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. SHERMAN BY: CRAIG A. SHERMAN, ESQ. 1901 FIRST AVENUE, SUITE 335 SAN DIEGO, CALIFORNIA 92101 OFFICE OF THE SAN DIEGO CITY ATTORNEY BY: JOSEPH L. ALLEN, ESQ. BY: PAUL F. PRATHER, ESQ. 1200 THIRD AVENUE, SUITE 1100 SAN DIEGO, CALIFORNIA 92101

FOR THE DEFENDANT:

RINDY M. ORMROD, CSR NO. 6278

OFFICIAL REPORTER SAN DIEGO, CALIFORNIA

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FRIDAY, SAN DIEGO, CALIFORNIA, FRIDAY, MAY 6, 2011 9:17 A.M.

THE COURT:

SHAPIRO VS. THE CITY OF SAN DIEGO. GOOD MORNING, YOUR HONOR. CRAIG

MR. SHERMAN:

SHERMAN FOR PLAINTIFF MELVIN SHAPIRO. MR. ALLEN: GOOD MORNING, YOUR HONOR. JOE ALLEN AND

PAUL PRATHER FOR THE CITY OF SAN DIEGO. THE COURT: I'M SURE MY TENTATIVE WAS MORE QUESTIONS

OF HOW WE'RE GOING TO PROCEED AND WHAT WE'RE GOING TO DO, BUT I WANT TO HEAR FROM YOU, MR. ALLEN. I KNOW YOU WANTED

TO ADDRESS THE COURT WITH RESPECT TO THE RULING. MR. ALLEN: YES, YOUR HONOR. I WON'T GO THROUGH THE

BRIEFINGS AGAIN, AND I REALIZED AFTER LOOKING AT THEM AGAIN THIS MORNING THAT I DON'T THINK I DID THE WHOLE ISSUE JUSTICE AND I ENGAGED IN A TIT FOR TAT, AND I DON'T THINK I ADEQUATELY BRIEFED TO YOUR HONOR THE BROADER ISSUE THAT MAKES YOUR REVIEW OF THESE THOUSANDS OF DOCUMENTS UNNECESSARY. THE COURT: MR. ALLEN: THE COURT: DOCUMENTS. MR. ALLEN: PAGES. WE HAVE AN ESTIMATE, MAYBE 1500 TO 2,000 THOUSANDS? DID YOU JUST SAY THOUSANDS?

YES, YOUR HONOR. THE 66 FILES EQUATE TO ABOUT 1,000

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

THAT THE MOTION WAS TENTATIVELY GRANTED UNDER 6259 WHERE IT GIVES YOUR HONOR THE DISCRETION TO ORDER THIS IN-CAMERA REVIEW IF YOU THINK THAT THE DOCUMENTS WERE IMPROPERLY

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WITHHELD. WE'RE ARGUING THAT THEY'RE NOT IMPROPERLY WITHHELD, BUT IT DOESN'T EVEN ENGAGE IN THE P.R.A. GOVERNMENT CODE BECAUSE JUST RECENTLY THE STATE OF CALIFORNIA ENACTED THE STATUTE 53087.6 SPECIFICALLY CARVING OUT HOTLINES FROM DISCLOSURE, AND IT WAS ENACTED IN LIGHT OF THE PUBLIC RECORDS ACT. THAT'S WHY WE

PROVIDED THE STATE LEGISLATIVE HISTORY BECAUSE IT WAS ALL CONTEMPLATED WHAT DOES THE PUBLIC RECORDS ACT DO IN LIGHT OF THESE HOTLINES? WHAT THE STATE AND THE CITIES AND COUNTIES WERE PRESENTED WITH IS THIS DILEMMA: WHEN PEOPLE REPORT

PROBLEMS TO THE GOVERNMENT, IT'S ALL PUBLIC BUSINESS, AND THE PUBLIC RECORDS ACT HAS THIS EXPOSED EVERYWHERE, AND THE STATE REALIZED THAT, YOU KNOW, EVEN WITH ALL OUR AVENUES OF REPORTING, THERE'S STILL A CHILLING EFFECT ON MANY MEMBERS OF THE PUBLIC AND A LOT OF BIG ITEMS ARE NEVER BEING REPORTED BECAUSE INDIVIDUALS FEEL THEY DON'T WANT ANY LIGHT EVER SHED ON THIS ISSUE; THEY JUST WANT THE GOVERNMENT TO TAKE CARE OF IT AND NOT HAVE LIGHT UPON IT. SO THE STATE LEGISLATURE REVIEWED THAT. THEY

RECOGNIZED THERE CAN BE PROBLEMS HAVING A CONFIDENTIAL REPORTING AVENUE, BUT IN WEIGHING THE ISSUES, THEY SAID, "WELL, THERE'S IMPORTANT THINGS THAT ARE NEVER GETTING REPORTED AND NEVER BEING INVESTIGATED BY THE U.S. ATTORNEY'S OFFICE, THE DISTRICT ATTORNEYS, THE CITY ATTORNEY'S OFFICES, THE ETHICS COMMISSIONS. ALL THESE

ENTITIES ARE NOT HEARING THESE COMPLAINTS BECAUSE THERE'S

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A CHILLING EFFECT ON THE PUBLIC. AVENUE THAT PROTECTS THEM.

THERE'S NO CONFIDENTIAL

SO THEY SPECIFICALLY CARVED THIS OUT AND MADE 53087.6 ADDRESS HOTLINES IF -- IF A JURISDICTION WANTS TO ENGAGE AND SET UP A HOTLINE, IT HAS THESE PROTECTIONS, AND IT'S NOT -- THESE PROTECTIONS ARE NOT AVAILABLE TO EVERYONE. IT HAS TO BE AN ELECTED AUDITOR. OR IF A JURISDICTION DOES NOT HAVE AN ELECTED OFFICIAL, LIKE WE DON'T HERE IN SAN DIEGO -- IT'S AN APPOINTED AUDITOR -- THEN THE ELECTED OFFICIALS GOVERNING THIS JURISDICTION, WHICH THE CITY COUNCIL OF SAN DIEGO, THEY HAVE TO MAKE A DETERMINATION, "OKAY. PROBLEM. WE HAVE THIS MAYBE

THERE'S SOME REPORTS WE'RE NOT RECEIVING.

