April 25, 2002
H. William Brown, Ph.D., MAI
350 Bay Street, Suite 100-111
San Francisco, California 94133
Dear Dr. Brown:
In response to the Ethics Commission's two previous opinion letters to you regarding San Francisco Charter section C8.105(e), you have asked for further clarification as to whether section C8.105(e) prohibits an associate of yours from appearing before the Assessor's Office or the Assessment Appeals Board.
The Ethics Commission provides two kinds of advice: written formal opinions and informal advice. See 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 you may take in the future, the Commission is treating your questions as a request for a formal opinion.
You asked the Ethics Commission whether Charter section C8.105(e) prohibits an associate of your firm from preparing, signing and subsequently submitting a real estate appraisal report for a private client to the Assessor's Office or from appearing before the Assessment Appeals Board, if you, as a former employee of the Assessor's Office, were not a party to the action.
As a general rule, the prohibition of Charter section C8.105(e) is personal and does not apply to an associate or partner of a former City officer or employee. However, where it is clear from the totality of the circumstances that the associate or partner is merely an agent of the former City officer or employee, the associate or partner's communications may be attributable to the former officer or employee.
You previously informed the Ethics Commission that until you retired on May 12, 2001, you were a full-time employee with the Assessor's Office for the City and County of San Francisco. You state that you concur with the Commission's advice that the San Francisco Charter bars you from representing private clients before the Assessor's Office for a period of two years from the date of your retirement. See July 23, 2001 Ethics Commission advice letter to H. William Brown. You also agree that a prohibited appearance includes the submission to the Assessor's Office of a private property appraisal report that you prepared, as well as your attendance at the Assessment Appeals Board to respond to questions raised by the Assessor's Office about an appraisal report that you prepared. See September 20, 2001 Ethics Commission advice letter to H. William Brown.
You now inquire whether the Charter prohibition is personal to you or whether it also prohibits an associate of your firm from appearing before the Assessor's Office or Assessment Appeals Board. You state that your associate will prepare and sign the real estate appraisal report, and that although you may review and edit the report, your name will not appear on either the report or other documents. Although you did not indicate this in your letter, we assume that your associate is not also a former City employee subject to C8.105(e) because of her own previous employment.
Section C8.105(e) of the San Francisco Charter states:
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 question presented by your inquiry is whether this language extends to someone who works with a former officer or employee of the City and County.
In any case involving statutory interpretation, the fundamental task is to determine the legislative intent in order to effectuate the law's purpose. See White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572. In determining such intent, we must first look first to the words of the statute themselves, "giving to the language its usual, ordinary import and according significance, if possible to every word, phrase and sentence in pursuance of the legislative purpose." Dyna-Med, Inc. v. Fair Employment and Housing Commission (1987) 43 Cal.3d 1379, 1386-1387. The literal meaning of a statute, however, must be in accord with the statute's purpose. See Delaney v. Superior Court (1990) 50 Cal.3d 785, 798. Accordingly, we must consider "the object to be achieved and the evil to be prevented by the legislation." Horwich v. Superior Court (1999) 21 Cal.4th 272, 276.
Section C8.105(e) specifically refers to a "person who has served as an officer or employee of the City and County." Relying on the well-recognized and plain meaning of these words, we conclude that the prohibition applies only to individuals who themselves were former employees or officers of the City and not to their partners and associates.1
This conclusion is supported by the purpose of section C8.105(e). Section C8.105(e) seeks to prevent undue influence over City processes by a former officer or employee representing a private interest. See July 23, 2001 Ethics Commission Advice letter to H. William Brown. Such undue influence occurs because of the former officer or employee's close working relationship with his or her former associates. See id. A partner or associate does not exercise undue influence over City processes merely because he or she works with a former officer or employee.
This conclusion also interprets section C8.105(e) in a manner that avoids any unnecessary infringement on constitutionally protected rights. The ability to petition the government, including compensating someone else to do so, is a constitutional right protected by the First Amendment. See, e.g., Fair Political Practices Commission v. Superior Court (1979) 25 Cal.3d 33, 46. Section C8.105(e) restricts the pool of people able to petition the government by prohibiting individuals and entities from hiring former City officials as their advocates. Accordingly, our interpretation strictly construes section C8.105(e) in order to avoid any unnecessary infringement upon this right. See, e.g., Greene v. McElroy (1959) 360 U.S. 474, 507. For similar reasons, the City Attorney's Office has interpreted the City's compensated advocacy ban, San Francisco Campaign and Governmental Conduct Code section 3.300, to apply to City officials, and not to their partners. See San Francisco City Attorney Opinion 86-12.
