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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN DIEGO

DEPARTMENT 65 BEFORE HON. JOAN M. LEWIS, JUDGE_______________________________)

MELVIN SHAPIRO, ))

PLAINTIFF, ))

VS. ) CASE NO. 37-2010-00094276-) CU-JR-CTL

CITY OF SAN DIEGO, ))

DEFENDANT. ) MOTION HEARING_______________________________)

REPORTER'S TRANSCRIPT OF PROCEEDINGS

MAY 6, 2011

(PAGES 1 THROUGH 24, INCLUSIVE)

APPEARANCES:

FOR THE PLAINTIFF: THE LAW OFFICE OF CRAIG A. SHERMANBY: CRAIG A. SHERMAN, ESQ.1901 FIRST AVENUE, SUITE 335SAN DIEGO, CALIFORNIA 92101

FOR THE DEFENDANT: OFFICE OF THE SAN DIEGO CITY ATTORNEYBY: JOSEPH L. ALLEN, ESQ.BY: PAUL F. PRATHER, ESQ.1200 THIRD AVENUE, SUITE 1100

SAN DIEGO, CALIFORNIA 92101

RINDY M. ORMROD, CSR NO. 6278OFFICIAL REPORTER

SAN DIEGO, CALIFORNIA


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1 SAN DIEGO, CALIFORNIA,SAN DIEGO, CALIFORNIA,SAN DIEGO, CALIFORNIA,SAN DIEGO, CALIFORNIA, FRIDAYFRIDAYFRIDAYFRIDAY,,,, MAYMAYMAYMAY 6666, 2011, 2011, 2011, 2011

2 9:17 A.M.9:17 A.M.9:17 A.M.9:17 A.M.

3

4 THE COURT: SHAPIRO VS. THE CITY OF SAN DIEGO.

5 MR. SHERMAN: GOOD MORNING, YOUR HONOR. CRAIG

6 SHERMAN FOR PLAINTIFF MELVIN SHAPIRO.

7 MR. ALLEN: GOOD MORNING, YOUR HONOR. JOE ALLEN AND

8 PAUL PRATHER FOR THE CITY OF SAN DIEGO.

9 THE COURT: I'M SURE MY TENTATIVE WAS MORE QUESTIONS

10 OF HOW WE'RE GOING TO PROCEED AND WHAT WE'RE GOING TO DO,

11 BUT I WANT TO HEAR FROM YOU, MR. ALLEN. I KNOW YOU WANTED

12 TO ADDRESS THE COURT WITH RESPECT TO THE RULING.

13 MR. ALLEN: YES, YOUR HONOR. I WON'T GO THROUGH THE

14 BRIEFINGS AGAIN, AND I REALIZED AFTER LOOKING AT THEM

15 AGAIN THIS MORNING THAT I DON'T THINK I DID THE WHOLE

16 ISSUE JUSTICE AND I ENGAGED IN A TIT FOR TAT, AND I DON'T

17 THINK I ADEQUATELY BRIEFED TO YOUR HONOR THE BROADER ISSUE

18 THAT MAKES YOUR REVIEW OF THESE THOUSANDS OF DOCUMENTS

19 UNNECESSARY.

20 THE COURT: THOUSANDS? DID YOU JUST SAY THOUSANDS?

21 MR. ALLEN: YES, YOUR HONOR.

22 THE COURT: THE 66 FILES EQUATE TO ABOUT 1,000

23 DOCUMENTS.

24 MR. ALLEN: WE HAVE AN ESTIMATE, MAYBE 1500 TO 2,000

25 PAGES. BUT THE POINT I'M TRYING TO MAKE, YOUR HONOR, IS

26 THAT THE MOTION WAS TENTATIVELY GRANTED UNDER 6259 WHERE

27 IT GIVES YOUR HONOR THE DISCRETION TO ORDER THIS IN-CAMERA

28 REVIEW IF YOU THINK THAT THE DOCUMENTS WERE IMPROPERLY


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1 WITHHELD.

2 WE'RE ARGUING THAT THEY'RE NOT IMPROPERLY

3 WITHHELD, BUT IT DOESN'T EVEN ENGAGE IN THE P.R.A.

4 GOVERNMENT CODE BECAUSE JUST RECENTLY THE STATE OF

5 CALIFORNIA ENACTED THE STATUTE 53087.6 SPECIFICALLY

6 CARVING OUT HOTLINES FROM DISCLOSURE, AND IT WAS ENACTED

7 IN LIGHT OF THE PUBLIC RECORDS ACT. THAT'S WHY WE

8 PROVIDED THE STATE LEGISLATIVE HISTORY BECAUSE IT WAS ALL

9 CONTEMPLATED WHAT DOES THE PUBLIC RECORDS ACT DO IN LIGHT

10 OF THESE HOTLINES?

11 WHAT THE STATE AND THE CITIES AND COUNTIES WERE

12 PRESENTED WITH IS THIS DILEMMA: WHEN PEOPLE REPORT

13 PROBLEMS TO THE GOVERNMENT, IT'S ALL PUBLIC BUSINESS, AND

14 THE PUBLIC RECORDS ACT HAS THIS EXPOSED EVERYWHERE, AND

15 THE STATE REALIZED THAT, YOU KNOW, EVEN WITH ALL OUR

16 AVENUES OF REPORTING, THERE'S STILL A CHILLING EFFECT ON

17 MANY MEMBERS OF THE PUBLIC AND A LOT OF BIG ITEMS ARE

18 NEVER BEING REPORTED BECAUSE INDIVIDUALS FEEL THEY DON'T

19 WANT ANY LIGHT EVER SHED ON THIS ISSUE; THEY JUST WANT THE

20 GOVERNMENT TO TAKE CARE OF IT AND NOT HAVE LIGHT UPON IT.

21 SO THE STATE LEGISLATURE REVIEWED THAT. THEY

22 RECOGNIZED THERE CAN BE PROBLEMS HAVING A CONFIDENTIAL

23 REPORTING AVENUE, BUT IN WEIGHING THE ISSUES, THEY SAID,

24 "WELL, THERE'S IMPORTANT THINGS THAT ARE NEVER GETTING

25 REPORTED AND NEVER BEING INVESTIGATED BY THE U.S.

26 ATTORNEY'S OFFICE, THE DISTRICT ATTORNEYS, THE CITY

27 ATTORNEY'S OFFICES, THE ETHICS COMMISSIONS. ALL THESE

28 ENTITIES ARE NOT HEARING THESE COMPLAINTS BECAUSE THERE'S


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1 A CHILLING EFFECT ON THE PUBLIC. THERE'S NO CONFIDENTIAL

2 AVENUE THAT PROTECTS THEM.

3 SO THEY SPECIFICALLY CARVED THIS OUT AND MADE

4 53087.6 ADDRESS HOTLINES IF -- IF A JURISDICTION WANTS TO

5 ENGAGE AND SET UP A HOTLINE, IT HAS THESE PROTECTIONS, AND

6 IT'S NOT -- THESE PROTECTIONS ARE NOT AVAILABLE TO

7 EVERYONE. IT HAS TO BE AN ELECTED AUDITOR.

8 OR IF A JURISDICTION DOES NOT HAVE AN ELECTED

9 OFFICIAL, LIKE WE DON'T HERE IN SAN DIEGO -- IT'S AN

10 APPOINTED AUDITOR -- THEN THE ELECTED OFFICIALS GOVERNING

11 THIS JURISDICTION, WHICH THE CITY COUNCIL OF SAN DIEGO,

12 THEY HAVE TO MAKE A DETERMINATION, "OKAY. WE HAVE THIS

13 PROBLEM. THERE'S SOME REPORTS WE'RE NOT RECEIVING. MAYBE

14 WE SHOULD CARVE OUT A CONFIDENTIAL REPORTING AVENUE EVEN

15 THOUGH WE RECOGNIZE THERE'S A DANGER BECAUSE IT'S NOT OPEN

16 TO THE PUBLIC."

17 THEY WEIGH THIS AND THE CITY COUNCIL HERE IN

18 SAN DIEGO SAID, "OKAY. LET'S SET UP A HOTLINE. AUDITOR,

19 YOU CAN RUN IT." NOW, THAT AUDITOR HAS THIS EXECUTIVE

20 DISCRETION NOW TO RECEIVE THESE COMPLAINTS AND INVESTIGATE

21 THEM, AND THEY'RE SPECIFICALLY PROTECTED UNDER 53087.6.

22 I HAVE ANOTHER COPY FOR YOUR HONOR IF YOU WOULD

23 LIKE IT NOW.

24 (PAUSE IN THE PROCEEDINGS.)