WE SHOULD CARVE OUT A CONFIDENTIAL REPORTING AVENUE EVEN THOUGH WE RECOGNIZE THERE'S A DANGER BECAUSE IT'S NOT OPEN TO THE PUBLIC." THEY WEIGH THIS AND THE CITY COUNCIL HERE IN SAN DIEGO SAID, "OKAY. YOU CAN RUN IT." LET'S SET UP A HOTLINE. AUDITOR,

NOW, THAT AUDITOR HAS THIS EXECUTIVE

DISCRETION NOW TO RECEIVE THESE COMPLAINTS AND INVESTIGATE THEM, AND THEY'RE SPECIFICALLY PROTECTED UNDER 53087.6. I HAVE ANOTHER COPY FOR YOUR HONOR IF YOU WOULD LIKE IT NOW. (PAUSE IN THE PROCEEDINGS.) MR. ALLEN: ITEM "A" LAYS OUT THAT IT'S NOT ANYBODY,

IT'S AN ELECTED OFFICIAL OR THE GOVERNING AUTHORITY OF THE JURISDICTION HAS TO AWARD IT. BUT THE MOST IMPORTANT

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

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WHAT I PROVIDED. IT'S VERY CLEAR THAT -- IT'S THE SECOND SENTENCE. IT BEGINS "THIS DIRECTION." AND THE ONLY

COMMANDMENT IS THAT THIS INFORMATION SHALL BE KEPT CONFIDENTIAL. THAT'S THE ONLY COMMANDMENT. EVERYTHING

ELSE IS DISCRETIONARY. THE PARAGRAPH ENDS -- OR THAT SENTENCE ENDS WITH "UNLESS" -- I'M SORRY. DIFFERENT COPY. BUT THE INFORMATION SHALL BE DISCLOSED UNLESS -HERE WE GO. NOW I'VE GOT THE SAME ONE AS YOU. DID I I'M BACK TO "E," AND -- I'VE GOT A

ACTUALLY GIVE YOU 53087.6 OR WAS THAT 6259? THE COURT: MR. ALLEN: NO, I HAVE 53087.6. OKAY. GOOD.

I APOLOGIZE.

SO IN (E)(2), "THE

INVESTIGATIVE AUDIT CONDUCTED PURSUANT TO THIS SUBDIVISION SHALL BE KEPT CONFIDENTIAL EXCEPT TO ISSUE ANY REPORT OF AN INVESTIGATION THAT HAS BEEN SUBSTANTIATED OR RELEASE ANY FINDINGS FROM A CONDUCTED INVESTIGATION THAT" -- AND THIS IS THE SAME SENTENCE -- "THAT IS DEEMED NECESSARY TO SERVE THE INTEREST OF THE PUBLIC." NOW, THIS LANGUAGE IS SPECIFICALLY IN CONTRAST TO THE PUBLIC RECORDS ACT, AND IN THE PUBLIC RECORDS ACT, IT SAID THE BURDEN IS ON THE WITHHOLDING AGENCY TO SHOW THAT THEIR WITHHOLDING OUTWEIGHS THE PUBLIC INTEREST. THERE'S A BURDEN ON THE WITHHOLDING GOVERNMENT AGENCY. THAT'S NOT SO IN 53087.6. LEGISLATURE DID: THE AUDITOR. THIS IS WHAT THE

THEY SAID, "NO, THAT DISCRETION IS UP TO

WE'RE CARVING OUT THIS EXECUTIVE DISCRETION

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TO DEEM IT NECESSARY OR NOT."

AND IF THE PUBLIC DOESN'T

LIKE IT, THEY BOOT THE GUY OUT. BUT WE'RE ALLOWING THE STATE OF CALIFORNIA AND THE GOVERNING JURISDICTIONS IN THE STATE TO SET UP THIS SPECIAL PROCEDURE IF THEY THINK IT'S NECESSARY IN THEIR TOWN, AND THE CITY COUNCIL HERE IN SAN DIEGO THOUGHT THAT WAS NECESSARY, EVEN THOUGH WE HAVE OPEN CITY COUNCIL MEETINGS, WE HAVE AN ETHICS COMMISSION, WE HAVE THE D.A., THE U.S. ATTORNEY'S OFFICE, THE CITY ATTORNEY'S OFFICE, THE EQUAL EMPLOYMENT INVESTIGATIVE OFFICE, CODE ENFORCEMENT DIVISION. WE HAVE ALL THESE AVENUES THAT PEOPLE CAN REPORT PROBLEMS, BUT IF PEOPLE STILL FEEL SCARED TO DO THAT, THEY NOW HAVE A SPECIAL HOTLINE AND THEY CAN FEEL COMFORTABLE THAT IF THEY ENGAGE THAT SPECIAL PROCESS, PEOPLE AREN'T GOING TO HEAR ABOUT IT; THE AUDITOR HAS BEEN GIVEN DISCRETION TO WORK THAT PROCESS. SO WHEN YOU LOOK AT IT IN THAT BROAD LIGHT AND UNDERSTAND THE HISTORY, YOU REALIZE THAT WE'RE NOT EVEN BEFORE YOU UNDER THE PUBLIC RECORDS ACT. THIS NEW STATUTE

WAS CREATED JUST A COUPLE OF YEARS AGO WITH THE PUBLIC RECORDS ACT IN MIND SPECIFICALLY, AND THEY CARVED IT OUT, AND THAT'S OUR ARGUMENT. MR. SHERMAN: YOUR HONOR, IT DOESN'T QUITE ADDRESS

WHERE WE'RE GOING WITH THE TENTATIVE, BUT WITH REGARDS TO THE CODE, THE PARADIGM, THE STATUTORY INTENT, I'LL RESPOND. I BELIEVE IT'S QUITE THE OVERSIMPLIFICATION AND

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THE GENERAL POLICY PURPOSES OF SORT OF WHAT A HOTLINE IS AND MAYBE SOME OF THE GENERICS AND GENERALITIES OF HOW IT FUNCTIONS AND WHAT IT'S INTENDED TO DO AND WHO IT'S TO PROTECT. THE CODE THAT COUNSEL REFERS TO, 53087.6, IS SPECIFICALLY TO PROTECT THE IDENTITIES OF THE REPORTER. IF YOU LOOK AT THE CODE, IT TALKS ABOUT IDENTITIES, IDENTITIES, IDENTITIES. THE LEGISLATIVE HISTORY THEY PROVIDE WAS IN RESPONSE TO A THIRD PARTY MAKING A REQUEST TO SEEK THE IDENTITY OF A COMPLAINT THROUGH A THIRD-PARTY AGENCY. IT'S, LIKE, "WELL, WE NEED TO TIGHTEN THIS UP BECAUSE THE REPORTERS NEED TO BE PROTECTED." WHAT HOTLINES HAVE BEEN. THE COURT: IDENTITY. MR. SHERMAN: CORRECT. SO THEN IT'S GOING ON TO TALK THAT'S THE INVESTIGATIVE BUT (E)(2) TALKS ABOUT MORE THAN JUST THE THAT'S TRADITIONALLY

ABOUT THE INVESTIGATIVE AUDIT.

