(Approved May 11, 2009)
Minutes of the Regular Meeting of
The San Francisco Ethics Commission
April 13, 2009
Room 408, City Hall
I. Call to order and roll call.
Chairperson Studley called the meeting to order at 5:34 p.m.
COMMISSION MEMBERS PRESENT: Jamienne Stanley, Chairperson; Susan Harriman, Vice-Chairperson (excused at 9:13 PM); Emi Gusukuma, Commissioner; Eileen Hansen, Commissioner; Charles Ward, Commissioner.
STAFF PRESENT: John St. Croix, Executive Director; Mabel Ng, Deputy Executive Director; Catherine Argumedo, Investigator/Legal Analyst.
OFFICE OF THE CITY ATTORNEY: Jon Givner, Deputy City Attorney.
OTHERS PRESENT: Enrique Pearce; Paul Melbostad; Anita Mayo; Charles Marsteller; Joe Lynn; Debra Stein; Emily Pears; and other unidentified members of the public.
MATERIALS DISTRIBUTED:
– Informal advice letter issued on March 23, 2009 to Enrique Pearce, regarding Campaign and Governmental Conduct Code section 1.118;
– Letter from Mr. Pearce on April 8, 2009, responding to informal advice letter issued by the Ethics Commission;
– Draft formal advice letter regarding the application of the compensated advocacy ban (San Francisco Campaign and Governmental Conduct Code section 3.224) to a member of the Board of Examiners (Patrick Buscovich);
– Draft staff report recommending that the Commission grant Mr. Buscovich a waiver, should the Commission determine that a member of the Board of Examiners is subject to the compensated advocacy ban;
– Supplemental Memorandum from the Executive Director to Ethics Commission, dated April 7, 2009, regarding the proposed changes to the Lobbyist Ordinance;
– Memorandum from Executive Director to Ethics Commission, dated March 4, 2009, regarding the proposed changes to the Lobbyist Ordinance;
– Written Comments Received from Members of the Public regarding the proposed changes to the Lobbyist Ordinance;
– Lobbyist Ordinance Draft, March 4, 2009 version;
– Lobbyist Ordinance Draft, March 5, 2009 version;
– Draft Minutes of the March 9, 2009 Regular Meeting;
– Executive Director's Report to the Ethics Commission for the Meeting of April 13, 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 the minutes from the March 2009 meeting were not clear. He asked for further clarification on any amendments made to decision points, rather than saying simply "as amended." He commented on the Commission's advice to Mr. Pearce and stated that the contributors should not be liable for any outstanding debt a committee may have. He suggested future discussion and changes to the current law.
Commissioner Hansen stated that she had the same concern regarding the minutes. Mr. Lynn added that the minutes are otherwise excellent and Mr. Solis is doing a great job.
Jeff Ente stated that the Ethics Commission has never found merit in any referral from the Sunshine Ordinance Task Force. He stated that there is a serious problem and the problem lies on the side of the Ethics Commission. He stated that he filed a complaint after hearing a Supervisor say something about e-mails he had received. He stated that the Supervisor was not telling the truth and failed to provide e-mails. He stated that the Executive Director dismissed the complaint and stated that the Supervisor could only provide one e-mail. He stated that the Ethics Commission has a sworn responsibility to the public trust and that he had independent corroboration from an ABC news person regarding the Supervisor's comments. He asked that the Commission exercise proper oversight. Mr. Ente also submitted comments in writing.
Commissioner Hansen stated that the Ethics Commission and the Sunshine Ordinance Task Force will be holding a joint meeting on April 24 from 2 PM to 4 PM and she encouraged Mr. Ente to attend the meeting.
III. Consideration of informal advice issued to Mr. Enrique Pearce regarding Campaign and Governmental Conduct Code section 1.118.
Enrique Pearce stated that he works for Left Coast Communications and that he requested informal advice from the Commission regarding section 1.118. He stated that he did not agree with the conclusion that a candidate's committee, and not the candidate himself, is responsible for the candidate's debt. He asked how vendors, who are owed money after a publicly-financed candidate has already spent $5,000 of his own money on the campaign, are to be paid. He stated that these candidates would be able to use the law and escape liability. He stated that he had previously received advice from Commission staff that the candidate himself would be liable in similar circumstances and stated that he is unclear how the Commission has changed positions.