25 MR. ALLEN: ITEM "A" LAYS OUT THAT IT'S NOT ANYBODY,

26 IT'S AN ELECTED OFFICIAL OR THE GOVERNING AUTHORITY OF THE

27 JURISDICTION HAS TO AWARD IT. BUT THE MOST IMPORTANT

28 LANGUAGE PERHAPS IS "E," WHICH IS ON THE SECOND PAGE OF


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1 WHAT I PROVIDED.

2 IT'S VERY CLEAR THAT -- IT'S THE SECOND

3 SENTENCE. IT BEGINS "THIS DIRECTION." AND THE ONLY

4 COMMANDMENT IS THAT THIS INFORMATION SHALL BE KEPT

5 CONFIDENTIAL. THAT'S THE ONLY COMMANDMENT. EVERYTHING

6 ELSE IS DISCRETIONARY.

7 THE PARAGRAPH ENDS -- OR THAT SENTENCE ENDS WITH

8 "UNLESS" -- I'M SORRY. I'M BACK TO "E," AND -- I'VE GOT A

9 DIFFERENT COPY.

10 BUT THE INFORMATION SHALL BE DISCLOSED UNLESS --

11 HERE WE GO. NOW I'VE GOT THE SAME ONE AS YOU. DID I

12 ACTUALLY GIVE YOU 53087.6 OR WAS THAT 6259? I APOLOGIZE.

13 THE COURT: NO, I HAVE 53087.6.

14 MR. ALLEN: OKAY. GOOD. SO IN (E)(2), "THE

15 INVESTIGATIVE AUDIT CONDUCTED PURSUANT TO THIS SUBDIVISION

16 SHALL BE KEPT CONFIDENTIAL EXCEPT TO ISSUE ANY REPORT OF

17 AN INVESTIGATION THAT HAS BEEN SUBSTANTIATED OR RELEASE

18 ANY FINDINGS FROM A CONDUCTED INVESTIGATION THAT" -- AND

19 THIS IS THE SAME SENTENCE -- "THAT IS DEEMED NECESSARY TO

20 SERVE THE INTEREST OF THE PUBLIC."

21 NOW, THIS LANGUAGE IS SPECIFICALLY IN CONTRAST

22 TO THE PUBLIC RECORDS ACT, AND IN THE PUBLIC RECORDS ACT,

23 IT SAID THE BURDEN IS ON THE WITHHOLDING AGENCY TO SHOW

24 THAT THEIR WITHHOLDING OUTWEIGHS THE PUBLIC INTEREST.

25 THERE'S A BURDEN ON THE WITHHOLDING GOVERNMENT AGENCY.

26 THAT'S NOT SO IN 53087.6. THIS IS WHAT THE

27 LEGISLATURE DID: THEY SAID, "NO, THAT DISCRETION IS UP TO

28 THE AUDITOR. WE'RE CARVING OUT THIS EXECUTIVE DISCRETION


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1 TO DEEM IT NECESSARY OR NOT." AND IF THE PUBLIC DOESN'T

2 LIKE IT, THEY BOOT THE GUY OUT.

3 BUT WE'RE ALLOWING THE STATE OF CALIFORNIA AND

4 THE GOVERNING JURISDICTIONS IN THE STATE TO SET UP THIS

5 SPECIAL PROCEDURE IF THEY THINK IT'S NECESSARY IN THEIR

6 TOWN, AND THE CITY COUNCIL HERE IN SAN DIEGO THOUGHT THAT

7 WAS NECESSARY, EVEN THOUGH WE HAVE OPEN CITY COUNCIL

8 MEETINGS, WE HAVE AN ETHICS COMMISSION, WE HAVE THE D.A.,

9 THE U.S. ATTORNEY'S OFFICE, THE CITY ATTORNEY'S OFFICE,

10 THE EQUAL EMPLOYMENT INVESTIGATIVE OFFICE, CODE

11 ENFORCEMENT DIVISION.

12 WE HAVE ALL THESE AVENUES THAT PEOPLE CAN REPORT

13 PROBLEMS, BUT IF PEOPLE STILL FEEL SCARED TO DO THAT, THEY

14 NOW HAVE A SPECIAL HOTLINE AND THEY CAN FEEL COMFORTABLE

15 THAT IF THEY ENGAGE THAT SPECIAL PROCESS, PEOPLE AREN'T

16 GOING TO HEAR ABOUT IT; THE AUDITOR HAS BEEN GIVEN

17 DISCRETION TO WORK THAT PROCESS.

18 SO WHEN YOU LOOK AT IT IN THAT BROAD LIGHT AND

19 UNDERSTAND THE HISTORY, YOU REALIZE THAT WE'RE NOT EVEN

20 BEFORE YOU UNDER THE PUBLIC RECORDS ACT. THIS NEW STATUTE

21 WAS CREATED JUST A COUPLE OF YEARS AGO WITH THE PUBLIC

22 RECORDS ACT IN MIND SPECIFICALLY, AND THEY CARVED IT OUT,

23 AND THAT'S OUR ARGUMENT.

24 MR. SHERMAN: YOUR HONOR, IT DOESN'T QUITE ADDRESS

25 WHERE WE'RE GOING WITH THE TENTATIVE, BUT WITH REGARDS TO

26 THE CODE, THE PARADIGM, THE STATUTORY INTENT, I'LL

27 RESPOND.

28 I BELIEVE IT'S QUITE THE OVERSIMPLIFICATION AND


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1 THE GENERAL POLICY PURPOSES OF SORT OF WHAT A HOTLINE IS

2 AND MAYBE SOME OF THE GENERICS AND GENERALITIES OF HOW IT

3 FUNCTIONS AND WHAT IT'S INTENDED TO DO AND WHO IT'S TO

4 PROTECT.

5 THE CODE THAT COUNSEL REFERS TO, 53087.6, IS

6 SPECIFICALLY TO PROTECT THE IDENTITIES OF THE REPORTER.

7 IF YOU LOOK AT THE CODE, IT TALKS ABOUT IDENTITIES,

8 IDENTITIES, IDENTITIES.

9 THE LEGISLATIVE HISTORY THEY PROVIDE WAS IN

10 RESPONSE TO A THIRD PARTY MAKING A REQUEST TO SEEK THE

11 IDENTITY OF A COMPLAINT THROUGH A THIRD-PARTY AGENCY.

12 IT'S, LIKE, "WELL, WE NEED TO TIGHTEN THIS UP BECAUSE THE

13 REPORTERS NEED TO BE PROTECTED." THAT'S TRADITIONALLY

14 WHAT HOTLINES HAVE BEEN.

15 THE COURT: BUT (E)(2) TALKS ABOUT MORE THAN JUST THE

16 IDENTITY.

17 MR. SHERMAN: CORRECT. SO THEN IT'S GOING ON TO TALK

18 ABOUT THE INVESTIGATIVE AUDIT. THAT'S THE INVESTIGATIVE

19 INVESTIGATION FILES WHILE THE INVESTIGATION IS BEING

20 CONDUCTED. SO IF YOU LOOK AT THAT, IT REQUIRES THAT

21 WHEN REPORTS -- WHEN INVESTIGATIONS ARE MADE THAT ARE

22 FOUND SUBSTANTIAL, THEY MUST REPORT, SO THAT'S MANDATORY,

23 AND I BELIEVE THE CITY ADMITS THAT. SO TO THE EXTENT THAT

24 THERE'S A SUBSTANTIATED REPORT, THE AUDITOR MUST ISSUE A

25 REPORT.

26 WHAT THIS CASE IS ABOUT IS NONAUDITOR

27 INVESTIGATIVE REPORTS FOR WHICH IT WAS REFERRED TO CITY

28 DEPARTMENTS AND FOR WHICH THE CITY ADMITS, AND WE BRIEFED


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1 IT AND QUOTED IT A NUMBER OF TIMES, THE CITY