INVESTIGATION FILES WHILE THE INVESTIGATION IS BEING CONDUCTED. SO IF YOU LOOK AT THAT, IT REQUIRES THAT

WHEN REPORTS -- WHEN INVESTIGATIONS ARE MADE THAT ARE FOUND SUBSTANTIAL, THEY MUST REPORT, SO THAT'S MANDATORY, AND I BELIEVE THE CITY ADMITS THAT. SO TO THE EXTENT THAT

THERE'S A SUBSTANTIATED REPORT, THE AUDITOR MUST ISSUE A REPORT. WHAT THIS CASE IS ABOUT IS NONAUDITOR INVESTIGATIVE REPORTS FOR WHICH IT WAS REFERRED TO CITY DEPARTMENTS AND FOR WHICH THE CITY ADMITS, AND WE BRIEFED

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IT AND QUOTED IT A NUMBER OF TIMES, THE CITY DEPARTMENTS -- THOSE REFERRED MATTERS NEVER GET REPORTED. THEY DO NOT ISSUE REPORTS FOR CITY REFERRED INVESTIGATIONS. SO THERE'S TWO THINGS GOING ON HERE: ONE IS

THERE'S THIS BLACK HOLE FOR WHICH REPORTED MATTERS, EVEN SUBSTANTIATED, WOULD NEVER GET REPORTED. SO THEY'RE NOT

FOLLOWING THE PARADIGM IN THE CODE, THEY'RE OUTSIDE OF IT. THAT'S NO. 1. NO. 2, THESE ARE NONAUDITOR INVESTIGATIONS. THEY'RE SORT OF, YOU KNOW, THE CHICKEN'S GUARDING THE HENHOUSE -- OR THE FOX IS GUARDING THE HENHOUSE, WHATEVER THE ANALOGY IS. DEPARTMENTS ARE REPORTED OF

DOING SOMETHING WRONG, THE AUDITOR'S NOT INVESTIGATING IT, IT'S BOUNCING IT TO THE DEPARTMENT SAYING, "INVESTIGATE YOURSELF. REPORT BACK TO US." SO THERE'S THIS DISCONNECT IT'S AN

OF WHAT THE AUDITOR PARADIGM WAS SET UP TO DO.

INDEPENDENT AGENCY TO INVESTIGATE FRAUD AND WASTE IN DEPARTMENTS FOR WHAT THEY'RE DOING IN A WRONG WAY, AND HERE THERE'S THIS BLACK HOLE; THEY'RE NEVER REPORTED ON. THE CITY, IN ITS RESPONSE TO MY CLIENT'S REQUEST, IS EVERYTHING UNDER HOTLINE PROGRAM FOREVER, FROM START TO FINISH, IS JUST BLANKET OFF LIMITS, AND THAT'S NOT WHAT IT'S ABOUT. WE CAN TAKE IT FROM THE START AND WORK DOWN. IT'S ALL ABOUT PROTECTING THE COMPLAINANT, THE IDENTITY OF THE COMPLAINANTS, AND ALSO THE SUBJECT OF THE INVESTIGATIONS. THERE'S REFERENCE TO THAT AS WELL.

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WELL, THE FIRST THING THEY DO IS IN THE HOTLINE INTAKE IS ASK THE COMPLAINANT, "DO YOU WANT TO MAINTAIN CONFIDENTIALITY?" IT'S OKAY." RESPONSE. AND ONE OF THE REASONS FOR THE COURT'S NECESSITY OF AN IN-CAMERA REVIEW IS TO SAY, "LET ME SEE" -- I MEAN, IF ON THE INTAKE THE THIRD-PARTY OUTSIDE AGENCY THAT ANSWERS THE PHONE AND DOES THE INTAKE, THE COMPUTER INTAKE IN WHATEVER FORM, PAPER IT IS, IS THEY WAIVE CONFIDENTIALITY. THIS IS ALL JUST SORT OF AN ACADEMIC THEY MAY BE CHECKING THE BOX "NO. WE HAVE SUCH A BLANKET NO,

WE DON'T KNOW.

THEORY STUDY BECAUSE THE PURPOSE IS AND PROTECTIONS ARE GONE, SO CERTAINLY THOSE ARE DISCOVERABLE UNDER THE RECORDS ACT. THEN WE CAN WORK OUR WAY DOWN THROUGH THE NUMBER -- THERE'S EIGHT NUMBERED TYPES OF DOCUMENTS THAT PLAINTIFFS HAVE DISCERNED THROUGH THE HOTLINE GUIDELINE AND PROGRAM THAT ARE THERE. AS WELL. WELL, WHAT ABOUT THESE MATTERS THAT ARE REFERRED TO CITY DEPARTMENTS AND THE CITY DEPARTMENT ISSUES A REPORT BACK TO THE AUDITOR THE FINDINGS, CONCLUSIONS, RECOMMENDATIONS AND ACTIONS TAKEN? SALIENT. THAT'S CERTAINLY A NUMBER OF THOSE ARE SALIENT

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

PROBLEMATIC. NO. 2 IS THOSE REPORTS ARE THE TYPE OF DISCRETIONARY DISCLOSURES FOR PUBLIC INFORMATION, WHICH IS REQUIRED IN THE BALANCING OF THE PUBLIC RECORDS ACT, WHICH

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IS REQUIRED.

SO IT'S NOT EVEN UNDER (E)(2) EXCEPT TO I MEAN, THAT'S

MATTERS THAT ARE IMPORTANT FOR THE PUBLIC.

A CARVE-OUT TO SAY THERE'S IMPORTANT THINGS HERE THAT THE PUBLIC WOULD BE INTERESTED IN AND IT'S NOT ABSOLUTE CONFIDENTIALITY, AND THAT IS WHERE THE SECOND PRONG OF THE PUBLIC RECORDS ACT COMES INTO PLAY. THERE'S TWO PRONGS: EXEMPTION? OKAY. WELL, FINE. ONE IS, IS THERE AN FIRST WE SEE IF THE

EXEMPTION IS APPLIED.

IT'S APPLIED NARROWLY.

SECONDLY BEYOND THAT IS, WELL, IF WE GO BEYOND THE NARROWLY-TAILORED -- AND THAT'S WHAT THIS WOULD BE -ONE IS, OKAY, WE PROTECT THE IDENTITIES. ABSOLUTELY CONFIDENTIAL. BUT FOR MATTERS THAT ARE DISCRETIONARY, FOR MATTERS THAT CAN BE IMPORTANT PUBLIC PURPOSES IN THESE REPORTS ABOUT WHAT'S THE INNER WORKINGS OF GOVERNMENT, FRAUD, WASTE, ABUSE, THE NUMBER OF DIFFERENT ITEMS THAT THERE MAY BE, THEN WE GO INTO THE BALANCING, AND THAT'S WHY IN-CAMERA REVIEWS ARE IMPORTANT AS WELL. WITH THE RESPONSE FROM THE CITY THAT NO DOCUMENTS ANY TIME, ANY MATTER, NO MATTER WHAT, I DON'T THINK THERE'S ANY OTHER WAY TO APPROACH IT. YOU HAVE TO THOSE ARE

