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tv   BOS Replay Government Audits Oversight Committee 9315  SFGTV  September 6, 2015 10:00pm-11:31pm PDT

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>> good morning. the meeting will knh to order. this is the meeting of government and oversight committee of september 3, 2015. i'm supervisor yee and to my right is supervisor christensen and to my left is supervisor breed. the committee clerk is alisa samara. we would like toacknowledge james smith i joshua alexander who record each 06 the meetings and make the transcript available on line >> please make sure to sulins
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all cell phones [inaudible] will appear on september 15 board of supervisor agenda unless otherwise stated >> okay. so let's call item 1&item one is a motion directing the budget and legislative analyst to conduct a odd otproinvestigations of services to senior including funded sources, corp jaigz duplication of sourfbs and monitor perforumance and out come >> since i have taken caufs aufs i center been working on improving senior services not just in my own district but a cross the city. this enables me to focus on the needs of the senior population today. as you know our city in general is getting older and in certain districts or percentage of
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seniors have been growing and particularly my district, district 4 and a few other dist rgz. as the population grows, it doesn't seem we are keeping up with the services needed and especially with todays population where the average age is increasing. seniors are living longer and healthier so there has to be some real deep look at in terms of what ask is really needed as we move forward ipthe future so colleagues i appreciate your support. any comments? >> supervisor yee i had a question of clarification because it is my understanding the audits are conducted by the controllers office and know
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that your resolution in particular suggests that the budget and legislative analyst conduct those particular audits. i just wanted to know why not the controllers office? >> good afternoon supervisor breed and the chair. [inaudible] budget legislative analyst office. in fact the board of supervisors has authority over city departments under the-it is a charter provision and our annual work plan does infact require and include for us to do performance audits so this is actually part of our regular work plan and something we do every year for the board. it is through a full motion of the board. >> i got it. thank you for the clarification and thank you supervisor yee. i think this is definitely something we need to caa lot more consistently. the city does a lot of work during the budget season to
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issue funding to a lot of organizations all over the city that serve not just our senior population but children and folks in need and the questions i constantly get askicide where are the services and hot is going on, is there oversight and how is the money being spent and are the organizations delivering fl people we expect them to deliver for with the dpunding that they receive. i think it is important we are a lot more consistent in our over voith and making sure those serviceerize being delivered and the funding is manlagement appropriately so thank you and move the item forward. >> any public comment for this item? >> [inaudible] no more labor
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day. just kidding. i don't want to be a supervisor. i want to be mayor because i don't want to waste my talent on [inaudible] peoples politic is [inaudible] >> thank you. >> good morning commissioners i'm patrick [inaudible] i appreciate you introducing this
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chair yee and i'm glad to see that it's going to be conducted by [inaudible] as you [inaudible] advocating with the health commission and particularly the laguna [inaudible] conference committee to accurately report how many out of county discharges have been occurring at laguna hondaidating back to at least 2007. the exectev administrator of the hospital [inaudible] this started last year reporting a number of out of county discharges, but she keeps move the yard stick which they are being measured across different periods so is all most impossible to figure out
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from her reporting how many out of county discharges of the elderly and disibleed are occurring. i would strongly ask that you direct mrs. rose's staff to dig in to this, both the department of public health and adult and aging department had been contracting for years with r [inaudible] who developed a data base that contains the discharge facility. that data is available, but dph is refusing to provide the data dictionary for that database, but the developer of it at rfz will not release the data [inaudible]
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>> thank you. >> i encourage you to dig into where our elderly a being discharged >> thank you for your comments on that issue and will take that into crrshz. any other comments on this issue? seeing none. can i have a motion. where no ubjckz the motion passes. item number 2. >> would you like me to call item 2 and 3 together? >> item 2 and 3 >> item 2 and flee is a hearing and resolution on the 2014, 15 grand jury report [inaudible] despite progress still the lowest rated in the state. >> okay.
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>> good morning supervisor yee, christensen is breed, i'm [inaudible] with the 2014, 15 civil grand jury and would like to introduce [inaudible] who is the [inaudible] >> thank you. >> i'm aleg ruand in the odd ynss is dan [inaudible] quhoo also worked on the report. so we would like to thank chair yee and supervisor breed and christensen for holding the hearing on the report. this is a report on the [inaudible] officer of [inaudible] reducing the 4 year back log. since that report came out there have been many changes and command the offices for the improvements that have been made. never the less, problems still remain. primary among them the office still has been
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unable to eliminate back log sufficiently enough to improve the assessment ratio what we refer to as theirerating from had california state board of equalization to getter the ideal ratio of 100. there are 3 points we want to make. one, county has it worst assessment ratio in the state indicating under evaluation of property probably due to [inaudible] this has been consistent over the years to the point where we could easily imagage if the state board of equalization came in tomorrow to do a survey is san franciscos oar would probably still be the lowest chblt we hope to be proven wrong when the next survey is done later this year. i know our ratio of 97.59 seems like a