2 DEPARTMENTS -- THOSE REFERRED MATTERS NEVER GET REPORTED.

3 THEY DO NOT ISSUE REPORTS FOR CITY REFERRED

4 INVESTIGATIONS.

5 SO THERE'S TWO THINGS GOING ON HERE: ONE IS

6 THERE'S THIS BLACK HOLE FOR WHICH REPORTED MATTERS, EVEN

7 SUBSTANTIATED, WOULD NEVER GET REPORTED. SO THEY'RE NOT

8 FOLLOWING THE PARADIGM IN THE CODE, THEY'RE OUTSIDE OF IT.

9 THAT'S NO. 1.

10 NO. 2, THESE ARE NONAUDITOR INVESTIGATIONS.

11 THEY'RE SORT OF, YOU KNOW, THE CHICKEN'S GUARDING

12 THE HENHOUSE -- OR THE FOX IS GUARDING THE HENHOUSE,

13 WHATEVER THE ANALOGY IS. DEPARTMENTS ARE REPORTED OF

14 DOING SOMETHING WRONG, THE AUDITOR'S NOT INVESTIGATING IT,

15 IT'S BOUNCING IT TO THE DEPARTMENT SAYING, "INVESTIGATE

16 YOURSELF. REPORT BACK TO US." SO THERE'S THIS DISCONNECT

17 OF WHAT THE AUDITOR PARADIGM WAS SET UP TO DO. IT'S AN

18 INDEPENDENT AGENCY TO INVESTIGATE FRAUD AND WASTE IN

19 DEPARTMENTS FOR WHAT THEY'RE DOING IN A WRONG WAY, AND

20 HERE THERE'S THIS BLACK HOLE; THEY'RE NEVER REPORTED ON.

21 THE CITY, IN ITS RESPONSE TO MY CLIENT'S

22 REQUEST, IS EVERYTHING UNDER HOTLINE PROGRAM FOREVER, FROM

23 START TO FINISH, IS JUST BLANKET OFF LIMITS, AND THAT'S

24 NOT WHAT IT'S ABOUT.

25 WE CAN TAKE IT FROM THE START AND WORK DOWN.

26 IT'S ALL ABOUT PROTECTING THE COMPLAINANT, THE IDENTITY OF

27 THE COMPLAINANTS, AND ALSO THE SUBJECT OF THE

28 INVESTIGATIONS. THERE'S REFERENCE TO THAT AS WELL.


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1 WELL, THE FIRST THING THEY DO IS IN THE HOTLINE

2 INTAKE IS ASK THE COMPLAINANT, "DO YOU WANT TO MAINTAIN

3 CONFIDENTIALITY?" THEY MAY BE CHECKING THE BOX "NO. NO,

4 IT'S OKAY." WE DON'T KNOW. WE HAVE SUCH A BLANKET

5 RESPONSE.

6 AND ONE OF THE REASONS FOR THE COURT'S NECESSITY

7 OF AN IN-CAMERA REVIEW IS TO SAY, "LET ME SEE" -- I MEAN,

8 IF ON THE INTAKE THE THIRD-PARTY OUTSIDE AGENCY THAT

9 ANSWERS THE PHONE AND DOES THE INTAKE, THE COMPUTER INTAKE

10 IN WHATEVER FORM, PAPER IT IS, IS THEY WAIVE

11 CONFIDENTIALITY. THIS IS ALL JUST SORT OF AN ACADEMIC

12 THEORY STUDY BECAUSE THE PURPOSE IS AND PROTECTIONS ARE

13 GONE, SO CERTAINLY THOSE ARE DISCOVERABLE UNDER THE

14 RECORDS ACT.

15 THEN WE CAN WORK OUR WAY DOWN THROUGH THE

16 NUMBER -- THERE'S EIGHT NUMBERED TYPES OF DOCUMENTS THAT

17 PLAINTIFFS HAVE DISCERNED THROUGH THE HOTLINE GUIDELINE

18 AND PROGRAM THAT ARE THERE. A NUMBER OF THOSE ARE SALIENT

19 AS WELL.

20 WELL, WHAT ABOUT THESE MATTERS THAT ARE REFERRED

21 TO CITY DEPARTMENTS AND THE CITY DEPARTMENT ISSUES A

22 REPORT BACK TO THE AUDITOR THE FINDINGS, CONCLUSIONS,

23 RECOMMENDATIONS AND ACTIONS TAKEN? THAT'S CERTAINLY

24 SALIENT. BUT THERE WOULD NEVER BE A REPORT ISSUE, NO. 1.

25 PROBLEMATIC.

26 NO. 2 IS THOSE REPORTS ARE THE TYPE OF

27 DISCRETIONARY DISCLOSURES FOR PUBLIC INFORMATION, WHICH IS

28 REQUIRED IN THE BALANCING OF THE PUBLIC RECORDS ACT, WHICH


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1 IS REQUIRED. SO IT'S NOT EVEN UNDER (E)(2) EXCEPT TO

2 MATTERS THAT ARE IMPORTANT FOR THE PUBLIC. I MEAN, THAT'S

3 A CARVE-OUT TO SAY THERE'S IMPORTANT THINGS HERE THAT THE

4 PUBLIC WOULD BE INTERESTED IN AND IT'S NOT ABSOLUTE

5 CONFIDENTIALITY, AND THAT IS WHERE THE SECOND PRONG OF THE

6 PUBLIC RECORDS ACT COMES INTO PLAY.

7 THERE'S TWO PRONGS: ONE IS, IS THERE AN

8 EXEMPTION? OKAY. WELL, FINE. FIRST WE SEE IF THE

9 EXEMPTION IS APPLIED. IT'S APPLIED NARROWLY.

10 SECONDLY BEYOND THAT IS, WELL, IF WE GO BEYOND

11 THE NARROWLY-TAILORED -- AND THAT'S WHAT THIS WOULD BE --

12 ONE IS, OKAY, WE PROTECT THE IDENTITIES. THOSE ARE

13 ABSOLUTELY CONFIDENTIAL.

14 BUT FOR MATTERS THAT ARE DISCRETIONARY, FOR

15 MATTERS THAT CAN BE IMPORTANT PUBLIC PURPOSES IN THESE

16 REPORTS ABOUT WHAT'S THE INNER WORKINGS OF GOVERNMENT,

17 FRAUD, WASTE, ABUSE, THE NUMBER OF DIFFERENT ITEMS THAT

18 THERE MAY BE, THEN WE GO INTO THE BALANCING, AND THAT'S

19 WHY IN-CAMERA REVIEWS ARE IMPORTANT AS WELL.

20 WITH THE RESPONSE FROM THE CITY THAT NO

21 DOCUMENTS ANY TIME, ANY MATTER, NO MATTER WHAT, I DON'T

