Ethics Commission
City and County of San Francisco

Minutes – November 9, 2009

(Approved 12/14/2009)
Minutes of the Regular Meeting of
The San Francisco Ethics Commission
November 9, 2009
Room 408, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102

I. Call to order and roll call.

Chairperson Studley called the meeting to order at 5:33 p.m.

COMMISSION MEMBERS PRESENT:  Jamienne Studley, Chairperson; Emi Gusukuma, Commissioner; Eileen Hansen, Commissioner; Charles Ward, Commissioner.  Commissioner Harriman was excused.

STAFF PRESENT:  John St. Croix, Executive Director; Richard Mo, Chief Enforcement Officer; Catherine Argumedo, Investigator/Legal Analyst.

OFFICE OF THE CITY ATTORNEY:  Andrew Shen, Deputy City Attorney.

OTHERS PRESENT:  David Pilpel.

MATERIALS DISTRIBUTED: 
– Notice and Agenda for the November 9, 2009 Regular Meeting
– Memorandum from Executive Director to Ethics Commission re: Proposed Amendments to Investigations and Enforcement
– Draft Regulations for Investigations and Enforcement Proceedings
– Memorandum from Executive Director to Ethics Commission re: Policy Priorities Discussion at the October 19, 2009 meeting, October 14, 2009
– E-mail from Executive Director to Commissioners re: Policy Priorities Discussion, November 5, 2009
– E-mail from Commissioner Hansen re: Policy Priorities Discussion, November 8, 2009
– Draft Minutes of the September 14, 2009 Regular Meeting
– Draft Minutes of the October 19, 2009 Special Meeting
– Executive Director’s Report to the Ethics Commission for the Meeting of October 19, 2009
– Executive Director’s Report to the Ethics Commission for the Meeting of November 9, 2009

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

None.   

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

Chairperson Studley stated that there has been an amended memorandum from staff, which has been made available to the public, with minor changes to the first page only.  Chief Enforcement Officer Mo confirmed the changes were made to the first page only.

Decision Point 2A
Chairperson Studley stated that decision point 2A referred to section IV.A. (Preliminary Review.), starting on page 4 of the draft Regulations. 

Commissioner Hansen stated her concern regarding the use of the word “may” in the second sentence.  She stated that the word “may” would allow the Executive Director to do none of what was listed in the second sentence and was not sure how to address that issue.  Executive Director St. Croix stated that, under normal circumstances, staff would do as much as possible.  Mr. St. Croix stated an example of a complainant using a coded message from Life magazine and how there may not be a need to speak with a Respondent.  Mr. St. Croix also stated that there are cases where waiting to speak with a Respondent may be more useful for the investigation.  Commissioner Ward stated that the section requires the Executive Director to conduct a preliminary review.  Chairperson Studley stated that the basis of the complaint may be obvious and so the investigation may move forward quickly.

Motion 09-11-09-1 (Gusukuma/Ward) Moved, seconded and passed (4-0; Harriman absent) that the Commission adopt Decision Point 2A, as drafted.

Public Comment:
David Pilpel stated there was once an important article in Life magazine about Joe Alioto. 

In section IV.B., page 4 of the regulations, Commissioner Hansen noted a typographical error in the 4th line of section IV.B on page 4 of the Regulations.

