Ethics Commission
City and County of San Francisco

Minutes – March 9, 2009

(Approved May 11, 2009)
Minutes of the Regular Meeting of
The San Francisco Ethics Commission
March 9, 2009
Room 408, City Hall

I. Call to order and roll call.

Chairperson Studley called the meeting to order at 5:35 p.m.

COMMISSION MEMBERS PRESENT:  Jamienne Studley, Chairperson; Susan Harriman, Vice-Chairperson; Emi Gusukuma, Commissioner; Eileen Hansen, Commissioner; Charles Ward, Commissioner.

STAFF PRESENT:  John St. Croix, Executive Director; Mabel Ng, Deputy Executive Director; Paul Solis, Investigator/Legal Analyst.

OFFICE OF THE CITY ATTORNEY:  Jon Givner, Deputy City Attorney.

OTHERS PRESENT: Steve Atkinson; Debra Stein; Kevin Heneghan; Anita Mayo; Charles Marsteller; Joe Lynn; Paul Melbostad; Chris Wright; Raphael Mandelman; and other unidentified members of the public.

MATERIALS DISTRIBUTED: 
– Memorandum from Executive Director to Ethics Commission re: Proposed Changes to the Lobbyist Ordinance, March 4, 2009
– Memorandum from Executive Director to Ethics Commission re: Letter from former Commissioners regarding Lobbyist Ordinance, March 4, 2009
– Written Comments Received from Members of the Public re: Lobbyist Ordinance
– Lobbyist Ordinance Draft Amendments
– Draft Minutes of the February 9, 2009 Regular Meeting
– Executive Director's Report to the Ethics Commission for the Meeting of March 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 lobbying requires transparency and noted two entities that have spent significant amounts of money on lobbying.  He also distributed newspaper articles to the Commissioners regarding lobbying and discussed the contents of the articles.  He stated that staff must examine lobbyist reports closely.

III. Consideration of possible amendments to the Lobbyist Ordinance

Commissioner Ward asked whether staff or the City Attorney had reviewed previous public comment regarding modification of the Lobbyist Ordinance that may weaken the Ordinance.  Deputy City Attorney Givner responded that the Lobbyist Ordinance is not limited by a proviso that it only be amended to further its purpose.
Executive Director St. Croix stated that all proposed changes are directed towards the goal of electronic filing.

Decision Point 1: Commissioner Hansen stated that she supported an exception for engineers but did not support a blanket exception for attorneys.  She suggested that attorneys should be excluded only when "actively" engaged in the practice of law.  Commissioner Harriman stated that lobbying and other activities can be done by non-attorneys and that there are not many activities that can only be done by attorneys.  She stated that the exception for attorneys is narrow as written and to modify it would be to nullify the effect of the exception.

Decision Point 2: Chairperson Studley suggested inserting language exempting certain requests for information made by City officers.  Commissioner Ward stated that a clarification on a matter may be considered a "request" and count as an initial contact.  Deputy Director Ng stated that the proposed change could be amended to reflect that if a person is already registered as a lobbyist, they do not need to disclose simple clarifications or follow-ups.

Decision Point 3: No commission comment.

Public Comment:
Joe Lynn stated that he opposes any change that allows the lobbyist or public official to have discretion to disclose.  He also stated that oral contacts should be available for public review.

Anita Mayo stated that regarding the attorney exception, licensed attorneys who practice law should be exempted from the Lobbyist Ordinance.  She also stated that a request for the status of an action should not be considered a contact and should remain exempted from disclosure.

Decision Point 4:
Commissioner Gusukuma stated that she did not support the proposed change because it would be impossible to regulate.

Decision Point 5: No commission comment.

Decision Point 6: No commission comment.

Decision Point 7: No commission comment.

Public Comment:
Anita Mayo stated that concerning collective bargaining, the better approach is the one taken by Los Angeles where the negotiation phase is exempted from lobbyist regulation.

Steve Atkinson stated he supported the exception for technical experts.  He also stated that, concerning decision point 6, he was uncertain as to whether a letter written to the board of supervisors would be exempted.

Kevin Henneghan stated that, concerning decision point 7, staff should include language on negotiations that have nothing to do with collective bargaining to put unions on notice about what is actually exempt.

Joe Lynn stated that the firefighters union recently registered as a lobbyist and that he supported further union reporting.

Chairperson Studley suggested that staff include language concerning what activity is not exempt under decision point 7.  Deputy Director Ng stated that staff could include the language in the lobbyist manual or adopt regulations.

Decision Point 8:
Chairperson Studley asked whether minutes are taken during interested persons meetings or workshops to which staff responded that no minutes are taken.

Public Comment:
Joe Lynn stated that the proposal in decision point 8 is counter to the goals of the Lobbyist Ordinance.  He stated that lobbyists attending these types of meetings should be required to disclose their presence.

Anita Mayo stated that the purpose of the exemption is to encourage people to provide information to City agencies who ask for it.