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small deviation of only 2.41 but it represented in 2010/11 when the previous survey was completed at best delayed text ruv new of 38 million dollars to the state and coupty including funding to san francisco unified school district, the community college district, bay-air yeah air cault, bart and san francisco symphony. not only does our ratio indicate a back log problem but no other county in the state has the lovel of problem that we have with our back log. we looked at the most recent boe reports for all counties in the state. back log was mentioned at only 3 other county reports and unlike san francisco no other county has a back log severe enough to warrant a recommendation from
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the boe to correct it. our third point, we asked ourselves why. other counties most particularly la and san diego are surely impacted by economic fluctuations in the real estate market, increases appeals resulting from the 2008 downturn and a varied property stock which makes assessment more complex. despite these types of conditions compared to to san francisco ratio of 97.59, la had a assessment ratio of 100.03 and san day eggo is 100.22. time and again we were told staff has 3 to 4 years to complete assessment. this idea is reiterated in the assess rb response to our report. the office continues to insist there is need to assess property in a timely
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manner. the state requirement that all property in san francisco is appraised and [inaudible] determined by the lean date of jan 1 of the year. not a requirement. this is wrong. the boe insistatize is a requirement even though the way the state law is written allows for out. ways of prolonging the process without penalty. only assess mentd processes delays exceed 4 yearicize there a penalty and loss of tax revenue. no one expects the office to meet the deadline every time. it was graphically clear how complex the assessment prauls process can be. the office doesn't have control over every factor that may cause delays. there is also a discussion in the rorlt of the definitional problem with the idea of back log oppose today a work loud
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mpt what is a back log? if the oar is [inaudible] the other would only have had a back log of 39 properties in june of 2015 that would cause a loss of revenue. a number so low it is hardly worth a boe remation. this back log pending work load was a problem in the 05, 06 civil grand jury report. 26, 600 parcels were reviewed as a back law log and other times a work load. in february 2015, that number was down to 16, 852 which is a note worthy decrease and also included cases that might be deutschicates and new construction not eligible for reassessment which is mentioned
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in the report. why is it not clear what is work load and what is back log? it is dictated by the time cases were opened or the event be it a change of ownership or new construction happened. if the caseerize not being resolved in a timely manner they become back log but stins office denies they are required to complete the assessment office by the loom date it is impossible for them to declare a back log. just ask them how many properties are in their back log today, which leadstuse a recommendation. asking for greater clarity in the annual report where this may be spelled out and everyone gets on the same page. for our research we believe the oar is understaffed thmpt recent grant of 1.2 million dollars over a 3 year period from the stateo count assesser part nurship
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program is for the elimination of the back log and we believe will go a long way toward that end. as long thaz oar is supported by the mayor and board of supervisors most lae particularly in terms of required matching money and funding administrative and other positions and the property tax assessment data base replacement. to make a stronger case, the need for more staff the civil grand jury would like to see a staffing analysis and long term plan for had elimination thof back log. all though the responses from the mayor and oar indicate there was a staffing analysis done for had annual appropriation process this is news to us. we did make a request for the analysis and not sure it is what we mean by a staffing analysis but we have yet to receive it. we are happy to hear the oar will
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develop a long term plan. i hope the mayor and supervisors will review st. clarfully. giving the oar the resources necessary to eliminate the back log is a safe investment that will lead to a timely [inaudible] >> is there a daniel cheser? thank you very much. [inaudible] is here to respond inoffice of assessers recorder. >> good morning ing members. my name is edwin mu cafry. i like to thank the members of the committee for your understanding of the challenges our office faces and being supportive of our goal to do our work better. whether it is passing legislation or prubing additional funding in the
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budgealt your back alloyed us to improve the infrastructure. i thrike also thank the citizen volunteers for their dedication, time and for recognizing and highlighting the importance of supporting the mission oaf our office. as you know, our goal is to build a better san francisco through superior customer service, fair property taxation and preservation of public records. today i'm here to address the civil grand jury report may 2015. our response is available in your packet but out of respect for your time i would like to touch oa couple items. one of the issues raised is resources our office. when considering our office is smaubl for generates 1/3 of the revenue we feel the office as a whole does well. over the last few years we have been proactive in advocating for a increased buchblgt and funding alternative chblt november 2014
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our office was [inaudible] the state grand design td as a 3 year pilot program will provide 1.2 million dollars in matching monies to help our office perform essential property tax duties. i would like to thank the board of supervisors and mayors office for approving our budget for 15/16 to support staffing and technology improvements. our admin division [inaudible] this alaunchg with our increased budget for fy 15/16 puts us in a good place [inaudible] in the grand jury report they recommend we clear the back log by 15/16 but feel this is unrealistic. success in this
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area will include receiving additional budget support for operations in future years, identifying operational efficientcy, support in the hiring process and marth condition which drive the number of appeals, change in ownership and new construction cases our office receives. as we concluded in our rortd we agree with the civil grand jury recommendation to support the aufs. we agree with the assess mentd that we made significant progress and there is a large number that remains. they share their dedication and commitment to the common goal. thoferb next year we'll refine the long term plan and report back to the the board with the progress. how we can clous this gap in what we need. thank you for your time and happy to answer any questions you may have. >> i know that it is mentioned earlier about the assessment ratio, what is that?
