Ethics Commission
City and County of San Francisco

Minutes – October 19, 2009

(Approved 11/9/09)
Minutes of the Special Meeting of
The San Francisco Ethics Commission
October 19, 2009
Room 408, City Hall

I. Call to order and roll call.

Chairperson Studley called the meeting to order at 6:34 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; Richard Mo, Chief Enforcement Officer; Garrett Chatfield, Investigator/Legal Analyst.

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

OTHERS PRESENT:  Cassandra Costello (Legislative Aide to Supervisor Mar), Dan Boreen, David Pilpel, Richard Knee, Charley Marsteller, and other unidentified members of the public.

MATERIALS DISTRIBUTED: 
– Memorandum from Executive Director to Ethics Commission re: Proposed Changes to Investigations and Enforcement Regulations, October 13, 2009
– Legislative Digest, Prohibiting members of City boards and commission from obtaining City employment
– Draft Regulations for Investigations and Enforcement Proceedings
– Memorandum from Executive Director to Ethics Commission re: Regulations regarding Ethics Commission enforcement of the Sunshine Ordinance, October 13, 2009
– Memorandum from Executive Director to Ethics Commission re: Policy Priorities Discussion at the October 19, 2009 Meeting, October 14, 2009
– Draft Minutes of the September 14, 2009 Regular Meeting
– Executive Director’s Report to the Ethics Commission for the Meeting of October 19, 2009
– Annual Report of the San Francisco Ethics Commission, July 1, 2008 – June 30, 2009

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

David Pilpel stated that Campaign and Governmental Conduct Code, section 3.222, appears to treat contracts and grants from non-profit and for-profit entities differently. 

III. Consideration of legislation to amend Chapter 2 of Article III of the Campaign and Governmental Conduct Code to ban members of City boards and commissions from obtaining employment with the City during their tenure and for one year after the termination of their City service.   

Cassandra Costello summarized Supervisor Mar’s proposed legislation and the reason for its introduction, which is to close loopholes that may allow the use of a position on a board or commission to secure City employment.

Commissioner Harriman stated that restrictions and rules are already in place to prohibit a board member or commissioner from using his or her position to secure City employment, and this would discourage those who volunteer to serve the City by banning them from employment opportunities.

Commissioner Ward stated that Supervisor Mar could frame the legislation more narrowly to prohibit employment with just the department for which the person served on a commission or board.

Ms. Costello responded that commissions can take up items that reflect the City in its entirety.  She also responded to Chairperson Studley that Supervisor Mar proposed a one year ban to be consistent with other employment restrictions. 

Commissioner Gusukuma stated that California has a strong public policy against employment restrictions.  She also stated that some commissions have very little influence so a waiver provision should be considered as part of the legislation.

Ms. Costello stated that the legislation was proposed to close a potential loophole and was not in response to any specific situation.  She also responded to Commissioner Gusukuma that Supervisor Mar had not considered a waiver process with this legislation.

Commissioner Hansen stated that she supported the legislation and she appreciated the effort by Supervisor Mar to close this loophole.

Deputy Executive Director Mabel Ng stated in response to Chairperson Studley’s question that around 500 commissioners or board members would be affected by this legislation.

Deputy City Attorney Jon Givner stated that the law currently prohibits exchanging anything of value for employment with the City and would likely cover commissioners and board members.

Public Comment

David Pilpel stated that this legislation might preclude the City securing the services of someone who is most qualified for a position, as often commissioners serve because of their expertise in a given area.

Charley Marsteller stated that Supervisor Mar should consider the concerns stated by the Commissioners at this meeting. 

Deputy City Attorney Givner  responded to Chairperson Studley by stating that this ban would only apply to employment, and would not apply to individuals contracting with the City.

IV.       Closed session

Motion 09-10-19-1 (Harriman/Gusukuma) Moved, seconded and passed (5-0) that the Commission go into closed session.

Commission went into closed session at 7:05 p.m.

Closed session held pursuant to Charter section C3.699-13, Brown Act section 54956.9 (a) and (c)  and Sunshine Ordinance section 67.10(d) to discuss anticipated litigation as plaintiff and existing litigation as defendant.