Decision Point 2B:
Chairperson Studley stated that staff has provided four options for guidance regarding the standard for dismissal in section IV.B.1 of the Regulations.  Commissioner Ward stated his choice was “c” – “credible evidence clearly refutes the allegations” – and that “credible” should be defined.  Deputy City Attorney Shen stated that the definition would be the same as the ordinary, common sense definition.  Commissioner Ward stated his preference to create an objective, rather than subjective, definition.  DCA Shen asked the Commissioners to return to this item after he had a chance to bring some reference materials from his office.  Chairperson Studley asked the Commissioners what burden each Commissioner would prefer.  Mr. St. Croix stated that choices “a” and “c” were not mutually exclusive.  Commissioner Hansen proposed combining both “a” and “c” in order to give the strongest standard possible.  Commissioner Gusukuma asked how the standard would be stronger if it was either “a” or “c.”  Commissioner Hansen stated that the standard could be “a” and/or “c,” as she was hoping to include both possibilities.  DCA Shen returned to the meeting and stated that there were two definitions in Webster’s dictionary: 1. “offering reasonable grounds for being believed” and 2. “of sufficient capability to be militarily effective.”  DCA Shen then read the definition from Black’s Law Dictionary: “worthy of belief” or “entitled to credit.”  Commissioner Ward stated his preference for the first definition from Webster’s dictionary.  Chairperson Studley stated the Commission could add the definition of “credible” to the definition section of the Regulations.  Commissioner Hansen asked whether “credible” is defined somewhere else in the Code or Charter.  DCA Shen stated he was not aware of any definitions for "credible" in either the Code or Charter. 

Motion 09-11-09-2 (Hansen/Ward) Moved, seconded and withdrawn that the Commission adopt Decision Point 2B, combining the language of options “a” and “c” – “credible evidence does not support the allegations and/or clearly refutes the allegations.”  

Commissioner Gusukuma stated her preference for accepting “c” alone as the standard.  She stated that the threshold would be higher with “c.”  Commissioner Hansen stated her concern that a complaint could be dismissed too early if the Commission chose “c” alone as the standard.  Commissioner Gusukuma stated that the only instance where a complaint would be dismissed under the “c” standard would be if there was clear evidence refuting the allegation.  Commissioner Hansen withdrew her motion.

Motion 09-11-09-3 (Hansen/Ward) Moved, seconded and passed (4-0; Harriman absent) that the Commission adopt “c” – “credible evidence clearly refutes the allegations” – as the language for section IV.B.1. of the Regulations.  

Public Comment:
Mr. Pilpel stated that he had suggested option “c” at the last meeting.  He suggested adding a monthly summary, including the reason for dismissal. He also noted a grammatical issue in the first paragraph on page 5 of the Regulations.  Chairperson Studley stated that the Commission would discuss the grammatical issue later. 
  
Chairperson Studley then discussed adding the definition of “credible” in the definition section of the Regulations.  She stated that “credible” would be section II.E., following “complainant,” and all other definitions would be re-numbered.  DCA Shen read the definition: “offering reasonable grounds for being believed.”

Motion 09-11-09-4 (Ward/Gusukuma) Moved, seconded and passed (4-0; Harriman absent) that the Commission adopt the definition of “credible” in section II.E of the Regulations.  

Public Comment:
Mr. Pilpel asked whether adding this definition would require new notice, as it was not mentioned in the agenda.  DCA Shen stated that it was within the scope of the notice for this meeting. 

Chairperson Studley then addressed a grammatical issue in the first paragraph on page 5.  She suggested that the sentence read, “…no further action on the complaint, except that he or she may…”  rather than the text in the draft Regulations.  Chairperson Studley suggested making the change throughout the remainder of the Regulations.

Motion 09-11-09-5 (Studley/Ward) Moved, seconded and passed (4-0; Harriman absent) that the Commission adopt the amendment of the language to “except that he or she may” in section IV.B. and all other similar places in the Regulations.

Public Comment:
None.

Decision point 2C

Motion 09-11-09-6 (Gusukuma/Hansen) Moved, seconded and passed (4-0; Harriman absent) that the Commission adopt the amendments as written, without discussion.

Public Comment:
None.

Decision point 2D

Chairperson Studley asked for clarification regarding the reference of 14 calendar days and 10 business days.  DCA Shen stated that the Charter defines the standard, which mentions both 14 calendar and 10 business days.  He then briefly described the complaint process.  He stated that when the Commission receives a complaint, the complaint is forwarded to the City Attorney (“CA”) and District Attorney (“DA”).  Mr. Shen stated that the CA and DA have 10 days to review the complaint and otherwise notify the Commission of their action or non-action.  He then stated that at that point, the Commission has an additional 14 days from the CA's and DA's notifications to contact the complainant of the steps the Commission plans to take on the complaint.  Mr. St. Croix proposed changing the text to “if neither CA or DA intend to pursue an investigation, the Executive Director shall, within 14 days of such notification, inform the complainant…”  Commissioner Gusukuma accepted the change as a friendly amendment to her motion.  Commissioner Hansen seconded the amended motion.