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>> thank you for the question and i'm happy to answer it. before i going into had nuts i bolts and want to explain the assessment ratio is determined by the board of equalization, the boe, and the boe is a set of elective representative with a main goal to insure property taxation is consistants among all 58 countings. with regard to the assessment ratio, the beau did a random saimpling of 300 parcels in the city and county oof san francisco. they assessed each of those parcels in the city and county of san francisco and compared what they came with, what they came to conclusion with, with what we have in our record. they took their findings and compared to what we have. the be erfx set a value of 100 for assessment ratio and any
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assessment lets less was deemed lower and more than the value was deemed higher. it is important to note the sample, the 300 that was taken was at a point in time, it didn't factor in statute limitation so tfs a snapshop. our report score was 97.59. it is also important to note that some counties were over 100 so some were down and some were over. >> it is less about efficiency. it seems less about efficiency and more about accuracy. >> absolutely. we agree with that statement which is that it doesn't speak the efficiency of
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our office. i think with the assessment ratio it leaves out 2 key things when dealing with appraising property and the first is staffing. the assessment ratio that the boe did in 2011 which is now 5 years old didn't take into account staffing from county to county and if the staffing was at requeed levels or appropriate levels to handle the work queue. in addition, the assessment ratio didn't take into account the clum lexties of specific properties in each county and as i know that carmen chew mention thood the board in the past, san francisco is a very unique place. we have on one side of the sthreet you can have a old victorian and on the other side condominiums and each of those parcels require a lot of intense and delicate and
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detailed assessment to make sure we have sth right value. other counties throughout the state have more track homes which is a different aproferp and more consistent when applying a value and so we feel that the assessment ratio didsant take into account how well we did our work, when we did our work or explain how we actually did our work. from our standpoint we feel the assessment ratio doesn't speak to efficiency. >> thank you. supervisor breed. >> yes, i just had a question about the staffing analysis. the staffing analysis is something that you have but it hasn't been shared with the civil grand jury or they are not necessarily-can you explain because it sounds like you have one, but it is not what they are looking for so can you explain what you have and i
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would also like a explanation from the civil grand jury of what specifically they are looking for and why the staffing analysis isn't sufficient. >> they medicationed they asked for the staff ing analset and hadn't provided it it them. they asked for that analysis within the last couple week squz we are working on getting them what they need. to your question on what the staffing analysis consists of and we reported this in the budget committee in june and went over the number of staff that we have and also the amount of work that those staff do in accordance with the appraisals they work on a monthly basis and comparing those number jz that is something we have provided to them in the past. >> have you provided it to the civil grand jury in a complete form? >> we have provided to them what we had available to them.
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>> but it wasn't completed? there is missing information? >> we are as mentioned working to improve our staffing analysis and continue to do that and like i- >> based on the recommendation, >> what we provide in the past is what we had and work to continuely improve it >> does anyone from the civil grand jury want to respond to the staff analysis with clarity as to why it was not sufficient and what the recommendation is to improve it? >> in our report we didn't lay out how a description of what we were expecting but clearly in our minds we were thinking given the fact so much of their work is dependent on economic fluctuation in the real estate
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market and that sort of thing that they would be able to project out into the future give an market that is up or down or many staff they need. they look at averages were in terms of different levels of staff could handle in doing a simple assessment and more complex assessment. we wanted something really complete. >> were you able to-you didn't get what you want and that wasn't ness saerl part of a report but were you able to responds to the the assessers office and explain to them what you expected as a recommendation even though not a formal recommendation? >> we did ask about how they project how much they need in terms of staff and we were not
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told about any staffing analysis at the time when we were interviewing people and then when we heard their response we-this is after the fact, after the report was done we asked for a copy of it so we could take a look at it and see if it conformed to our idea of what a adequate staffing analysis would be but if they are asking for more staff and they say we don't have enough we want to see the basis on which they make that claim. >> thank you. >> thank you. >> anything else? any other response to--in regards to the presentation. >> so, i just-we agree with a lot of what eddy says and really want to support the oar. there is a sticky point in
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terms of the efficiency and whether that assessment ratio is -indicates inefficiency. in the rorlt report for the most part and have seen one that want in quotes because we were unsure-this comes from the original report, the 2005/06 report they quote saying san francisco is the least efficient office of the top 10 counties. we disagree so that is what we were using and didn't define what it was. this is just a continuity report and part of our report also recommended to future civil grand juries that they do something more in dupth. this is what happened since the
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2005-06 report has been presented and also if we didn't understand things in the original report we try today get more information and include it in our report. that is just that issue and the only other thing i can think of to say, we are very optimistic about the oar and even-a lot of the staff were really terrific from the oar and we also expected-they felt optimistic about this grant that they would be able to make considerable progress if not eliminate their back log. >> thank you. >> thank you. >> thank you for your work. is there any public comment on this item? in regards to the
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audit? >> [inaudible] >> any other public comments on this item? seeing none u public comment is close td. colleagues we have been second to respond to several findings and recommendations and let's go through these one at a time. madam clerk can you call the first findings? >> finding 3, the funding from the state county assesser partnership program and city and county provides a opportunity to eliminate the office of back log and raise their california state board of equalization rating. >> what is your thoughts? >> um, my suggestion supervisor yee is that we agree with that particular finding.