  1. Conference with Legal Counsel:  Anticipated litigation as plaintiff

    Number of possible cases:  1

  2. Conference with Legal Counsel:  Existing litigation as defendant

    Number of cases:  2

    Myrna Lim v. City and County of San Francisco Ethics Commission et al., Case No. 08-472073 (S.F. Superior Court)

    Allen Grossman v. San Francisco Ethics Commission et al., Case No. 09-509868 (S.F. Superior Court)

V. Discussion and vote regarding closed session action and deliberations. 

Discussion and vote pursuant to Brown Act section 54957.1 and Sunshine Ordinance section 67.12 on whether to disclose any action taken or discussions held in closed session regarding anticipated and existing litigation.  

Motion 09-10-19-2 (Harriman/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission finds that it is in the best interests of the public not to disclose its closed session deliberations re: anticipated litigation and existing litigation.

The Commission went back into open session at 7:47 p.m.

VI. Consideration of possible amendments to the Commission’s Regulations for Investigations and Enforcement Proceedings (“Regulations”)

Richard Mo summarized the proposed changes to the Regulations.

Decision Point 1

Public Comment

Richard Knee stated that the Sunshine Ordinance Task Force should have the opportunity to comment on proposed changes.  Executive Director St. Croix responded that regulations regarding the Sunshine Ordinance are being separated from the regulations for investigations and that the Sunshine Ordinance Task Force members received a memorandum for their comments on Sunshine Ordinance regulations. 

David Pilpel stated that there are other means of delivery than those outlined in these changes.

Motion 09-10-19-3 (Gusukuma/Harriman) Moved, seconded and passed (5-0) to adopt the proposed changes in decision point 1. 

Decision Point 2

Commissioner Ward stated that the regulations, as proposed, appear to leave it to staff’s discretion whether or not a respondent in a complaint is interviewed. 

Executive Director St. Croix stated that during the preliminary review process, staff evaluates whether or not an allegation falls within the Commission’s jurisdiction.

Commissioner Ward stated that the proposed basis for dismissal of “evidence does not support the allegations” seems to require some work to determine if the facts are sufficient to show a violation occurred.

Commissioner Harriman stated that there can be times when the evidence presented is unrelated to any violation the Commission has jurisdiction over.  She stated that staff should be given some latitude during the preliminary review.

Commissioner Hansen stated that the language as proposed is too vague. 

Public Comment

Charley Marsteller stated that the regulations should be clearer to the general public.

David Pilpel stated that staff should inform a complainant that if further evidence is discovered then a matter could be re-opened.

Dan Boreen stated that he understands the need for some discretion during the preliminary review; however, he does not trust the current Executive Director’s discretion regarding complaints.

Chairperson Studley stated that this decision point should be reviewed further and no action would be taken at this meeting.

Decision Point 3

Motion 09-10-19-4 (Gusukuma/Harriman) Moved, seconded and passed (5-0) to adopt the proposed changes in decision point 3.

Public Comment
None

Decision Point 4

Commissioner Hansen stated that she wanted to ensure that the proposed changes will be discussed with the Sunshine Ordinance Task Force.  She also stated that she wanted to be clear on how the Commission will handle Task Force referred complaints.

Public Comment

Richard Knee stated that the Sunshine Ordinance Task Force has already made a determination when a complaint is referred to the Ethics Commission, and that the Commission can only enforce their determination. 

David Pilpel stated that all of the proposed changes that affect the Sunshine Ordinance should be put aside for now until the Commission and Task Force meet again.

Dan Boreen stated that there should not be any distinction between Sunshine complaints that were referred to the Commission from the Task Force and those initiated by the Commission.  He stated that all Sunshine matters are public and there should be no confidentiality afforded to any investigation of Sunshine complaints. 

Charley Marsteller discussed an investigation conducted by the Human Rights Commission.

Commissioner Gusukuma stated that she is concerned about releasing investigative notes while a complaint is being investigated. 