Chairperson Studley stated that procedurally, the advice has been issued and stands, unless the Commission votes to change the Executive Director's advice. Mr. Pearce stated that he asked the Executive Director to reconsider his decision. Commissioner Harriman stated that it is an unfortunate situation and it is also what the law requires. She stated that for some time, he will be unable to collect what is owed, but if the debts are not paid within 180 days, then there are penalties that may be imposed on the candidate. She also stated that once penalties may be imposed, then there will be more pressure on the candidate to pay the debts.
Commissioner Hansen stated that a fair reading could impose liability to a candidate and the committee. She stated that section 1.118 was drafted so that people would not amass massive accrued debt. She asked that the letter state that both the candidate and committee are liable.
Commissioner Ward asked whether Mr. Pearce had an informal opinion letter or other writing from staff stating that the candidate is personally liable. Mr. Pearce stated that he did not have anything in writing, but that he had been advised many times regarding several campaigns. Commissioner Ward asked who gave him the advice and Mr. Pearce stated that he had been advised by Mr. Luby and Ms. Ng.
Commissioner Hansen stated that the Commission should address the inconsistency and allow for a candidate to be liable along with the campaign committee. Commissioner Harriman stated that a problem is that a candidate in these circumstances is not allowed to contribute more than $5000 to his/her own campaign. She stated that in this case there is liability that will be imposed and will cause the candidate to have a fundraiser. She stated that the contradiction in the law is something to address in the future through legislation.
Commissioner Ward asked what defense the candidate would have if the candidate paid the debt and exceeded the $5,000 limit. Mr. Pearce stated that he did not know what the defense would be and stated that the vendor should not be responsible for the debt. Mr. Pearce encouraged the Commission to revisit the issue in the future and asked that the Commission apply liability to the candidate.
Chairperson Studley asked City Attorney Givner what the consequences would be if a candidate contributed more than $5,000 to his/her own campaign. Mr. Givner stated that it would be a violation of CFRO and that a candidate could face a penalty of $5,000 per violation or three times the amount that the candidate exceeded the limit, whichever is greater.
Commissioner Gusukuma then stated that the result was not fair and that she was not comfortable with staff's conclusion that "candidate" refers only to the committee and not the individual. She agreed with Mr. Pearce's argument that the individual candidate should also incur liability for debts. However, she agreed with the result in this case because either the candidate or the committee would have the same defense in not willfully violating a separate law by repaying a debt. Commissioner Hansen agreed with Commissioner Gusukuma's statements and added that the Commission could redraft the letter and make its statements narrower. She stated that the letter is too broad and that it should not say that the candidate is not liable. Mr. St. Croix stated that the Commission issued a statement because Mr. Pearce asked for one. He stated that the Commission would deal with the issue of amending CFRO before the next publicly financed race. Commissioner Harriman stated that, under these circumstances, only the committee is liable. Commissioner Ward stated that the opinion given in the letter is not unreasonable and the Commission should address the conflict in the law.
Chairperson Studley stated that Mr. Pearce could withdraw the request for a letter, leave the letter as it is written, or ask staff to come to a different conclusion. Mr. Pearce stated his disappointment. He stated that section 1.118 states that the candidate and committee are both liable and then asked that the Commission withdraw the informal opinion. Mr. Givner stated that the letter was now a matter of public record. He also stated that informal advice has no binding effect. Commissioner Hansen suggested stating there was no consensus regarding the advice.
Chairperson Studley stated that the law should be addressed in the future.
Motion 09-04-13-1 (Hansen/Gusukuma) Moved, seconded and failed (2-3; Ward, Harriman, and Studley dissenting) that the Ethics Commission withdraw the informal advice letter.
Public Comment:
Joe Lynn suggested that the Commission should not advise anything in this case. He stated that people will use the advice and that the advice could be misinterpreted by the community. He suggested that the letter state that liability may be imposed elsewhere. He also suggested withdrawing the letter because the Commission should not issue opinions about third parties' potential liability.
