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SUP. MOLINA: YOU KNOW, WHEN WE DO CORRECTIVE ACTIONS, AND IT MIGHT BE WORTHWHILE TO READ SOME OF THE CORRECTIVE ACTIONS TO UNDERSTAND FOR US TO GET A BETTER UNDERSTANDING OF WHAT WENT WRONG. IT DOESN'T EVEN LOOK LIKE YOU DID THAT ANALYSIS. SOMEBODY DID IT. SOMEBODY DIDN'T PUT CONFIDENTIAL. SOMEBODY DID THAT.


RAY FORTNER, COUNSEL: SUPERVISOR MOLINA, THE MEMORANDUM DETAILS THE EFFORTS. AND MY STAFF LITERALLY PUT THEIR EYES ON EVERY DOCUMENT THAT WE KNOW TO EXIST, EVERY FILE THAT WE KNOW TO EXIST, REGARDING THE CASE TRYING TO DETERMINE-- HOW IT GOT-- HOWEVER, THERE IS JUST NO ANSWER AVAILABLE LOOKING AT THE DOCUMENTATION. THE ONE MISSING PIECE IS-- AND IT'S SOMETHING WE HAVE NO CONTROL OVER-- IS THE COURT FILE ITSELF. WE DON'T BELIEVE THAT WILL SAY ANYTHING DIFFERENT.


SUP. MOLINA: BUT THERE WAS A PROBLEM IN NOT PUTTING CONFIDENTIAL ON THE DOCUMENT.


RAY FORTNER: IT IS A GOOD PRACTICE TO DO, AND WE DO IT ALMOST UNIVERSALLY. BUT THERE ARE INTERNAL DOCUMENTS THAT DON'T BEAR THE LOGO. AND A DOCUMENT IS WORK PRODUCT OR SUBJECT TO THE ATTORNEY/CLIENT PRIVILEGE WHETHER OR NOT IT BEARS THAT LEGEND.


SUP. MOLINA: SO WHY BOTHER PUTTING CONFIDENTIAL AT ALL?


RAY FORTNER: IT IS JUST AN ADDITIONAL HELPFUL WARNING TO THINGS, CATCHES PEOPLE'S EYES, PERHAPS.


SUP. MOLINA: SO IT IS NOT A LEGAL TERM AT ALL?


RAY FORTNER: I'M SORRY?


SUP. MOLINA: CONFIDENTIAL IS NOT A LEGAL TERM IN YOUR FILES.


RAY FORTNER: I DON'T UNDERSTAND YOUR POINT, SUPERVISOR, I'M SORRY.


SUP. MOLINA: THE POINT IS IT'S MY UNDERSTANDING THE PROBLEM OCCURRED BECAUSE THERE WAS NOT-- THE DOCUMENT WAS NOT MARKED CONFIDENTIAL.


RAY FORTNER: WE HAVE NO REASON TO BELIEVE THAT THAT'S THE CASE. SOMEONE, SOMEWHERE WHEN, THESE FILES PASSED THROUGH HANDS--


SUP. MOLINA: THE DOCUMENT WAS MARKED CONFIDENTIAL?


RAY FORTNER: NO, IT WAS NOT.


SUP. MOLINA: LET ME JUST STAY ON THAT FOR A MINUTE, MR. FORTNER. AGAIN, IT WAS NOT MARKED CONFIDENTIAL.


RAY FORTNER: THAT'S CORRECT. AND WE DON'T TAKE ANY REASON TO DISAGREE WITH THAT. IT WAS NOT. WE HAVE THE DOCUMENT. WE KNOW IT WAS NOT MARKED CONFIDENTIAL.


SUP. MOLINA: AND IT WAS NOT CONFIDENTIAL.


RAY FORTNER: IT WAS A CONFIDENTIAL DOCUMENT.