Deputy City Attorney Givner responded to Commissioner Gusukuma’s question regarding the definition of “handled” that appears in the Sunshine Ordinance regarding referrals to the Commission.  He stated that there is no definition in the Ordinance as to what “handled” means, nor are other terms defined in the Ordinance regarding referrals to the Commission, so the Commission can adopt regulations to define those terms.

Motion 09-10-19-5 (Gusukuma/Harriman) Moved, seconded and passed (4-1, Hansen dissenting) to adopt decision point 4 with the amended language: “referred to the Ethics Commission by the Sunshine Ordinance Task Force” in section 8(a)(2), and in section 13(b)(3).

Decision Point 13

Commissioner Hansen stated that there has not been enough discussion with the Sunshine Ordinance Task Force to move on decision points 4 and 13.

Public Comment

David Pilpel stated that the language of “by a quorum” is not needed.

Charley Marsteller stated that the Commission may review these changes after it meets with the Task Force.

Dan Boreen stated that there should be no difference in the way Sunshine complaints are handled whether referred by the Task Force or initiated at the Ethics Commission. 

Motion 09-10-19-5 (Harriman/Gusukuma) Moved, seconded and passed (4-1, Hansen dissenting) to adopt decision point 13 with the striking of the language “by a quorum of.”

The Commission took a break at 8:55 p.m. and resumed at 9:01 p.m.

Decision Points 5-12, and 14

Public Comment

David Pilpel asked how excluding a witness from a hearing until he or she testifies comports with the policy of open meetings.  Commissioner Harriman responded that it is equivalent to excluding a witness in court, which is also open to the public.

Dan Boreen asked how decision point 6 is a change to the current regulations.  Commissioner Harriman responded that it clarifies the burden of proof required at a hearing on the merits.

Executive Director St. Croix stated that any proposed change not specifically addressed in a decision point has not been adopted at this meeting.

Motion 09-10-19-6 (Gusukuma/Harriman) Moved, seconded and passed (5-0) to adopt the changes as proposed in decision points 5-12, and 14.

VII. Consideration of the Annual report for Fiscal Year 2008-2009

Chairperson Studley stated that the introductory paragraph should be more comprehensive.

Commissioner Hansen stated that more metrics should be in the report in order to see the progress the Commission has made and that it should contain more specificity as to the items addressed each year by the Commission.  She also stated that she interprets the Charter as requiring the Commission to submit an annual report to the Mayor and Board of Supervisors.  She also stated that she is concerned that the report is the same every year and no changes are made after this review process.

Executive Director St. Croix stated that producing the annual report requires about 40-50 staff hours in response to Commissioner Ward.  He also stated that the annual report is supposed to be a snapshot of the year.

Public Comment

Dan Boreen stated that there is no information regarding whistleblowers.

Motion 09-10-19-7 (Harriman/Ward) Moved, seconded and passed (4-1, Hansen dissenting) that the Commission adopt the annual report, subject to grammatical changes to be made by the Chairperson and Executive Director.

VIII. Policy Priorities

Commissioner Studley stated that this should be a general discussion about what is working and what should be improved.

Commissioner Harriman stated that education should always be the number one priority.

Executive Director St. Croix outlined the methods in which staff pursues each of the Commission’s stated priorities.

Commissioner Hansen stated that she would like the Commission to schedule an annual retreat.  Commissioner Harriman agreed that the annual retreat is important.

Commissioner Hansen stated that the Commission should not limit itself to previously stated priorities and think about new priorities each year.

Public Comment

David Pilpel stated that the Commission should outline what resources are needed to address each priority during the budget process.

IX. Minutes of the Commission’s regular meeting of September 14, 2009

The Commission agreed to move this item to the next regular meeting.

X. Executive Director’s Report

The Commission agreed to move this item to the next regular meeting.

XI. Items for Future Meetings

The Commission agreed to move this item to the next regular meeting.

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

None.

XIII. Adjournment

Motion 09-08-10-8 (Harriman/Gusukuma) Moved, seconded and passed (5-0) that the Ethics Commission adjourn.

The meeting was adjourned at 10:04 p.m.

Respectfully submitted,

________________
Garrett Chatfield
Investigator/ Legal Analyst

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