Charles Marsteller asked why the letter was written and why the Commission could issue no advice.
IV. Consideration of formal advice letter regarding the application of the compensated advocacy ban (San Francisco Campaign and Governmental Conduct Code section 3.224) to a member of the Board of Examiners.
Mr. St. Croix stated that Patrick Buscovich, the appointee to the Board of Examiners, is not present. He stated that Mr. Buscovich requested a waiver and that a member of the Board of Examiners is not identified in Administrative Code as a city officer. Mr. St. Croix stated that if the member of the Board of Examiners does not meet the definition, then the compensated advocacy ban does not apply and Mr. Buscovich would not need a waiver. Mr. St. Croix stated that if the Commissioners do not agree, then staff's alternate suggestion is for the Commission to grant the waiver. Commissioner Hansen agreed with the advice letter and stated that Mr. Buscovich did not need a waiver. She stated that members of the Board of Examiners should be City officers.
Motion 09-04-13-2 (Harriman/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission approve the formal advice letter stating that Mr. Buscovich is not subject to the compensated advocacy ban.
Public Comment:
None.
V. Consideration of possible amendments to Lobbyist Ordinance.
Chairperson Studley stated that the next decision point under consideration was decision point 13. Deputy Director Ng stated that the Commission had completed through decision point 14, since the Commission decided to bypass decision point 13 until making a decision about decision points 15-17. Chairperson Studley suggested looking at decision points 15 and 16 together.
DECISION POINTS 15 – 17
Ms. Ng stated that at the March meeting, the Commission voted 0-5 to reject decision point 15 and that the Commissioners wanted to think about monthly reporting. Chairperson Studley stated that the reports are currently required quarterly and without any action that requirement would remain.
Commissioner Hansen proposed 24-hour reporting as there is a compelling interest by the public to have a full extent of reporting available as timely as possible. She stated that without 24-hour reporting, the public would not know who or what is influencing the legislators. She suggested making this decision in concert with electronic reporting.
Commissioner Ward stated his support for 72-hour reporting. He stated that he arrived at this decision because all spokespeople from the lobbyist community were opposed to the monthly requirement and more detailed information and he does not think they are interested in the transparency that the Commission seeks. He stated that it is unreasonable to suggest that monthly reporting is burdensome. He agrees with staff that lobbyists would have less to report.
Commissioner Harriman stated that she is unsure what frequency of reporting she supports. She does not support 24 or 72-hour reporting. She stated that she would like to know what the compelling interest would be for more frequent reporting, as lobbyists have a First Amendment right to talk to government officials. She stated that having detailed information in reports is more important than how often it is delivered to the public. She also stated that she does not think that monthly reporting would be burdensome. Commissioner Hansen stated that she believes there is a compelling interest in reporting. She stated that the public should have the information of when and how often legislators are being contacted by lobbyists, especially when some decisions are made quickly.
Mr. St. Croix stated that staff asked for monthly reporting and would like to have some time to see how it works. He stated that staff would like to minimize the reporting burden on the lobbyists and that staff's ultimate goal would be 72-hour reporting. Mr. St. Croix also stated that the e-filing system will be new.
Motion 09-04-13-3 (Gusukuma/Harriman) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 15, provided that the Commission revisit the item six months from implementation for further discussion.
Public Comment:
Charles Marsteller stated that the reporting schedule should be analogous to CFRO. He stated that the Political Reform Act ("PRA") has a trigger for 24-hour reporting, with a dollar threshold attached. He stated his approval for the Commission's decision to revisit within six months. Chairperson Studley stated that the special reporting requirements are easier to understand within the PRA because the date of election is a fixed point, and asked Mr. Marsteller what date to use as there are many decisions made. Mr. Marsteller suggested using the Brown Act trigger. He stated that three days before a legislative body makes a decision, the body is required to notify the public.
Paul Melbostad, former Ethics Commissioner and member of Harvey Milk Democratic Club, stated that if 24-hour or 72-hour reporting is not possible, then the Commission should make all attempts to have lobbying activity reported as quickly as possible.
