Minutes of the Regular Meeting of
The San Francisco Ethics Commission
March 8, 2010
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 5:32 PM. She thanked Commissioner Emi Gusukuma for her distinguished term and stated the Commission’s appreciation for her leadership on the Commission. Chairperson Studley also welcomed Assessor Ting’s new appointee to the Ethics Commission, Ben Hur.
Chairperson Studley stated that Item VI on the agenda would be considered after Item II, public comment.
COMMISSION MEMBERS PRESENT: Jamienne Studley, Chairperson (excused at 7:13 PM); Susan Harriman, Vice-Chairperson; Commissioner; Eileen Hansen, Commissioner; Benedict Y. Hur, Commissioner; Charles Ward, Commissioner.
STAFF PRESENT: John St. Croix, Executive Director; Mabel Ng, Deputy Executive Director; Shaista Shaikh, Assistant Deputy Director; Catherine Argumedo, Investigator/Legal Analyst.
OFFICE OF THE CITY ATTORNEY: Andrew Shen, Deputy City Attorney.
OTHERS PRESENT: Zachary Nathan, William Scott Ellsworth, Anita Stearns Mayo, Kevin Heneghan, and other unidentified members of the public.
– Draft formal written advice letter regarding Zachary Nathan’s application of the one-year post-employment restriction under San Francisco Campaign and Governmental Conduct Code section 3.234, dated March 2, 2010. Mr. Nathan serves as a member of the Access Appeals Commission.
– Staff’s report regarding Mr. Nathan’s request for a waiver from Campaign and Governmental Code section 3.224 (compensated advocacy ban) and/or section 3.234(a)(2) (post-employment restriction), dated March 2, 2010.
– Staff’s report regarding William Scott Ellsworth’s request for a waiver from Campaign and Governmental Code section 3.224 (compensated advocacy ban), dated February 2, 2010. Mr. Ellsworth serves as a member of the Access Appeals Commission as a person “experienced in construction.”
– Proposed amendments and staff report, dated March 2, 2010, regarding possible amendments to the Government Ethics Code (“GEO”), San Francisco Campaign and Governmental Conduct Code section 3.200 et seq. Staff has proposed amendments to sections 3.216 (gifts), 3.220 (dual office-holding), and 3.224 (compensated advocacy).
– Staff memorandum regarding Audit Selection for 2009 Committees, dated March 1, 2010.
– Draft Minutes of the December 14, 2009 Regular Meeting of The San Francisco Ethics Commission.
– Executive Director’s Report to the Ethics Commission for the Meeting of March 8, 2010
II. Public comment on matters appearing or not appearing on the agenda that is within the jurisdiction of the Ethics Commission
A member of the public, who wished to remain anonymous, stated his shock that the Commission had not met since December 2009. He spoke to discuss a case referred from the Sunshine Ordinance Task Force, involved Sue Cauthen and the Library Commission. He stated that Ms. Cauthen tried to address the Library Commission and was shouted down. He stated that the Task Force found a willful violation of the Sunshine Ordinance. He stated that the incident occurred nine months ago and the complaint has not been presented to the Ethics Commission yet. He stated that the idea that democracy does not work is a reflection of the starvation that the people are given with respect to the enforcement of their issues. He stated the importance of enforcing the Sunshine Ordinance.
VI. Election of Chair and Vice-chair.
Motion 10-03-08-1 (Harriman/Ward): Moved, seconded and passed (5-0) that Commissioner Studley serve as Chair of the Ethics Commission.
Motion 10-03-08-2 (Ward/Hur): Moved, seconded and passed (5-0) that Commissioner Harriman serve as Vice-Chair of the Ethics Commission.
III. Consideration draft formal written advice letter to Zachary Nathan regarding the application of the one-year post-employment restriction under San Francisco Campaign and Governmental Conduct Code section 3.234.
Deputy Director Ng stated that the Commission had received a request for advice regarding the one-year post-employment ban. She stated that the Commission should determine whether the ban should be applied to a member of the Access Appeals Commission (“AAC”), Zachary Nathan. She stated that another question for the Commission is, if the ban is applicable, whether the ban would apply to future communications with just the AAC or also the Department of Building Inspection (“DBI”). She noted that staff drafted a memorandum and recommended that the ban would apply to AAC and DBI.