BE ABLE TO BALANCE, YOU KNOW, IS THE WITHHOLDING AND THE PRIVACY MATTER OF SUCH A GREAT UTMOST CONCERN THAT THE PUBLIC -- IN LIGHT OF THE PUBLIC WITH THE WEIGHT IN FAVOR OF THE RELEASE IF POSSIBLE. THEN LASTLY IS MR. SHAPIRO'S REQUESTING CLOSED CASES. A LOT OF THE REASONS AND THE PROTECTIONS FOR

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PERSONS AND THE INTEGRITY OF THE INVESTIGATIVE AUDIT AND THE PROCESS IS GONE. NO. 2, I THINK IT'S TELLING THAT THE CODE WAS CHANGED IN 2010 FROM THE WAY COUNSEL'S READ IT AS WELL. IT CURRENTLY READS IN (E)(2), "THE INVESTIGATIVE AUDIT IS KEPT CONFIDENTIAL," AND WE'VE SUBMITTED THAT WE DON'T WANT THE INVESTIGATIVE FILES, THE WORK PRODUCT. THAT'S OFF

LIMITS TO THE EXTENT THAT, YOU KNOW, THEY'RE NOTES OF INVESTIGATORS AND INTERNAL MEMOS FROM INVESTIGATORS AND INTERVIEWS THOSE TYPES OF THINGS. WE'RE NOT ASKING FOR THE INVESTIGATIVE AUDIT FILES, WE'RE RESPECTING THAT, AND TO THE EXTENT THAT -BUT IF THERE'S OTHER DOCUMENTS, PUBLIC DOCUMENTS, THAT ARE PART OF THOSE FILES THAT ARE RELEASABLE AND OTHERWISE AVAILABLE, THAT'S THE TYPE OF SEGREGATION THAT'S REQUIRED UNDER THE CODE. BUT THE SECOND PART OF (E)(2) NOW SAYS THAT "THEY SHALL RELEASE ANY FINDINGS RESULTING FROM A COMPLETED INVESTIGATION." INVESTIGATION." THE COURT: WHERE ARE YOU READING THAT? I'M SORRY. IT'S NOT "CONDUCTED

MR. SHERMAN:

IT'S IN THE FIRST SENTENCE OF (E)(2).

IT STARTS, "ANY INVESTIGATIVE AUDIT CONDUCTED PURSUANT TO THE SUBDIVISION SHALL BE KEPT CONFIDENTIAL," BUT THEN AFTER THIS PART, "EXCEPT AS TO ANY ISSUE OF REPORT OF INVESTIGATION THAT HAS BEEN SUBSTANTIATED OR TO RELEASE ANY FINDINGS RESULTING FROM A COMPLETED INVESTIGATION." MY VERSION IS SHOWING A 2010 AMENDMENT THAT

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SUBSTITUTED "CONDUCTED" FOR "COMPLETED," THAT'S BECAUSE IT'S OVER, WHAT ARE THE RESULTS, THE FINDINGS, THE TYPES OF THINGS THAT THE PUBLIC SHOULD BE ABLE TO KNOW. THE COURT: MR. ALLEN: MR. ALLEN? YES, YOUR HONOR. I'LL JUST QUICKLY

ADDRESS THE POINTS HE MADE. FIRST, WE DON'T AGREE -- THE CITY DOES NOT AGREE THAT DISCLOSING ANY OF THESE REPORTS IS MANDATORY. NOT WHAT IT SAYS. THAT'S

THE ONLY MANDATORY COMPONENT IS THAT

THE INVESTIGATIVE AUDIT "SHALL BE KEPT CONFIDENTIAL," AND THE CITY TAKES THAT VERY SERIOUSLY, AND SO DID THE ELECTED OFFICIALS WHEN THEY DECIDED TO ENGAGE THIS STATUTE, "IT SHALL BE KEPT CONFIDENTIAL." AS OUR IN-HOUSE COUNSEL, THE ADVISORY DIVISION OF THE CITY ATTORNEY'S OFFICE, WENT THROUGH THE LEGISLATIVE HISTORY IN ALL THESE CASES, THAT WAS THEIR DETERMINATION. I HAVE MR. PAUL PRATHER, WHO IS ONE OF THAT'S THE MANDATE TO THE

THOSE ATTORNEYS, WITH ME. JURISDICTION. AUDITOR.

THE REST IS UP TO THE DISCRETION OF THE

PLAINTIFF BRINGS UP THIS ARGUMENT THAT IF THE AUDITOR DECIDES TO NOT CONDUCT THE INVESTIGATION THEMSELVES BECAUSE THEY DON'T FEEL THAT THEY HAVE THE EXPERTISE TO DO THAT AND THEY ISSUE IT TO ANOTHER GOVERNMENT DEPARTMENT IN THE CITY, THEN IT TAKES IT OUT OF THIS 53087.6. BUT SPECIFICALLY IN 53087.6(B) IT STATES

THAT "THE AUDITOR OR CONTROLLER MAY REFER CALLS RECEIVED ON THE WHISTLE BLOWER HOTLINE TO THE APPROPRIATE

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GOVERNMENT AUTHORITY FOR REVIEW AND POSSIBLE INVESTIGATION." SO IT KEEPS IT IN THE PURVIEW OF THIS

STATUTE BECAUSE IT SAYS THE AUDITOR CAN DO THAT, AND THAT'S WHAT THE AUDITOR DOES IN THE CITY OF SAN DIEGO. AND THEN THE POINT THAT EVERYTHING IS OFF LIMITS FOREVER AND NO ONE CAN EVER SEE ANYTHING -- THAT'S THE POINT OF THE DISCRETION OF THE AUDITOR, AND THE ELECTED OFFICIALS HAVE TO MAKE THAT DETERMINATION: OUR AUDITOR TO HAVE THIS POWER OR NOT?" "DO WE WANT

IF THEY CHOOSE TO

DO SO, THEN THE STATUTE SAYS THEY CAN HAVE THAT AUTHORITY TO DECIDE TO KEEP IT CONFIDENTIAL OR NOT. AND WHAT THE CHANGE WAS RECENTLY FROM "COMPLETED INVESTIGATION" TO "CONDUCTED," IT GAVE THE AUDITOR EVEN MORE DISCRETION OF WHAT THEY CAN DISCLOSE IF THEY CHOOSE TO DO SO. THEY CAN DO IT ON JUST CONDUCTED INVESTIGATIONS

AND NOT CLOSED IF THEY DEEM THAT NECESSARY, BUT IT'S STILL IN THEIR DISCRETION. IT'S NOT A BLACK HOLE, AND IF THE CITY WANTS TO GET RID OF THIS BECAUSE THEY DON'T LIKE THE WAY IT'S BEING CONDUCTED, THEY CAN SHUT IT DOWN AND IT WON'T EXIST. FACT, THE ENTIRE STATUTE IS A SHADOW. IN

EVEN THE CALLS THAT

ARE RECEIVED CURRENTLY DON'T HAVE TO BE INVESTIGATED AT ALL, AND IF THE REPORTING PARTIES DON'T LIKE IT, THEY CAN GO TO ALL THESE OTHER AVENUES, WHICH IS AN IMPORTANT POINT HERE BECAUSE THE PLAINTIFF ACTUALLY DID DO THAT: HE USED

THE HOTLINE, DIDN'T LIKE IT, SO THEN HE WENT TO AN OPEN CITY COUNCIL SESSION AND MADE THE SAME COMPLAINT, AND NOW IT'S ALL PUBLIC RECORD.