Anita Mayo stated that, under the First Amendment, lobbying is subject to reasonable regulations. She stated that no jurisdiction in California has monthly reporting and that most require quarterly reports. She stated that many of her clients require legal review of any reporting prior to filing with the Commission. She suggested that City officials be required to release calendars with a summary of decisions made and the identity of each person met.
Joe Lynn agreed with Ms. Mayo's comment regarding the release of city officials' calendars. He stated that the compelling interest of reporting was to know who legislators meet with before a decision is made and not after. He stated that electronic reporting would be easier on a lobbyist rather than paper ones filed quarterly.
Debra Stein from GCA Strategies stated that 72-hour reporting or 24-hour reporting would be an overwhelming burden on speech. She stated that there would be thousands of reports pouring into the Ethics Commission. She stated that this requirement would be an invitation for people to be out of compliance and that the decision-makers calendars are available. She stated that she was in the hospital last year for five days and she would have been non-compliant during that time because she does not have staff. She stated that there are a lot of neighborhood activists and homeowner's associations and smaller groups that hire lobbyists and choose not to register. She stated that these lobbyists are not complying with the law and staff does not seem to be able to enforce what is currently required. She asked the Commission not to commit to 24-hour or 72-hour reporting.
Commissioner Hansen stated that if Ms. Stein was in the hospital, she would not be out of compliance during those days under the 24-hour reporting proposal, as she would not have any contacts to report. She stated that if there was no activity, there would be no obligation to report. Ms. Stein stated that she did have contacts while she was in the hospital. Commissioner Hansen stated that if Ms. Stein was able to make contacts while in the hospital, then she would be able to report. Ms. Stein stated that she would not have 24-hour access to computers.
Commissioner Hansen then asked whether Ms. Stein had said that there are lobbyists who choose not to register with the Commission because they do not want to burden staff. Ms. Stein stated that individual homeowners may contact lobbyists, but that she did not represent those projects. She stated that there are other lobbyists in the City who represent these projects. She stated that these people do not file with the Ethics Commission.
Commissioner Ward asked when she would report to her client that she spoke with a Supervisor regarding his vote on a matter before the Board. Ms. Stein stated that there was no fixed time. She stated that sometimes she speaks with clients every day and sometimes she speaks with them every two weeks. Commissioner Ward asked if an item would be voted on by Wednesday, when would she speak with her client. Ms. Stein stated that she had different contacts with different clients.
Emily Pears stated that many people have paid staffers and have the resources to comply with more frequent reporting. She stated that many lobbyists work for non-profits or work from home and would not have the resources available to report.
Commissioner Hansen asked what support there is among the Commissioners for 24-hour or 72-hour reporting. Commissioner Ward stated that it was a reasonable request from staff to allow them the time to see how the new filing system works.
The Commission took a break at 7:22 PM, before going forward with decision point 13.
The Commission returned from break at 7:34 PM.
Chairperson Studley stated that the Commission will stop discussion of this item by 9 PM. She stated that the item, if not completed, would be continued to the next meeting.
DECISION POINT 13:
Motion 09-04-13-4 (Harriman/Hansen) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 13, without discussion.
Public Comment:
None.
DECISION POINT 18
Motion 09-04-13-5 (Hansen/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 18, without discussion.
Public Comment:
Anita Mayo stated that the requirement to disclose each contact date is a burden on lobbyists. She stated that the information is already available and that this requirement does not provide any meaningful information to the public. She also stated that there is no similar law in or outside of California. She reminded the Commission that when the Ordinance was amended in 1997, there was a proposal to include the total number of contacts, but it was decided to be an undue burden and the amendment was rejected.
Commissioner Hansen stated that the date of contact is crucial information and that the burden should be on both the city officials and lobbyists. Chairperson Studley asked what the consequences would be if someone made a technical error on the report. Mr. St. Croix stated that it may be subject to a complaint, but a minor infraction would be treated as such.
Paul Melbostad stated that the date of contacts is essential information.
DECISION POINT 19
Motion 09-04-13-6 (Hansen/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 19, without discussion.