Motion 09-11-09-7 (Gusukuma/Hansen) Moved, seconded and passed (4-0; Harriman absent) that the Commission adopt Decision Point 2D, as amended.

Public Comment:
Mr. Pilpel stated that the CA and DA have 10 business days to notify and after hearing from CA or DA, or 10 days have elapsed, then there is a new trigger for 14 days.  He asked why the Regulations read “if the Executive Director has not informed the complainant…” if in the previous sentence the Regulations states “the Executive Director shall inform.”  Mr. Pilpel then stated that the language “the action, if any, that he or she has taken or plans to take on the complaint” is vague.

Chairperson Studley stated that the motion has been made and revised and that Mr. Pilpel had made some additional comments.  DCA Shen stated that the language from this section mentioned by Mr. Pilpel (section IV.C. of the Regulations) came from the Charter.

Decision Point 15
Executive Director St. Croix stated that this decision point is more of a drafting error.  He stated that the Commission cannot treat Sunshine Ordinance complaints from the Sunshine Ordinance Task Force (“SOTF”) differently than those filed directly with our office.  He stated that all Sunshine Ordinance complaints must be treated the same, regardless of where they are initially filed.  Commissioner Gusukuma asked if the Commission would treat Sunshine Ordinance complaints in an open manner, from beginning to end.  Mr. St. Croix stated that probable cause hearings for Sunshine Ordinance complaints will be in open session.  Commissioner Gusukuma asked whether the fact that a Sunshine Ordinance complaint was made would be open.  Mr. St. Croix stated that it would not be open, but referrals from SOTF would be open.  Chairperson Studley asked whether there could be violations of the Sunshine Ordinance that are not willful violations.  Mr. St. Croix stated that SOTF should forward only willful violations and SOTF disagrees.  Commissioner Hansen asked why the Commission could treat Sunshine Ordinance complaints differently than others.  DCA Shen stated that the Charter's confidentiality provisions do not conflict with staff's proposed amendments to the Regulations.  Commissioner Hansen stated that the proposed approach differs from what has occurred in the past and suggested putting this item on hold until hearing from SOTF.  DCA Shen stated that he thought SOTF would support the amendments since this process would be more open.  Chairperson Studley stated that there were still outstanding issues to discuss with SOTF.

Motion 09-11-09-8 (Gusukuma/Ward) Moved, seconded and passed (4-0; Harriman absent) that the Commission adopt Decision Point 15.

Public Comment:
Mr. Pilpel stated that referrals from SOTF are not the same as a complaint filed with the Commission.  He stated that the Commission may choose to treat a referral as a complaint, but the two are not the same.  He stated that a referral is either confidential because it is a complaint, by operation of the Charter, or it is not confidential; therefore, the Commission should create a new process in the Regulations.  He suggested postponing this issue until discussing the issue with SOTF.

Mr. St. Croix stated that all ongoing investigations are confidential.  Mr. Pilpel stated that there is a distinction between referrals and someone who may file a complaint (regarding a Sunshine Ordinance violation) that does not want the probable cause hearing made public.  DCA Shen reiterated his prior explanation to Commissioner Hansen's question.  He also noted that it would not be the last opportunity for the Commission to discuss these issues.

Commissioner Hansen stated that although she voted aye, she was not comfortable with her vote.  She stated that the Commission needs more input from SOTF.  Chairperson Studley stated that she and the Executive Director would reach out to SOTF again and explain why the Commission chose to take action. 