22 THINK THERE'S ANY OTHER WAY TO APPROACH IT. YOU HAVE TO

23 BE ABLE TO BALANCE, YOU KNOW, IS THE WITHHOLDING AND THE

24 PRIVACY MATTER OF SUCH A GREAT UTMOST CONCERN THAT THE

25 PUBLIC -- IN LIGHT OF THE PUBLIC WITH THE WEIGHT IN FAVOR

26 OF THE RELEASE IF POSSIBLE.

27 THEN LASTLY IS MR. SHAPIRO'S REQUESTING CLOSED

28 CASES. A LOT OF THE REASONS AND THE PROTECTIONS FOR


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1 PERSONS AND THE INTEGRITY OF THE INVESTIGATIVE AUDIT AND

2 THE PROCESS IS GONE.

3 NO. 2, I THINK IT'S TELLING THAT THE CODE WAS

4 CHANGED IN 2010 FROM THE WAY COUNSEL'S READ IT AS WELL.

5 IT CURRENTLY READS IN (E)(2), "THE INVESTIGATIVE AUDIT IS

6 KEPT CONFIDENTIAL," AND WE'VE SUBMITTED THAT WE DON'T WANT

7 THE INVESTIGATIVE FILES, THE WORK PRODUCT. THAT'S OFF

8 LIMITS TO THE EXTENT THAT, YOU KNOW, THEY'RE NOTES OF

9 INVESTIGATORS AND INTERNAL MEMOS FROM INVESTIGATORS AND

10 INTERVIEWS THOSE TYPES OF THINGS.

11 WE'RE NOT ASKING FOR THE INVESTIGATIVE AUDIT

12 FILES, WE'RE RESPECTING THAT, AND TO THE EXTENT THAT --

13 BUT IF THERE'S OTHER DOCUMENTS, PUBLIC DOCUMENTS, THAT ARE

14 PART OF THOSE FILES THAT ARE RELEASABLE AND OTHERWISE

15 AVAILABLE, THAT'S THE TYPE OF SEGREGATION THAT'S REQUIRED

16 UNDER THE CODE.

17 BUT THE SECOND PART OF (E)(2) NOW SAYS THAT

18 "THEY SHALL RELEASE ANY FINDINGS RESULTING FROM A

19 COMPLETED INVESTIGATION." IT'S NOT "CONDUCTED

20 INVESTIGATION."

21 THE COURT: WHERE ARE YOU READING THAT? I'M SORRY.

22 MR. SHERMAN: IT'S IN THE FIRST SENTENCE OF (E)(2).

23 IT STARTS, "ANY INVESTIGATIVE AUDIT CONDUCTED PURSUANT TO

24 THE SUBDIVISION SHALL BE KEPT CONFIDENTIAL," BUT THEN

25 AFTER THIS PART, "EXCEPT AS TO ANY ISSUE OF REPORT OF

26 INVESTIGATION THAT HAS BEEN SUBSTANTIATED OR TO RELEASE

27 ANY FINDINGS RESULTING FROM A COMPLETED INVESTIGATION."

28 MY VERSION IS SHOWING A 2010 AMENDMENT THAT


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1 SUBSTITUTED "CONDUCTED" FOR "COMPLETED," THAT'S BECAUSE

2 IT'S OVER, WHAT ARE THE RESULTS, THE FINDINGS, THE TYPES

3 OF THINGS THAT THE PUBLIC SHOULD BE ABLE TO KNOW.

4 THE COURT: MR. ALLEN?

5 MR. ALLEN: YES, YOUR HONOR. I'LL JUST QUICKLY

6 ADDRESS THE POINTS HE MADE.

7 FIRST, WE DON'T AGREE -- THE CITY DOES NOT AGREE

8 THAT DISCLOSING ANY OF THESE REPORTS IS MANDATORY. THAT'S

9 NOT WHAT IT SAYS. THE ONLY MANDATORY COMPONENT IS THAT

10 THE INVESTIGATIVE AUDIT "SHALL BE KEPT CONFIDENTIAL," AND

11 THE CITY TAKES THAT VERY SERIOUSLY, AND SO DID THE ELECTED

12 OFFICIALS WHEN THEY DECIDED TO ENGAGE THIS STATUTE, "IT

13 SHALL BE KEPT CONFIDENTIAL."

14 AS OUR IN-HOUSE COUNSEL, THE ADVISORY DIVISION

15 OF THE CITY ATTORNEY'S OFFICE, WENT THROUGH THE

16 LEGISLATIVE HISTORY IN ALL THESE CASES, THAT WAS THEIR

17 DETERMINATION. I HAVE MR. PAUL PRATHER, WHO IS ONE OF

18 THOSE ATTORNEYS, WITH ME. THAT'S THE MANDATE TO THE

19 JURISDICTION. THE REST IS UP TO THE DISCRETION OF THE

20 AUDITOR.

21 PLAINTIFF BRINGS UP THIS ARGUMENT THAT IF THE

22 AUDITOR DECIDES TO NOT CONDUCT THE INVESTIGATION

23 THEMSELVES BECAUSE THEY DON'T FEEL THAT THEY HAVE THE

24 EXPERTISE TO DO THAT AND THEY ISSUE IT TO ANOTHER

25 GOVERNMENT DEPARTMENT IN THE CITY, THEN IT TAKES IT OUT OF

26 THIS 53087.6. BUT SPECIFICALLY IN 53087.6(B) IT STATES

27 THAT "THE AUDITOR OR CONTROLLER MAY REFER CALLS RECEIVED

28 ON THE WHISTLE BLOWER HOTLINE TO THE APPROPRIATE


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1 GOVERNMENT AUTHORITY FOR REVIEW AND POSSIBLE

2 INVESTIGATION." SO IT KEEPS IT IN THE PURVIEW OF THIS

3 STATUTE BECAUSE IT SAYS THE AUDITOR CAN DO THAT, AND

4 THAT'S WHAT THE AUDITOR DOES IN THE CITY OF SAN DIEGO.

5 AND THEN THE POINT THAT EVERYTHING IS OFF LIMITS

6 FOREVER AND NO ONE CAN EVER SEE ANYTHING -- THAT'S THE

7 POINT OF THE DISCRETION OF THE AUDITOR, AND THE ELECTED

8 OFFICIALS HAVE TO MAKE THAT DETERMINATION: "DO WE WANT

9 OUR AUDITOR TO HAVE THIS POWER OR NOT?" IF THEY CHOOSE TO

10 DO SO, THEN THE STATUTE SAYS THEY CAN HAVE THAT AUTHORITY