Public Comment:
None.
DECISION POINTS 20 & 21
Referring to page 17 of the March 4, 2009 version of the proposed Lobbyist Ordinance amendments, Commissioner Hansen asked why an address, phone number, and e-mail address are not requested for all political contributions delivered by lobbyists. Ms. Ng stated that addresses are listed for campaign contributors and may be added as a requirement for the lobbyist to report, but e-mail addresses are not required. Ms. Ng suggested adding street addresses as a requirement. Commissioner Hansen stated that e-mail may be a better way to reach a contributor. Mr. St. Croix stated that there may be privacy concerns, since the Commission staff usually redacts e-mail addresses from public view. He stated that unless the state determines that e-mail addresses must be disclosed, the Commission will keep it as is.
Commissioner Hansen then asked how frequently lobbyists would be required to update contact information under subsection 9 on page 18 of the proposed amendments. Mr. St. Croix stated that the requirement would now be monthly. He stated that currently the requirement is to update contact information on at least a quarterly basis. Commissioner Harriman noted that this issue is not related to decision points 20 or 21.
Commissioner Hansen then stated that she did not support staff's recommendation that lobbyists be no longer required to disclose information about donations to ballot measure committees. Commissioner Ward asked why staff made this recommendation. Mr. Givner stated that it was a policy recommendation based on staff's determination that the information would not be useful to the public.
Chairperson Studley then separated decision points 20 and 21.
Motion 09-04-13-7 (Hansen/Harriman) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 20, amending the requirement to include the contributor's mailing address.
Public Comment:
None.
DECISION POINT 21
Mr. St. Croix stated that the recommendation is simply a policy recommendation to simplify things.
Motion 09-04-13-8 (Hansen/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission not adopt staff's recommendation on decision point 21.
Public Comment:
Paul Melbostad stated that he agreed with Commissioner Hansen. Mr. Givner stated that a candidate-controlled committee is defined in state law, and is generally one where the candidate is the person running the committee.
DECISION POINT 22
Motion 09-04-13-9 (Hansen/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 22, without discussion.
Public Comment:
None.
DECISION POINT 23
Chairperson Studley asked whether the new fees would be per individual lobbyist or per lobbyist organization. Mr. St. Croix stated that the fees would be per individual lobbyist and not organization. Commissioner Hansen asked why the Commission is seeking to lower annual fees. She asked what the Commission's enforcement power would be if a lobbyist is not officially registered with the Commission, due to failure to pay annual fees. Mr. St. Croix stated that staff would proceed with an enforcement action, as it would now. Mr. St. Croix stated that enforcement has proven difficult regarding finding unregistered lobbyists, as no one has been able to provide evidence of any.
Commissioner Hansen stated that lowering the fees will not be much of an incentive for people to register. Commissioner Harriman stated that lowering the fees would reward compliance from those who have complied and suggested that the Commission should not charge more than what it costs to administer the program.
Motion 09-04-13-10 (Harriman/Ward) Moved, seconded and passed (3-2; Hansen and Gusukuma dissenting) that the Ethics Commission adopt staff's recommendation on decision point 23.
Public Comment:
Mr. Melbostad stated that there are not many people in the City that are not registering as lobbyists. He stated that labor unions, such as the one on Franklin Street, do not register and the deterrent is not because of the $500 fee. He suggested that reducing the fee could result in backlash to the Commission.
Commissioner Hansen agreed with former Commissioner Melbostad. She stated that reducing the fees sends a bad message in a budget crisis.
DECISION POINTS 24-26
Motion 09-04-13-11 (Hansen/Harriman) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision points 24-26, without discussion.
Public Comment:
None.
DECISION POINT 27
Motion 09-04-13-12 (Hansen/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 27, with the correction of "more than $25" as opposed to "$25 or more."
Public Comment:
Anita Mayo suggested a correction of the language of the decision point. She stated the prohibition should be on gifts worth "more than $25" rather than "$25 or more." Mr. St. Croix agreed that staff would make that correction in the language.
DECISION POINT 28
Motion 09-04-13-13 (Hansen/Harriman) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 28, without discussion.