SUP. MOLINA: THEN LET'S GO BACK. YOU DON'T SEEM TO UNDERSTAND WHAT CORRECTIVE ACTIONS ARE, MR. FORTNER. CORRECTIVE ACTIONS ARE WHEN THERE IS A MISTAKE MADE, WE ASK FOR A CORRECTIVE ACTION. IT'S FOR THE OPPORTUNITY FOR THE DEPARTMENT TO REVIEW WHAT POTENTIALLY THEY DID WRONG THAT LED TO WHATEVER OUTCOME, USUALLY BY LAWSUIT. SO THE IDEA WAS THAT THE EFFORT IN A CORRECTIVE ACTION IS TO GO BACK AND FIND OUT WHAT HAPPENED. SHOULD IT HAVE BEEN MARKED CONFIDENTIAL? YOU'RE SAYING NOW YES, IT WAS. WELL, IT WASN'T.


RAY FORTNER: I'M NOT SAYING IT WAS MARKED CONFIDENTIAL. IT WAS A CONFIDENTIAL DOCUMENT WHETHER OR NOT IT WAS SO MARKED.


SUP. MOLINA: LET'S GO AGAIN, MR. FORTNER, REAL SIMPLE. IS CONFIDENTIAL A LEGAL TERM FOR YOUR FILES? YES OR NO.


RAY FORTNER: YES.


SUP. MOLINA: OKAY, THANK YOU. IF IT IS, THEN A DOCUMENT EITHER IS CONFIDENTIAL OR IT IS NOT. CORRECT?


RAY FORTNER: CORRECT.


SUP. MOLINA: SO THIS DOCUMENT WAS NOT MARKED CONFIDENTIAL.


RAY FORTNER: CORRECT.


SUP. MOLINA: SO THAT WAS, QUOTE, THE ERROR, CORRECT?


RAY FORTNER: I DON'T BELIEVE SO, SUPERVISOR. WE DO NOT MARK EVERY DOCUMENT NOR EVERY EMAIL THAT WE GENERATE, EITHER INTERNALLY WITHIN THE OFFICE OR TO THE DEPARTMENT, CLIENTS OR TO YOUR BOARD.


SUP. MOLINA: I'M NOT ASKING YOU TO MARK EVERY DOCUMENT. I THINK THAT THE TERM CONFIDENTIAL IN A LEGAL SETTING HAS A VERY DIFFERENT MEANING THAN CONFIDENTIAL IN THE POLITICAL SETTING, FOR EXAMPLE. SO AGAIN IT IS MY UNDERSTANDING THAT THIS HAS A DIFFERENT TONE WITHIN A LEGAL FRAMEWORK. IF THE DOCUMENT WAS IN FACT MARKED CONFIDENTIAL, POTENTIALLY THERE COULD HAVE BEEN A DIFFERENT OUTCOME.


RAY FORTNER: THAT IS TRUE. I CAN'T DISAGREE WITH THAT.


SUP. MOLINA: SO COULD YOU PLEASE PREPARE THE APPROPRIATE CORRECTIVE ACTION FOR THIS? I DON'T THINK WE'RE ASKING TOO MUCH. I THINK THAT THAT'S EXACTLY WHAT SUPERVISOR ANTONOVICH-- AND I DON'T THINK YOU SHOULD ARGUE WITH US ABOUT IT. HONESTLY.


RAY FORTNER: I DON'T INTEND TO, BUT WE EXPLAINED WHAT HAPPENED AND WHAT WE THOUGHT THE IMPACT OF WHAT IT WAS THAT HAPPENED.


SUP. MOLINA: NO, YOU DIDN'T EXPLAIN IT. BECAUSE I JUST EXPLAINED IT BACK TO YOU, OKAY? AND YOU STILL HAVEN'T EXPLAINED IT TO ME. YOU DON'T HAVE A POLICY IN YOUR DEPARTMENT AS TO WHAT DOCUMENTS SHOULD BE CONFIDENTIAL AND WHICH SHOULD NOT, CORRECT?


RAY FORTNER: WHICH SHOULD BE MARKED CONFIDENTIAL?


SUP. MOLINA: YES.


RAY FORTNER: THAT IS TRUE. THERE IS NOT A WRITTEN POLICY.