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>> okay. supervisor christensen? >> agree. >> okay. um, i will go with the majority here but i also believe that when i raise the question about whether the money that is available to them through this scap is adequate, that is probably what i'm questioning that in deed what we need is more funding from our own budget to actually eliminate the back log. if we are agreeing it seems like we are agreeing that the funding from scap is enough >> yeah, and it is my understand toog address that particular issue that under the mayors response for the recommendation that there was
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additional funding in the past fiscome year budget to add staff to the assessers office. to deal with the issue since the scap funding could not completely be used for some of the suggested purposes. >> i guess we are agree there isn't enough funding. >> yes, we are saying the same thing >> but the statement itself is pretty much saying that funding was enough and i guess i don't agree it is enough. with additional funding there is enough-that is for clarity. i'm not totally disagreeing but saying that okay, by itself it isn't enough, but where you look at finding number 4- >> your suggestion for our response is partially agree? >> right >> okay, i can support that
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>> so for- >> and we'll provide the reasoning. would you like to read into the record the reasoning so we can submit that response to the board for approval? >> yeah and i would say my reasoning is the scap money by itself won't eliminate the back log because it won't support enough staffing and it will take more funding from the city. >> yes, okay. >> that okay? so let's make a motion on that to partially disagree i guess. >> i think it is partially agree. >> disagree? okay >> with the findings. >> so moved >> with no objection that motion passes. >> finding 4 the funding from state county [inaudible] limited in time and doesn't
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cover oar needs including [inaudible] >> so, colleagues? >> i would agree. >> okay. the motion is to agree and with no objection the motion passes. finding number 5. >> finding number 5 oar doesn't have a written staffing analysis and plan to reduce the back log of unassessed properties. >> um, here is another case where i partially disagree because there is some analysis and maybe it wasn't adequate but it seems from the the explanation there is intent to update the staffing analysis to bring in more factors so it is more current. for me i would partially disagree and that we don't have it but it is maybe not adequate at this point >> yes and i would partially
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disagree and rerf under our response text this particular item to the response from the assessers office regarding this particular issue. >> want to make a motion? >> so move td. >> no objection the motion passes to partially disagree. >> recommendation number 2, orks ar needs to conduct a written staffing analysis and generate a long term plan to maintain a back log free oar before end of calendar 2015 >> i agree to that and think that is happened. anybody want- >> i think part of what we need to do is determine if it has been implemented and clearly it has not necessarily been completely implemented because the assessers office is still working on a plan but a plan does exist there are still
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additional things that need to be included to make the plan more comp hence was so it is relevant to the wrurk they are doing. however, i would also like the mention that such a plan by definition is beyond the authority of the board but do think it is porpt we acknowledge it and make it clear this is something we expect so the office is more efficient. >> so the recommendation is to conduct a staffing analysis and generate and create a long term plan so we agree that they should do that? >> yes. >> the motion is-excuse me? >> mr. chairman [inaudible] budget analyst office. just to clarify, are you agreeing with this or partially disagreeing
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with this? >> it is my understanding we need to determine if it is implemented >> this is the recommendation so to clarify whether it has been implemented or been implemented partially that this will not be coming back but for the explanation, number 4, the recommendation. >> the way i'm reading the recommendation is that in deed the staff should be creating a long term plan and that is how i read- >> and that they are working on it. >> right. it has to do with implementation for recommendation the grand jury made >> supervisor yee, my suggestion is we go with the recommendation isn't yet implemented but will be
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implemented in the future with a timeframe for implementation. also in ourwork remarks such a plan is beyond the authority of the board. the assessers office is work on the plan and take the civil grand juries recommendation into consideration but all those rementdations have not necessarily been i think formally requested but here at this particular hearing they have been made clear in public so hopefully those recommendations will be taken into consideration. >> thank you. >> deputy city attorney john gibner, in terms of the time frame it is outside the board authority but you may want to include the timeframe recommended or anticipated by the assesser office in your response that will be implemented within however many months, 6 months and
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>> actually i wasn't aware there was a timeframe given. mr. mu cafry did he >> [inaudible] the timeframe stated is theened of fiscal year 15-16. >> okay so we can include that. thank you. >> so in terms of your official response you have to-sthra 6 month outer limit understanding the assessers aufs will be work on it continuously and the board may come back and consider that analysis 6 months down the road so your response if it is long term should be 6 months. >> which is november 2015 and trigger another hearing.
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>> okay. so do we have it straightened out yet? supervisor breed would you like to restate everything? >> basically we are going to request that this item in terms of boards response be the recommendation has not yut been limpment but we be in the future with a timeframe of 6 months for implementation and also in our comments, such a plan is by definition beyond the authority of the board but according to the departments response, they are undertaking such a plan. >> okay. there is a motion? >> so moved. >> okay. with no objection the motion passes. madam clerk. >> final recommendation is city and county needs to provide general fund money from the expected increase in revenue
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from paurpt taxes [inaudible] to support new funding for key administrative position squz ongoing positions of [inaudible] >> all righty. i believe that we can-i would set this as i agree with this since wree doing this anyway. >> supervisor yee accord thoog it mayors response and according to what we know about the additional staffing we provided to the assesser office for the next 2 fiscal year, it is clear additional staff has been provided and based on this particular issue i would say it has been implemented and in terms of the response tax i would suggest that we put in a note, see mayors response which attribute said that to the 2 year budget we just approved for fiscal years 15-16, and
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16-17. >> good so we basically agree with that caveat in the statement? okay. >> i move that. >> any objection to the the motion? seeing none the motion passes. so i believe that was the last one. >> now we need taaccept the amendments as a whole and make a amendment to had resolution >> this item is closed. >> i make a motion to approve all the suggested responses and as the amendment to the existing resolution to send forward to the full board as a committee report? >> yes. >> there is a motion, any objections? the motion is passed. no item is closed. >> you still need to act on the hearing item since there is a continued recommendation then you want to continue the call