Public Comment:
Anita Mayo stated that attending trainings is a reasonable requirement, but suggested that, instead of mandating additional trainings in Executive Director's discretion, the amendment could require trainings whenever substantive changes are made to the lobbying laws or every 3-4 years as a refresher training, as it is on the state level.
Mr. St. Croix stated that in general the Executive Director would not require trainings unless there were substantial changes in the law. He stated that this amendment would also allow for the Executive Director to call for training when the quality of the reporting deteriorates.
DECISION POINT 29
Commissioner Hansen stated her support for the current ban. She stated that she would not support removing the ban, as campaign consultants should not engage in lobbying. Commissioner Harriman asked the reason for removing the ban. Mr. St. Croix stated that if the commissioners did not want to change the policy, they should follow Commissioner Hansen.
Motion 09-04-13-14 (Hansen/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission not adopt staff's recommendation on decision point 29.
Public Comment:
Mr. Melbostad agreed with Commissioner Hansen.
DECISION POINT 30
Commissioner Hansen made a motion to accept staff's recommendation for decision point 30. Commissioner Gusukuma asked what type of circumstances staff anticipates that it would need to ask lobbyists for this type of information, other than an enforcement action. Mr. St. Croix stated that the Commission has subpoena authority, but that a subpoena is a last resort. Commissioner Harriman asked how staff reached the recommendation of a 10-day deadline. Mr. St. Croix stated that 10 days is general practice for this type of request. Commissioner Harriman stated that the deadline for discovery requests in litigation is 30 days. Commissioner Gusukuma stated that there is a potential for abuse and does not agree with staff's recommendation.
Chairperson Studley stated that there was uncertainty among the Commissioners regarding this decision point. She stated there was a motion offered, but no second. Commissioner Hansen withdrew her motion. Chairperson Studley asked staff for more information so that a determination may be made at a later date.
Commissioner Hansen asked to separate decision points 31-35.
DECISION POINT 31
Commissioner Hansen asked about electronic reporting and why proposed section 2.140(a) on page 27 of the proposed amendments states that the Commission "may require paper filing, electronic filing, or both." Commissioner Hansen asked whether January 1, 2010 would be the implementation date of electronic filing and these new amendments and whether, if so, there needs to be an option to file by paper. Ms. Ng stated that the intent is to accept electronic filing, but that in the unlikely event that something does not work with the electronic filing system, the option of paper filing must be available to lobbyists. Ms. Ng stated that paper filing is a necessary backup, but it is the intent of the Commission to move forward with e-filing only. Commissioner Hansen stated her support for decision points 31 and 32.
Commissioner Harriman stated that monthly reporting would not be available until the Commission has implemented the electronic filing system, so why not ask for only e-filing. Mr. St. Croix stated that this option permits staff to designate when electronic filings begin. He stated that if staff chooses to have both paper and e-filing on January 1, 2010, then it may, under the proposed ordinance. Commissioner Hansen stated that she would like to move forward with e-filing on January 1. Ms. Ng stated that this language has been inserted to deal with all possible scenarios, where something happens to the e-filing system, so that lobbyists remain required to file paper filings in the interim. Commissioner Harriman stated that all of these new requirements are to be implemented for electronic filing and if the system does not work, then it is not fair to ask lobbyists for all of this information in paper format. Chairperson Studley stated that there could be issues with the e-filing system and paper filings should be permitted.
Mr. St. Croix suggested changing the language of section 2.140(a) so that it reads, "[t]he Ethics Commission shall prescribe the format for the submission of all information required by this Chapter." He also stated that decision point 44 is regarding the effective date of the amendments and whether the date will be January 1, 2010.
Motion 09-04-13-15 (Harriman/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission adopt decision point 31 (section 2.140(a)), with the changes proposed by the Executive Director.
Public Comment:
None.
DECISION POINT 32
Motion 09-04-13-16 (Harriman/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 32, without discussion.
Public Comment:
None.