Chairperson Studley recommended joining the discussion for items III and IV. Commissioner Harriman asked whether Mr. Nathan was present and, if so, whether his preference is to sit on the AAC and work, or leave the AAC and continue communications with DBI. Mr. Nathan stated that his preference would be to stay on the AAC and to obtain a waiver so that he would be able to continue practicing his profession. He stated that he would prefer to remain in contact with DBI. Commissioner Harriman asked Mr. Nathan whether he had attended any AAC meetings. Mr. Nathan stated that he was appointed on December 16, 2009 and attended one meeting in January.
Commissioner Harriman asked Mr. Nathan whether he was aware of any difficult the AAC had in finding someone for the vacant seat on AAC. Mr. Nathan stated that, before he was appointed, several hundred people were contacted. He stated that Ann Aherne (Building Inspection Commission Secretary) conducted an exhaustive search. He stated that there were fewer than a dozen responses and about half had similar conflict issues. He stated that there were few people who met all of the requirements, including living in the City and being able to attend the midday, weekday meetings. Commissioner Hur stated that Mr. Nathan’s seat was a public seat, so there was no specific training necessary for the seat. Mr. Nathan stated that he did have a public seat and that there was no special expertise required, but that he was appointed because he had expertise in the access field. He stated that he had been working in the field for about 25-30 years.
Mr. Nathan stated that he is able to attend the meetings, regardless of the day and time, because he is self-employed. He stated that the pool of the public who would be able to attend this meeting time would be very small. Commissioner Ward asked whether Mr. Nathan knew why the AAC held its meetings during the week and during the middle of the day. He suggested that the AAC change its meeting time so that more people would be available to sit on the AAC.
Chairperson Studley stated that an issue presented is whether the Ethics Commission is permitted to issue a waiver in this case. She stated that the waiver provision does not address seats given to “general members of the public” as opposed to seats given to people with specific expertise in a given field. She stated that Mr. Nathan happens to be an expert in AAC’s specific field, but that he is not in the seat for which that is a consideration. Ms. Ng stated staff’s belief that Mr. Nathan’s appointment to a “general public” seat of the AAC would be a restriction on the Commission’s ability to provide a waiver. Ms. Ng stated that staff recommends a change to the law, but that the change would take at least 90 days from this meeting.
Commissioner Harriman asked to read the restricting language of the Ordinance. Ms. Ng stated that the current law begins on line 12 of section C on page 5 of staff’s memorandum. Commissioner Harriman stated that the current law is very clear and that she agreed with staff’s position. Chairperson Studley stated that the Commission would be unable to provide a waiver under the current law.
Ms. Ng stated that the Commission should also review section 3.224, as the Commission is restricted from providing this type of waiver. She stated that Mr. Nathan would most likely have to resign from the AAC and he would not be able to communicate with DBI. Commissioner Ward stated that the Commission should not allow people who are overseeing departments to be able to do business with the department itself. He stated that a bad precedent would be set for someone sitting on a commission or board.
Commissioner Harriman stated that she understood that Mr. Nathan had no idea about the conflict issues undtil after he had accepted the position. She stated that it was fair to grant the waiver, as he had only attended one meeting. Commissioner Hansen stated that she had a strict standard on granting waivers and would prefer not to grant one. Commissioner Hur stated that he supported a waiver in this case.
Motion 10-03-08-3 (Harriman/Hansen): Moved, seconded and passed (5-0) that the Commission adopt staff’s formal written advice letter to Zachary Nathan.
IV. Request from Zachary Nathan for waiver from Campaign and Governmental Code section 3.224 (compensated advocacy ban) and section 3.234(a)(2) (post-employment restriction).
Motion 10-03-08-4 (Harriman/Hur): Moved, seconded, and passed (4-1; Hansen dissented) that the Commission grant Zachary Nathan a waiver from the one-year post-employment restriction.