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IF HE WANTS TO MAKE A PUBLIC RECORDS ACT REQUEST FOR ANYTHING THAT HAPPENED OUT OF THAT PROCESS, HE'S FREE TO DO SO. KNOW THAT. BUT ON THE HOTLINE, IT'S PROTECTED, AND CALLERS IF A CALLER DOESN'T LIKE WHATEVER MAY HAVE

RESULTED, THEY HAVE PLENTY OF OTHER AVENUES THAT ARE OPEN TO THE PUBLIC. THE LAST POINT THAT WAS MADE -- COUNSEL STATED THAT THEY DO NOT WANT THE INVESTIGATIVE FILES, WHICH IS KIND OF CURIOUS TO COUNSEL HERE BECAUSE THAT'S WHAT THEY REQUESTED. THE COURT: WELL, THAT'S WHAT I THOUGHT. I THOUGHT

THE REQUEST WAS -MR. ALLEN: THAT'S WHAT WE BELIEVED ALL ALONG. THEN

I HEARD COUNSEL STATE THAT THEY DON'T WANT THE FILES BUT PERHAPS PUBLIC DOCUMENTS THAT ARE AVAILABLE ELSEWHERE THAT ARE INSIDE THE FILES. AND OUR POSITION ON THAT POINT IS

THAT ONCE DOCUMENTS ARE COLLECTED, SAY -WELL, WE CAN TAKE THE CASE OF PLAINTIFF HIMSELF WHO ASKED FOR A CERTAIN TRANSACTION ABOUT THE SALE OF CITY PROPERTY. IF THE AUDITOR'S OFFICE GOES TO THE COUNTY

RECORDER AND GETS AN OTHERWISE PUBLICLY-AVAILABLE DOCUMENT TO REVIEW WHAT THE SALE WAS AND WHAT THE APPRAISAL WAS, AND THEN HE PLACES THEM IN HIS FILE, WELL, ALL THE DOCUMENTS THAT HE COLLECTED TOGETHER AND PUT IN HIS FILE BECOME HIS INVESTIGATIVE AUDIT. THIS IS HIS WORK PRODUCT

THAT THAT INVESTIGATOR IS GOING THROUGH TO MAKE THE DETERMINATION. THOSE ARE PROTECTED. THAT SHOWS THE AUDIT AND

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REVEALS EVERYTHING THAT WAS DONE IN THE PROCESS, AND YOU CAN EASILY DECIPHER WHAT THE COMPLAINT WAS BY THAT FILE AS A WHOLE. BUT IF A CALLER HAS A CONCERN ABOUT THIS

OTHERWISE PUBLICLY-AVAILABLE DOCUMENT, THEY ARE FREE TO MAKE A PUBLIC RECORDS ACT REQUEST TO THE TAX COLLECTOR OR ANY OTHER ENTITY THEY WOULD LIKE TO DO SO, BUT IF THEY WANT TO USE THE AUDITOR AS THEIR PERSONAL INVESTIGATIVE SERVICE AND THEN SEE THE AUDITOR'S FILES, THEY CANNOT. IT'S CARVED OUT; THE STATE OF CALIFORNIA SAID THEY CAN'T DO IT. THEY CAN MAKE A COMPLAINT ELSEWHERE ON ANOTHER

PUBLIC RECORDS ACT REQUEST, AND THEN ALL OF THOSE DOCUMENTS ARE AVAILABLE. THE COURT: YOU KNOW WHAT I WANT TO DO --

DO YOU HAVE ANYTHING YOU WANT TO SAY, MR. SHERMAN? MR. SHERMAN: MAY. THE COURT: SURE. I MEAN, THE INVESTIGATIVE -- WITH YES, JUST ON TWO OF THE POINTS, IF I

MR. SHERMAN:

RESPECT TO THE INVESTIGATIVE AUDIT FILES, I THINK THAT'S OVERLY BROAD, LUMPING THE WHOLE HOTLINE INTO ONE FILE BECAUSE THERE'S THESE DISTINCT SEGREGABLE ASPECTS OF IT WHICH WE'VE OUTLINED IN 1 THROUGH 8 ON PAGE 5 OF OUR MOTION WITH REGARDS TO THE LODGMENT. I MEAN, THERE'S THE COMPLAINT, THERE'S THE INTAKE FORM, THERE'S THE TRANSMITTAL MEMO, THERE'S THE FINDING REPORT MEMO. YEAH, THERE'S EVENTUALLY AN

INVESTIGATIVE FILE WHEN AN INVESTIGATION'S DONE, BUT THESE

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OTHER SEGREGABLE PORTIONS -MY CLIENT REQUESTED, YOU KNOW, "WHAT ARE THE COMPLAINTS? WHAT ARE THE ISSUES ABOUT?" THAT'S NOT

IDENTITY OF A PERSON, AND THAT'S NOT IDENTITY OF THE COMPLAINANT, AND WE CAN GET THOSE FROM ONE OF THE INTAKE STARTING POINTS. I MEAN, TO THE FACT THAT SOME OF THESE ARE SENT TO THIRD-PARTY -- YOU KNOW, THE LOCAL 127, THAT TAKES IT OUT OF CONFIDENTIALITY. IF THE REPORTER DOESN'T, YOU

KNOW, PLEDGE A REQUEST AND WAIVES CONFIDENTIALITY, THAT TAKES IT OUT OF CONFIDENTIALITY. IN FACT, (E)(2), THE

WHOLE PURPOSE OF IT SAYS, "WELL, THE INVESTIGATIVE AUDIT IS TO BE KEPT CONFIDENTIAL EXCEPT TO ISSUE A REPORT OF AN INVESTIGATION THAT HAS BEEN SUBSTANTIATED." SUBSTANTIATED ISSUES, THEY'RE NOT PROTECTED. THEY'RE SAYING THIS IS PUBLIC INFORMATION ONCE THEY'RE COMPLETED AND THEY'RE FOUND TO BE SUBSTANTIATED. THE BLACK HOLE. FOR THE CITY REFERRED DEPARTMENTS, THE DEPARTMENT REFERRALS, NONAUDITOR INVESTIGATIONS, THOSE WILL NEVER BE REPORTED ON, SUBSTANTIATED OR NOT. CAN'T BE RIGHT. THAT HOW THAT'S

THEY'RE NOT EVEN FOLLOWING THE CODE.