11 TO DECIDE TO KEEP IT CONFIDENTIAL OR NOT.

12 AND WHAT THE CHANGE WAS RECENTLY FROM "COMPLETED

13 INVESTIGATION" TO "CONDUCTED," IT GAVE THE AUDITOR EVEN

14 MORE DISCRETION OF WHAT THEY CAN DISCLOSE IF THEY CHOOSE

15 TO DO SO. THEY CAN DO IT ON JUST CONDUCTED INVESTIGATIONS

16 AND NOT CLOSED IF THEY DEEM THAT NECESSARY, BUT IT'S STILL

17 IN THEIR DISCRETION.

18 IT'S NOT A BLACK HOLE, AND IF THE CITY WANTS TO

19 GET RID OF THIS BECAUSE THEY DON'T LIKE THE WAY IT'S BEING

20 CONDUCTED, THEY CAN SHUT IT DOWN AND IT WON'T EXIST. IN

21 FACT, THE ENTIRE STATUTE IS A SHADOW. EVEN THE CALLS THAT

22 ARE RECEIVED CURRENTLY DON'T HAVE TO BE INVESTIGATED AT

23 ALL, AND IF THE REPORTING PARTIES DON'T LIKE IT, THEY CAN

24 GO TO ALL THESE OTHER AVENUES, WHICH IS AN IMPORTANT POINT

25 HERE BECAUSE THE PLAINTIFF ACTUALLY DID DO THAT: HE USED

26 THE HOTLINE, DIDN'T LIKE IT, SO THEN HE WENT TO AN OPEN

27 CITY COUNCIL SESSION AND MADE THE SAME COMPLAINT, AND NOW

28 IT'S ALL PUBLIC RECORD.


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1 IF HE WANTS TO MAKE A PUBLIC RECORDS ACT REQUEST

2 FOR ANYTHING THAT HAPPENED OUT OF THAT PROCESS, HE'S FREE

3 TO DO SO. BUT ON THE HOTLINE, IT'S PROTECTED, AND CALLERS

4 KNOW THAT. IF A CALLER DOESN'T LIKE WHATEVER MAY HAVE

5 RESULTED, THEY HAVE PLENTY OF OTHER AVENUES THAT ARE OPEN

6 TO THE PUBLIC.

7 THE LAST POINT THAT WAS MADE -- COUNSEL STATED

8 THAT THEY DO NOT WANT THE INVESTIGATIVE FILES, WHICH IS

9 KIND OF CURIOUS TO COUNSEL HERE BECAUSE THAT'S WHAT THEY

10 REQUESTED.

11 THE COURT: WELL, THAT'S WHAT I THOUGHT. I THOUGHT

12 THE REQUEST WAS --

13 MR. ALLEN: THAT'S WHAT WE BELIEVED ALL ALONG. THEN

14 I HEARD COUNSEL STATE THAT THEY DON'T WANT THE FILES BUT

15 PERHAPS PUBLIC DOCUMENTS THAT ARE AVAILABLE ELSEWHERE THAT

16 ARE INSIDE THE FILES. AND OUR POSITION ON THAT POINT IS

17 THAT ONCE DOCUMENTS ARE COLLECTED, SAY --

18 WELL, WE CAN TAKE THE CASE OF PLAINTIFF HIMSELF

19 WHO ASKED FOR A CERTAIN TRANSACTION ABOUT THE SALE OF CITY

20 PROPERTY. IF THE AUDITOR'S OFFICE GOES TO THE COUNTY

21 RECORDER AND GETS AN OTHERWISE PUBLICLY-AVAILABLE DOCUMENT

22 TO REVIEW WHAT THE SALE WAS AND WHAT THE APPRAISAL WAS,

23 AND THEN HE PLACES THEM IN HIS FILE, WELL, ALL THE

24 DOCUMENTS THAT HE COLLECTED TOGETHER AND PUT IN HIS FILE

25 BECOME HIS INVESTIGATIVE AUDIT. THIS IS HIS WORK PRODUCT

26 THAT THAT INVESTIGATOR IS GOING THROUGH TO MAKE THE

27 DETERMINATION.

28 THOSE ARE PROTECTED. THAT SHOWS THE AUDIT AND


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1 REVEALS EVERYTHING THAT WAS DONE IN THE PROCESS, AND YOU

2 CAN EASILY DECIPHER WHAT THE COMPLAINT WAS BY THAT FILE AS

3 A WHOLE. BUT IF A CALLER HAS A CONCERN ABOUT THIS

4 OTHERWISE PUBLICLY-AVAILABLE DOCUMENT, THEY ARE FREE TO

5 MAKE A PUBLIC RECORDS ACT REQUEST TO THE TAX COLLECTOR OR

6 ANY OTHER ENTITY THEY WOULD LIKE TO DO SO, BUT IF THEY

7 WANT TO USE THE AUDITOR AS THEIR PERSONAL INVESTIGATIVE

8 SERVICE AND THEN SEE THE AUDITOR'S FILES, THEY CANNOT.

9 IT'S CARVED OUT; THE STATE OF CALIFORNIA SAID THEY CAN'T

10 DO IT. THEY CAN MAKE A COMPLAINT ELSEWHERE ON ANOTHER

11 PUBLIC RECORDS ACT REQUEST, AND THEN ALL OF THOSE

12 DOCUMENTS ARE AVAILABLE.

13 THE COURT: YOU KNOW WHAT I WANT TO DO --

14 DO YOU HAVE ANYTHING YOU WANT TO SAY,

15 MR. SHERMAN?

16 MR. SHERMAN: YES, JUST ON TWO OF THE POINTS, IF I

17 MAY.

18 THE COURT: SURE.

19 MR. SHERMAN: I MEAN, THE INVESTIGATIVE -- WITH

20 RESPECT TO THE INVESTIGATIVE AUDIT FILES, I THINK THAT'S

21 OVERLY BROAD, LUMPING THE WHOLE HOTLINE INTO ONE FILE

22 BECAUSE THERE'S THESE DISTINCT SEGREGABLE ASPECTS OF IT

23 WHICH WE'VE OUTLINED IN 1 THROUGH 8 ON PAGE 5 OF OUR

24 MOTION WITH REGARDS TO THE LODGMENT.

25 I MEAN, THERE'S THE COMPLAINT, THERE'S THE

26 INTAKE FORM, THERE'S THE TRANSMITTAL MEMO, THERE'S THE

27 FINDING REPORT MEMO. YEAH, THERE'S EVENTUALLY AN

28 INVESTIGATIVE FILE WHEN AN INVESTIGATION'S DONE, BUT THESE


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1 OTHER SEGREGABLE PORTIONS --