Mr. Nathan thanked the Commission and stated that the AAC does not oversee anyone in DBI. He explained that the AAC was a body that interpreted accessibility code. He stated that as a member of the AAC he would not set the budget or set goals for the department. He stated that denying the waiver would be an extreme hardship since he would not be able to do most of his work for the City.
V. Request from William Scott Ellsworth for waiver from Campaign and Governmental Code section 3.224 (compensated advocacy ban).
Deputy Director Ng stated that this request presented a similar issue to the Mr. Nathan’s request. She stated that Mr. Ellsworth was appointed to the AAC in September 2009 as a member “experienced in construction” and he seeks a waiver so that he may continue working as an architect in San Francisco. She also stated that Mr. Ellsworth was present at the meeting.
Mr. Ellsworth stated that he owned his own business in San Francisco and that he communicates with DBI regularly. He stated that he would be unable to continue practicing without a waiver. Chairperson Studley asked whether he knew the selection process for his seat. Mr. Ellsworth stated that Ms. Aherne wrote a letter explaining the recruitment process for this seat. He stated that over 700 e-mails were sent and that there were not many responses. He stated that he had no idea about any possible conflict issues.
Commissioner Harriman moved to grant the waiver, as the seat asks for someone experienced in construction. She also stated that she was not sure how the AAC would be able to fill this vacancy without the Ethics Commission granting a waiver. Chairperson Studley seconded the motion. Commissioner Harriman then asked whether it was possible for the candidates to come to the Ethics Commission before appointment. Chairperson Studley stated that the appointing authority needs to advise the candidates of their responsibilities and the possible consequences of accepting the appointment.
Commissioner Ward stated that the appointing authorities know that the Ethics Commission will have to grant the waivers and he suggested that the Commission not grant the waiver to avoid setting a precedent. He stated that he is sympathetic towards Mr. Ellsworth’s position, but that he could not vote in favor of granting the waiver.
Commissioner Hansen suggested educating the appointing authorities so that the candidates for open positions would be aware of their responsibilities upon accepting a post.
Motion 10-03-08-5 (Harriman/Studley): Moved, seconded, and passed (4-1; Ward dissented) that the Commission grant William Scott Ellsworth a waiver from the compensated advocacy ban.
[Item VI discussed after Item II.]
VII. Consideration of possible amendments to the Governmental Ethics Code (“GEO”), San Francisco Campaign and Governmental Conduct Code section 3.200 et seq. Staff has proposed amendments to sections 3.216 (gifts), 3.220 (dual office-holding), and 3.224 (compensated advocacy).
Chairperson Studley stated that she needed to leave the meeting at 7 PM and that Vice-Chairperson Harriman would then direct the meeting.
Deputy Director Ng stated staff proposed amendments to three sections of GEO: gifts, prohibition on representing private parties before other City officers and employees, and prohibition on dual office holding. Chairperson Studley suggested discussing each section separately.
Decision Point 1A:
Motion 10-03-08-6 (Hansen/Harriman): Moved, seconded, and passed (5-0) to approve the amendments to section 3.216(b), without discussion.
Decision Point 1B:
Deputy Director Ng stated that the amendments to section 3.216(c) in this decision point refer to changing terms from the phrase “gratuity in money or other valuable thing” to simply “gift.” Ms. Ng also stated that the term “under his or her supervision” has been added in order to make it clear that the rule applies to a supervisory-subordinate relationship. She added that staff recommends extending the ban on gifts from subordinate employees or applicants to include loans.
Motion 10-03-08-7 (Hansen/Harriman): Moved, seconded and passed (5-0) to approve the amendments to section 3.216(c).
Decision Point 1C:
Deputy Director Ng stated that this decision point related to the reporting requirements of travel, lodging, etc. for out-of-state trips. She stated that City elected officers currently need to file reports before these trips. She stated that staff recommends extending the requirement so that it applies to any person, not just an entity, paying for the gift of travel. She also stated that the officer reporting the travel may not have all of the necessary information to report prior to the trip, so staff recommends requiring reporting after the trip concludes. She also stated that staff recommends removing language allowing the City to accept a gift of payment for any elected official’s travel, due to a recent FPPC ruling. She also advised the Commission of some necessary minor grammatical changes.