DECISION POINTS 33 & 34
Commissioner Harriman moved to adopt staff's recommendations on both decision points. Commissioner Hansen stated that she would like the Commission to be proactive and not wait for a request from the Board of Supervisors or the Mayor's office. She stated that this information is useful to the public and it is appropriate to report to the Board and Mayor, even without a request. Chairperson Studley stated that if the Commission wanted to issue a report, it could do so. Mr. St. Croix stated that the Commission could direct staff to issue a report.
Commissioner Hansen commented on language ("available on the Commission's website") in the third paragraph of page 15 of staff's memorandum. She stated that the information should be updated in a timelier manner. Mr. Givner stated that, with the electronic filing system, any filings lobbyists make will be updated instantly on the Commission's website. He stated that the information will be automatically online and the public is free to search and generate reports from the information filed. Mr. St. Croix added that when the lobbyist reports are generated now, the reports are sent to a media distribution list and available on the website.
Motion 09-04-13-17 (Harriman/Gusukuma) Moved, seconded and passed (4-1; Hansen dissenting) that the Ethics Commission adopt staff's recommendation on decision points 33 & 34.
Public Comment:
Mr. Melbostad stated that the Commission should retain independence. He stated that in his experience, neither the Board nor the Mayor wanted to hear from the Commission.
DECISION POINT 35
Commissioner Harriman stated that she would like to impose a deadline for the Commission's responses to requests from the Mayor or the Board of Supervisors. Mr. St. Croix suggested 30 days and Ms. Ng agreed. Ms. Ng stated that the requester would give a deadline and the Commission always responds within the time frame. Chairperson Studley suggested giving the response "within the given time limit, or if no time limit given, then within 30 days of the request."
Commissioner Ward stated that the Commission should protect itself from an unreasonable time limit. Ms. Ng stated that if the time limit is not reasonable, the Commission may ask for an extension.
Motion 09-04-13-18 (Ward/Harriman): Moved, seconded and passed (5-0) that the deadline for a response to a request from the Mayor or the Board of Supervisors shall be provided within 30 days from the date of receipt of request.
Public Comment:
None.
Before moving to the next set of decision points, Commissioner Hansen asked about the deleted requirement (currently section 2.140(j) on page 29 of the proposed amendments) mentioned in the first paragraph on page 16 of staff's memorandum. She asked why staff proposed deleting the requirement. Mr. St. Croix stated that there are currently quarterly workshop trainings and if no one signs up, then the training is cancelled, which happens about 90% of the time. Commissioner Hansen suggested making trainings available online. Chairperson Studley stated that once online training is available, then the quarterly requirement would be satisfied. Mr. St. Croix suggested leaving section 2.140(j) in the Ordinance. Mr. St. Croix stated that as there is no decision point, there is no action taken by the Commission and the language of section 2.140(j) will not be deleted.
DECISION POINTS 36-38
Chairperson Studley suggested voting on each decision point in this group separately.
Commissioner Harriman asked about the goal of decision point 38. Mr. Givner stated that currently lobbyist organizations are required to register as lobbyists, but with the amendment, organizations will no longer register, even though they may file on behalf of their lobbyist employees. Under the proposal, the Commission will have the authority to impose fines on individuals and organizations. He stated that each individual lobbyist has an obligation and incentive to file as well. He stated that Commission would be able to hold the employee liable.
Commissioner Hansen suggested changing lines 9-10 on page 31 of the proposed amendments to allow the Commission, as well as the Executive Director, to make a determination regarding the amount of late fines or penalties imposed under the Ordinance.
Motion 09-04-13-19 (Harriman/Ward) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 36.
Public Comment:
Anita Mayo stated that the new section also holds a person liable if they knowingly or negligently violate a provision of the Lobbyist Ordinance. She stated that there should be a section for making amendments to a report, as people often make mistakes. She suggested that anyone who "knowingly" violates the Chapter (as stated in section 2.145(b) on page 29 of the proposed amendments) should be liable in administrative proceedings, but that those who negligently violate the Chapter should be permitted to file an amendment. She stated that there was no current mechanism to amend.