2 MY CLIENT REQUESTED, YOU KNOW, "WHAT ARE THE

3 COMPLAINTS? WHAT ARE THE ISSUES ABOUT?" THAT'S NOT

4 IDENTITY OF A PERSON, AND THAT'S NOT IDENTITY OF THE

5 COMPLAINANT, AND WE CAN GET THOSE FROM ONE OF THE INTAKE

6 STARTING POINTS.

7 I MEAN, TO THE FACT THAT SOME OF THESE ARE SENT

8 TO THIRD-PARTY -- YOU KNOW, THE LOCAL 127, THAT TAKES IT

9 OUT OF CONFIDENTIALITY. IF THE REPORTER DOESN'T, YOU

10 KNOW, PLEDGE A REQUEST AND WAIVES CONFIDENTIALITY, THAT

11 TAKES IT OUT OF CONFIDENTIALITY. IN FACT, (E)(2), THE

12 WHOLE PURPOSE OF IT SAYS, "WELL, THE INVESTIGATIVE AUDIT

13 IS TO BE KEPT CONFIDENTIAL EXCEPT TO ISSUE A REPORT OF AN

14 INVESTIGATION THAT HAS BEEN SUBSTANTIATED."

15 SUBSTANTIATED ISSUES, THEY'RE NOT PROTECTED.

16 THEY'RE SAYING THIS IS PUBLIC INFORMATION ONCE THEY'RE

17 COMPLETED AND THEY'RE FOUND TO BE SUBSTANTIATED. THAT'S

18 THE BLACK HOLE.

19 FOR THE CITY REFERRED DEPARTMENTS, THE

20 DEPARTMENT REFERRALS, NONAUDITOR INVESTIGATIONS, THOSE

21 WILL NEVER BE REPORTED ON, SUBSTANTIATED OR NOT. THAT

22 CAN'T BE RIGHT. THEY'RE NOT EVEN FOLLOWING THE CODE. HOW

23 COULD IT BE EVERYTHING THAT -- ANYTHING THEY DID, EVEN IF

24 IT'S REFERRED?

25 WITH REGARDS TO THE REFERRALS, THEY'RE NOT

26 REFERRING IT TO ANOTHER GOVERNMENT AGENCY TO INVESTIGATE.

27 THEY'RE SENDING THIS TO THE DEPARTMENT THAT'S BEING

28 REPORTED ON TO WORK ON THE FILE. NOW, IT'S AN INTER-CITY


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1 DEPARTMENT, BUT THIS IS ONCE AGAIN WHERE THEY'RE NOT

2 REPORTING ON IT. THEY NEVER WILL. SO THAT'S THE PROBLEM.

3 THEY'RE TRYING TO NOT REPORT ON ISSUES AND THEN SAY IT

4 FALLS UNDER THE AUDITOR'S REALM BECAUSE THE AUDITOR DOES

5 ISSUE REPORTS UNSUBSTANTIATED, AND THEY HAVE TO, THEY DO

6 WHEN THEY FILE UNSUBSTANTIATED REPORTS, THE AUDITOR DOES,

7 BUT THE CITY DEPARTMENT WON'T.

8 THE COURT: MR. ALLEN?

9 MR. ALLEN: I THINK I CAN KEEP IT IN LESS THAN A

10 MINUTE'S TIME.

11 THE COURT: THAT'S FINE.

12 MR. ALLEN: WE AGAIN DISAGREE THAT YOU MUST MAKE A

13 SUBSTANTIATED REPORT AVAILABLE. WHAT IT SAYS IS "SHALL,"

14 THAT "IT SHALL BE KEPT CONFIDENTIAL" AND THAT MANDATE TO

15 THE CITY OR THE STATE AUDITOR IS REDUCED IF THEY GET A

16 SUBSTANTIATED REPORT. THE LEGISLATURE SAID, "YOU SHALL

17 KEEP IT CONFIDENTIAL," BUT IF YOU SUBSTANTIATE A REPORT

18 THAT "SHALL" IS RELEASED. SO THEN IT'S THE DISCRETIONARY

19 DECISION. THE ONLY MANDATE IS THAT IT SHALL BE KEPT

20 CONFIDENTIAL.

21 THEN THERE'S TWO CARVE-OUTS. IF IT'S

22 SUBSTANTIATED OR YOU HAVE A CLOSED INVESTIGATION, THEN

23 THEY CAN DECIDE, BUT IT'S NOT THE AUDITOR'S DECISION IF

24 THEY DON'T SUBSTANTIATE, AND IF THEY DON'T CLOSE AN

25 INVESTIGATION, THE LEGISLATURE SAID, "YOU CAN'T EVEN

26 DISCLOSE ANY OF IT. IT SHALL BE KEPT CONFIDENTIAL."

27 THAT'S WHAT THE MANDATE IS TO YOU BECAUSE WE'RE

28 LETTING THE PUBLIC HAVE THIS CONFIDENTIAL AVENUE, AND


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1 WE'RE ONLY GIVING THAT TO THE PUBLIC BECAUSE YOU HAVE A

2 MANDATE TO KEEP IT CONFIDENTIAL UNLESS IT'S SUBSTANTIATED

3 OR A CLOSED INVESTIGATION AND THEN THAT "SHALL" IS

4 RELEASED AND YOU CAN DECIDE.

5 THE COURT: SO THE AUDITOR DECIDES WHETHER THEY'RE

6 GOING TO RELEASE THAT INFORMATION?

7 MR. ALLEN: YES, IF THEY DEEM IT IN THE PUBLIC'S

8 INTEREST. IF THE REPORTER DOESN'T LIKE IT AND IT NEVER IS

9 RELEASED, THEY HAVE ALL THESE OTHER AVENUES OF OPEN

10 REPORTING AND OPEN ASKING THE D.A., THE CITY ATTORNEY'S

11 OFFICE, THE EQUAL EMPLOYMENT INVESTIGATIVE OFFICE, ETHICS

12 COMMISSION, ALL THOSE ENTITIES. THEY CAN GO CALL THE

13 POLICE.

14 IF YOU THINK SOMEBODY -- COUNCIL MEMBERS STOLE

15 PROPERTY, CALL THE DISTRICT ATTORNEY'S OFFICE. THERE'S

16 ALL OF THESE AVENUES AVAILABLE. BUT THE LEGISLATORS SAID,

17 "YOU CAN HAVE THIS ONE PROCEDURE WITH THESE MANDATES."

18 THE COURT: HERE'S WHAT I'D LIKE TO DO: WOULD YOU

19 GENTLEMEN HAVE A SEAT IN THE AUDIENCE. I WANT TO READ

20 THIS CODE SECTION AGAIN, BUT I WANT TO HEAR FROM MY LAST

21 ORAL ARGUMENT AND THEN I'LL TAKE A QUICK RECESS AND I'LL

22 BE BACK.

23 MR. ALLEN: SURE.

24 MR. SHERMAN: YOUR HONOR, IF I MAY ON THAT (E)(2), I

25 MEAN, I REALLY -- IT SAYS THE "CONFIDENTIAL" BUT THEN

26 THERE'S TWO EXCEPTIONS AFTER THE "CONFIDENTIAL," SO I'D

27 ASK THE COURT TO TAKE A LOOK AT THAT. THANK YOU.

28 (PAUSE IN THE PROCEEDINGS.)


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1 THE COURT: WE'RE BACK ON THE RECORD IN THE SHAPIRO

2 VS. CITY OF SAN DIEGO MATTER. ALL ATTORNEYS ARE HERE.

3 I WENT BACK, AS I INDICATED, AND I REREAD THIS

4 STATUTE AND I HAVE EVEN MORE QUESTIONS THAN I HAD EARLIER

5 TODAY BASED ON SOME OF THE ARGUMENTS THAT HAVE BEEN MADE.

6 A COUPLE OF THINGS THAT STRIKE ME: BOTH OF YOU

7 ARE MAKING DEFINITIVE STATEMENTS ABOUT THIS AUDITOR BEING

8 ABLE TO HAVE A DEPARTMENT OR A DIVISION WITHIN THE CITY

9 KIND OF INVESTIGATE -- AS YOU SAID, MR. SHERMAN,

10 INVESTIGATE THEIR OWN.

11 AND, MR. ALLEN, YOU'RE SAYING THAT UNDER THE

12 SUBSECTION (B) OF 53087.6, THAT THE AUDITOR HAS THE

13 AUTHORITY TO ALLOW A GOVERNMENTAL AUTHORITY TO REVIEW AND

14 TO INVESTIGATE.

15 MY QUESTION IS: WAS IT CONTEMPLATED THAT A

16 DIVISION, BY WAY OF EXAMPLE PARKS AND RECREATION, IS

17 REALLY A GOVERNMENTAL AUTHORITY, AND IF IT WAS

18 CONTEMPLATED -- I'M GOING TO HAVE YOU BRIEF THESE ISSUES

19 SO THAT YOU'RE AWARE OF IT.

20 IF IT WAS CONTEMPLATED THAT IT HAD TO BE A

21 GOVERNMENTAL AUTHORITY AND NOT A DIVISION, WHAT HAPPENS

22 THEN IF SOME OF THE COMPLAINTS WERE SENT TO A DIVISION,

23 THEY DID THE INVESTIGATION? DOES THAT TAKE THEM OUTSIDE

24 OF THIS PARTICULAR CODE SECTION? AND THAT WOULD ALLOW

25 THEN FOR THE COURT TO -- IF I AGREE THAT THEY'RE NOT A

26 GOVERNMENTAL AUTHORITY, THEN I COULD THEN LOOK AT THE

27 DOCUMENTS AND DO THAT BALANCING TEST UNDER THE PUBLIC

28 RECORDS ACT. I DON'T KNOW THE ANSWERS TO THESE. THAT'S


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1 ONE OF THE QUESTIONS I HAVE.

