August 4, 2004
Anthony Hall
20 Rockaway Avenue
San Francisco, CA 94127
Dear Mr. Hall:
You have requested a formal opinion letter from the Ethics Commission regarding the application of Campaign and Governmental Conduct Code ("C&GCC") section 3.234 to your potential appointment as the Executive Director of the Treasure Island Development Authority ("TIDA").
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 you may take in the future, the Commission is treating your question as a request for a formal opinion.
Brief Statement of Facts
The Ethics Commission understands the facts of your request to be as follows. In 1997, the state approved Assembly Bill 699, which amended California's redevelopment laws to create a process by which the City and County of San Francisco could create TIDA to oversee the redevelopment of Treasure Island. The City and County of San Francisco took the necessary actions to create TIDA in 1998. But as a creature of state law, much like the San Francisco Redevelopment Agency, TIDA is a separate legal entity from the City and County.
TIDA has the authority to select, appoint and employ an executive director, and to determine the executive director's qualifications, duties, benefits and compensation. The executive director serves at the pleasure of TIDA and may be removed at TIDA's convenience, without cause. TIDA is considering appointing you as its next Executive Director. In the last 12 months, you have not personally and substantially participated in the award of a City contract to TIDA. As TIDA's executive director, you would be required to communicate with officers and employees of the City and County of San Francisco.
In your request, you informed us that for administrative reasons, TIDA employees appear on the employment lists of the Redevelopment Agency. But after you submitted your request, you informed the Commission that the facts have changed. For the position of executive director, TIDA will contract directly with you and not rely upon its agreement with the Redevelopment Agency.
Discussion
The San Francisco Campaign and Governmental Conduct ("C&GC") Code prohibits former City officers and employees from engaging in certain activities once they leave City service. See C&GC Code § 3.234. First, former City officers and employees are permanently prohibited from switching sides on particular matters in which they participated personally and substantially while with the City. See C&GC Code § 3.234(a)(1)(A) and (B). Second, former City officers and employees are prohibited from communicating with the officers and employees of their former department for a period of one year after they leave City service. See C&GC Code § 3.234(a)(1)(D). Third, former City officers and employees are prohibited, for a period of one year after termination of City service or employment, from being employed by or otherwise receiving compensation from a person or entity that has entered into a contract with the City within the officer or employee's last 12 months in City service where the officer or employee personally and substantially participated in the award of the contract. See C&GC Code § 3.234(a)(2)(A). Finally, former Mayors and members of the Board of Supervisors are prohibited, for a period of one year after their last day of City service, from being appointed to any full-time, compensated employment with the City and County. See C&GC Code § 3.234(b)(2). The application of each of these restrictions to your appointment as the Executive Director of TIDA is discussed below.
A. The Permanent Prohibition
Section 3.234(a)(1)(A) provides:
No former officer or employee of the City and County, after the termination of his or her service or employment with the City, shall, with the intent to influence, act as agent or attorney, or otherwise represent, any other person (except the City and County) before any court, or before any state, federal, or local agency, or any officer or employee thereof, by making any formal or informal appearance or by making any oral, written, or other communication in connection with a particular matter:
(i) in which the City and County is a party or has a direct and substantial interest;
(ii) in which the former officer or employee participated personally and substantially as a City officer or employee;
(iii) which involved a specific party or parties at the time of such participation; and
(iv) which is the same matter in which the officer or employee participated as a City officer or employee.
Section 3.234(a)(1)(B) prohibits former officers and employees from assisting others on matters in which they would be prohibited from personally participating under subsection (a)(1)(A). You have not provided us with any facts that suggest that you plan to participate in any future actions on behalf of TIDA in which you participated personally and substantially while with the City. Based on this information, the Commission determines that the permanent prohibitions in subsections 3.234(a)(1)(A) and (B) do not apply to any future actions you may take on behalf of TIDA. But if the facts change and you are presented with a matter in which you participated personally and substantially while with the City, you should seek an additional opinion letter from the Commission before participating in the matter on behalf of TIDA.
B. The One-Year Restriction
Section 3.234(a)(1)(D) provides:
No former officer or employee of the City and County, for one year after termination of his or her service or employment with the City, shall, with the intent to influence a government decision, communicate orally, in writing, or in any other manner on behalf of any other person (except the City and County) with any officer or employee of the department, board, commission, office or other unit of government, for which the officer or employee served.
For former members of the Board of Supervisors, the "department, board, commission, office or other unit of government" for which the member served includes: (1) a board, department, commission or agency of the City and County; (2) an officer or employee of the City and County; (3) an appointee of a board, department, commission, agency, officer, or employee of the City and County; or (4) a representative of the City and County. See C&GC Code § 3.234(b)(1).
