February 9, 2009
(Approved March 9, 2009)
Minutes of the Regular Meeting of
The San Francisco Ethics Commission
February 9, 2009
Room 408, City Hall
I. Call to order and roll call.
Chairperson Harriman called the meeting to order at 5:35 p.m.
COMMISSION MEMBERS PRESENT: Susan Harriman, Chairperson; Emi Gusukuma, Vice-Chairperson; Eileen Hansen, Commissioner; Jamienne Studley, Commissioner; Charles Ward, Commissioner.
STAFF PRESENT: John St. Croix, Executive Director; Mabel Ng, Deputy Executive Director; Richard Mo, Chief Enforcement Officer; Paul Solis, Investigator/Legal Analyst; Catherine Argumedo, Investigator/Legal Analyst.
OFFICE OF THE CITY ATTORNEY: Andrew Shen, Mollie Lee, Deputy City Attorneys.
OTHERS PRESENT: Jon Kaufman; Janan New; Steve Atkinson; Debra Stein; Kevin Heneghan; Anita Mayo; John Gevlin; Charles Marsteller; Joe Lynn; and other unidentified members of the public.
– Memorandum from Executive Director to Ethics Commission re: Proposed Changes to the Lobbyist Ordinance, February 4, 2009
– Memorandum from Executive Director to Ethics Commission re: Proposed Changes to the section 1.126 of CFRO, February 3, 2009
– Memorandum from Executive Director to Ethics Commission re: Proposed amendments to post-employment restrictions, February 4, 2009
– Draft Minutes of the January 12, 2009 Regular Meeting
– Executive Director's Report to the Ethics Commission for the Meeting of February 9, 2009
II. Public comment on matters appearing or not appearing on the agenda that is within the jurisdiction of the Ethics Commission
Joe Lynn stated that during the recent Hearing on the Merits, he did not believe the case was given a professional investigation. He stated that Mr. Hall outspent many other candidates during his 2004 campaign and that further investigation would have revealed inconsistencies in testimony. He stated that enforcement staff should be cut during the budget crisis. Mr. Lynn also stated that lobbyist reporting should be aligned with campaign finance reporting.
III. Consideration of possible amendments to the Lobbyist Ordinance
The Commissioners agreed to allow public comment on the item and to send Commissioner comments to staff for consideration at the next meeting.
Jon Kaufman, on behalf of Solem and Associates, stated that the proposed reporting requirements are onerous and that new regulations should focus on enforcement.
Janan New, on behalf of the San Francisco Apartment Association, stated that the Commission should take into consideration small entities with small budgets. She stated that the proposed changes would make reporting too difficult for groups like hers.
Steve Atkinson, on behalf of Luce, Forward, Hamilton, Scripps, stated that many of the proposed changes are burdensome, such as reporting dates of contact and the monetary value of making a contact. He stated that writing letters to various elected officials should not be considered making a contact.
Debra Stein, on behalf of GCA Strategies, stated that compliance with the new requirements would be far too burdensome and that the public interest would not be served by the changes. She stated that it currently takes 4-8 hours to comply with reporting, and that the changes would double that time. She also stated that there is no clear way to report a message that is not received by the intended contact and that it is not important to disclose how much lobbyists charge.
Kevin Heneghan, on behalf of the Sutton Law Firm, stated that lobbying is protected by the First Amendment and that all disclosure laws require a balancing test. He stated that staff has not shown specific reasons for the proposed changes. He stated that the public can currently receive this information via Sunshine requests. He also stated that no other jurisdiction in California requires monthly reporting or disclosure of dates of contacts.
Anita Mayo, on behalf of Pillsbury, Winthrop, Shaw, Pittman, stated that the Commission should not eliminate an exception concerning contact with officials in quasi-judicial roles. She also stated that the Commission should not eliminate an exception for quasi-judicial proceedings from regulation and continue with quarterly reporting. She stated that more than yearly lobbyist training would be a waste of time and resources unless there are amendments to the law.
John Gevlin, on behalf of Reuben and Junius, stated that he agreed with previous comments concerning the reporting of dates of contacts. He stated that staff has not justified why it proposes these changes.
Charles Marsteller stated that the Center for Governmental Studies approves of the changes except for the deletion of section 2.117(a). He stated that it is important to have a variety of reports from a variety of sources.
Commissioner Studley stated she would be interested to know whether the regulated community is comfortable with the changes not mentioned during public comment. Chairperson Harriman stated that e-mails to the Commission should also address changes that are supported.
Commissioner Hansen asked those attending the current meeting to attend next month's meeting.
IV. Consideration of proposed amendments to section 1.126 of the Campaign and Governmental Conduct Code
Deputy Director Ng discussed the memo issued to the Commission. Commissioner Ward asked why, given the staff's explanation for the changes, there is no exception for members of the board of nonprofits instead of excluding board members altogether. He also asked why staff believes the scope of the law is currently too broad. Ms. Ng responded that the law is too broad because the law currently requires too many notifications to be made before a negotiation begins. She also stated that exempting nonprofit board members may be a good idea. Commissioner Ward also stated that he was concerned about the recommendation to increase the percentage of ownership interest threshold in a party from 20 to 50 percent because a controlling interest in a large corporation could be 20 percent.