SUP. MOLINA: SO CONSEQUENTLY, ONE OF THE REVIEWS THAT CERTAIN DOCUMENT SHOULD BE MARKED CONFIDENTIAL IF THEY CONTAIN CERTAIN SENSITIVE INFORMATION THAT MAY LEAD TO A CONCLUSION OF SOME TYPE. SO CONSEQUENTLY, I'M ASKING YOU THE QUESTION: I WOULD PREFER-- YOU KNOW, I AM BIG ON THE CORRECTIVE ACTIONS. AND MOST OF THEM HAVE BEEN FOR THE MEDICAL MALPRACTICE ISSUES. AND BECAUSE WE WANT TO GO BACK AND HOPEFULLY NOT HAVE A DOCTOR OR A NURSE OR ANY HEALTH WORKER MAKE THE SAME MISTAKE AGAIN. IN MANY INSTANCES WE FIND OUT THEY DON'T HAVE A POLICY THAT COVERS THAT AREA, SO WE NEED TO CREATE A POLICY. IT'S BEEN AN ONGOING ISSUE WITH ME FOR OVER 15 YEARS NOW. SO THE ISSUE IS THAT NOW IT'S GONE ON TO OTHER AREAS IN WHICH WE'RE ASKING FOR CORRECTIVE ACTIONS. THE SHERIFF'S DEPARTMENT, PROBATION, OTHER AREAS. ALL OF THEM TO HOPEFULLY REVIEW A MECHANISM BY WHICH MAYBE THE DEPARTMENT MIGHT LOOK AT SOME KIND OF POLICY OR SOME KIND OF MECHANISM. BECAUSE IN THIS INSTANCE, HAD IT GONE TO TRIAL, THAT DOCUMENT WOULD HAVE HAD US LOSE THE CASE.


RAY FORTNER: WELL I DON'T AGREE WITH THAT, BUT I UNDERSTAND WHAT YOU'RE DRIVING AT. FROM OUR LEGAL PERSPECTIVE, SUPERVISOR, WITH ALL RESPECT, IT WAS NOT THE FATAL BLOW TO THIS CASE. THE CASE WAS NOT WINNABLE LONG PRIOR TO THAT.


SUP. MOLINA: YOU ARE MY LAWYER, AND I DON'T WANT YOU TO MAKE THAT MISTAKE AGAIN. SO I WOULD LIKE TO ASK FOR A CORRECTIVE ACTION.


RAY FORTNER: AND I WILL DRAFT UP A PROPOSED POLICY AND WE'LL WORK ON IT IN THE OFFICE AND SUBMIT THAT TO THE BOARD FOR YOUR CONSIDERATION.


SUP. MOLINA: WHICH IS ALSO, I THINK, SUPERVISOR ANTONOVICH IS ASKING.


RAY FORTNER: WHAT I HAD THOUGHT WE REALLY HAD BEEN ASKED WAS, HOW DID THIS HAPPEN? AND THAT IS WHAT WE SPENT ALL OF OUR FRANKLY TIME AND RESOURCES ON WAS TO DETERMINE TO SEE IF WE COULD DETERMINE--


SUP. MOLINA: OBVIOUSLY SOMEBODY DIDN'T THINK THAT DOCUMENT HAD ANY MEANINGFUL MEANING, AND YET SOMETIMES IT REQUIRES LAWYERS TO LOOK AT THESE DOCUMENTS AND REALIZE, "OH NO, YOU HAVE TO BE CAREFUL OF POTENTIAL LAWSUITS, SO YOU HAVE TO BE CAREFUL WITH IT." BUT IF YOUR OWN OFFICE DOES NOT HAVE A POLICY WITH REGARD TO CONFIDENTIAL, I WOULD SUGGEST THAT THAT MAYBE IS ONE OF THE CORRECTIVE ACTIONS YOU WOULD LOOK AT. THERE ARE SOME LAWYERS THAT AREN'T THAT CAPABLE OF MAKING A DETERMINATION.


RAY FORTNER: WELL, WE WILL FORMALIZE WHAT OUR GENERAL PRACTICE IS AND BE SPECIFIC ABOUT IT AND REITERATE IT TO THE STAFF. BUT IT IS UNFORTUNATE THAT WE CAN'T REALLY TELL HOW THAT DOCUMENT GOT OUT OF THE HANDS OF COUNTY PEOPLE WHO HAVE THE RIGHT TO SEE IT.


SUP. MOLINA: THAT'S A DIFFERENT ISSUE.


