Minutes of the Regular Meeting of
The San Francisco Ethics Commission
May 10, 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 5:33 PM. She stated the meeting room had been equipped with new microphones. Commissioner Hansen was excused from this meeting.
COMMISSION MEMBERS PRESENT: Jamienne Studley, Chairperson; Susan Harriman, Vice-Chairperson; Benedict Y. Hur, Commissioner; Charles Ward, Commissioner.
STAFF PRESENT: John St. Croix, Executive Director; Mabel Ng, Deputy Executive Director; Richard Mo, Chief Enforcement Officer; Catherine Argumedo, Investigator/Legal Analyst.
OFFICE OF THE CITY ATTORNEY: Jon Givner, Deputy City Attorney.
OTHERS PRESENT: Allen Grossman; Kimo Crossman; Marc Salomon; and other unidentified members of the public.
– Staff memorandum regarding draft regulations related to the Commission’s enforcement of the Sunshine Ordinance, dated May 4, 2010.
– Letter to Commission from Richard Knee, dated May 7, 2010, regarding the Sunshine-related regulations proposed to take effect July 14, 2010.
– Staff memorandum regarding possible actions related to electronic filing of Statements of Economic Interests (SEIs), dated May 3, 2010.
– Staff memorandum regarding changes to regulations governing Statements of Incompatible Activities (SIAs), dated May 5, 2010.
– Staff memorandum regarding draft amendments to regulations related to post-employment restrictions, dated May 5, 2010.
– Draft Minutes of the April 12, 2010 Regular Meeting of The San Francisco Ethics Commission.
– Executive Director’s Report to the Ethics Commission for the Meeting of May 10, 2010.
II. Public comment on matters appearing or not appearing on the agenda that are within the jurisdiction of the Ethics Commission
A member of the public stated he was the Chair of the Sunshine Ordinance Task Force in 1995 and 1996. He reminded the Commission about a complaint from Sue Cauthen that was referred from the Task Force against the Library Commission. He stated the level of corruption in the Library Commission is unique in his experience. He stated that the acts alleged in this complaint are indefensible. He also stated that the Library Commission has a public comment fund to which donations are made whenever members of the public complain about privatization and abuses of various kinds.
Allen Grossman discussed his recent lawsuit against the Ethics Commission. He stated that Mr. St. Croix conceded that he was entitled to the documents he requested. Mr. Grossman stated that Mr. St. Croix made a statement to a news publication that he would have received the documents without the need for litigation if he had been patient. Mr. Grossman stated that Mr. St. Croix serves the Commission poorly and that he was untruthful. Mr. Grossman stated he had made three separate records requests before filing the lawsuit and that Mr. St. Croix had not honored any of the requests and failed to respond to the last request. He stated that Mr. St. Croix undermined the effectiveness of the Sunshine Ordinance.
Kimo Crossman stated that he agreed with both of the previous speakers. He stated that it was inappropriate for Mr. St. Croix to attack the public and that the City chose to pay Mr. Grossman rather than fight. He stated that it is sad that members of the public have to go to court in these types of matters. He stated that while there are multiple references in local law to official misconduct, the Commission has no procedure for handling such matters.
Marc Salomon stated that he had made a formal Sunshine request regarding the investigative files of the Tony Hall and Carolyn Knee cases. He stated that he was provided responsive documents, but that the documents did not include those that pertained to how staff handled these complaints. He stated that Mr. Mo indicated section 6552 of the Government Code as a reason for withholding the documents, but that the Sunshine Ordinance precludes the Commission from relying on that section as a basis for non-disclosure. He stated that he requested a law index and received no response. He stated that he is seeking documents about employees’ duties and the documents cannot be withheld. He stated that the Commission needs to get independent, objective individuals to handle this request. He stated that he would like to see the documents he requested within 48 hours or he will go to the Sunshine Ordinance Task Force.
Mr. Salomon then stated that the Chair is the Executive Director of the Public Advocates . He stated that this group was involved in a lawsuit with Urban Habitat over the past several years in Pleasanton. He stated that the Chair should identify the source of the funding for this lawsuit, as real estate interests are most likely involved. He stated that real estate interests have led to corruption in government. He stated that because Greenbelt Alliance Executive Director argued against the housing cap that would have protected the Mt. Diablo green-space from encroachment and because the Greenbelt Alliance is the fiscal sponsor for the Housing Action Coalition, a developer lobbyist group, it calls into question the objectivity of the Chair in deciding potential issues that may come before this Commission involving real estate interests.