Decision point 16

Motion 09-11-09-9 (Gusukuma/Hansen) Moved, seconded and passed (4-0; Harriman absent) that the Commission adopt Decision Point 16, without discussion.

Public Comment:
None.
 
Decision Point 17

Motion 09-11-09-10 (Gusukuma/Hansen) Moved, seconded and passed (4-0; Harriman absent) that the Commission adopt Decision Point 17, without discussion.

Public Comment:
None.

Commissioner Hansen stated that she had a question about language in the Regulations that was not in any Decision Point. 

Decision Points 18-24

Motion 09-11-09-11 (Gusukuma/Hansen) Moved, seconded and passed (4-0; Harriman absent) that the Commission adopt Decision Points 18-24, amending Decision Point 20 (eliminating “or allegation”).

Public Comment:
Mr. Pilpel asked about the reference on page 5 for a monthly summary of dismissals.  He asked whether it was possible to have more information about dismissals than what is in the current chart available to the public, but without revealing anything confidential. 

Chairperson Studley stated that the report is a desirable and possibly useful piece of information, but that the requirement would not be something to create at this meeting.

Commissioner Gusukuma asked about the 3rd line of section XI.D on page 14, which was part of Decision Point 20.  She suggested removing the word “allegation.”  The Commissioners agreed and Commissioner Gusukuma amended her motion.  Commissioner Hansen seconded the amendments. 

Public Comment
Mr. Pilpel agreed with the Commission’s amendment to Decision Point 20.

Commissioner Hansen proposed a change in section III.D of the Regulations, complaints made at public meetings.  She suggested adding “and shall explain the process” to the end of the second sentence.  Commissioner Ward stated that Commission staff accepts complaints in writing and this section seems to read that a member of the public is not permitted to come to a meeting and complain.  Commissioner Hansen amended her proposal and then moved to delete the item.

Motion 09-11-09-12 (Hansen/Gusukuma) Moved, seconded and passed (4-0; Harriman absent) that the Commission delete section III.D. (Complaints Made at Public Meetings) from the Regulations.

Public Comment:
Mr. Pilpel suggested providing brochures regarding filing complaints at all Commission meetings.  He then suggested stating that a stipulated order is a public document in section XIV.D.

Decision point 25

Motion 09-11-09-13 (Hansen/Gusukuma) Moved, seconded and passed (4-0; Harriman absent) that the Commission adopt Decision Point 25, without discussion.

Public Comment:
None.

IV. Policy Priorities.

Mr. St. Croix stated that he had copies of the e-mail he sent last week and also had copies of an e-mail he received from Commissioner Hansen regarding the policy priorities.  Mr. St. Croix stated he discussed the priorities with Commissioner Harriman.  Commissioner Hansen stated that she made her own list of suggestions.  She proposed combining education and communication with the general public and adding conflicts of interest.  Commissioner Ward asked why conflict of interest could not be included under enforcement.  He added that the Commission should set the priorities earlier in the year.  Mr. St. Croix stated that, even though there was no current priority list, the Commission has made significant accomplishments during the past few months.  Commissioner Hansen suggested having a retreat.  Chairperson Studley suggested the following order for the policy priorities: 1. Education and Communication with the general public, 2. Enforcement, 3. Campaign Finance, 4. Conflicts of Interest, and 5. Campaign Consultant Ordinance.

Motion 09-11-09-14 (Hansen/Ward) Moved, seconded and passed (4-0; Harriman absent) that the Commission adopt the Commission’s top five policy priorities, as suggested by Chairperson Studley.

Public Comment:
Mr. Pilpel asked to see the e-mails the Commissioners were using a reference.  He suggested calendaring topics within these priorities in the future.  He also suggested providing calendar topics months in advance, if possible.  Commissioner Studley stated that the Commission will calendar and discuss these topics more thoroughly. 

V. Minutes of the Commission’s regular meeting of September 14, 2009 and special meeting of October 19, 2009.

September 14, 2009 minutes
Commissioner Hansen asked how the Commission would get new information, if there were any required updates, as in the Executive Director’s report.  Mr. St. Croix stated that staff would notify him when changes would need to be made to the reports.