Adding “a person” to section 3.216(d) –
Commissioner Hur recommended making a change on line 16, page 3, so that the language would include the person funding the trip. Ms. Ng discussed the issue with DCA Shen and then suggested removing “name of” under subsection (d) in line 11 on page 3 and adding “the person funding the trip or the employee or officer of the entity funding the trip…” in line 16 on page 3.
Changing the requirement to report to within 30 days after the end of a trip –
Chairperson Studley asked whether the requirement would allow the public to know about the trip before it occurred, even if some details may not be clear. Executive Director St. Croix stated that typically filers are report twice, since the initial report is usually amended. Chairperson Studley stated that the original intent of the rule was to notify the public that a trip was going to occur. She suggested maintaining the requirement of reporting before a trip. Commissioner Hansen agreed and stated that it was useful to have the information, even if the information is not complete, before a trip is taken. Mr. St. Croix stated that many times people who take the trips are not aware of the total cost in order to report accurately. He stated that the total cost is usually not known until after the trip is complete. Commissioner Harriman stated that there was no way of answering some of the questions in advance of a trip. Chairperson Studley stated that the facts known before the trip is taken – where the person was going, when the person was going, and who was paying for the trip – should be reported before the trip is taken. She stated that other, more specific details, such as the cost of a hotel room or other attendees on the trip, could be amended at a later date. Commissioner Hur suggested adding “estimate” on the form itself. Chairperson Studley suggested that staff review the form and law and decide whether a change to the law is necessary. The Commissioners agreed that they needed more information from staff in order to move forward with this issue. No action taken regarding an amendment to this requirement.
Deleting language regarding gifts of travel to the City –
Commissioner Hansen stated her concern regarding trips where members on a trip may lobby the Mayor or other officials, where there is money given to the City. She asked whether that type of trip would be possible after this amendment. Executive Director St. Croix stated that this amendment would eliminate this type of trip. Deputy Director Ng stated that the FPPC change would require the gift of travel to go to the officer, not the City, so that the gift would be reportable and person receiving the gift would be subject to the $420 annual restriction.
Motion 10-03-08-8 (Harriman/Ward): Moved, seconded, and passed (5-0) to adopt “a person” as mentioned by Commissioner Hur, to table changes to the requirement to report before travel occurs, to delete language covered by the new FPPC rule, and to adopt the minor grammatical changes.
Anita Mayo stated that “person” is defined broadly in the amendment.
Commissioner Harriman moved to exchange “individual” instead of “person” in the changes and Commissioner Ward seconded the friendly amendment.
Decision Point 2
Commissioner Harriman stated that there were not four votes in support of these amendments.
Decision Point 3
Deputy Director Ng suggested that the Commission should follow state provisions regarding dual office holding. She stated that, under the state rule, if two offices are incompatible, then the officer would be automatically removed from second. She stated that this removal would occur when one office makes decisions for the other or oversees the other office. She stated that it was possible to hold two offices, but that the offices had to be completely unrelated to each other.
Motion 10-03-08-9 (Harriman/Ward): Moved, seconded, and withdrawn that the Commission adopt Decision Point 3 (deletion of section 3.220).
Commissioner Hansen stated that someone should not hold two offices at the same time, regardless of whether they were compatible. Executive Director St. Croix stated that an officer, in this case, would be defined as someone having two City positions and making less than $2500 in those positions. DCA Shen added that “officer” would include all elected officials, every department head, and some levels below department head.
Mr. Nathan asked whether this rule would prevent someone from serving on two commissions. He stated that a member of AAC currently serves on two commissions. He asked for clarification regarding the rule and the $2500 limit.
Commissioner Harriman stated that she was confused by the stricken language and by the replacement language. Mr. St. Croix stated that staff may need to revisit the language and suggest new language.
Decision Point 2
Commissioner Harriman stated that there was no need in voting for Decision Point 2, as there were not four votes in support of the amendments. She suggested discussing the issues in order to give staff guidance.
Commissioner Hur stated that he did not understand allowing for the same level of exemptions for someone sitting in a public seat as someone with specific skills. The Commission invited public comment.
