Minutes of the Regular Meeting of
The San Francisco Ethics Commission
May 11, 2009
Room 408, City Hall
I. Call to order and roll call.
Chairperson Studley called the meeting to order at 5:32 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; Richard Mo, Chief Enforcement Officer; Paul Solis, Investigator/Legal Analyst.
OFFICE OF THE CITY ATTORNEY: Andrew Shen, Deputy City Attorney.
OTHERS PRESENT: Kimo Crossman, Joe Lynn, Allen Grossman, Anita Mayo, Jeff Ente; and other unidentified members of the public.
MATERIALS DISTRIBUTED:
- Draft Report on San Francisco's Limited Public Financing Program, dated May 7, 2009
- Supplemental Memorandum II from the Executive Director, dated May 5, 2009, regarding Proposed Changes to Lobbyist Ordinance
- Lobbyist Ordinance Draft, version dated May 1, 2009
- Memorandum from the Executive Director, dated May 8, 2009, regarding Proposed Changes to Investigations and Enforcement Regulations
- Draft Changes to the Ethics Commission Regulations and Enforcement Proceedings
- Ethics Commission Regulations and Enforcement Proceedings, effective date July 5, 1997
- Draft Minutes of the March 9, 2009, Minutes of the Regular Meeting of the San Francisco Ethic Commission
- Draft Minutes of the April 13, 2009, Minutes of the Regular Meeting of the San Francisco Ethic Commission
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 he is pleased that Supervisor Campos has moved to hold hearings regarding the Ethics Commission. He stated that the Lobbyist Ordinance Amendments are missing a decision point that requires elected officials to keep an up to date calendar of contacts with lobbyists. He stated that the Ethics Commission should have a policy discussion regarding the Enforcement Regulations. He stated that the he had questions regarding a bill for services from Ralph Ochoa to Tony Hall.
Allen Grossman stated that staff does not properly enforce the Sunshine Ordinance. He stated that the Ethics Commission staff should not rely on informal advice from the City Attorney instead of a formal written opinion.
Jeff Ente stated that he is the only complainant that the Ethics Commission interviewed regarding a Sunshine Ordinance complaint. He stated that the Ethics Commission made no attempt to determine if there was willful misconduct regarding his complaint. He stated that the major issue is that Ethics Commission does not talk to complaints regarding complainants.
III. Staff presentation of public finance report.
Commissioner Hansen stated that the report is very helpful. She asked Shaista Shaikh if staff anticipated more information being reported via electronic reporting. Ms. Shaikh responded, stating that many candidates who did not file electronically were not required to do so because they did not meet the financial threshold.
Commissioner Hansen asked if staff had considered ways to increase the level of participation regarding the survey questions sent to candidates. Ms. Shaikh stated that staff sent out reminder e-mails and also reminded them during every phone call with candidates. She stated that it is very difficult to garner responses from the candidates, unless it becomes a condition of receiving public funds.
Commissioner Hansen asked if staff has any response to the feedback from the public regarding public financing. Ms. Shaikh stated that in general public financing recipients were pleased with the way the program was administered. Ms. Shaikh stated that staff expected that responses regarding new provisions would vary.
Commissioner Hansen asked about third-party spending impacting public financing negatively. Ms. Shaikh stated that the major concern was that the expenditure ceiling was only raised in $10,000 increments.
Commissioner Hansen stated that she found it surprising that the survey showed the mandatory training requirement was the least useful tool for candidates accepting public financing.
Ms. Shaikh stated that often candidates get more information directly from staff during the course of the campaign. She stated that the workshop provides
an overview, and staff always emphasizes that candidates may contact the Ethics Commission for help and clarification.
Chairperson Studley stated that staff should provide percentages to see patterns or trends. She also stated that as the Ethics Commission moves forward, staff should think about looking to third party providers to conduct research in order to get a better response to the surveys. She stated that additional questions should be considered, such as if higher limits achieve the broader goal the Ethics Commission has for the public financing program.
Commissioner Hansen stated that she would like deeper analysis because the report does not show the actual merits of public financing. She stated that the report did not analyze the result that only five candidates out of the 19 that accepted public financing won their race. She stated her concern is that some people would propose eliminating public financing without better analysis.
Executive Director St. Croix stated that only one candidate can win in each district. He stated that there was actually only one race in which there was public financing where the publicly financed candidate lost.