Chairperson Harriman stated that there should be a bright line test addressing when negotiations begin. Commissioner Ward responded that there is a period of time when an entity decides to enter into contract negotiations. Chairperson Harriman stated that the law must be enforceable and that attempting to define the commencement of negotiations is too difficult. Ms. Ng stated that there is an existing regulation attempting to define the commencement of negotiations.
Commissioner Gusukuma stated that governments usually award contracts through an RFP process and that negotiations do not typically start until the bid has been submitted. She stated that she was unclear as to what contracts would be affected by the changes. Executive Director St. Croix stated that many contracts would be affected and that staff is currently trying to narrow the scope to aid enforcement of the law.
Commissioner Studley stated that there is a public perception component to the discussion as well.
Commissioner Hansen stated that she generally disagrees with the proposed changes and does not think nonprofit board members should be exempted. She also inquired how much staff time it currently takes to enforce the law. Executive Director St. Croix stated that staff has not started fully enforcing the law because in its current form, it presents many logistical problems.
Chairperson Harriman stated that staff should provide more information before the Commission begins to amend the law.
Charles Marsteller stated that amendments to CFRO should strengthen the law rather than weaken it. He stated that he believes a database of City contracts exists.
Kevin Heneghan stated the current law makes it difficult for campaigns to comply. He stated that the current definition of negotiation commencement is too vague for compliance and that staff should create a list for tracking contract negotiations and applicable restrictions.
Anita Mayo stated that language concerning "boards on which the elected officer serves" should be deleted. She also stated that the Commission should reconcile the prohibited periods for making and receiving contributions.
V. Consideration of proposed amendments to section 3.234 of the Campaign and Governmental Conduct Code
Deputy Director Ng discussed the memo issued to the Commission. Commissioner Hansen stated that she did not believe, in proposed change #4, attorneys should be exempt from the post-employment ban. Chairperson Harriman stated that the California Supreme Court has declared that the state has the sole authority to regulate the practice of law.
Commissioner Ward questioned whether practicing attorneys would be routinely hired to appear before boards and commissions. Deputy City Attorney Shen stated that the exemption has been crafted as narrowly as possible and that it is unclear that those with matters before a board or commission would seek practicing attorneys to represent them over non-attorneys.
Chairperson Harriman stated that she would rather exempt attorneys "actively" engaged in the practice of law and that it is clear in most scenarios when someone is or is not engaged in the practice of law. Commissioner Hansen stated that she did not know how staff would enforce the provision.
The Commissioners agreed on the remaining proposed changes.
Charles Marsteller stated that he supported the motion and that the changes involve a voter-passed initiative so that the law should not be weakened.
Motion 09-02-09-1 (Ward/Gusukuma) Moved, seconded and unanimously passed (5-0) that the Ethics Commission approve changes #1-3 and #5.
VI. Closed session
Motion 09-02-09-2 (Gusukuma/Ward) Moved, seconded and unanimously passed (5-0) that the Ethics Commission go into closed session.
VII. Discussion and vote regarding closed session action and deliberations
Motion 09-02-09-3 (Gusukuma/Studley) Moved, seconded and unanimously passed (5-0) that the Ethics Commission keep closed session deliberations confidential.
Executive Director St. Croix announced settlements in two cases.
VIII. Minutes of the Commission's regular meeting of January 12, 2009
Executive Director St. Croix stated that Charles Marsteller submitted comment via email on agenda item VI. Commissioner Studley noted a typographical error and asked that her comments be expanded in paragraph 12 of agenda item VI.
Motion 09-02-09-4 (Hansen/Gusukuma) Moved, seconded and unanimously passed (5-0) that the Ethics Commission adopt the minutes as amended.
IX. Executive Director's Report
Executive Director St. Croix stated that staff will begin scheduling meetings with the Sunshine Ordinance Task Force. He also stated that staff is currently reviewing possible changes to the public financing program.
Commissioner Hansen inquired about a budget/finance committee and whether the Executive Director had discussed the issue with the Chairperson. Chairperson Harriman stated that she has not considered the issue. She stated that her personal view is that the Commission is a small body and that budget issues should be considered by the full Commission. Commissioner Hansen stated that she continued to believe that a budget committee would be useful.
Commissioner Hansen stated that a waiver chart contained in the Executive Director's Report was helpful and that after reviewing the numbers, since 2004-2005 the Commission has waived 66% of total fines assessed, amounting to $1.27 million.
X. Election of Chairperson and Vice-Chairperson
Chairperson Harriman thanked the Commissioners for their support and hard work during her tenure as Chairperson.
Motion 09-02-09-5 (Gusukuma/Harriman) Moved, seconded and unanimously passed (5-0) that the Ethics Commission elect Jammienne Studley as the Commission's Chairperson.
Motion 09-02-09-6 (Gusukuma/Studley) Moved, seconded and unanimously passed (5-0) that the Ethics Commission elect Susan Harriman as the Commission's Vice-Chairperson.
Commissioner Studley thanked the Commission and stated that she looked forward to serving as Chairperson. Commissioner Ward stated that Chairperson Harriman completed a fantastic tenure as Chairperson during sometimes complicated matters.
XI. Items for Future Meetings
XII. Public comment on matters appearing or not appearing on the agenda that is within the jurisdiction of the Ethics Commission
Motion 09-02-09-7 (Gusukuma/Studley) Moved, seconded and unanimously passed (5-0) that the Ethics Commission adjourn.
The meeting was adjourned at 8:17 p.m.
Investigator/ Legal Analyst