2 THE OTHER QUESTION I HAVE GOES TO SUBSECTION

3 (E)(2), AND I SEE HOW YOU BOTH READ THIS CODE SECTION, AND

4 I SUSPECT THAT, MR. ALLEN, YOU'RE COMING UP THAT THE

5 AUDITOR HAS THIS DISCRETION WHEN IT'S NOT MANDATORY -- HE

6 HAS THIS DISCRETION TO MAKE A DECISION ONE WAY OR THE

7 OTHER WHETHER THEY'RE GOING TO RELEASE ANYTHING, AND

8 THAT'S BASED ON THAT LAST PART OF IT WHERE IT SAYS,

9 "ORDERED RELEASE ANY FINDINGS RESULTING FROM A COMPLETED

10 INVESTIGATION THAT ARE DEEMED NECESSARY TO SERVE THE

11 INTEREST OF THE PUBLIC."

12 YOU'RE READING THAT AS DISCRETIONARY AND

13 MR. SHERMAN'S READING THAT AS ONE OF THE EXCEPTIONS THAT

14 WOULD TAKE IT OUTSIDE. I DON'T KNOW IF THE AUDITOR HAS

15 THAT BROAD DISCRETION TO MAKE A DECISION NEVER TO TURN

16 OVER ANYTHING THAT HAS BEEN COMPLETED AND SUBSTANTIATED.

17 I NEED FOR YOU FOLKS TO BRIEF THAT AS WELL.

18 AND WHO POLICES THE AUDITOR? WHAT HAPPENS IF

19 THE AUDITOR JUST MAKES THIS DECISION NOT TO TURN ANYTHING

20 OVER? WHAT HAPPENS THEN?

21 SO I DON'T KNOW. HOW DO THEY -- HOW DOES ONE

22 CHALLENGE MAYBE ABUSE OF DISCRETION THAT THE AUDITOR DOES

23 AT ONE POINT IN TIME? SO I HAVE A CONCERN ABOUT THAT

24 BECAUSE AS IT STANDS RIGHT NOW, AS I HEAR THE CITY SAYING

25 THAT THE AUDITOR IS THE PERSON WHO MAKES THE CALL: YOU

26 GET THE DOCUMENT OR YOU DON'T GET THE DOCUMENT.

27 SO, YOU KNOW, I JUST DON'T KNOW THE ANSWER.

28 THAT CONCERNS ME AS WELL. SO THOSE ARE SOME OF THE AREAS


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1 THAT I NEED FOR YOU TO DISCUSS. I THINK THE CITY HAS

2 THE -- I THINK YOU SHOULD FILE YOUR PAPERS FIRST TO TRY TO

3 ANSWER THOSE QUESTIONS FOR ME BECAUSE IT'S MORE

4 INTERPRETING THIS CODE SECTION NOW, WHICH YOU REALLY

5 DIDN'T DO AS MUCH IN YOUR PAPERS, AND I UNDERSTAND WHY YOU

6 WENT BACK AND FORTH WITH WHAT MR. SHERMAN WAS REQUESTING.

7 SO YOU NEED TO DO THAT.

8 AND A WEEK AFTER I THINK YOU, MR. SHERMAN,

9 PROVIDE YOUR PAPERS ALMOST IN OPPOSITION OR HOWEVER YOU

10 WANT TO VIEW WHAT THE CITY'S SAYING. TELL ME WHAT YOUR

11 THOUGHTS ARE ON IT, BUT I NEED SOME AUTHORITY.

12 I DON'T KNOW IF IT'S PART OF THE LEGISLATIVE

13 HISTORY, I DON'T KNOW, BUT I NEED SOME MORE AUTHORITY TO

14 MAKE SOME DECISIONS BEFORE I DECIDE WHETHER OR NOT I HAVE

15 THE AUTHORITY TO DO AN IN-CAMERA REVIEW BECAUSE AGAIN IF

16 IT TAKES IT OUT OF THIS CODE SECTION, I THINK WE GO TO THE

17 PUBLIC RECORDS ACT, AND THEN I MIGHT HAVE TO DO AN

18 IN-CAMERA REVIEW OF THE FILES THAT WEREN'T REVIEWED BY THE

19 AUDITOR.

20 SEE WHAT I'M SAYING?

21 MR. SHERMAN: YES, YOUR HONOR.

22 MR. ALLEN: THE ONES SENT OUT TO A DEPARTMENT.

23 THE COURT: CORRECT. BECAUSE I THINK THE CODE

24 PROTECTS THE AUDITOR'S INVESTIGATION. I THINK. SO WE'LL

25 SEE.

26 MR. ALLEN: OKAY. YOUR HONOR.

27 THE COURT: DOES EVERYBODY KNOW WHAT I'M TALKING

28 ABOUT?


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1 MR. ALLEN: YES. I WAS JUST GOING TO TRY AND SEEK