III. Consideration of draft regulations regarding the Commission’s enforcement of the Sunshine Ordinance.
Executive Director St. Croix stated that staff presented eight decision points regarding referrals from the Sunshine Ordinance Task Force (“Task Force”). He stated that the intent is to open the hearings and clarify some ambiguities in the Sunshine Ordinance.
Decision Point 1A
Chairperson Studley stated that the Commission should determine first whether there should be a separate set of regulations for referrals from the Task Force. Commissioner Harriman stated that she did not approve the proposed set of regulations, but she did approve having a separate set of regulations. She stated that after reading the Sunshine Ordinance, she noticed that the Ethics Commission is mentioned only three times. She stated the first mention does not have anything to do with the proposed regulations; the second states that the Commission handles complaints alleging willful violations, by elected officials, department heads, and certain managerial employees; and the third states that any person may institute a proceeding before a court or the Ethics Commission, if enforcement action is not taken within 40 days after a complaint is filed. She stated that in reference to the final mention of Ethics, the Sunshine Ordinance allows only for injunctive relief. Commissioner Harriman stated her belief that the Ethics Commission does not have the authority to enact the proposed regulations.
Chairperson Studley asked the Executive Director and Deputy City Attorney to comment and suggested that the Commission could postpone discussion to a future date. Commissioner Harriman stated that the Sunshine Ordinance is ambiguous in section 67.35(d), especially regarding the use of the word “penalties” without defining the word. Mr. St. Croix stated that staff is attempting to clarify the ambiguities. Commissioner Hur stated that he had the same concerns as Commissioner Harriman. He stated that he would agree to decision point 1B if it were limited to willful violations by department heads and elected officials. Chairperson Studley stated that “other managerial employees” is also included in section 67.34 of the Sunshine Ordinance.
DCA Givner stated that the ambiguities in sections 67.35(a) and (d) could be resolved with regulations. He stated that one could reasonably conclude that subsection (a) refers to proceedings seeking injunctive or declarative relief in court and that subsection (d) refers to proceedings regarding enforcement and penalties in a court or the Ethics Commission. He stated that the Charter allows the Ethics Commission to clarify these ambiguities through regulations.
Commissioner Harriman stated that the Sunshine Ordinance does not allow the Commission to write the penalties. She stated that the responsibility for determining penalties belongs to the voters of San Francisco. DCA Givner suggested that an order of the Commission could be enforced through court, through to a writ of mandate proceeding. Chairperson Studley asked DCA Givner for any examples to give the Commission guidance to set penalties through a Charter provision. Commissioner Harriman stated that it was unclear whether the Commission had the authority to determine penalties. She stated that the Ordinance allows the Commission to handle allegations of willful failures of elected officials and department heads and that it provides the Commission authority for enforcement actions. Commissioner Hur stated that without penalties, there would be no teeth to any findings made by the Commission in these instances. Commissioner Ward stated that if the Sunshine Ordinance needs to be amended, then the people of San Francisco are the ones to make those changes. Chairperson Studley shared Commissioner Harriman’s view that penalties are not the only way for the Commission to accomplish its responsibilities. She stated that a finding by the Commission would carry weight, even without defined penalties.
Allen Grossman stated that no matter what the Commission decides, the Commission cannot investigate alleged violations of the Ordinance. He stated that the Ordinance clearly provides the Commission enforcement power, but there is no investigative power. He suggested that the purpose of adopting new rules would be to help a complainant who cannot get relief quickly and to get an administrative body to act. He stated that the cases are sent to the Commission by the Task Force for enforcement and that if the Commission gives credence to the work the Task Force has done, more could happen quickly.
A member of the public stated that enforcement power was focused on the idea that the Commission could find official misconduct, which means removing people from office. He stated that the whole reason that the Task Force would be empowered to refer things to the Commission would be so that when the Commission found official misconduct, people would be removed from office. He stated the possibility of being removed from office would lend seriousness into the whole process. He stated that the Library Commission does not send representatives to the Task Force and that people do not take the Task Force seriously. He stated that the Commission needs credibility.