The express language of these subsections precludes you from communicating, on behalf of any other entity, with representatives of the City and County for one year after you leave your service on the Board of Supervisors. You claim that this section was not intended to apply to communications made on behalf of other governmental entities. You reason that because these communications are made on behalf of the public, you stand to receive no personal financial gain from any communications you make. As such, you argue, it was not the intent of the law to apply to communications you make on behalf of TIDA. But in situations such as this when the language of an ordinance is clear, the Commission need not look beyond the words of the ordinance to determine intent unless applying the literal meaning would not be in accord with the purpose of the ordinance. See, e.g., Dyna-Med, Inc. v. Fair Employment and Housing Commission (1987) 43 Cal.3d 1379, 1386-1387; Delaney v. Superior Court (1990) 50 Cal.3d 785, 798. The actual language of section 3.234(a)(1)(D) expressly provides that it applies to communications made on behalf of any person other than the City. There is no ambiguity to this language and the literal meaning is in accord with the purpose of the ordinance. Accordingly, since TIDA is a separate legal entity from the City, section 3.234(a)(1)(D) applies to communications you make on behalf of TIDA.
Nonetheless, section 3.234(a)(1)(D) does not prohibit your appointment to the position of Executive Director of TIDA. This section merely prohibits you from communicating on behalf of TIDA with representatives of the City for one year after you leave City service. Furthermore, the law expressly provides that the Commission may waive the application of this section to any situation that would not create the potential for undue influence or unfair advantage. You may request that the Commission grant to you such a waiver for your communications on behalf of TIDA.
C. Employment with City Contractors
Section 3.234(a)(2)(A) provides:
No officer or employee of the City shall, for a period of one year after termination of City service or employment, be employed by or otherwise receive compensation from a person or entity that entered into a contract with the City within the 12 months prior to the officer or employee leaving City service where the officer or employee personally and substantially participated in the award of the contract.
You have informed the Commission that you have not personally and substantially participated in the award of any contract between the City and TIDA within the last 12 months. Accordingly, by its express terms, section 3.234(a)(2)(A) does not prohibit you from being employed by or otherwise receiving compensation from TIDA.
D. Employment with the City and County
Section 3.234(b)(2) provides:
No former Mayor or member of the Board of Supervisors shall be eligible for a period of one year after the last day of service as Mayor or member of the Board of Supervisors, for appointment to any full time, compensated employment with the City and County. This restriction shall not apply to a former Mayor or Supervisor elected to an office of the City and County, appointed to fill a vacancy in an elective office of the City and County, or appointed to a board or commission in the executive branch.
The question presented by your inquiry is whether employment with TIDA constitutes employment with the City and County. You claim that adhering to the actual language and intent of this section would not prohibit employment with separate legal entities, and because TIDA is a separate legal entity, the law does not apply to your appointment to TIDA. The Commission agrees.
By its express language, section 3.234(b)(2) applies only to positions with the City and County. Because TIDA is a separate legal entity from the City, section 3.234 by its own terms does not prohibit former Mayors and Board members from being employed by TIDA.
As explained above, in situations where the language of an ordinance is clear, the Commission need not look beyond the words of the ordinance to determine intent unless applying the literal meaning would not be in accord with the purpose of the ordinance. See, e.g., Dyna-Med, Inc., 43 Cal.3d at 1386-1387; Delaney, 50 Cal.3d at 798. Section 3.234(b)(2) has been a part of City law since at least the enactment of the 1932 San Francisco Charter.[1] This language, which is similar to language found in other jurisdictions at the time, appears to have been enacted to prohibit public officials from creating lucrative positions for themselves before they leave office. See, e.g., 11/12/02 Ethics Commission staff memorandum on post-employment restrictions at p. 10. You did not participate in creating TIDA or the position of its Executive Director. Accordingly, interpreting section 3.234(b)(2) in a manner that permits you to take employment as TIDA's Executive Director within one year of leaving the Board of Supervisors appears to be in accord with the purposes of the ordinance. As such, the Commission concludes that section 3.234(b)(2) does not preclude your appointment as TIDA's Executive Director.
I hope you find this letter responsive to your inquiry. Please contact me at (415) 581-2300 if you have any additional questions.
Sincerely,
Mabel Ng
Deputy Executive Director
S:\Conflicts of Interest\Waiver Requests\Hall 8.04\Hall opinion letter2.doc
[1] In 1932, this language appeared in section five of the San Francisco Charter. In the 1970's, this language was recodified into section 9.100 of the Charter, and in 1996, the language was recodified into section 15.108 of the Charter. Last November, at the suggestion of the Ethics Commission, the voters moved this language from the Charter into C&GC Code section 3.234.
City Attorney's Concurrence
City Attorney's Concurrence Letter
District Attorney's Response
November 4, 2004
Mabel Ng
Deputy Executive Director
San Francisco Ethics Commission
30 Van Ness Avenue, Suite 3900
San Francisco, CA 94102-6027
Re:
San Francisco Ethics Commission Formal Opinion to Anthony Hall
Dear Deputy Executive Director Ng:
In a letter dated July 30, 2004, former Supervisor Anthony Hall requested an Ethics Commission Opinion “on the effect [his] status as a member of the Board of Supervisors would have, if [he] were appointed to the post of Director of the Treasure Island Development Authority (TIDA).” Supervisor Hall specifically asked the Commission to rule on this general question: “Would my appointment to TIDA be in conflict with San Francisco’s Campaign & Governmental Code?” In response to Mr. Hall’s request, the Commission issued an opinion dated August 4, 2004 that seems to address only the application of San Francisco’s Campaign and Governmental Conduct Code (“C&GC”) Code section 3.234 to the situation.