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of the chair. >> before i continue this item to the call of the chair, i just want to acknowledge and thank all the members of the civil grand jury who worked on this report, who spent countless hours as they do on analyzing this information and often times in cases i know sometimes member thofz civil grand jury are not completely familiar with these departments and to produce such a comprehensive report is a huge undertaking so want to express on behalf of the board of supervisors or appreciation on the work you do to insure our city agencies are held accountable so thank you and thank you to the assesser office for your response and plans to implement a number of these great recommendations that came out of this report so thank you for being here and look forward to a review of
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some of the next reports. with that i make a motion to continue the hearing to had call of the chair. >> thank you very much supervisor breed. thank you for your comment and i ditto that. any objection to the motion? seeing none the motion passes. that item is closed. let's go on to-can you please call-thank you very much for the jurors of this lar item but lets move to item 4 and 5 >> item 44 is a hearing and 5 is a resolution on the civil grands jury report including san francisco wistal blower protection ordinance is in need of change. >> before we get into the specifics of this i would like
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to gisk our distinguished civil grand jury [inaudible] >> thank you i would like to introduce phil read who was the [inaudible] of the whistle blower report and protim of the 14, 15 grand jury. >> to the chair and members of the committee good morning. glad it still is morning. the city charter requires that the board enact and maintain a ordinance protecting city officers and employees from retaliation. this is a charter mandate that was added by voters in 2003 and the ordinance in question, the one that is to carry out this mandate is known as the whistle blower protection ord nrns. our jury asked a simple
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question, how effective is this ordinance? we found first of all, that it is never remedied one act of retaliation. no one has ever gotten their job back after it was lost due to retaliation as a result of this law and they never will because the ordinance does provide a remedy for had victim of retaliation. in stead it is design today punish the guilty party, the whittle blower in retaliation. but it is never done that either. we found the law is existed inints current form for more than a dozen years and in all that time it punished more. no one has ever been publicly charged under it much less convicted. why is that we asked and that is where our work began. it could be the prospect of punishment is
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such a powerful deturnl that nobody retaliates against whistle blowers anymore, but that doesn't seem to be the case. people still sue the city on that basis under state law jz the city pays cash settlements to some of them suggesting those suits must or may have merit. so, we have good reason to believe that retaliation for wistal blowing does still go on. what we discovered is the scope of the ordinance is so narrow many wistal blower don't qualify for its protections. the limitations are that they may have made the disclosure to someone in city government but it would have been the wrong agency, or they made it in the wrong way. or they-the substance of the disclosure wasn't one of the relatively nary listed listed in the
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ordinance. so, first we found that really not all potential wisting blowers are covered. the second shortcoming if you will, is the lack of relief fl victim also intended to discourage people from filing complaints. what good does it do to go to the victim to go through the heart ache, if you will, of going to the commission, filing the complaint and going through that process simply to punish the perpetrator? it doesn't do that much good if the victim is still out of a job. we also found that the ordinance has an odd wringal to it that requires the victim prove their staff before staff will open a formal investigation. what would be left to investigate at that point you may ask? so did
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we. the commission investigates many other allegations of violations of law through the same process. complaintants file complaint and they are looked at by staff and perhaps formally investigated. in respect to none of the other arenas does the complaintant bear [inaudible] we recommend the ordinance be revised to eliminate some of the technical constraints that prevent whistle blowers [inaudible] we would also like tosy change to authderize the ethics commission to to order
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cancelation. we would like to see retaliation complaints to be processed like every other complaint before the ethics commission without a burden of proof on the victim. we found the ethics commission response to our report most encouraging. they are the expert squz this sh the law they admin ister and they are open to improver it. they make no promises but they can't, they don't make laws so they can not promise or insure a particular law will be written and approved. that is up to the board and the mayoro the public if the matter go tooz the balment. the commission is willing to weigh our position squz take the lead in improve thg law z we sincerely thank them for that. mayor lee said the existing ordinance is just fine. it
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doesn't need change. well, with all do reexpect we looked that law and kis agree. the whistle blower protection ordinance is like a smoke alarm that never goes off even though fires occur. we know [inaudible] walk away with cash settlements yet existing law has never once soundsed the alarm. we don't think it is working and we hope that the board agrees. i thank you and glad to answer any questions you may have. >> somebody have a question? >> mr. read i wanted to ask a question because after reading the report typically when something exists in the charter it is just something that should be fallowed and what it sounded as if the civil grand jur aey was suggesting the board of supervisors does some
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legislation in order to i guess tighten the charter to make it a lot more-imake this whistle blower program more relevant and less retaltory and help strengthen the intention of what this program is supposed to do. and i guess i'm a little confused by that because basically under the charter if there is something we as a city are not doing to make sure that this law is being implemented correctly, how is legislation from the board of supervisors going to assist in making it better? >> the board enacted the law in the first place, the whistle blower protection ord nnss, that isn't part of the charter. the charter mandate is a statement in the charter that says the board shall enact and
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maintain such a ordinance and the ordinance protecting city and county employees from retaliation from reporting improper government activity. what we envision is the board in comparing that mandate with the existing ordinance could find and we believe should find that the ordinance on the books doesn't fulfill the mandate that the board enact and maintain an ordinance that meets minimum standards so we believe the board has a separate responsibility to do that. on the other hand, the charter says the ethics commission has a duty to recommend changes. it seems logical that the agency who administer the law take the lead and that is why we structured or recommendation the way we did, recommending the ethics commission takes the lead and if the ethics
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commission drops the ball the board is still on the hook to look at it independently and make some fixes. >> thank you for that explanation, but does it mean the board or the city is in violation of something because we are not necessarily following the intonetf what the charter lines out because clearly if it requires we protect people who basically are whistle blowers and we are not doing that, that means we are in violation of something. >> absolutely and i think if you read we try to word things in a general matter but that is what we say in the record that is the ordinance is specifically falls short in a number of areas. there are a number of things in the mandate that are not reflected in the ordinance t. is technical and dintd want to go to that level of detail but glad to do so.
