February 21, 2001
Merrill J. Schwartz, Esq.
Stark, Wells, Rahl, Schwartz & Schieffer
Attorneys At Law
Lake Merritt Plaza
1898 Harrison Street, Suite 1300
Oakland, CA 94612
Re: Request for Opinion Concerning San Francisco Charter Section C8.105(e)
Dear Mr. Schwartz:
On behalf of your client, Diane Wong, you requested the Ethics Commission's interpretation of San Francisco Charter Section C8.105(e), which imposes post-employment restrictions on officers and employees of the City and County of San Francisco.
The Ethics Commission provides two kinds of advice: written formal opinions and informal advice. S.F. Charter Section C3.699-12. Written formal opinions are available to individuals who request advice about their responsibilities under local laws. Formal opinions provide the requester immunity from subsequent enforcement action if the material facts are as stated in the request for advice, and if the District Attorney and City Attorney concur in the advice. See id. Informal advice does not provide similar protection. See id.
Because you seek advice regarding specific actions that your client may take in the future, the Commission is treating your questions as a request for a formal opinion.
Questions
You asked the Ethics Commission to consider the following questions:
1) As a former employee of the San Francisco Planning Department and a current employee of Environmental Services Associates, ("ESA"), may Ms. Wong participate in the preparation of environmental impact reports and related documents ("CEQA documents")1 and perform related services that involve contact with the San Francisco Planning Department for privately sponsored projects?
2) May Ms. Wong participate in the preparation of CEQA documents and perform related services that involve contact with the San Francisco Planning Department for projects sponsored by a San Francisco public agency and/or the San Francisco Planning Department?
3) If Charter Section C8.105(e) prevents Ms. Wong from contacting the San Francisco Planning Department to discuss a specific project, does it prevent her from seeking general information from the San Francisco Planning Department?
Summary of Advice
1) Ms. Wong may participate in the preparation of CEQA documents for privately sponsored projects, but she may not personally communicate orally or in writing with the San Francisco Planning Commission or the Planning Department staff regarding these matters.
2) Ms. Wong may participate in the preparation of CEQA documents and communicate orally and in writing with the San Francisco Planning Commission and Planning Department staff for projects sponsored by a San Francisco public agency.
3) You have not provided the Commission with sufficient facts to determine whether seeking "general information" from the Planning Department would violate Charter Section C8.105(e).
Background
You provided the Ethics Commission with the following information.
Until she resigned on August 4, 2000, Ms. Wong held the position of Planner III for the Major Environmental Analysis section ("MEA") of the San Francisco Planning Department. As of August 7, 2000, she became an employee of Environmental Science Associates ("ESA"), a California corporation.
ESA is an environmental consulting firm which, as part of its services, prepares environmental impact reports and related documents ("CEQA documents") for private and public clients. ESA prepares CEQA documents for projects throughout California, including projects located within the City and County of San Francisco.
In order to prepare CEQA documents for private and public projects located in the City and County of San Francisco, ESA personnel routinely contacts Planning Department personnel. Quoting from your request for advice, examples of these contacts include:
1) corresponding in writing, making telephone calls, sending and receiving faxes and e-email in order to give/receive information relevant to a particular project;
2) meeting with staff of the Planning Department to confer on the type and scope of CEQA document and types of special studies needed;
3) meeting as necessary to resolve issues, give feedback and receive direction from Planning Department Staff;
4) submitting drafts of CEQA Documents for MEA review, including revised drafts in response to Planning Department comments/direction;
5) coordinating information as necessary between MEA and the project's sponsor; and
6) attending Planning Commission hearings as a member of the audience (not as a speaker) during public comment on or appeals of CEQA documents.
Discussion
A. Prohibition
Section C8.105(e) of the San Francisco Charter provides:
No person who has served as an officer or employee of the city and county shall within a period of two years after termination of such service or employment appear before the board or agency of the city and county of which he or she was a member in order to represent any private interest, provided, however, that said officer or employee may appear before said board for the purpose of representing himself or herself.
The voters of the City and County of San Francisco originally enacted this restriction at the June 4, 1974 election.2
B. Interpretation
1. Representing Private Interests
The prohibition found in Charter Section C8.105(e) applies only in those situations in which Ms. Wong would appear before the Planning Commission or the Planning Department staff to represent a private interest. Accordingly, the question presented concerns what it means to "represent any private interest."