Kimo Crossman stated that sections 67.34 and 67.35 are not related. He stated that the Mayor referred the Ed Jew matter to the Commission for a hearing on official misconduct. He stated that it was clear that the Mayor’s office wanted removal from office, not a public reprimand or fines. He suggested that the Commission address the question of the ability to enforce findings of the Task Force. He suggested adding a provision into departments’ Statements of Incompatible Activities (“SIAs”) requiring adherence to the Sunshine Ordinance, so that if a member of a department failed to comply with the Sunshine Ordinance then the SIA would be violated. He stated that changes to the Sunshine Ordinance could be added by the Board of Supervisors as long as the changes did not weaken the Sunshine Ordinance.
Chairperson Studley suggested acting only on decision points 1A, 1B, and 1C.
Motion 10-05-10-1 (Harriman/Ward): Moved, seconded and passed (4-0; Hansen absent) that the Commission create and adopt a separate set of regulations to govern the investigations and enforcement of complaints that allege a violation of the Sunshine Ordinance.
Allen Grossman stated the decision point 1A creates a new set of regulations, but the Commission does not have authority to create a new set of regulations. He stated that the description on the draft proposed for this meeting does not adequately describe the concept of referrals. He stated that referrals should never be a complaint. He stated that willful failure does not equal a violation. He stated that failure means official misconduct and that Article 15 of the City Charter describes official misconduct, which includes discipline and/or removal from office.
Kimo Crossman stated that the Commission cannot create a new set of regulations for investigations of findings from the Task Force. He stated that there is no provision for that in the Sunshine Ordinance or City Charter. He stated that he did not see one reference to official misconduct in the proposed regulations and suggested that official misconduct should be addressed by the Commission.
Commissioner Harriman stated that section 67.30(c) of the Sunshine Ordinance provides for the Task Force to make referrals to a municipal office. She stated that once the office gets the referral, the Sunshine Ordinance is silent as to what the office can do with the referral. She stated that enforcement is separate from findings of willful failure. She stated that she agreed with creating and adopting a separate set of regulations, but that she did not agree with the set of regulations presented at this meeting. Chairperson Studley agreed and stated that she also did not agree with the title of the regulations presented at the meeting.
Decision Points 1B & 1C
DCA Givner suggested postponing any discussion on decision point 1B until the Commission approves a new set of regulations. Chairperson Studley agreed and stated that the Commission should postpone discussion on decision point 1C as well.
Chairperson Studley asked the Commissioners to present questions to staff so that staff would be able to research and incorporate any outstanding issues into new set of regulations. Commissioner Harriman stated her interest in meeting with Mr. Grossman to discuss the proposed regulations. Mr. Grossman stated that he would be happy to meet with Commissioner Harriman. He stated that the Commission should make a strong statement and that transparency is important. He stated that the process at the Task Force is a long one and that the process once it makes it to the Ethics Commission should be faster.
Chairperson Studley stated her appreciation of the willingness of both Mr. Grossman and Commissioner Harriman to meet and discuss the proposed regulations. Commissioner Hur stated that he would make suggestions and comments regarding a new set of regulations to staff.
IV. Consideration of staff’s recommendations for changes to state law to permit local filing officers (1) to provide for electronic filing of Statements of Economic Interests (SEIs), thus eliminating paper reports; (2) to require certain or all SEI filers to file electronically; and (3) to permit on-line posting of electronically-filed SEIs.
Deputy Director Ng stated that staff’s proposals were listed on page 5 of the memorandum. She stated that the changes would require more outreach, but would provide for greater efficiency. Commissioner Harriman voiced a concern regarding filer privacy. Ms. Ng stated that the FPPC redacts signatures, addresses, and phone numbers, and staff does the same for local filings, and will continue to do so if State law is amended to allow electronic filing.
Motion 10-05-10-2 (Harriman/Ward): Moved, seconded, and passed (4-0; Hansen absent) that the Commission adopt decision points 1A, 1B, 1C, and 2 from staff’s memorandum.
Kimo Crossman stated that electronic filing is good. He stated his concern regarding redactions. He stated that in Florida a notice is placed on a similar form that anything provided is part of the public record. He stated that people are able to put a work address or telephone number, so that staff would not have to take time to redact any information. He stated that filing electronically is not a big challenge.