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technically the board is out of compliance with its mandate to enact and maintain the ordinance as dribeed in the charter >> i ask mr. gibner as a person who is our city attorney and the person who represents us from a legal standpoint, is that true? >> i would-the charter requires the board to adopt a ordinance establishing whistle blower confident and anteretaliation program. the charter gives the board some policy discrepgz how that ordinance will look and the currents whistle blower ordinance complied with the charter in that it create as program required by the charter. you could amend that ordinance in any numbers of ways consistent with the civil grand jury recommendation and
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that is consistent with the charter. the charter gives room how to make policy changes based on ow had ordinance will look. the current ordinance that is consistants with the charter doesn't violate the charter. that doesn't mean you can't change. >> what i read is that number 1, it is basically consistent with the charter but the problem is there have been a number of examples that make it clear that we are not protecting whistle blowers. but there are been lawsuits and cases paid out. when you get to that point clearly we are not doing our job to make sure this program is effective and protecting the people that are basically calling out wrong doing in government, so i don't know necessarily if we are in
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violation of-i just don't think that it makes sense that we would be in compliance i guess. >> if i can add one thing in response to deputy city attorneys remarks, if you look at our finding too, which you will and recommendation 2.1 and 2.2 we found there are specific ways in which the ordinance doesn't fulfill the charter mandate because it doesn't cover all the disclosures and types of disclosures listed in the mandate so there is that level of detail and disagree with the assertion that the ordinance complies on some basic level with the mandate. >> okay. thank you. >> supervisor christensen? >> i think we'll get into in
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the individual recommendation. from my perspective this is a step of last re-sort. there are so many steps along the way speaking to your superiors about doing something differently or collaborating with your coworkers, there are so many ways i think of a lot of city employees imprive sit ate services and it seems like by the time you get to this step you want to have exhausted all your other opportunity. that buds a burden on this particular step to be enforceable, understandable and effective and i think for that reezten needs to be very clear. we can talk about this as we go 33 individual things but a advantage of having the language compleer is we know from a enforcement point of view but an adherence point of view what is expected. a lot of city government you try to
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understand where those lines are so you don't cross them. but i also think that the whole issue of how this works both the diz closure by an employee that they feel they reached this point of last re-sort and also how that person is treated, the delicacy of these claims which are important claims that line between protecting both the person that is bringing the issue forward and the person that is at the receiving end of that complaint. i think all of this is a delicate matter and i guess the place to discuss this in more detail is probably in the individual recommendations. we all want our silty government to work better, we want everyone to be operating ethically and in the best interest of the city so think this is something we are very concerned about and to me the delve is in the detail how we
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outline the process so we understand what is required and follow those guidelines. maybe the best thing to do is get into the individual recommendations. >> before we get into the individual recommendations i believe jessie burrnardy is here to respond on behalf of the ethics commission. >> good morning supervisors. nigh name is jessie bernardy and acting director of san francisco ethics commission. the commission is the entity responsible for enforcing the whistle blower protection ordinance and you have our responses which are fairly straight forward and reflect the fact that commission thought this was a well written report and raises issue and requires further analysis which has started and we anticipate we will praid a progress report within 6 months. beyond that i don't have a presentation but happy to answer questions now
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or at a later time. >> any questions? thank you very much. at this point i guess since-there wouldn't be a response to what he just said? i guess not. any public comment on this particular item? i have 2 speaker cards. patrick [inaudible] >> thank you chair yee. many of the 39,000 city employees and sit a pay roll at the end of last june expect you to strengthen this ordinance as the civil grand jury recommended. as judge claudia willcon noted during proceedings in [inaudible] wrongful termination case, section 4.115 is that government conduct code does not provide retaliation
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protections from employees who engage in using fist amendment speech. the employees demand this bord change the charter to include basic first amendment protections. [inaudible] prop c in 2003 requiring the board to enact a meaningful wto, you have a opportunity today to correct the inaction of previous board of supervisors during the past 7 years. in addition to providing first amendment protections, you should amend that section to change the burden of proof [inaudible] having to prove retaliation during the prelameinary [inaudible] mayor
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lee says the wpo is there to disincentvise [inaudible] he wrongly asserts the board eliminate the element ofmorally hazard. [inaudible] doctor cur nor [inaudible] wrongful termination [inaudible] 911 dispatcher lawsuit [inaudible] after all those 3 cases resulted in a total of 2.23 million. [buzzer rang] >> thank you very much. can i have ronald lee? sorry, have the next speaker. and then derek gear. >> i just want to weigh in on
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this. david lieu from acc. i'm curpt lay living in a land mark building t. is a very beautiful building and i am having issues but as far as protecting someone who is potentially going to be attacked, they could die. if someone like for example, i have been in a situation like that i i felt like if i tell this to this person this person will hurt me very badly and it is a current situation i'm in but can handtle i think but not really sure. that sh the thing, i'm not sure sometimes and there can be things. it can be death or maybe not even a realty, it may be a figment of their imagination but they are scared. all i can say about this is i think we should have protection for someone
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seeking protection from san francisco. that is just the best i can say right now. david lee and have a good day. thank you very much. >> doctor derek gear. >> good morning supervisors doctor derek cur, a whistle blower. the ethics commission began assessing retaliation claims in 1995 over the past 20 years zero, none of 60 complaints have been sustained. in other words all were deemed spurious. as mayor lee tells you the whistle blower protection disincent vises spurious complaints. he doesn't waste time [inaudible] instead he tells you that employees, report complaints without fear of resurprisals.