COULD IT BE EVERYTHING THAT -- ANYTHING THEY DID, EVEN IF IT'S REFERRED? WITH REGARDS TO THE REFERRALS, THEY'RE NOT REFERRING IT TO ANOTHER GOVERNMENT AGENCY TO INVESTIGATE. THEY'RE SENDING THIS TO THE DEPARTMENT THAT'S BEING REPORTED ON TO WORK ON THE FILE. NOW, IT'S AN INTER-CITY

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DEPARTMENT, BUT THIS IS ONCE AGAIN WHERE THEY'RE NOT REPORTING ON IT. THEY NEVER WILL. SO THAT'S THE PROBLEM.

THEY'RE TRYING TO NOT REPORT ON ISSUES AND THEN SAY IT FALLS UNDER THE AUDITOR'S REALM BECAUSE THE AUDITOR DOES ISSUE REPORTS UNSUBSTANTIATED, AND THEY HAVE TO, THEY DO WHEN THEY FILE UNSUBSTANTIATED REPORTS, THE AUDITOR DOES, BUT THE CITY DEPARTMENT WON'T. THE COURT: MR. ALLEN: MINUTE'S TIME. THE COURT: MR. ALLEN: THAT'S FINE. WE AGAIN DISAGREE THAT YOU MUST MAKE A WHAT IT SAYS IS "SHALL," MR. ALLEN? I THINK I CAN KEEP IT IN LESS THAN A

SUBSTANTIATED REPORT AVAILABLE.

THAT "IT SHALL BE KEPT CONFIDENTIAL" AND THAT MANDATE TO THE CITY OR THE STATE AUDITOR IS REDUCED IF THEY GET A SUBSTANTIATED REPORT. THE LEGISLATURE SAID, "YOU SHALL

KEEP IT CONFIDENTIAL," BUT IF YOU SUBSTANTIATE A REPORT THAT "SHALL" IS RELEASED. DECISION. SO THEN IT'S THE DISCRETIONARY

THE ONLY MANDATE IS THAT IT SHALL BE KEPT

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

SUBSTANTIATED OR YOU HAVE A CLOSED INVESTIGATION, THEN THEY CAN DECIDE, BUT IT'S NOT THE AUDITOR'S DECISION IF THEY DON'T SUBSTANTIATE, AND IF THEY DON'T CLOSE AN INVESTIGATION, THE LEGISLATURE SAID, "YOU CAN'T EVEN DISCLOSE ANY OF IT. IT SHALL BE KEPT CONFIDENTIAL."

THAT'S WHAT THE MANDATE IS TO YOU BECAUSE WE'RE LETTING THE PUBLIC HAVE THIS CONFIDENTIAL AVENUE, AND

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WE'RE ONLY GIVING THAT TO THE PUBLIC BECAUSE YOU HAVE A MANDATE TO KEEP IT CONFIDENTIAL UNLESS IT'S SUBSTANTIATED OR A CLOSED INVESTIGATION AND THEN THAT "SHALL" IS RELEASED AND YOU CAN DECIDE. THE COURT: SO THE AUDITOR DECIDES WHETHER THEY'RE

GOING TO RELEASE THAT INFORMATION? MR. ALLEN: INTEREST. YES, IF THEY DEEM IT IN THE PUBLIC'S

IF THE REPORTER DOESN'T LIKE IT AND IT NEVER IS

RELEASED, THEY HAVE ALL THESE OTHER AVENUES OF OPEN REPORTING AND OPEN ASKING THE D.A., THE CITY ATTORNEY'S OFFICE, THE EQUAL EMPLOYMENT INVESTIGATIVE OFFICE, ETHICS COMMISSION, ALL THOSE ENTITIES. POLICE. IF YOU THINK SOMEBODY -- COUNCIL MEMBERS STOLE PROPERTY, CALL THE DISTRICT ATTORNEY'S OFFICE. ALL OF THESE AVENUES AVAILABLE. THERE'S THEY CAN GO CALL THE

BUT THE LEGISLATORS SAID,

"YOU CAN HAVE THIS ONE PROCEDURE WITH THESE MANDATES." THE COURT: HERE'S WHAT I'D LIKE TO DO: WOULD YOU

GENTLEMEN HAVE A SEAT IN THE AUDIENCE.

I WANT TO READ

THIS CODE SECTION AGAIN, BUT I WANT TO HEAR FROM MY LAST ORAL ARGUMENT AND THEN I'LL TAKE A QUICK RECESS AND I'LL BE BACK. MR. ALLEN: SURE. YOUR HONOR, IF I MAY ON THAT (E)(2), I

MR. SHERMAN:

MEAN, I REALLY -- IT SAYS THE "CONFIDENTIAL" BUT THEN THERE'S TWO EXCEPTIONS AFTER THE "CONFIDENTIAL," SO I'D ASK THE COURT TO TAKE A LOOK AT THAT. (PAUSE IN THE PROCEEDINGS.) THANK YOU.

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THE COURT:

WE'RE BACK ON THE RECORD IN THE SHAPIRO ALL ATTORNEYS ARE HERE.

VS. CITY OF SAN DIEGO MATTER.

I WENT BACK, AS I INDICATED, AND I REREAD THIS STATUTE AND I HAVE EVEN MORE QUESTIONS THAN I HAD EARLIER TODAY BASED ON SOME OF THE ARGUMENTS THAT HAVE BEEN MADE. A COUPLE OF THINGS THAT STRIKE ME: BOTH OF YOU

ARE MAKING DEFINITIVE STATEMENTS ABOUT THIS AUDITOR BEING ABLE TO HAVE A DEPARTMENT OR A DIVISION WITHIN THE CITY KIND OF INVESTIGATE -- AS YOU SAID, MR. SHERMAN, INVESTIGATE THEIR OWN. AND, MR. ALLEN, YOU'RE SAYING THAT UNDER THE SUBSECTION (B) OF 53087.6, THAT THE AUDITOR HAS THE AUTHORITY TO ALLOW A GOVERNMENTAL AUTHORITY TO REVIEW AND TO INVESTIGATE. MY QUESTION IS: WAS IT CONTEMPLATED THAT A

DIVISION, BY WAY OF EXAMPLE PARKS AND RECREATION, IS REALLY A GOVERNMENTAL AUTHORITY, AND IF IT WAS CONTEMPLATED -- I'M GOING TO HAVE YOU BRIEF THESE ISSUES SO THAT YOU'RE AWARE OF IT. IF IT WAS CONTEMPLATED THAT IT HAD TO BE A GOVERNMENTAL AUTHORITY AND NOT A DIVISION, WHAT HAPPENS THEN IF SOME OF THE COMPLAINTS WERE SENT TO A DIVISION, THEY DID THE INVESTIGATION? DOES THAT TAKE THEM OUTSIDE AND THAT WOULD ALLOW

OF THIS PARTICULAR CODE SECTION?

