Due to the confusion of the issues presented, I think something might be gained by having our attorney look at the laws and help us struggle with this. You give us excellent advice Madame Chair, but I'd like to continue this so we can get a little more background.
Member Wolfe: Seconded and I'd like to add that we get an analysis of the function of the Ethics Commission, specifically, what kind of body is it, is it law enforcement or some other authority?
Member Cauthen: I'd ask that both sides in this complaint provide us with the laws and the genesis of the Ethics Commission to establish that it is or is not a law enforcement agency.
Member Chu: What we are asking is that both sides must hire lawyers? It's a slope I don't want to head down. Complainants shouldn't have to get a lawyer in order to file a complaint.
Member Pilpel: requested Ms. Lim to provide case laws to the Task Force Administrator.
Motion to continue the item to the next meeting. (Cauthen/Wolfe)
Ayes: Craven, Knee, Cauthen, Chu, Pilpel, Wolfe, Chan, Goldman, Williams
Recused: Comstock
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