Commissioner Harriman stated that there is nothing mentioned in the decision points about negligence. Chairperson Studley asked staff to look at this provision (section 2.145(b)) so that the Commission may discuss later. Commissioner Harriman suggested that this provision be a separate decision point.
Chairperson Studley requested that staff address the standard in section 2.145(b), starting at line 19, and anywhere else it is mentioned in the draft Ordinance.
Chairperson Studley states that the Commission will stop discussion on this item, having concluded decision point 36, on the Lobbyist Ordinance as it is 9 PM. Chairperson Studley moved to the next item on the agenda.
VI. Minutes of the Commission's March 9, 2009 regular meeting.
Chairperson Studley asked staff to clarify the "as amended" sections of draft minutes, in the discussion. Ms. Argumedo asked whether the Commission would prefer the actual text inserted in the minutes. Ms. Ng suggested incorporating the amended language in the items mentioned (decision points 2 and 3). Commissioner Hansen asked that the minutes reflect a clear version of what action the Commission took on those particular items. She also noted that from her notes, items 2, 3, 4, and 8 were amended in the meeting and were not so noted in the minutes. Commissioner Hansen also stated that the minutes stated there was no Commission comment on decision point 14, on page 6. Ms. Argumedo stated that staff listened to the tapes and the minutes are correct in stated there was no Commission comment. Chairperson Studley asked that the minutes be resubmitted with all additions and corrections at the next meeting and suspend any action until that time.
Public Comment:
None.
VII. Executive Director's Report.
Mr. St. Croix stated that there is no news on the budget and the potential 25% cut remains in effect for the Commission. He also stated that staff will perform audits of the 19 public financing candidates. He stated that the issue presented by Mr. Pearce needs to be considered in future legislation, as there are five public finance candidates with outstanding accrued debt. He updated the Commission on the recent SEI annual filings and stated that the SEI audits are still ongoing. [Commissioner Harriman excused herself at 9:13 PM.]
Commissioner Hansen asked what the figures were for the budget and proposed cuts. Mr. St. Croix stated that the operating budget for this year was $2.2M and that the proposed 25% cut would be approximately $400,000. He stated that he hopes the cut will be less than $400,000, but he does not know what the Mayor will decide.
Commissioner Hansen then asked whether Tony Hall has paid the $6,000 penalty. Commissioner Gusukuma stated that she received an e-mail saying that Mr. Hall has filed a writ of mandate that the Ethics Commission and its members have exceeded its authority. Commissioner Hansen concluded that Mr. Hall has not paid anything.
While asking about late fees and forfeitures, Commissioner Hansen stated that that the Treasurer should be more involved and take fines collection more seriously. Commissioner Hansen then stated her concern regarding the decision to stop performing random audits in 2008. Mr. St. Croix stated that the public finance audits take priority, but that the Commission reserves the right to do targeted audits. If there is suspicion, from staff review or from a complaint, the Commission will perform an audit.
Commissioner Hansen then asked about the 4th quarter Lobbyist report. She stated that she saw Mitch Katz listed as retained by the Golden Gate Restaurant Association and that there was a possible conflict with his position as the Director of Public Health and the Association's agenda. [NOTE: After reviewing the lobbyist filings, staff has confirmed that Mitch Katz was listed as a contact and not an employee of the Golden Gate Restaurant Association.]
Commissioner Hansen then asked about how Patricia Breslin could be a City official, as Taxi Commissioner, and work for the Hotel Council of San Francisco.
Public Comment:
None.
VIII. Items for Future Meetings
Commissioner Hansen asked about amendments to section 1.126, which the Commission discussed and deferred at an earlier meeting. Mr. St. Croix stated that the Commission may, at the staff level, decide to enforce the filing requirement in section 1.126. He stated that the way the law is written, there are many people who would not be able to make political contributions. He stated that it ultimately may need to be resolved in court.
Public Comment:
None.
IX. Public Comment on matters appearing or not appearing on the agenda that is within the jurisdiction of the Ethics Commission.
None.
X. Adjournment.
Motion 09-04-13-20 (Hansen/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission adjourn.
Meeting adjourned at 9:31 PM.
Respectfully submitted,
______________________
Catherine Argumedo