Motion 09-11-09-15 (Gusukuma/Ward) Moved, seconded and passed (4-0; Harriman absent) that the Commission adopt the draft minutes of the September 14, 2009 meeting, as amended.

Public Comment:
Mr. Pilpel noted typographical errors.

October 19, 2009 minutes
Commissioner Studley noted a typographical error on page 5.

Motion 09-11-09-16 (Hansen/Gusukuma) Moved, seconded and passed (4-0; Harriman absent) that the Commission adopt the draft minutes of the October 19, 2009 meeting, as amended.

Public Comment:
Mr. Pilpel stated his belief that he commented after Item VII of the October meeting and asked that staff include his comments into the minutes. 

VI. Executive Director’s report.

Executive Director St. Croix stated that the amendments to the Lobbyist Ordinance and Campaign Finance Reform Ordinance (“CFRO”) have been passed by the full Board of Supervisors.  He also stated that the measures to extend the ban on contracting with the City, under section 3.222 of CFRO, to elected officials and department heads has been adopted unanimously by the Rules Committee and is expected to go to the full Board of Supervisors. 

He stated that section 1.126 of CFRO, mentioned by Commissioner Hansen under policy priorities, should be discussed as there has been interest in the community.  He stated that staff visited with Supervisor Mirkarimi and he would like to work with the Ethics Commission on this issue.  Mr. St. Croix stated that Supervisor Mirkarimi’s staff will review staff’s proposal and give the Commission input, in order to send a proposal to the full Board.

Mr. St. Croix then noted that there will be a number of system upgrades made to the Commission’s website during the weekend of Thanksgiving.  He stated that the website will be down for a few days, but ultimately everything on the website will run faster and better.  He stated that the Lobbyist Ordinance changes are expected to be on time and running at the beginning of 2010.  He stated that there will be one more quarterly report for lobbyists before the monthly reporting begins in January 2010.

Commissioner Hansen asked about a discrepancy in the number of total filers (621) and non-responsive filers (11), from the Statement of Economic Interests section on page 5 of the October Executive Director’s report.  Mr. St. Croix stated that 10 filers have been contacted and are therefore not called “non-responsive” and that there are 11 filers who have not responded at all.  Commissioner Hansen asked how many attempts are made to contact filers before they are considered “non-responsive.”  Mr. St. Croix stated that staff mails two letters and makes at least one phone call.   Mr. St. Croix stated that the Commission will need to make a policy decision regarding enforcement for non-filers next year.

Commissioner Hansen then asked about the “Campaign Finance Disclosure Program,” from the November report.  She asked whether this information could be more visible on the Commission’s website.  She stated that there are people on the list who are elected officials or who are running of office or who are about to announce a run for office.  She suggested that these people in particular should make an extra effort and that these people would create an extra interest for the public. 

Public Comment:
Mr. Pilpel stated that the Commission used to have a 5-6 month advance calendar so that the public would be aware of when certain topics were to be discussed at certain Commission meetings.  He suggested that the Commission resume that practice.  He also suggested creating a “hall of shame” for people Commissioner Hansen mentioned earlier.

VII. Items for future meetings.

Chairperson Studley stated that items named as policy priorities will be items for discussion at future meetings.  Commissioner Hansen asked to discuss posting items from the “Campaign finance disclosure program” chart (from the Executive Director’s report) onto the Commission’s website.  She also asked for a report on how the Commission would continue to engage SOTF in discussions.

Public Comment:
Mr. Pilpel noted a typographical error in the October 2009 meeting minutes.  He also thanked staff for its work in the most recent election.

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

None.

IX. Adjournment.

Motion 09-11-09-17 (Gusukuma/Hansen) Moved, seconded and passed (4-0; Harriman absent) that the Commission adjourn.

Public Comment:
None.

Meeting adjourned at 8:13 PM.

Respectfully submitted,

_________________________
Catherine Argumedo

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