2 CLARIFICATION ON IF WE ARE MAINLY ADDRESSING THOSE

3 INVESTIGATIONS SENT OUT TO THE DEPARTMENTS, WHICH I KNOW

4 THAT WAS YOUR FIRST QUESTION --

5 THE COURT: RIGHT.

6 MR. ALLEN: -- BUT THEN THE SECOND IS GOING TO THE

7 DISCRETION OF THE AUDITOR THEMSELVES --

8 THE COURT: CORRECT.

9 MR. ALLEN: -- AND THAT WOULD APPLY TO ANY COMPLAINTS

10 THAT COME INTO THEIR OFFICE OR JUST TO THE ONES THAT THEY

11 CHOSE TO SEND OUT TO THE DEPARTMENTS?

12 THE COURT: I THINK YOU DO BOTH SO THAT I UNDERSTAND

13 IT.

14 AND, THIRD, WHAT DID THIS CODE SECTION

15 CONTEMPLATE IF, IN FACT, THE AUDITOR HAS THIS AUTHORITY?

16 HOW DOES ONE FIND OUT WHETHER THE AUDITOR'S DOING HIS JOB

17 OR HER JOB?

18 SO I DON'T KNOW HOW LONG YOU NEED TO PROVIDE

19 THAT INFORMATION TO THE COURT. IF YOU WANT TO LET ME

20 KNOW, THEN I CAN TELL MR. SHERMAN WHEN HE NEEDS TO PROVIDE

21 IT. I DON'T THINK ORAL ARGUMENT WILL BE NECESSARY, BUT

22 ONCE I SEE THE PAPERS I MAY -- BECAUSE I'M TAKING THIS

23 UNDER SUBMISSION, I MAY NEED ORAL ARGUMENT AND THEN WE CAN

24 GIVE YOU A CALL AND LET YOU KNOW WHEN THAT CAN HAPPEN.

25 BUT I THINK IT'S IMPORTANT TO TRY TO -- FOR THE

26 COURT TO HAVE A BETTER UNDERSTANDING OF WHAT IS

27 CONTEMPLATED WITH THIS EXCEPTIONS TO THE PUBLIC RECORDS

28 ACT, THIS HOTLINE EXCEPTION.


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2 THE COURT: MR. SHERMAN, YOU'RE GOOD WITH WHAT I'M

3 ASKING?

4 MR. SHERMAN: YES, YOUR HONOR, AND I THINK -- OTHER

5 THAN THOSE QUESTIONS, I THINK THE PLAINTIFFS ORIGINALLY --

6 ORIGINAL RECORDS REQUEST AND MOTION TO THIS COURT FOR THE

7 GREATER PANOPLY OF DOCUMENTS, I THINK, STILL APPLIES. I

8 UNDERSTAND THE COURT'S QUERY ON THESE POINTS.

9 THE COURT: I DON'T KNOW WHAT YOU'RE TALKING ABOUT.

10 MR. SHERMAN: LET ME STATE IT A DIFFERENT WAY. WE

11 STILL BELIEVE THAT THE CODE PROTECTS CERTAIN ASPECTS AND

12 TIMING DURING THE AUDITOR'S INVESTIGATION AND NOT AS IT'S

13 CHARACTERIZED BY COUNSEL TO SAY, "WELL, ANYTHING THE

14 AUDITOR DOES IS JUST THE INVESTIGATIVE AUDIT" AS A ONE

15 LUMP SUM OF ANY AND ALL DOCUMENTS, WHEREAS WE'VE

16 SEGREGATED THEM OUT TO SAY --

17 IF YOU LOOK AT THE FIRST PART OF 53087.6, IT

18 TALKS ABOUT "DURING THE INITIAL INVESTIGATION," YOU KNOW,

19 "THE COMPLAINTS SHALL BE KEPT CONFIDENTIAL." I THINK IF

20 YOU READ THAT AT FACE VALUE FOR WHAT IT SAYS, IT'S DURING

21 THAT INITIAL PHASE, DURING THE INVESTIGATIVE PHASE PRIOR

22 TO COMPLETION.

23 THE COURT: WELL, I THINK IT'S AN INTERPRETATION, AND

24 IF YOU HAVE ANY AUTHORITY THAT SUPPORTS YOUR REVIEW AND

25 INTERPRETATION OF IT, YOU NEED TO GIVE IT TO ME, BOTH OF

26 YOU. I NEED SOME AUTHORITY. I CAN SEE HOW YOU READ SOME

27 OF THE SECTIONS THE WAY YOU DO. I CAN ALSO SEE HOW THE

28 CITY READS SOME OF THE SECTIONS THEY DO.


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1 THIS IS AN IMPORTANT ENOUGH TOPIC THAT HAS NEVER

2 BEEN PUT BEFORE ME THAT I THINK WE NEED SOME INFORMATION

3 ON, ALL OF US. SO LET'S TAKE A LOOK AT IT AND TALK --

4 FIND SOME AUTHORITY THAT WOULD SUPPORT YOUR POSITION THAT

5 IT SEGREGATES OUT DOCUMENTS.

6 AND THEN I THINK WE NEED TO FIGURE OUT WHAT THIS

7 REALLY MEANS IN THE BIG SCHEME OF THINGS. IF I MAKE A

8 DETERMINATION THAT, IN FACT, IT TAKES IT OUT OF THE PUBLIC

9 RECORDS ACT AND SOME DOCUMENTS NEED TO BE REVIEWED AND I

10 REVIEW THEM AND I MAKE A DETERMINATION THAT THEY'RE

11 ENTITLED TO SEE THEM, WHAT HAPPENS THEN? IS THE CASE OVER

12 WITH, OR WHAT HAPPENS?

13 SO THINK ABOUT THOSE THINGS AS WELL. THESE ARE

14 ALL THE QUESTIONS THAT WERE GOING THROUGH MY MIND WITH THE

15 INITIAL PAPERS. OKAY? DOES EVERYBODY UNDERSTAND WHERE

16 I'M GOING?


18 MR. SHERMAN: I DO.

19 MR. ALLEN: AS A SCHEDULING MATTER, IN A COUPLE HOURS

20 I'M LEAVING TOWN FOR THREE WEEKS, SO I WOULD ASK THAT THIS

21 BRIEFING SCHEDULE MAY BE PUSHED BACK A LITTLE BIT SO THAT

22 I HAVE AN OPPORTUNITY TO ADDRESS THESE NEW QUESTIONS SINCE

23 WE'RE FILING FIRST.

24 THE COURT: WHEN CAN YOU GET THEM TO ME? I DON'T

25 THINK YOU'RE GOING TO BE LEAVING -- OR DOING IT BEFORE YOU

26 LEAVE, AND I'M CERTAINLY NOT --

27 MR. ALLEN: NO.

28 THE COURT: YES. SO AFTER YOU GET BACK IN THREE


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1 WEEKS --

2 MR. ALLEN: YES.

3 THE COURT: DO YOU WANT TO HAVE THEM TO ME BY -- WHEN

4 DO YOU COME BACK?

5 MR. ALLEN: MAY 25th.

6 THE COURT: HOW ABOUT JUNE 24th? IS THAT TOO SOON?

7 I MEAN, I REALLY WANT YOU TO DIG INTO THIS BECAUSE I NEED

8 SOME INFORMATION, SO I DON'T THINK IT'S SO ACUTE A

9 DECISION THAT, YOU KNOW, IT HAS TO BE DONE RIGHT NOW.


11 THE COURT: I WOULD LIKE TO HAVE THE BRIEFING DONE SO

12 THAT I UNDERSTAND IT. SO PICK A DAY.

13 MR. ALLEN: THE FIRST WEEK OF JULY PERHAPS.

14 THE COURT: SO, MR. SHERMAN, YOU GOOD WITH JULY 8th

15 HAVE THE MOVING PAPERS IN AND THEN YOU CAN GIVE ME YOUR

16 PAPERS ON THE 22nd? I'LL GIVE YOU A COUPLE OF WEEKS.

17 HOW IS THAT?

18 MR. SHERMAN: THAT'S FINE, YOUR HONOR.

19 THE COURT: FILE THEM IN MY DEPARTMENT. DON'T DROP

20 THEM. FILE THEM HERE SO THEY DON'T GET LOST IN THE

21 SHUFFLE AND I CAN SEE THEM SOONER RATHER THAN LATER.

22 THANKS A LOT. IT'S UNDER SUBMISSION.

23 MR. SHERMAN: THANK YOU, YOUR HONOR.

24 MR. ALLEN: THANK YOU, YOUR HONOR.

25 (THE PROCEEDINGS ADJOURNED AT 10:35 A.M.)

26 * * *

27

28


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1 COUNTY OF SAN DIEGO):

2 STATE OF CALIFORNIA)

3

4 I, RINDY M. ORMROD, RPR, CSR NO. 6278, OFFICIAL

5 REPORTER FOR THE SUPERIOR COURT OF THE STATE OF

6 CALIFORNIA, COUNTY OF SAN DIEGO, DO HEREBY CERTIFY:

7 THAT I REPORTED IN MACHINE SHORTHAND THE PROCEEDINGS

8 HELD IN THE FOREGOING CASE, SHAPIRO VS. CITY OF SAN DIEGO,

9 AND THAT THE FOREGOING TRANSCRIPT, PAGES 1 THROUGH 24,

10 INCLUSIVE, IS A FULL, TRUE AND CORRECT TRANSCRIPTION OF

11 THE PROCEEDINGS.

12 DATED AT SAN DIEGO, CALIFORNIA THIS 9TH DAY

13 OF MAY, 2011.

14

15

16

17

18

19 __________________________________RINDY M. ORMROD, RPR, CSR NO. 6278

20 OFFICIAL REPORTERSAN DIEGO, CALIFORNIA

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