Section C8.105(e) may, however, apply where it is clear from the totality of the circumstances that the associate or partner is merely an agent of the former City officer or employee. For example, the prohibition may apply to a situation in which a former employee prepares a document, lets it be known that he or she is responsible for the contents of the document and merely hires an associate to sign and deliver the document to his or her former department or agency. In such a case, the likelihood that the former employee's department or agency will be unduly influenced by the associate, or that it will treat the associate differently than if the communication had not truly come from the former employee is exactly the basis for the prohibition under Section C8.105(e). Compare, e.g., Fair Political Practices Commission advice letter to Vern Goehring, FPPC File No. I-97-395 (interpreting California's post-employment restriction, California Government Code section 87406, to apply to a former employee's associate where the associate communicates using letterhead that prominently features the former employee's name).
You have told the Commission that an associate of your firm will prepare, sign and submit a real estate appraisal report for a private client to the Assessor's Office and possibly appear before the Assessment Appeals Board. You have also stated that you may review and edit the report. You have not, however, provided any additional facts that indicate that the report or any other communications are truly coming from you. Under the circumstances as you have presented them, the Ethics Commission does not interpret Charter section C8.105(e) to prohibit an associate of yours from appearing before the Assessor's Office or the Assessment Appeals Board merely because you are a former employee of the Assessor's Office. However, if facts exist demonstrating that the associate is merely your agent, we encourage you to contact us again to seek further clarification of this advice.
I hope you find this letter responsive to your inquiry. Please contact me at (415) 581-2300 if you have any additional questions.
By: Mabel Ng
Deputy Executive Director
1 The Ethics Commission reached a similar conclusion in a previous advice letter related to Charter section C8.105(e). In our February 21, 2001 advice letter to Merrill J. Schwartz, Esq., we stated, "[a former employee of the Planning Department] 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 [her employer's] private clients for two years from the date she resigned from her position at the Planning Department." Id. (emphasis added).
City Attorney's Concurrence
Virginia E. Vida
San Francisco Ethics Commission
30 Van Ness Ave., Suite 3900
San Francisco, CA 94102
Formal Advice to H. William Brown
Dear Ms. Vida:
The City Attorney's Office concurs with your formal advice to H. William Brown regarding San Francisco Charter Section C8.105(e).
Very truly yours,
DENNIS J. HERRERA
District Attorney's Response
April 18, 2002
San Francisco Ethics Commission
30 Van Ness Avenue
San Francisco, CA 94102
Re: San Francisco Ethics Commission Formal Opinion to H. William Brown re Conflict of Interest issues; Request for Clarification by H. William Brown
Dear Executive Director Vida:
As broad general guidance, the District Attorney agrees with the Ethics Commission opinion responding to Mr. Brown's request for clarification about the Ethics Commission opinions concerning conflict of interest issues pertaining to a former employee of the San Francisco Assessor's Office (Mr. Brown), and associates of Mr. Brown, preparing real estate property valuation appraisal reports to the Assessor's Office or appearing before the Assessment Appeals Board to testify regarding such appraisals.
However, because of the general and hypothetical nature of the question(s) presented by Mr. Brown to the Ethics Commission, and because slight variations in the actual facts and circumstances will require a change in our response, we cannot now necessarily concur or dissent without fact specific information from Mr. Brown, including, for example, a complete and detailed understanding of the nature of the firm and the structure of the firm, the relationship of the associate, the qualifications of the associate, disclosure of the scope and extent of the work of the actual preparer of the report, etc., since the Ethics Commission opinion indicates Mr. Brown stated to the Ethics Commission that he may review and edit the report. Thus, the associate may merely be an agent of Mr. Brown.
Very truly yours,
Thomas A. Bogott
Assistant District Attorney
415.551.9557 / fax 415.551.9504