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so, why revise a system that is 100 percent defective? adopting the civil grand jury recommends would be dangerous. valed retaliation complaints would slip through thereby revealing the use of retaliation as a management tool. more scandals would be exposed. managers would demand anteretaliation training . city agencies where fraud, waste and abuse benefit public official squz private partners would be disrupted. shady deals that lubeicate the political machinery would be stymied. why hinder hundreds of leaders just to protect a handful of whistle blowers? it is much cheap toor destroy
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whistle blowers and bury their retaliation claims a we have been doing. only a small minority have the where with all to sue the city throwing 5 million a year at retaliation lawsuits is a bargain compared to the cost of uprooting corruption. thank you very much. >> any other pub lb comments? seeing none public comment is now closed. so colleagues we have been asked to respond to several findings and recommendations and let's go through them one at a time. clerk can you call the first finding? >> finding one, the whistle blower protection ordinance doesn't protect city officers and employees from retaliation as required by the charter mandate of prop c because it covers a limited range of complaints. it provides not a effective [inaudible]
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>> okay. any thoughts on this particular item? >> i think [inaudible] there is something that needs to be addressed want- there is a lot of detail here that needs to be worked out and what is not clear to me is where the best entity is to resolve some of these issues. >> okay. i would add that i disagree partially with this particular statement only because clearly the charter and the protections that we have in place are in place and they are not necessarily as effective as they should be in terms of
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protecting individuals, but i do think the ethics commission response provides a lot of insight to some of the things we need to do in order to make this a lot more effective in protecting individuals who choose to go this route in order to really put themselves on the line to address some of these issues. i think our respaunsonse, my session is our repauns be that we disagree partially and to see the ethics commission response and i think it would be helpful to receive legislative suggestions from the ethics commission on how we can strengthen the whistle blower program in order to address the loop holes that
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exist. >> i think that is the thing, there are some of these things-i think the limited range of complaints, are they touched on earlier, the fact that the whistle blower protection ordinance does try to be definite in a effort to be clear. i have gone over some othf language that is used at the state and other level jz find some of that overly bod that it is difficult reporting a infreckz or adhere to the rule to knhoe where the line is so i don't know about the range of complaint is limited. i think that is the partially agree from my side but i agree the response of disagree partially is frubecause i think there is this question about the remedies for the victims. the secrecy and disclosure, i do think that until you reach a certain point of burden of
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proof the confinchacy but think the effective remedies for the victim something we want to look to ethics for direction. i concur with the disagree partially. >> i agree with your partially disagree and because it seems there is agreeme things could improve and the board of supervisors at some point will have to take this up in making amendments to the ordinance. part of the disagreement would be how do we define-what are the boundaries when we use the concept of conficialallyty versus secrecy. the
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recommendation is for us to partially disagree, correct? >> yes. >> with no objection the motion passes. finding 2. >> fibeding 2 is wpo fail tooz fulfill the mandate that it doesn't cover all whistle blowers provided in the charter. >> any comment on this particular finding? >> i would say the recommendation isn't implemented but should be. >> this is a finding so you agree or disagree. >> disagree partially. my suggestion is that we disagree partially because again i think that clearly there is a ordinance, clearly there are steps in place, but they are just not you know, sufficient. >> sufficient or being
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implemented >> yes, so i partially disagree. i suggest we use that as the recommendation for the board. >> my feeling is the statement itself in terms of the findings which basically says that the charter mandate, what we have existing, this interpretation of whether we fulfill or not but we have it and i'm looking at it more that we have a ordinance that is comply toog the charter but it could be improved. >> yes. >> so, maybe partially disagreeing is the correct call. no objection? motion passes. finding 3-1. >> finding 3.1 other large
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california cities and county have rel tevly weak laws protecting employees from whistle blowing this doesn't relieve the board of [inaudible] to enact a ordinance that generally protects whistle blowers. >> who wouldn't agree with that? i suggest that we-the boards response be that we agree. >> agree. okay so there is a motion with no objection the motion passes to agree. finding 3.2. >> whistle blower protection laws that cover employees at the state and federal level serve as model to improving the wpo. >> i agree with that. make a motion >> i make a motion that the board response be that we agree with this finding
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>> no objection there motion passes >> finding 4 the wpo creates a unwarranted obstuical of complaints of retaliation by imposing the burden of proof on the complainant upon review. >> any comments? >> this is a tough one because i'm not sure i completely agree with this. i know the report outlines a case for it. i just don't think that-i just don't agree with it and um, i wanted to hear feedback from other members of the board. >> i think what we lack is cause and effect. there is a
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premption this is occurring but we have no empir ical data to support it. the other thing is the solution. so, if the presumption is that there are complaint that should bow filed that have not been filed, can we prove that in some way. secondly, what is the best remedy? any of the remedy to make it easier to file a complaint or is the remedy to make the path of file agcomplaint more evident to those who can? lacking the cause and effect and lacking analysis of a proper solution, it is hard to say what the path should be. we talked smout about the cases that have come up and the legal settlements but those are people that successfully filed complinets so there isn't thedalitya that indicates either the scope or nature of the problem or the
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best solution to deal with it. >> so, my suggestion is the boards response for finding number 4 be that we disagree. >> is there is a agreement to had motion? >> the explanation to be provided. >> supervisor christensen, basically outlined from my perspective why and so if we can use that as reference. >> got it. >> so this motion passes. recommendation number 1. >> recommendation 1.2 of the ethics commission fails to act within a realinable time that the board of supervisors on its amend the wpo to provide real protection to whistle blowers in conformity with prop c.