In your letter, you assert that Ms. Wong would not "represent any private interests" in communications with the San Francisco Planning Department for two reasons. First, you state that any contact with the Planning Commission or the Planning Department staff "would be devoted exclusively to the furtherance of the public interest served by" the California Environmental Quality Act. Second, you assert that contact with the Planning Department "would in no way involve any attempt to influence the [Planning Department], or anyone else, in favor of any private interest."
a. Representing Private Interests vs. Furthering the Public's Interest
In your letter, you assert that the preparation of CEQA documents furthers the public's interest and therefore does not constitute representation of private interests. You base this assertion on the following two factors. First, your client would be "acting pursuant to the requirement that the lead agency prepare an environmental impact report whenever the approval of a proposed project may cause significant adverse effects on the environment." Second, pursuant to Section 15020 of the CEQA Guidelines, the San Francisco Planning Department, as the lead agency, is solely responsible to meet the statutory requirements of CEQA and cannot rely upon comments from private citizens as a substitute for its own analysis. The Ethics Commission disagrees with this assertion.
Stated differently, you argue that ESA's contacts with Planning Department personnel concerning CEQA materials advances a public purpose and therefore does not constitute representation of private interests. There is, however, no basis in the text of this Charter section or its legislative history to limit operation of this rule in this way. Specifically, there is no mention of an exception for representations that may further the public's interest. Accordingly, the Ethics Commission finds that the prohibition of Charter Section C8.105(e) applies to all representations of private interests, even when the representation may help serve the public good.
b. Representing Private Interests vs. Attempting to Influence Administrative Action
You also argue that the prohibition in Charter Section C8.105(e) does not apply to contacts with the Planning Department made by your client on behalf of ESA's private clients because such contacts "would in no way involve any attempt to influence the [Planning Department], or anyone else, in favor of any private interest." In other words, you argue that ESA personnel do not advocate on behalf of their clients.
The Section C8.105(e) prohibition, however, applies to all appearances made to represent private interests. Nothing in the text or legislative history of Charter Section C8.105(e) suggests that the prohibition applies only to those appearances made to advocate a particular course of action. The legislative history indicates that the prohibition was intended to apply to any communication with the Planning Department made on behalf of a private interest subject to the department's regulation. See Letter of Quentin Kopp to Thomas O'Connor, July 17, 1973 at 2.3 Accordingly, the Ethics Commission finds that Charter Section C8.105(e) prohibits all contacts made on behalf of private interests, not just those that constitute overt advocacy.
For these reasons, Ms. Wong may participate in the preparation of CEQA documents for privately sponsored projects, but she may not personally communicate orally or in writing with the San Francisco Planning Commission or the Planning Department staff on behalf of ESA's private clients for two years from the date she resigned from her position at the Planning Department.4
2. Representation of the City and County of San Francisco
As discussed above, the prohibition imposed by Charter Section C8.105(e) applies only to situations in which Ms. Wong would appear before the Planning Commission or the Planning Department staff to represent a private interest. The prohibition is not implicated when she is representing the City and County of San Francisco or any of its departments or agencies. Accordingly, she may appear before the Planning Commission or the Planning Department staff if the appearance is made on behalf of the City and County of San Francisco or any of its departments or agencies.5
3. Requesting General Information
You have not provided the Commission with sufficient facts to determine if seeking "general information" from the Planning Department would violate Charter Section C8.105(e). In order to provide formal advice, the Commission must have sufficiently specific facts to determine whether the proposed action does or does not conform to the law. See San Francisco Charter Section C3.699-12 [Requests For and Issuances of Opinions; Advice]. Accordingly, the Commission is unable to answer this question.
Conclusion
I hope you find this letter responsive to your inquiry. Please contact me at (415) 554-9510 if you have any additional questions.
Sincerely,
Ginny Vida,
Executive Director P:\SHARED\ADVICE\conflicts Schwartz.doc
1 "CEQA" stands for the California Environmental Quality Act, Cal. Public Resource Code Section 21000, et. seq.
2 Subsequent initiatives have changed the section number of this prohibition within the Charter, but have not changed its actual language.
3 Additional legislative history that supports this view can be found in the June 1974 voter pamphlet. The proponents of the ballot measure that enacted Charter Section C8.105(e) argued that it would forbid former officers and employees from appearing as private representatives in certain City and County matters. Further, the argument stated that this prohibition would "give greater assurance that . . . local elected and appointed officials and employees will act in the interest of the public good rather than their own private gain." (June 4, 1974 San Francisco City and County Propositions Arguments and Statements of Controller, at p. 14). There is no mention of a requirement that such communications must encompass an attempt to influence a City board or commission.
4 Your request for advice indicates that Ms. Wong may also attend Planning Commission meetings as an observer. The prohibition in Charter Section C8.105(e) does not prohibit her from attending Planning Commission meetings so long as she is not communicating with the Commission on behalf of private clients.
5 You did not provide the Commission with any information regarding specific clients of ESA. Accordingly, this letter does not attempt to classify any of ESA's clients as either a private interest or a City department or agency.