V. Consideration of possible amendments to regulations for section 3.218 of the Government Ethics Ordinance (“GEO”), San Francisco Campaign and Governmental Conduct Code section 3.200 et seq.
Deputy Director Ng stated that staff would like to update the regulations. She stated that some of the changes in the proposed regulations update to current practice. Commissioner Hur stated that the proposed first sentence of decision point 1A (section 3.218-1(a)(1)) should be stricken and suggested striking the next sentence up to the first comma, so that both sentences are consistent.
Motion 10-05-10-3 (Harriman/Ward): Moved, seconded, and passed (4-0; Hansen absent) that the Commission adopt decision point 1A, as amended by Commissioner Hur.
VI. Consideration of possible amendments to regulations for section 3.234 of the Government Ethics Ordinance (“GEO”), San Francisco Campaign and Governmental Conduct Code section 3.200 et seq.
Decision Points 1, 2, 3
Deputy Director stated that many of the amendments are technical changes to refer to the proper citations and noted a typographical error in the first paragraph. Commissioner Hur stated that the striking of the word “former” (last strike-through in bold) under section 3.234-4(a)(1) should remain included. Ms. Ng agreed with the change and Commissioner Hur suggested a change in subsection (a)(2) as well. Commissioner Hur and DCA Givner discussed possible alternatives for the wording of subsections (a)(1) and (a)(2). Commissioner Hur stated that the strike-through in section 3.234-5(a)(1)(A) is ambiguous and needs to be amended.
DCA Givner suggested language for the end of section 3.234-4(a)(2): “the day-to-day management of the department, board, commission, office, or unit of government for which the officer or employee worked at the time he or she participated in the award of the contract.”
Motion 10-05-10-4 (Harriman/Hur): Moved, seconded, and passed (4-0; Hansen absent) that the Commission adopt decision points 1, 2, and 3.
Decision Point 4
Motion 10-05-10-5 (Harriman/Hur): Moved, seconded, and passed (4-0; Hansen absent) that the Commission adopt section 3.234-4(a)(1) and section 3.234-4(a)(2), as amended by Commissioner Hur and DCA Givner.
Ms. Ng stated that staff would revise decision point 5.
VII. Closed Session
Motion 10-05-10-6 (Studley/Hur): Moved, seconded, and passed (4-0; Hansen absent) that the Commission go into closed session.
The Commission went into closed session at 7:06 PM.
The Commission returned to open session at 7:15 PM.
VIII. Discussion and vote regarding closed session action and deliberations.
Motion 10-05-10-7 (Harriman/Hur): Moved, seconded and passed (4-0; Hansen absent) that the Ethics Commission finds that it is in the best interests of the public not to disclose its closed session deliberations re: existing litigation.
IX. Minutes of the Commission’s regular meeting of April 12, 2010.
Motion 10-05-10-8 (Harriman/Hur): Moved, seconded, and passed (4-0; Hansen absent) that the Commission adopt the minutes of the meeting of April 12, 2010.
X. Executive Director’s Report.
Executive Director St. Croix stated that the budget is due in early June and that he remained guardedly optimistic that there would not be any major cuts. He stated there was a large payoff from BDR. He stated that under the new rules regarding public financing, candidates could apply as early as February for this November’s election. He stated that there are already seven candidates certified and $142,000 distributed. He stated that there could be fifty candidates for members of the Board of Supervisor this year and the deadline for public financing is in August. He stated that November would be an active election and that staff has already been busy.
Chairperson Studley asked if the receipts go into the general treasury. Mr. St. Croix stated that everything goes to the general fund, but that 75% of what is received is attributed to the Ethics Commission as revenue.
XI. Items for future meetings.
Chairperson Studley stated that one item for future meetings is future communications and outreach with the public. She stated that the Commission would also return to the Task Force regulations.
XII. Public comment on matters appearing or not appearing on the agenda that are within the jurisdiction of the Ethics Commission.
Motion 10-05-10-9 (Harriman/Hur): Moved, seconded, and passed (4-0; Hansen absent) that the Commission adjourn.
The meeting was adjourned at 7:22 PM.
Investigator/ Legal Analyst