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>> okay. >> my response to this only because we can't predict the outcome of any legislation, i think it is not there isn't the will to try to make appropriate changes to this particular law in order to deal with clearly what are gaps in the ordinance so i would suggest our response should say it will not be implemented but more specifically the board will continue working with the ethics commission on improving the whistle blower ordinance but we can't predict the specific thooz outcome or the time line of this mument faceted under taking given the constraints improsed by the civil grand jury response. the board can't officially say that the recommendation will be considered an ongoing
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legislative discussions, but our goal should be but we can't predict the outcome of any legislation >> the alternative is to say it is implemented at a future date but it isn't likely to be in the 6 month time limit. >> i don't believe we can say it will be implemented, it is assuming every member of the board will vote to pass it and what we are saying is as members of this committee our suggestion is to say that in terms of the response text it is something we should do and have a desire to do and recommend the board do it but don't make a commitment of the boards votes in terms of implementing this through legislation so we can't necessarily say it will be implemented and my suggestion
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is we need to say it will not be implemented. >> basically your recommendation and motion is to partially agree with this that we'll look into it or we are disagreeing? >> just that it is the response and it would be has been implemented, not implemented, requires further analysis or not implemented. my suggestion not be implemented with a disciplining in our intent. >> a motion? objection? no objection the motion passes. madam clerk recommendation 2.1. >> recommendation 2.1, amendment nato with rks po expand the definition of whistle blowing [inaudible] and providing information to any of
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the recipients listed in the mandate. [inaudible] or investigation process. >> i think the same holds true for the recommendation 2.1 as well as it did for recommendation 1.2. >> not implement this? >> it will not be implemented >> i think my concern about this as well is the details, and the definition of complaint. does that mean that you call somebody on the telephone and you pass them in the hall way? i would think this is a area we need greater definition and focus on specifically what that means. >> i suggest that the response be a duplicate to the response of recommendation 1.2. and
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again, i think my goal is to make it clear that it is not as if this won't be taken under consideration, it is just again, we cannot predict what the outcomes would be if legislation were to come before the board to make the appropriate changes to address these issues. >> okay. motion has been made- >> do you want supervisor christensens concerns oforally complaint be added to that? >> i think we all want to see this proceed and think that is a impediment to this being adopted. we need clear understanding what delivered orally means and what sort of protections and limitations are involved >> no objection. amendment passes. j recommendation 2.2
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these amendments [inaudible] to any thereof listed recipients regarding improper government activities whether such information is set forth in a formal complaint or provided in a official investigation. >> okay, supervisor breed you started saying something. >> to me this just follows the same thing. without identifying what providing information means-- >> it seems like to me it needs further analysis. okay. >> my suggestion would be not to implement it. >> i would be fine with analysis but-it is good to know at what point these questions will be answered and the definitions will be made. it
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seems that is really what is needed here. we have the suggestion of a problem, we don't have clear data defining the nature of that problem and we don't have clearly defined solutions for that problem so it is good to know at some point the analysis that is nesarily to define the problem will take place and the adequate response to it defined in a way that is enforceable. i could join on the needs further analysis on that one if that helps move this ahead and provide clarty. >> the only concern is we have a time period to respond to the civil grand jury and i do think that i want to be clear that these are responses but i do think that we as a board need to work with the ethics commission to try and figure out legislation specifically that will help strengthen the
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ordinance in order to make it more effective based on the recommendations of the report and unfortunately with the way this process is designed it makes it difficult for us to basically make commitments to that other than to say we'll work on it. but i do thing it is important to provide a response to the civil grand jury in a timely manner because it has to go through the legislative process, but that we are consistent and saying that we will work with the ethics commission on strengthening the legislation and take it through the legislative process for approval because clearly there is a loop hole and individuals are not being protected appropriately. and there is of course additional data that can be obtained. there is additional information and additional administrative procedures that can be implemented or added to
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strengthen this and i think that is a process that would take place after this process through the civil grand jury report has been completed by the board. that is the only reason why my suggestion would be not be implemented which does not necessarily mean will not be implemented per se, but that is unfortunate what we are stuck with in this process. >> i can canceive that >> thank you for your slungz, i think that is helpful i hope the ethics commission is listening to our responses because i would like to see some of these issues to have further analysis and continue to have discussion to see how we can improve things. the motion now is not to implement? with no objection the motion passes. madam clerk recommendation 3. >> recommendation 3, amendments to the w [inaudible] provide a
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meaningful remedy for effects of retaliation [inaudible] increasing the limit of civil penalty [inaudible] that can result from such a action. >> okay. any thoughts around this particular recommendation? i'm leaning towards not implementing this. i know that there is issues of whether or not the mayors office is a factor here to answer in the areas such as mou's and other labor agreements, so that is my initial thought. >> i will add that i don't know if this is proper but i think
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the mayors response to the recommendation number 3 clearly outlines the process and so i would suggest that we move forward with board recommendation of will not be implemented as well >> there are so many ways this is covered between the unions, civil penalties and i i'm not clear on what advantage this additional layer provides other than confusion mpt it seems all the things wie discussed this is the one element that is covered in many different ways and many different agreements and layers so concur with this recommendation of not implement >> is the motion not to recommend this recommendation? with no objection the motion passes >> recommend aigds 4, the amendment tooz the wpo include revision of subsection 4.1153 b
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provided the burden of proof doesn't pluduring reliminary review and investigative complaint to the commission. >> any thoughts on this? >> again , i understand there are problems. i haven't seen anything that identifies this is the problem and i thipg a reasonable burden of proof-this is a last re-sort. these are serious acquisitions and think they have to meet a certain level of rigor in order to move forward and there has to be a reasonable bar that separates this severity of a complaint from low level concerns so my leaning is to not implement this recommendation. >> supervisor breed >> i support that.

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