At this point, the District Attorney can neither concur nor dissent with the Ethics Opinion to Mr. Hall because (1) there are insufficient facts, and (2) there are C&GC Code sections in addition to section 3.234 that must be considered in order to answer Mr. Hall’s question of whether his appointment to TIDA would conflict with the law. The additional facts and statutes are discussed below.
There Are Insufficient Facts Regarding The Analysis of C&GC Code Section 3.234.
The Ethics Opinion structures its central analysis on a conclusion that TIDA is a separate legal entity from the City.
Opinion Part A concludes that under C &GC Code section 3.234(a)(1) there is no permanent prohibition because Mr. Hall provided no facts that suggest that he plans to participate in any future actions on behalf of TIDA in which he participated personally and substantially while with the City. However, the Opinion does not provide factual support for this conclusion.
Opinion Part B concludes that Section 3.24(a)(1)(D)’s one year prohibition on communication by a former member of the Board of Supervisors with representatives of the City applies and precludes Mr. Hall from communicating for one year on behalf of TIDA with representatives of the City. The Opinion further concludes that the section
does not prohibit appointment to the position of Executive Director of TIDA but rather, Mr. Hall is merely prohibited from communicating on behalf of TIDA with representatives of the City. The Commission notes that it might waive the application of this section to any situation that would not create the potential for undue influence or unfair advantage, stating that Mr. Hall could request such a waiver. But the waiver issue remains unresolved and it is unclear how TIDA could function if Mr. Hall, as Executive Director of TIDA, does not communicate for one year with the City, either directly or indirectly.
In considering the applicability of Section 3.234(a)(2)(A), Opinion Part C concludes that the prohibition of employment with City contractors does not apply to Mr. Hall because Mr. Hall informed the Commission that he has not personally and substantially participated in the award on any contract between the City and TIDA within the last 12 months. There is no supporting factual analysis. The Opinion does not discuss nor provide the contracts awarded TIDA in the last 12 months, nor analyze the Board of Supervisors’ voting histories regarding TIDA.
In Part D of the Opinion, the Commission states that Section 3.24(b)(2) does not prevent Mr. Hall from serving as TIDA’s executive director because employment with TIDA does not constitute employment with the City and County of San Francisco. While we recognize that redevelopment agencies are separate entities that can sue and be sued (Pacific State Enterprises, Inc. v. City of Coachella (1993) 13 Cal.App.4th 1414, 1424), and it appears that TIDA is holding San Francisco property and functioning as a redevelopment agency and as a separate legal entity, the District Attorney does not have enough information to concur with the conclusion C&GC Code section 3.234(a)(1)(D) does not apply.
Analysis of Other Sections of the C&GC Code Is Required.
Additionally, at this point the District Attorney cannot concur or dissent with the Commission’s Opinion because we think that other portions of the Campaign and Governmental Conduct Code need to be considered. Most significantly, we believe that Mr. Hall’s central inquiry—whether his appointment to TIDA would be in conflict with the C&GC Code— requires examination of C&GC Code section 3.206.
Section 3.206 incorporates the California Political Reform Act (“PRA”) (California Government Code section 87100, et seq.) and California Government Code Section 1090, et seq. Determining whether Mr. Hall’s change in positions runs afoul of the PRA (and thereby C&GC Code Section 3.206 (a)) requires an analysis of whether Mr. Hall made or participated in making any decisions regarding TIDA in which he knew or had reason to know he had a financial interest. This, in turn, requires an examination of (1) when Mr. Hall knew or had reason to know that he would be employed by TIDA and (2) what actions, if any, the Board of Supervisors or Mr. Hall took vis-à-vis TIDA during that time period.
Similarly, to confirm that Government Code Section 1090 and C&GC Code Section 3.206(b) pose no obstacles, we would need to know when Mr. Hall became financially interested in TIDA and whether there were any contracts or modifications regarding TIDA made by the Board of Supervisors after that time.
Campaign & Governmental Conduct Code Section 3.206(c) also merits examination. That section holds that “No officer of the City shall make, participate in making, or otherwise seek to influence a governmental decision, affecting a person or entity with whom the officer or employee is discussing or negotiating an agreement concerning future employment.” To discern this section’s applicability, we would need to know when Mr. Hall was “discussing or negotiating an agreement concerning future employment” with TIDA, and whether Mr. Hall participated in any governmental decisions affecting TIDA during that period.
If provided with the above information, the District Attorney would be a better position to opine on the Ethic Commission’s August 4, 2004 letter.
Very truly yours,
KAMALA D. HARRIS
DISTRICT ATTORNEY
By:
Marc D. Katz
Assistant District Attorney