Chairperson Studley thanked staff for its work on the report.
Public Comment.
Joe Lynn stated that he heard candidates are concerned regarding the turnaround time when the expenditure ceiling is lifted. He stated that Netfile can report expenditure dates, and the Ethics Commission should adopt that as a reporting requirement. He stated that he has heard Supervisor Daly has met with staff regarding changes with public financing, but is not sure if that is true or not.
IV. Consideration of possible amendments to Lobbyist Ordinance.
DECISION POINT 36A
Motion 09-05-11-01 (Hansen/Harriman) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 36A, as amended to include the language "may" instead of "shall."
Public Comment.
Anita Mayo stated that the mandatory language of "shall" will deter amendments to filings when they have made a mistake because the mandatory language will subject them to an administrative proceeding.
Vice-Chairperson Harriman agreed that the language should be "may" and not "shall."
DECISION POINT 37
Commissioner Hansen stated that she supported the change, but that the language regarding gift limits should not be removed.
Executive Director St. Croix stated that it is possible to violate more than one code section if someone violates the gift limitations in response to a question asked by Vice-Chairperson Harriman.
Motion 09-05-11-02 (Hansen/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 37, as amended to retain the language regarding gift limits.
Public Comment.
None
DECISION POINT 38
Commissioner Harriman asked Deputy City Attorney Shen if the mandatory language in subsection (c) is contradictory to other sections. Deputy City Attorney Shen said that the language should be harmonized to be consistent.
Commissioner Hansen stated that the mandatory language of "shall" should be the language used throughout rather than "may" in order to be consistent.
Motion 09-05-11-03 (Hansen/Harriman) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 38, as amended to change the language only on line 11 from "shall" to "may".
Public Comment.
None
DECISION POINT 39
Commissioner Hansen stated that the language in the section should include "or commission" so that the Commission may also make a determination regarding a late fine or penalty.
Deputy City Attorney Shen stated that there are no regulations at present regarding the commission's ability to make this determination.
Commissioner Ward stated that as it reads now the Commission would not be involved.
Commissioner Hansen stated that she believes it should be addressed through regulations.
Chairperson Studley stated that any change made regarding coming to the Commission regarding this issue should be clearly stated. Commissioner Hansen stated that regulations would take care of any procedural issues, and would like the process to be similar to complaint dismissals.
Executive Director St. Croix stated that the Ordinance allows the Commission to waive a fine if it finds the late filing was not willful.
Vice-Chairperson Harriman stated that the sections appear inconsistent and that they should be looked at more thoroughly.
Motion 09-05-11-04 (Hansen/Harriman) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 39, as amended per staff's recommendation.
Public Comment.
None
DECISION POINT 40
Commissioner Hansen stated that she did not support the change because it is unclear when one is communicating on one's own behalf.
Commissioner Harriman stated that she favored the change.
Commissioner Ward stated that he sees it as a possible loophole to avoid reporting.
The Commission passed on decision point 40 following the discussion regarding potential issues regarding it becoming a loophole.
Public Comment.
None
DECISION POINT 41
Motion 09-05-11-05 (Hansen/Harriman) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 41, without discussion.
Public Comment.
None
DECISION POINT 42
Motion 09-05-11-06 (Hansen/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 42, without discussion.
Public Comment.
None
DECISION POINT 43
Commissioner Hansen stated that she did not think the Commission needed to remove this particular requirement regarding the gift limit.
Executive Director St. Croix stated that gifts over $25 can no longer be given.
Commissioner Hansen stated that she does not see the harm in keeping the language restricting gifts of any size. She also stated she wants to ensure that gifts over $25 must still be reported.
Motion 09-05-11-07 (Harriman/Ward) Moved, seconded and passed (4-1, Hansen dissenting) that the Ethics Commission adopt staff's recommendation on decision point 43.
Public Comment.
Anita Mayo stated that reporting gifts within those amounts at issue creates extra work for no reason. Commissioner Gusukuma asked if a letter should go out every time a gift is made to accurately report regarding aggreg
ate limits. Ms. Mayo stated that they notify clients when they go over the $50 threshold.
Commissioner Hansen stated that the gifts between $25 and $50 never get reported. Ms. Mayo stated that under local law any value must be reported.