RAY FORTNER: BECAUSE I THINK IT WOULD LIKELY SHOW THAT IT WAS SOMEONE WHO KNEW IT WAS A PRIVILEGED DOCUMENT.


SUP. MOLINA: I DON'T THINK THAT'S THE QUESTION HERE.


RAY FORTNER: AND HANDED IT TO THE PLAINTIFF.


SUP. MOLINA: WE CAN'T GUESS. IN MANY INSTANCES THERE ARE DOCUMENTS THAT ARE IN THE HANDS OF L.A. TIMES, OTHER PEOPLE.


RAY FORTNER: AND THEY BEAR OUR CONFIDENTIAL LOGO.


SUP. MOLINA: AND WE CAN'T TRACE. BUT THAT'S A DIFFERENT ISSUE. BUT THE ISSUE HERE IS THIS DOCUMENT WAS NOT MARKED CONFIDENTIAL. AND I KNOW THAT IS AN APPROPRIATE LEGAL TERM IN A LEGAL PROCESS. SO THAT'S WHY I'M ASKING THE QUESTION. AND I THINK THAT'S WHAT SUPERVISOR ANTONOVICH IS ASKING.


RAY FORTNER: WE WILL HAVE A WRITTEN POLICY THAT FORMALIZES WHAT OUR GENERAL PRACTICE IS.


SUP. BURKE, CHAIR: ALL RIGHT. THE MOTION WAS BY SUPERVISOR ANTONOVICH. IT WAS SECONDED BY SUPERVISOR YAROSLAVSKY WITH A REPORT IN TERMS OF THE CORRECTIVE ACTION PLAN. WITHOUT OBJECTION, SO ORDERED. WE HAVE 95-A.


SUP. MOLINA: CORRECT. THIS IS THE ISSUE AGAIN ON A MOTION THAT I HAD PUT IN TO ALLOCATE MILLIONS OF DOLLARS FOR AN INFORMATIONAL CAMPAIGN, A PUBLIC INFORMATIONAL CAMPAIGN, FOR A PROPOSITION THAT WE HAVE. AND SO I WANT TO ASK QUESTIONS BECAUSE AT THAT TIME I RAISED IT BECAUSE IT WAS AN ISSUE THAT HAD BEEN RAISED BY THE M.T.A. IN WHICH MR. FORTNER'S LAWYER INFORMED THE M.T.A. ABOUT THE FACT THAT THAT THEY WERE ENTITLED TO SPEND, I GUESS, COUNTLESS PUBLIC FUNDS TO INFORM THE PUBLIC OF A POLITICAL PROPOSITION THAT IS BEFORE THEM. AND I WANT TO ASK MR. FORTNER A SERIES OF QUESTIONS WITH REGARD TO HOW THEY DID THAT REVIEW. NOW OBVIOUSLY YOU READ MR. SAFER'S REVIEW, CORRECT?


RAY FORTNER: I'M SORRY, SUPERVISOR, I COULDN'T HEAR. I READ MR. SAFER'S--?


SUP. BURKE, CHAIR: COULD WE HAVE EVERYONE QUIET OVER THERE?


SUP. MOLINA: MR. SAFER'S REVIEW. WE ASKED QUESTIONS AT THE M.T.A. BUT HIS CONCLUSION WAS THAT LEGALLY WE COULD EXPEND PUBLIC DOLLARS FOR A POLITICAL CAMPAIGN TO SUPPORT MEASURE R AT THE M.T.A.


RAY FORTNER: WELL AS WE JUST HAVE BEEN OVER IN A DISCUSSION, WORDS ARE VERY IMPORTANT.


SUP. MOLINA: WORDS ARE.


RAY FORTNER: YOU MAY SPEND PUBLIC FUNDS FOR AN INFORMATIONAL CAMPAIGN WITH RESPECT TO A BALLOT MEASURE. YOU CANNOT ENGAGE IN A POLITICAL MARKETING CAMPAIGN.


SUP. MOLINA: RIGHT. SO THEN, IN OTHER WORDS YOU DISCUSSED THIS WITH MR. SAFER?


RAY FORTNER: I HAVE. IN THE ENSUING WEEKS, YES.