Mr. Nathan stated that it would impossible for someone interested in serving and wanting to participate in government without a waiver. He stated that without waivers departments would have a difficult time in filling vacancies.
Chairperson Studley stated that waivers should be granted under narrow and extreme circumstances, but that she understands Commissioner Ward and Commissioner Hansen’s concerns. She asked staff to look at alternatives. Commissioner Ward questioned the AAC’s need for having its meetings during the day on a weekday. He suggested the AAC change its meeting time in order to increase the selection pool.
[Commissioner Studley was excused at 7:13 PM.]
Commissioner Harriman stated there would be no action on this decision point.
[Break at 7:14 PM.]
[Return from break at 7:23 PM.]
VIII. Selection of Random Audits of 2009 Committees.
Assistant Deputy Director Shaikh stated that staff recommends seven committees for audit and also recommends one general pool of all types of committees which formed for the 2009 election. Executive Director St. Croix noted an error on the audit list of committees – “San Francisco Chamber of Commerce 21st Century Committee” is the old name for “SF Forward Sponsored by San Francisco Chamber of Commerce” – and that the total number in the pool of $10,000 – $50,000 committees should be 11, not 12. Commissioner Hansen asked to alter the percentages, so that instead of 17%, 17%, and 44%, the Commission audit more higher-level committees. She suggested the percentages be 10% on the lowest level, 20% on the next level, and 70% on the above-$100,000 level. Using those percentages, she suggested staff audit eight committees. Mr. St. Croix stated that two auditor positions were vacant from August 2009 to January 2010. He stated that, during that time, the Commission only had one auditor and half of his time was spent on budget issues. He stated that staff anticipates auditing 25 committees after the 2010 election. Ms. Shaikh stated that many candidates have started their campaigns much earlier than they have in the past. She reminded the Commission that public financing for the 2011 Mayoral election may be implemented and that there will be two major elections back to back. She stated that staff will be extremely occupied with monitoring the expenditure ceiling.
Commissioner Ward asked the reason for adjusting the audit percentages. Commissioner Hansen stated that her rationale was about higher level of activity in a more highly funded campaign versus small campaigns. She suggested that there is an assumption that if a campaign can hire a treasurer, then that campaign should know what they are doing; if errors are made, then it is not because of lack of knowledge. She stated that if mistakes are made in smaller campaigns, there are people who do not know what they are doing, even after trainings. She stated that the Commission should pay more attention to the committees that spend more money.
Commissioner Ward asked whether she suggested that there should be a standard for higher-funded campaigns and then a different standard for grassroots campaigns. Commissioner Hansen stated that the Commission was already using two standards. Commissioner Harriman stated that she would defer to staff’s judgment regarding the number to be audited. Ms. Shaikh stated that the numbers are based on past guidance and consensus from the Commission. She stated that the smaller campaigns are the ones that make more mistakes. She stated that staff performs the audits as outreach and education and that staff is available at the counter to help anyone who has questions about reporting requirements.
Commissioner Hansen stated that the public harm from mistakes from a committee that raises only $10,000 is much different than mistakes from a committee that raises $100,000. She stated that the Commission has heard from smaller campaigns that it is punishing them and that what the Commission does is onerous. She suggested auditing more of the higher-level committees. Commissioner Harriman stated that the Commission should not pre-judge and the audits are to be used as education and outreach. She stated that staff is required to take pay cuts and she is sympathetic and not willing to overload them.
Motion 10-03-08-10 (Harriman/Ward): Moved, seconded, and passed (3-1; Hansen dissented and Studley absent) to adopt staff’s memorandum and recommendations.
Ms. Mayo stated that the Commission should also consider equal protection of the law. She stated that the Commission seems to want to punish larger campaigns and if the smaller campaigns are the ones making more mistakes, then the focus should be on those campaigns.
Selection of Audits:
Ms. Mayo assisted in choosing the committee names randomly out of a box.