THEN FOR THE COURT TO -- IF I AGREE THAT THEY'RE NOT A GOVERNMENTAL AUTHORITY, THEN I COULD THEN LOOK AT THE DOCUMENTS AND DO THAT BALANCING TEST UNDER THE PUBLIC RECORDS ACT. I DON'T KNOW THE ANSWERS TO THESE. THAT'S

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ONE OF THE QUESTIONS I HAVE. THE OTHER QUESTION I HAVE GOES TO SUBSECTION (E)(2), AND I SEE HOW YOU BOTH READ THIS CODE SECTION, AND I SUSPECT THAT, MR. ALLEN, YOU'RE COMING UP THAT THE AUDITOR HAS THIS DISCRETION WHEN IT'S NOT MANDATORY -- HE HAS THIS DISCRETION TO MAKE A DECISION ONE WAY OR THE OTHER WHETHER THEY'RE GOING TO RELEASE ANYTHING, AND THAT'S BASED ON THAT LAST PART OF IT WHERE IT SAYS, "ORDERED RELEASE ANY FINDINGS RESULTING FROM A COMPLETED INVESTIGATION THAT ARE DEEMED NECESSARY TO SERVE THE INTEREST OF THE PUBLIC." YOU'RE READING THAT AS DISCRETIONARY AND MR. SHERMAN'S READING THAT AS ONE OF THE EXCEPTIONS THAT WOULD TAKE IT OUTSIDE. I DON'T KNOW IF THE AUDITOR HAS

THAT BROAD DISCRETION TO MAKE A DECISION NEVER TO TURN OVER ANYTHING THAT HAS BEEN COMPLETED AND SUBSTANTIATED. I NEED FOR YOU FOLKS TO BRIEF THAT AS WELL. AND WHO POLICES THE AUDITOR? WHAT HAPPENS IF

THE AUDITOR JUST MAKES THIS DECISION NOT TO TURN ANYTHING OVER? WHAT HAPPENS THEN? SO I DON'T KNOW. HOW DO THEY -- HOW DOES ONE

CHALLENGE MAYBE ABUSE OF DISCRETION THAT THE AUDITOR DOES AT ONE POINT IN TIME? SO I HAVE A CONCERN ABOUT THAT

BECAUSE AS IT STANDS RIGHT NOW, AS I HEAR THE CITY SAYING THAT THE AUDITOR IS THE PERSON WHO MAKES THE CALL: GET THE DOCUMENT OR YOU DON'T GET THE DOCUMENT. SO, YOU KNOW, I JUST DON'T KNOW THE ANSWER. THAT CONCERNS ME AS WELL. SO THOSE ARE SOME OF THE AREAS YOU

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THAT I NEED FOR YOU TO DISCUSS.

I THINK THE CITY HAS

THE -- I THINK YOU SHOULD FILE YOUR PAPERS FIRST TO TRY TO ANSWER THOSE QUESTIONS FOR ME BECAUSE IT'S MORE INTERPRETING THIS CODE SECTION NOW, WHICH YOU REALLY DIDN'T DO AS MUCH IN YOUR PAPERS, AND I UNDERSTAND WHY YOU WENT BACK AND FORTH WITH WHAT MR. SHERMAN WAS REQUESTING. SO YOU NEED TO DO THAT. AND A WEEK AFTER I THINK YOU, MR. SHERMAN, PROVIDE YOUR PAPERS ALMOST IN OPPOSITION OR HOWEVER YOU WANT TO VIEW WHAT THE CITY'S SAYING. TELL ME WHAT YOUR

THOUGHTS ARE ON IT, BUT I NEED SOME AUTHORITY. I DON'T KNOW IF IT'S PART OF THE LEGISLATIVE HISTORY, I DON'T KNOW, BUT I NEED SOME MORE AUTHORITY TO MAKE SOME DECISIONS BEFORE I DECIDE WHETHER OR NOT I HAVE THE AUTHORITY TO DO AN IN-CAMERA REVIEW BECAUSE AGAIN IF IT TAKES IT OUT OF THIS CODE SECTION, I THINK WE GO TO THE PUBLIC RECORDS ACT, AND THEN I MIGHT HAVE TO DO AN IN-CAMERA REVIEW OF THE FILES THAT WEREN'T REVIEWED BY THE AUDITOR. SEE WHAT I'M SAYING? MR. SHERMAN: MR. ALLEN: THE COURT: YES, YOUR HONOR.

THE ONES SENT OUT TO A DEPARTMENT. CORRECT. BECAUSE I THINK THE CODE I THINK. SO WE'LL

PROTECTS THE AUDITOR'S INVESTIGATION. SEE. MR. ALLEN: THE COURT: ABOUT? OKAY. YOUR HONOR.

DOES EVERYBODY KNOW WHAT I'M TALKING

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MR. ALLEN:

YES.

I WAS JUST GOING TO TRY AND SEEK

CLARIFICATION ON IF WE ARE MAINLY ADDRESSING THOSE INVESTIGATIONS SENT OUT TO THE DEPARTMENTS, WHICH I KNOW THAT WAS YOUR FIRST QUESTION -THE COURT: MR. ALLEN: RIGHT. -- BUT THEN THE SECOND IS GOING TO THE

DISCRETION OF THE AUDITOR THEMSELVES -THE COURT: MR. ALLEN: CORRECT. -- AND THAT WOULD APPLY TO ANY COMPLAINTS

THAT COME INTO THEIR OFFICE OR JUST TO THE ONES THAT THEY CHOSE TO SEND OUT TO THE DEPARTMENTS? THE COURT: I THINK YOU DO BOTH SO THAT I UNDERSTAND

AND, THIRD, WHAT DID THIS CODE SECTION CONTEMPLATE IF, IN FACT, THE AUDITOR HAS THIS AUTHORITY? HOW DOES ONE FIND OUT WHETHER THE AUDITOR'S DOING HIS JOB OR HER JOB? SO I DON'T KNOW HOW LONG YOU NEED TO PROVIDE THAT INFORMATION TO THE COURT. IF YOU WANT TO LET ME

KNOW, THEN I CAN TELL MR. SHERMAN WHEN HE NEEDS TO PROVIDE IT. I DON'T THINK ORAL ARGUMENT WILL BE NECESSARY, BUT

ONCE I SEE THE PAPERS I MAY -- BECAUSE I'M TAKING THIS UNDER SUBMISSION, I MAY NEED ORAL ARGUMENT AND THEN WE CAN GIVE YOU A CALL AND LET YOU KNOW WHEN THAT CAN HAPPEN. BUT I THINK IT'S IMPORTANT TO TRY TO -- FOR THE COURT TO HAVE A BETTER UNDERSTANDING OF WHAT IS CONTEMPLATED WITH THIS EXCEPTIONS TO THE PUBLIC RECORDS ACT, THIS HOTLINE EXCEPTION.