SUP. MOLINA: WHAT WERE THE STANDARDS YOU UTILIZED TO MAKE A DETERMINATION THAT THIS WAS WHAT YOU WERE DESCRIBING AS, QUOTE, A PUBLIC INFORMATION CAMPAIGN?


RAY FORTNER: WELL, THE LAW HAS A FAIRLY STRAIGHTFORWARD OBJECTIVE TEST, AND THAT IS THAT THE INFORMATION MUST BE CALCULATED TO ASSIST THE VOTERS IN SEEING HOW THE ADOPTION OR NON-ADOPTION OF A MEASURE COULD IMPACT THE OPERATIONS OF THE AGENCY. BOTH BY CASE LAW AND BY STATUTE THE INFORMATION PRESENTED MUST BE FAIR, ACCURATE AND IMPARTIAL. AND THAT WOULD INCLUDE PROS AND CONS AND VARIOUS BUDGETARY IMPACTS. THAT IS THE SIMPLE TEST. THE APPLICATION OF THAT TEST-- AND THIS IS RECOGNIZED BY THE SUPREME COURT-- IS QUITE SUBJECTIVE, FRANKLY. IT IS VERY, IN THE WORDS OF THE SUPREME COURT JUSTICES, VERY HARD TO SOMETIMES DETERMINE WHETHER A MATTER IS STRICTLY FAIR, IMPARTIAL AND ACCURATE AS PART OF AN INFORMATIONAL CAMPAIGN OR DUE TO THE WORDING OR ITS STYLE, TENOR AND TIMING IS ONE OF THE ELEMENTS THAT YOU ADD INTO THE TEST. IT GOES BEYOND THAT TO PURELY POLITICAL MARKETING. I THINK IT'S PROBABLY FAIR TO SAY THAT ANY INFORMATION THAT'S PUT OUT BY A PUBLIC AGENCY, IN A SENSE, HAS A MARKETING ASPECT TO IT OR THE INFORMATION WOULDN'T BE THERE. BUT AS LONG AS IT MEETS THE STATUTORY AND SUPREME COURT TESTS, IT IS A LAWFUL EXPENDITURE OF PUBLIC FUNDS. AND THAT IS THE TEST WE HAVE ATTEMPTED TO APPLY. AND I HAVE, SINCE THE FIRST-- THERE WAS A DISTRICT-WIDE MAILER THAT I HAD REVIEWED.


SUP. MOLINA: I'M SORRY?


RAY FORTNER: THERE WAS A DISTRICT-WIDE MAILER THAT I DID REVIEW AND APPROVED AFTER A LITTLE BIT OF WORDING WAS PUT IN TO INDICATE THAT ALL OF THE PROJECTS WOULD NOT BE FUNDED MERELY BY THE REVENUES FROM THE MEASURE BUT WOULD REQUIRE FEDERAL AND OTHER MATCHING FUNDS. AND I BELIEVE THERE WAS PROBABLY SOME INFORMATION ADDED ABOUT C.E.Q.A. HAVING TO BE COMPLIED WITH FOR A NUMBER OF THESE PROJECTS BEFORE THEY COULD BE COMPLETED. THERE WAS A LARGE, ONE-PAGE AD IN THE LOS ANGELES TIMES WHICH MY STAFF AND I WERE UNAWARE OF AS TO THE EXACT WORDING OF IT. I BELIEVE ONE OF MY STAFF--


SUP. MOLINA: YOU DIDN'T REVIEW THAT ONE?


RAY FORTNER: I DID NOT REVIEW THAT ONE.


SUP. MOLINA: DID MR. SAFER REVIEW THAT ONE?


RAY FORTNER: HE DID NOT. I BELIEVE IT WAS MOVED AHEAD BY THE PUBLIC RELATIONS STAFF AT M.T.A., THINKING THAT ON THE BASIS THAT IT WAS SO SIMILAR TO THE BROCHURE, THAT IT MET THAT TEST. WELL I DON'T BELIEVE THAT IT DID.