Executive Director St. Croix stated that this is eliminating all gifts over $25 and once in a while there will be a gift given under the state law exemption.
Vice-Commissioner Harriman stated that this is virtually eliminating all possibility of giving a gift over $25 except under some very specific exceptions.
Kimo Crossman stated that it is important to capture gifts given to political officials.
DECISION POINT 44
Motion 09-05-11-08 (Hansen/Harriman) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 44, without discussion.
Public Comment.
None
DECISION POINT 45
Motion 09-05-11-09 (Harriman/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation on decision point 45, without discussion.
Public Comment.
None
TECHINICAL CHANGES
Commissioner Hansen questioned why on change number one the word "paramount" was changed to "compelling." Deputy City Attorney Shen answered that the change is legally familiar.
Commissioner Hansen stated that on change number 8, removing the language "attempting to influence" is not a technical change, and is substantive. Deputy City Attorney Shen stated that the change isn't to limit activity; it was just to eliminate duplicative language.
Commissioner Hansen stated that on change number 15, it is not clear on how the commission will be able to prescribe the format, such as it doesn't specify if it addressed in the regulations.
Executive Director St. Croix stated that it is contingent on having the electronic reporting implemented.
Motion 09-05-11-10 (Hansen/Harriman) Moved, seconded and passed (5-0) that the Ethics Commission adopt staff's recommendation all technical changes.
Public Comment.
None
V. Consideration of possible amendments to the Commission's Regulations for
Investigations and Enforcement Proceedings ("Regulations").
Vice-Chairperson Harriman stated that she worked with staff in order to draft the proposed changes.
Executive Director St. Croix stated that one change in particular should be noted, that the formal follow-up regarding the joint meeting with the Sunshine Task Force has not been done, but these proposed changes would allow probable cause hearings on Sunshine hearings to be conducted in public rather than closed session.
Commissioner Ward stated that the language on change number 2 should be changed from "may" to "shall" regarding preliminary review of complaints requiring the interview of complainants. He stated that he wants to ensure that complainants are interviewed if respondents are interviewed.
Executive Director St. Croix suggested adding "to the extent feasible" as a way to deal with anonymous complainants that are not able to be interviewed.
Commissioner Ward stated that he wants to ensure that if a complaint is serious staff speaks to both parties.
Commissioner Gusukuma agreed that the complainant should be spoken with, but might be better addressed after a determination is made that an investigation is warranted.
Commission Ward stated that it should occur in a preliminary review.
Vice-Chairperson Harriman stated that a complainant is not a party to a complaint; the complainant may or may not have information helpful to the preliminary review or complaint.
Executive Director St. Croix stated that complainants are always spoken with, except in the case or referrals from Sunshine Task Force, which are not subject to preliminary review.
Commissioner Hansen stated Sunshine referrals should have a separate set of regulations. She also stated that she agrees with Commissioner Ward regarding how staff determines if a complaint is frivolous.
Executive Director St. Croix explained the review process and that staff presents findings to the Executive Director who makes the determination to move forward or not.
Commissioner Hansen stated that some complaints are not reviewed because some complaints are frivolous on their face and there is no reason to pursue them, but if they do fall under our jurisdiction, how does staff determine whether or not to pursue the complaint without doing some kind of investigative work. She stated that she wants to ensure that some kind of initial investigation is conducted.
Vice-Chairperson Harriman stated that staff should be allowed some discretion.
Chairperson Studley stated that the Commission expects investigation to be thorough and balanced.
Commissioner Hansen stated that she does not think that this discussion is an attempt to micro-manage staff, and that there have been many complaints from the public about enforcement, and that some public officials have concerns regarding our enforcement actions. She stated that it all starts at the preliminary review stage. She stated that the Rules Committee has called a hearing to discuss the way the Commission handles investigations.
Vice-Chairperson Harriman stated that staff has tried very hard to improve the procedures regarding enforcement and make the whole process better.
Chairperson Studley stated that the Commission should separate out enforcement procedures in general from those regarding Sunshine complaints.
Commissioner Hansen stated that on change number one, she is concerned that removing the return receipt requirement could be problematic to know if something has been received. She stated that delivery by email should have the response recorded to know the message was received.
Executive Director St. Croix stated that certified mail requires signatures, and in the past respondents have refused to sign the receipt.