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MR. ALLEN: THE COURT: ASKING?

YES, YOUR HONOR. MR. SHERMAN, YOU'RE GOOD WITH WHAT I'M

MR. SHERMAN:

YES, YOUR HONOR, AND I THINK -- OTHER

THAN THOSE QUESTIONS, I THINK THE PLAINTIFFS ORIGINALLY -ORIGINAL RECORDS REQUEST AND MOTION TO THIS COURT FOR THE GREATER PANOPLY OF DOCUMENTS, I THINK, STILL APPLIES. UNDERSTAND THE COURT'S QUERY ON THESE POINTS. THE COURT: I DON'T KNOW WHAT YOU'RE TALKING ABOUT. LET ME STATE IT A DIFFERENT WAY. WE I

MR. SHERMAN:

STILL BELIEVE THAT THE CODE PROTECTS CERTAIN ASPECTS AND TIMING DURING THE AUDITOR'S INVESTIGATION AND NOT AS IT'S CHARACTERIZED BY COUNSEL TO SAY, "WELL, ANYTHING THE AUDITOR DOES IS JUST THE INVESTIGATIVE AUDIT" AS A ONE LUMP SUM OF ANY AND ALL DOCUMENTS, WHEREAS WE'VE SEGREGATED THEM OUT TO SAY -IF YOU LOOK AT THE FIRST PART OF 53087.6, IT TALKS ABOUT "DURING THE INITIAL INVESTIGATION," YOU KNOW, "THE COMPLAINTS SHALL BE KEPT CONFIDENTIAL." I THINK IF

YOU READ THAT AT FACE VALUE FOR WHAT IT SAYS, IT'S DURING THAT INITIAL PHASE, DURING THE INVESTIGATIVE PHASE PRIOR TO COMPLETION. THE COURT: WELL, I THINK IT'S AN INTERPRETATION, AND

IF YOU HAVE ANY AUTHORITY THAT SUPPORTS YOUR REVIEW AND INTERPRETATION OF IT, YOU NEED TO GIVE IT TO ME, BOTH OF YOU. I NEED SOME AUTHORITY. I CAN SEE HOW YOU READ SOME I CAN ALSO SEE HOW THE

OF THE SECTIONS THE WAY YOU DO.

CITY READS SOME OF THE SECTIONS THEY DO.

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THIS IS AN IMPORTANT ENOUGH TOPIC THAT HAS NEVER BEEN PUT BEFORE ME THAT I THINK WE NEED SOME INFORMATION ON, ALL OF US. SO LET'S TAKE A LOOK AT IT AND TALK --

FIND SOME AUTHORITY THAT WOULD SUPPORT YOUR POSITION THAT IT SEGREGATES OUT DOCUMENTS. AND THEN I THINK WE NEED TO FIGURE OUT WHAT THIS REALLY MEANS IN THE BIG SCHEME OF THINGS. IF I MAKE A

DETERMINATION THAT, IN FACT, IT TAKES IT OUT OF THE PUBLIC RECORDS ACT AND SOME DOCUMENTS NEED TO BE REVIEWED AND I REVIEW THEM AND I MAKE A DETERMINATION THAT THEY'RE ENTITLED TO SEE THEM, WHAT HAPPENS THEN? WITH, OR WHAT HAPPENS? SO THINK ABOUT THOSE THINGS AS WELL. THESE ARE IS THE CASE OVER

ALL THE QUESTIONS THAT WERE GOING THROUGH MY MIND WITH THE INITIAL PAPERS. I'M GOING? MR. ALLEN: YES, YOUR HONOR. I DO. OKAY? DOES EVERYBODY UNDERSTAND WHERE

MR. SHERMAN: MR. ALLEN:

AS A SCHEDULING MATTER, IN A COUPLE HOURS

I'M LEAVING TOWN FOR THREE WEEKS, SO I WOULD ASK THAT THIS BRIEFING SCHEDULE MAY BE PUSHED BACK A LITTLE BIT SO THAT I HAVE AN OPPORTUNITY TO ADDRESS THESE NEW QUESTIONS SINCE WE'RE FILING FIRST. THE COURT: WHEN CAN YOU GET THEM TO ME? I DON'T

THINK YOU'RE GOING TO BE LEAVING -- OR DOING IT BEFORE YOU LEAVE, AND I'M CERTAINLY NOT -MR. ALLEN: THE COURT: NO. YES. SO AFTER YOU GET BACK IN THREE

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WEEKS -MR. ALLEN: THE COURT: YES. DO YOU WANT TO HAVE THEM TO ME BY -- WHEN

DO YOU COME BACK? MR. ALLEN: THE COURT: MAY 25th. HOW ABOUT JUNE 24th? IS THAT TOO SOON?

I MEAN, I REALLY WANT YOU TO DIG INTO THIS BECAUSE I NEED SOME INFORMATION, SO I DON'T THINK IT'S SO ACUTE A DECISION THAT, YOU KNOW, IT HAS TO BE DONE RIGHT NOW. MR. ALLEN: THE COURT: YES, YOUR HONOR. I WOULD LIKE TO HAVE THE BRIEFING DONE SO SO PICK A DAY.

THAT I UNDERSTAND IT. MR. ALLEN: THE COURT:

THE FIRST WEEK OF JULY PERHAPS. SO, MR. SHERMAN, YOU GOOD WITH JULY 8th

HAVE THE MOVING PAPERS IN AND THEN YOU CAN GIVE ME YOUR PAPERS ON THE 22nd? HOW IS THAT? MR. SHERMAN: THE COURT: THEM. THAT'S FINE, YOUR HONOR. DON'T DROP I'LL GIVE YOU A COUPLE OF WEEKS.

FILE THEM IN MY DEPARTMENT.

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

SHUFFLE AND I CAN SEE THEM SOONER RATHER THAN LATER. THANKS A LOT. MR. SHERMAN: MR. ALLEN: IT'S UNDER SUBMISSION.

THANK YOU, YOUR HONOR.

THANK YOU, YOUR HONOR.

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

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COUNTY OF SAN DIEGO) : STATE OF CALIFORNIA)

I, RINDY M. ORMROD, RPR, CSR NO. 6278, OFFICIAL REPORTER FOR THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, DO HEREBY CERTIFY: THAT I REPORTED IN MACHINE SHORTHAND THE PROCEEDINGS HELD IN THE FOREGOING CASE, SHAPIRO VS. CITY OF SAN DIEGO, AND THAT THE FOREGOING TRANSCRIPT, PAGES 1 THROUGH 24, INCLUSIVE, IS A FULL, TRUE AND CORRECT TRANSCRIPTION OF THE PROCEEDINGS. DATED AT SAN DIEGO, CALIFORNIA THIS 9TH DAY OF MAY, 2011.

__________________________________ RINDY M. ORMROD, RPR, CSR NO. 6278 OFFICIAL REPORTER SAN DIEGO, CALIFORNIA

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