SUP. MOLINA: SO IN YOUR PROCESS OF TRYING TO DETERMINE UNDER THIS STATUTE, DID YOU EVALUATE OTHER JURISDICTIONS THAT HAVE UTILIZED THIS STATUTE AS TO WHAT CONSTITUTES FAIR AND UNBIASED PRO AND CON PUBLIC INFORMATION ON AN INITIATIVE OF THIS TYPE?


RAY FORTNER: I HAVE NOT SPECIFICALLY DONE THAT. I HAVE LOOKED AT ABOUT 15 PROPOSED ITEMS THAT WERE DESTINED TO BE OR DESIRED TO BE PART OF THE INFORMATIONAL PACKAGE WITH RESPECT TO MEASURE R AND INDICATED THAT I FELT SOME WOULD PASS LEGAL MUSTER AND THAT OTHERS WOULD NOT.


SUP. MOLINA: DO YOU KNOW OTHER JURISDICTIONS THAT HAVE UTILIZED THIS KIND OF PUBLIC DOLLARS FOR THIS KIND OF PUBLIC INFORMATION CAMPAIGN?


RAY FORTNER: I AM GENERALLY AWARE THAT IT IS FAIRLY ROUTINELY DONE THROUGHOUT THE STATE.


SUP. MOLINA: BUT YOU DIDN'T REVIEW ANY OTHER CITIES?


RAY FORTNER: I HAVE NOT. JUST OVER THE YEARS, I HAVE BEEN LOOKING AT COUNTY MEASURES BY AND LARGE.


SUP. MOLINA: SO YOUR EVALUATION IS, AS I UNDERSTAND IT, WHEN YOU SEE IT, YOU WILL KNOW WHAT IT IS, EVEN THOUGH YOU'RE NOT EVALUATING ANY OTHER?


RAY FORTNER: IN A SENSE, IT'S BUILT BASED UPON MY KNOWLEDGE AND EXPERIENCE AND MY SENIOR STAFF PEOPLE WHO ANALYZE THESE ISSUES, LOOKING AT COUNTY MEASURES OVER A NUMBER OF YEARS. WE HAVE NOT BEEN CALLED UPON TO REVIEW OTHER JURISDICTIONS AND THEREFORE HAVE NOT DONE SO UNLESS THEY WERE INVOLVED IN LITIGATION, WE WOULD BE-- HAVE LOOKED AT THE CASES. BUT THE CASES ALL GENERALLY REPEAT THE WORDS OF STANSON VERSUS MOCK, WHICH IS THE SEMINAL CASE ON THE ISSUE.


SUP. MOLINA: WELL ONE OF THE QUESTIONS THAT I ASKED MR. SAFER AT THE M.T.A. MEETING, WITH REGARD TO IT, IS THAT THERE'S A LONG BEACH CASE IN WHICH LONG BEACH LOST THAT CASE ON THIS ISSUE. DID YOU REVIEW ANY ASPECTS OF THAT CASE?


RAY FORTNER: I AM NOT FAMILIAR WITH THAT CASE.


SUP. MOLINA: YOU DIDN'T LOOK AT IT AT ALL?


RAY FORTNER: I AM NOT FAMILIAR WITH THAT CASE, NO.


SUP. MOLINA: NOW ONE OF THE ISSUES THAT'S VERY SIGNIFICANT IN THIS EVALUATION THAT YOU DID WAS ABOUT THE PERSONAL LIABILITY. WHAT THIS STATUTE DOES, AS WELL, IS THOSE THAT MAKE THE DECISION ARE PERSONAL LIABLE FOR THAT DECISION, CORRECT?


RAY FORTNER: THE PEOPLE WHO AUTHORIZED THE EXPENDITURE OF FUNDS MAY BE, YES.


SUP. MOLINA: SO THEN AT THE M.T.A., WHO WOULD BE PERSONALLY LIABLE IF A LAWSUIT SHOULD BE FILED?


RAY FORTNER: WELL, I WOULD HAVE TO ANALYZE THE FACTORS. I DON'T KNOW WHAT INDIVIDUALS SPECIFICALLY AUTHORIZED THE EXPENDITURES OR WHAT THE BASIS OF THEIR UNDERSTANDING WAS. THERE IS A NUMBER OF FACTORS THAT NEED TO BE CONSIDERED UNDER THOSE CIRCUMSTANCES.

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