Debra Stein stated that she supported the exemption and that without the exemption, important information would be stifled.

Decision Point 9:  No commission comment.

Public Comment:
Joe Lynn stated that he did not understand the need for the change.

Decision Points 10, 11:
Commissioner Hansen stated that she supported the changes, except for the last part of decision point 11 concerning "at least one contact" with a City officer.  She stated that other jurisdictions do not apply this provision and that regulation in those jurisdictions focuses more on monetary issues.

Public Comment:
Anita Mayo stated that she supported the proposed change in decision point 10.  She also stated that the last part of decision point 11 is too low of a threshold.   She stated that other jurisdictions require some sort of minimum direct contact and without it, constitutional problems may arise.

Joe Lynn stated that the proposed changes do not require direct contacts with City officials.  He stated that the firefighters union's recent ad in the Chronicle illustrated this point.  He stated that further definition of "lobbyist" may be needed to clarify these issues.

Paul Melbostad stated that the amount of money spent on contacts should be made available to the public.

Commissioner Harriman suggested inserting a subsection discussing the definition of "contact" as it relates to decision points 3 and 8.

Motion 09-03-09-1 (Harriman/Ward) Moved, seconded and passed (4-1; Hansen dissenting) that the Ethics Commission adopt staff's recommendation on decision point 1.

Public Comment:
Joe Lynn stated that he opposed adopting staff's recommendation on decision point 2.  Commissioner Hansen stated that the Commission should address the issue of whether oral comments made at the request of a City officer should be recorded.  She stated that she would make a separate motion on this matter.

Charles Marsteller stated that the Commission should consider whether to record interested persons meetings and workshops.

Motion 09-03-09-2 (Harriman/Ward) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 2, as amended: to state that providing oral information to a City officer in response to a request from that officer is not a contact for the purpose of determining whether the person providing the information qualifies as a lobbyist.  But a person who otherwise qualifies as a lobbyist must report such a communication as a contact.  Providing written information in response to a request made by a City officer would continue to be an exception to the definition of "contact" in the Ordinance.

Public Comment:
None.

Motion 09-03-09-3 (Harriman/Ward) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 3, as amended: to provide that a communication seeking the status of an action is not a contact for the purposes of qualifying as a lobbyist.  A person who otherwise qualifies as a lobbyist must report the communication as a contact if it is a communication to influence local legislative or administrative action under section 2.105(d)(2)(B).

Public Comment:
Paul Melbostad stated that the definition of an expert should be addressed.

Motion 09-03-09-4 (Harriman/Ward) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 4, as amended: to narrow the exception for expert communications such that only a person providing purely technical data, analysis or expertise in the presence of a registered lobbyist is not making a "contact" under the Ordinance.

Public Comment:
None.

Motion 09-03-09-5 (Harriman/Ward) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 5.

Commissioner Hansen asked about the definition of "quasi-judicial" to which Deputy City Attorney Givner stated that although the Ordinance does not specifically define the term, it is the Commission's policy decision whether to further define the term.

Public Comment:
Paul Melbostad questioned whether "proceeding" is interchangeable with "hearing."

Motion 09-03-09-6 (Harriman/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 6.

Public Comment:
None.

Motion 09-03-09-7 (Harriman/Hansen) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 7.

Commissioner Harriman made a motion to adopt staff's recommendation on decision point 8, as amended.

Commissioner Hansen suggested that the Commission keep a record of who attends interested persons meetings.  Commissioner Harriman stated that she did not believe it was a good idea to record interested persons meetings in light of budgetary issues.

Public Comment:
Debra Stein stated that she has attended and participated in interested persons meetings without advocating any client's position.  She stated she did not believe attendance and participation should count as a contact.  She also stated that describing the details of attending a meeting would be too burdensome on the lobbyist.  Ms. Stein stated that she would never attend an interested persons meeting to seek clients.

Commissioner Harriman withdrew her previous motion and suggested adding "unless representing a client" to the language of decision point 8.  Chairperson Studley stated that staff should add this language where applicable, throughout the Lobbyist Ordinance.

Public Comment:
Joe Lynn stated that the motion was too broad and that lobbyists advocate for a community regardless of whether they have a specific client's interest to advance.  He also stated that he disagreed that further reporting was too burdensome on the lobbyists.

Anita Mayo stated that the Ordinance should encourage lobbyist participation and that this type of contact is not an attempt to influence government action.

Paul Melbostad stated that he supported the proposed change.

Raphael Mandelman stated that lobbyists should be required to disclose their presence at an interested persons meeting and that the Commission is narrowing the requirements to a greater degree than necessary.

Motion 09-03-09-8 (Harriman/Gusukuma) Moved, seconded and passed (3-2; Ward, Gusukuma dissenting) that the Ethics Commission adopt staff's recommendation on decision point 8, as amended: to provide that, unless representing a client, a person participating in a public interested persons meeting, workshop or other forum convened by a City department for the purpose of soliciting public input is not making a "contact" under the Ordinance.