Vice-Chairperson Harriman stated that proof of sending documents is acceptable, and that the burden falls to the other party to refute the message or document was not received.
Executive Director St. Croix stated that instances in which receipt is refused, staff will send the documents via process server.
Chairperson Studley stated that the Commissioners would send suggestions to the Executive Director and the Commission will discuss the suggested changes at a future meeting.
Commissioner Hansen stated that regarding complaint dismissals, the Executive Director should not be allowed to dismiss a complaint without it going before the Commission. She also stated the Commission should be allowed to review that the monthly summary of the disposition of complaints prior to accepting a determination.
Public Comment.
Kimo Crossman stated that regarding delivery of messages, software exists that allows one to determine if an email has been opened. He also stated that regarding the Sunshine Ordinance violations should be separated from other enforcement matters. He also stated that staff should talk to all respondents regarding complaints.
Allen Grossman stated that the Commission should be following the City Charter regarding adopting the Sunshine regulations as separate from other enforcement matters.
VI. Closed Session.
Motion 05-09-11-11 (Harriman/Gusukuma) 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.
Public Comment.
None
Motion 09-05-11-12 (Harriman/Gusukuma) Moved, seconded and unanimously passed (5-0) that the Ethics Commission keep closed session deliberations confidential.
VIII. Minutes of the Commission's regular meetings of March 9, 2009 and April 13, 2009.
Commissioner Hansen stated that the minutes for the March 9, 2009, meeting, should reflect the actual names of the persons who spoke during public comment. She stated that on the minutes for the April 13, 2009, meeting, there was a typographical error in the spelling of Charles Marsteller's name.
Motion 09-05-11-13 (Harriman/Gusukuma) Moved, seconded and unanimously passed (5-0) that the Ethics Commission adopt the minutes for the March 9, 2009, regular meeting as amended.
Motion 09-05-11-14 (Harriman/Gusukuma) Moved, seconded and unanimously passed (5-0) that the Ethics Commission adopt the minutes for the April 13, 2009, regular meeting as amended.
IX. Executive Director's Report.
Executive Director St. Croix stated that he has heard that the scheduled meeting with the Board of Supervisors Rules Committee regarding the Ethics Commission budget has caused some concern at the Mayor's office. He stated that he is unclear as to what authority the Rules Committee has regarding the budget at this time.
Commissioner Hansen stated that she met with Supervisor Campos in order to schedule the hearing to respond to requests that individual Supervisors had received from members of the public regarding the Ethics Commission's budget priorities. She stated that the intent was to separate the discussion from the budget committee as that forum will not address the Ethics Commission budget priorities.
Commissioner Hansen stated that she does not believe it is inappropriate to discuss with her appointing authority business conducted by the Commission.
Chairperson Studley stated that Commissioners cannot individually discuss matters with an appointing authority as a representative of the entire Commission.
Executive Director St. Croix stated that the Ethics Commission itself is tasked with setting out its priorities, not an outside body.
The Commissioners engaged in a discussion regarding the appropriateness of individual Commissioners meeting with their respective appointing authorities. Chairperson Studley, Vice-Chairperson Harriman, and Commissioner Ward, all stated that they believed the Charter prohibited individual communications to their appointing authorities. Commissioner Hansen disagreed with that interpretation.
Commissioner Ward stated that speaking with a Supervisor regarding a hearing is speaking on behalf of the Commission, and not as an individual.
Chairperson Studley stated that the appearance of such a meeting is that a Commissioner would is speaking on behalf of the Commission as a body. She stated that the Commission should clarify the interpretation of the Charter.
Commissioner Hansen stated that regarding the report on the lobbyist report, there was an error and questioned why the error occurred. She also stated the latest lobbyist reports are not online.
Executive Director St. Croix stated that the summary is posted and the individual reports must be hand scanned.
Commissioner Hansen stated that the names of the consultants should be attached to the summary of the amounts.
Public Comment.
None
X. Items For Future Meetings.
Public Comment.
None
XI. Public Comment on matters appearing or not appearing on the agenda that are
within the jurisdiction of the Ethics Commission.
None
XII. Adjournment.
Motion 09-05-11-05 (Harriman/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission adjourn.
Meeting adjourned at 9:45 PM.
Respectfully submitted,
______________________
Garrett Chatfield