Ms. Mayo read the names of the seven 3rd level committees (above $100,000): Committee on JOBS Government Reform Fund; Building Owners and Managers Association of San Francisco PAC – Independent Expenditures AKA BOMA-SF; Choice for Students; SF Forward Sponsored by San Francisco Chamber of Commerce; San Francisco Coalition for Responsible Growth – PAC; Plan C San Francisco PAC; Committee on JOBS Candidate Advocacy Fund. Ms. Shaikh stated that there were also one ballot measure committee and one candidate committee in activity level three. Ms. Mayo read the names of those two committees: Mid-Market ARTS Alliance, Yes on D; Re-Elect City Attorney Dennis Herrera 2009. Ms. Shaikh stated that the Commission would select four committees for audit from this level.
Committees chosen for audit: Building Owners and Managers Association of San Francisco PAC – Independent Expenditures AKA BOMA-SF; Committee on Jobs Government Reform Fund; Choice for Students; and Plan C San Francisco PAC.
Ms. Shaikh stated that there were five general purpose committees in activity level two ($50,001-$100,000). Ms. Mayo read the names of the five committees in this pool: San Francisco Small Business Advocates; Asian Pacific Democratic Club PAC; San Francisco Women’s Political Committee; San Francisco Apartment Association PAC; and Coleman Action Fund for Children Committee. Ms. Shaikh stated that there was also one candidate committee in activity level two. Ms. Mayo read the name of that committee: Cisneros for Treasurer 2009.
Committee chosen for Audit: Cisneros for Treasurer 2009.
Ms. Shaikh stated that there were seven general purpose committees in activity level one. Ms. Mayo read the names of the seven committees in this pool: San Francisco Taxpayers Union Political Action Committee; District 11 Democratic Club; Protect our Benefits; Residential Builders Association of San Francisco PAC; Richmond District Democratic Club; Noe Valley Democratic Club; and Asian American Contractors Association (AACA) PAC. Ms. Mayo then read the ballot measure committees: San Franciscans for Budget Reform: Yes on A; San Franciscans Against Commercialization – No on C, No on D, Yes on E; One California for All – Yee for C; and Protect Our Rec Centers/Yes on C.
Committees chosen for audit: San Franciscans Against Commercialization – No on C, No on D, Yes on E; and Protect Our Rec Centers/Yes on C.
IX. Closed Session
Motion 10-03-08-11 (Ward/Hur): Moved, seconded, and passed (4-0; Studley absent) that the Commission go into closed session.
The Commission went into closed session at 7:49 PM.
The Commission returned to open session at 8:02 PM.
X. Discussion and vote regarding closed session action and deliberations.
Motion 10-03-08-12 (Hansen/Ward): Moved, seconded and passed (4-0; Studley absent) 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 as defendant.
XI. Minutes of the Commission’s regular meeting of December 14, 2009
Motion 10-03-08-13 (Hansen/Ward): Moved, seconded, and passed (4-0; Studley absent) that the Commission adopt the minutes of the meeting of December 14, 2009.
XII. Executive Director’s Report
Executive Director St. Croix stated that he was proud of staff. He stated that everyone received layoff notices for 60 days from receiving them. He stated that staff should be rehired as part-time employees after March 22, 2010. He stated that everyone will have a 6.25% pay cut and that he was asked to take a 10% pay cut. He stated that about 400 City employees will be laid off, but that none of those 400 will be from the Ethics Commission. He stated that he does anticipate bumping into the open position at Ethics. He stated that he would like to replace an investigator in July, if the department has the money.
Mr. St. Croix then addressed BDR (Bureau of Delinquent Revenues) settlements that occurred since the Commission last met. He presented a few screenshots of the new lobbyist site. Commissioner Hansen asked whether there was a downloadable function and whether the information was exportable to Excel. Mr. St. Croix stated he would check with the Information Technology Officer.
XIII. Items for Future Meetings
Commissioner Harriman suggested that the Commissioners e-mail Chairperson Studley directly with any items they wish to discuss at future meetings.
XIV. Public comment on matters appearing or not appearing on the agenda that are within the jurisdiction of the Ethics Commission
Motion 10-03-08-14 (Ward/Hansen) Moved, seconded and passed (4-0; Studley absent) that the Ethics Commission adjourn.
The meeting was adjourned at 8:15 PM.
Investigator/ Legal Analyst