Public Comment:
None.

Motion 09-03-09-9 (Harriman/Ward) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 9.

Public Comment:
None.

Motion 09-03-09-10 (Harriman/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 10.

Public Comment:
Joe Lynn stated a definition of "measure."  He suggested an amendment consistent with the definition.

Motion 09-03-09-11 (Harriman/Ward) Moved, seconded and passed (4-1; Hansen dissenting) that the Ethics Commission adopt staff's recommendation on decision point 11.

Decision Point 12: Commissioner Hansen proposed a 24 hour disclosure deadline as opposed to a 10 business day requirement.  She stated that this type of discourse is necessary to ensure the public has full awareness of lobbyist contacts.

Public Comment:

Motion 09-03-09-12 (Harriman/Ward) Moved, seconded and passed (3-2; Hansen, Gusukuma dissenting) that the Ethics Commission adopt staff's recommendation on decision point 12, but changing the time to register to five rather than ten business days.

Decision Point 13:  The Commission postponed consideration of decision point 13.

Decision Point 14:  No Commission comment.

Public Comment:
None.

Motion 09-03-09-13 (Harriman/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 14.

Decision Points 15, 16, 17:  Commissioner Harriman stated that, with the recommendation, staff has struck a balance for all interested parties.  Chairperson Studley stated that the decision point is tied to the ultimate goal of electronic filing.  Commissioner Hansen made a motion to require lobbyist disclosure on a 24 hour basis stating that the public would benefit greatly from the requirement.  She stated that lobbyists could access an electronic form with an automatic reporting system.

Public Comment:
Joe Lynn stated that CFRO should guide the Commission's consideration of the decision point because that Ordinance requires disclosures consistent with immediate public disclosure.  He stated that the technical aspects of disclosure could be postponed for an interested persons meeting if the Commission agrees on the principle of immediate disclosure.

Paul Melbostad stated that a three-day disclosure requirement may be a good compromise.

Anita Mayo stated that lobbyist disclosure cannot be compared to disclosures under CFRO because of lobbyist reporting complexities.  She stated that quarterly reporting is consistent with other jurisdictions.

Kevin Henneghan stated that monthly reporting is too burdensome.  He also stated that lobbyists often meet with staff-level people that does not result an immediate vote or action.  He stated that this would complicate immediate reporting.  He also stated that the Sunshine Ordinance is the best avenue for the public to access the  information.

Debra Stein stated that monthly reporting would not serve the public's interest and it is not consistent with other jurisdictions.  She also stated that 24 hour reporting would require excess reporting, too difficult for small firms to comply with.

Chris Wright stated that monthly reporting is too burdensome and does not serve any real public interest.

Commissioner Harriman stated that she was uncertain whether she supported staff's recommendation without certain electronic systems already in place.  She stated that although she initially made the motion in support, she wanted more time to consider the issue and would vote no on the motion.  Chairperson Studley concurred.  Commissioner Ward stated that he favored more frequent reporting, at least monthly reporting, but his inclination was not to report within 24 hours at this time.

Motion 09-03-09-14 (Harriman/Ward) Moved, seconded and failed (0-5) that the Ethics Commission adopt staff's recommendation to require lobbyists to disclose activities on a monthly basis.

IV. Minutes of the Commission's regular meeting of February 9, 2009

Public Comment:
None.

Motion 09-03-09-15 (Harriman/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission adopt the minutes of February 9, 2009.

V. Executive Director's Report

Executive Director St. Croix noted an upcoming Lobbyist Ordinance training.  He also discussed Bureau of Delinquent Revenues items.  Mr. St. Croix stated that he is in weekly budget discussions with the Mayor's Office and the Board of Supervisors.

Commissioner Hansen inquired about the creation of a budget committee in light of major budget issues.  She stated that potential staff cuts that relate to Commission priorities are a policy decision that the Commission should engage in.  Chairperson Studley stated that staff cuts are solely within the discretion of the Executive Director.  She also stated that the Commission may continue to discuss priorities with the Executive Director.

Public Comment:
Charles Marsteller stated that federal funding to California may help alleviate budget constraints. 

Joe Lynn stated that the enforcement division has not brought in enough revenues and that too many waivers of late fees and penalties have been granted.  He also stated that educational outreach is not working due to the large amount of late fees.  Mr. Lynn stated that in 2004, committees who did not pay fees were awarded disproportional benefits over those paying late fees.

VI. Items for Future Meetings

Public Comment:
None.

VII. Public comment on matters appearing or not appearing on the agenda that is within the jurisdiction of the Ethics Commission

None.

VIII. Adjournment

Public Comment:
None.

Motion 09-03-09-16 (Harriman/Hansen) Moved, seconded and passed (5-0) that the Ethics Commission adjourn.

The meeting was adjourned at 8:52 p.m.

Respectfully submitted,

________________
Paul Solis
Investigator/ Legal Analyst

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