Minutes – September 13, 2010 – San Francisco Ethics Commission

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
September 13, 2010
Room 408, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102

I. Call to order and roll call.

Vice-Chairperson Harriman called the meeting to order at 5:32 PM. Chairperson Studley and Commissioner Ward were excused from the meeting.

COMMISSION MEMBERS PRESENT: Susan Harriman, Vice-Chairperson; Eileen Hansen, Commissioner; Benedict Y. Hur, Commissioner.

STAFF PRESENT: John St. Croix, Executive Director; Mabel Ng, Deputy Director; Shaista Shaikh, Assistant Deputy Director; Catherine Argumedo, Investigator/Legal Analyst.

OFFICE OF THE CITY ATTORNEY: Mollie Lee, Deputy City Attorney.

OTHERS PRESENT: Edward Donaldson; Matt Drake; Kristine Enea; and other unidentified members of the public.

MATERIALS DISTRIBUTED:
– Staff memorandum re: Appeal to the Ethics Commission of the Executive Director’s Decision Not to Certify Candidates as Eligible to Receive Public Financing, dated September 9, 2010;
– Draft Minutes of the August 9, 2010 Regular Meeting of the San Francisco Ethics Commission;
– Draft Minutes of the August 26, 2010 Special Meeting of the San Francisco Ethics Commission;
– Executive Director’s Report to the Ethics Commission for the Meeting of September 13, 2010.

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

Kristine Enea stated that she is a candidate for Supervisor in District 10. She stated her interest in having a competitive race and asked the Commission to approve Edward Donaldson for public financing.

III. Consideration of Candidate Appeals – a number of candidates for Supervisor have been denied participation in the Public Finance program because staff determined that they did not meet participation requirements.

Commissioner Harriman stated that the Executive Director had denied applications of both Matt Drake and Edward Donaldson for failure to file statements by the August 6, 2010 deadline. She asked to hear from both candidates.

Edward Donaldson’s Appeal

Edward Donaldson stated that he is a candidate for District 10 Supervisor. He stated that he had filed the intent to participate form and did so at the time he presented his initial papers at the Ethics Commission. Commissioner Harriman asked when he filed those documents. Mr. Donaldson stated that he filed the documents on January 4, 2010. He stated that he has been a strong advocate for public financing. He stated that he had a clean money campaign on Facebook. He stated his understanding that 13 people had applied for public financing in District 10. He stated that it was ironic that he was advocating for public financing and then was told he did not file the appropriate documents. He stated that he was certain he completed the form and filed it. He stated that he made a mistake in not keeping a copy of what he had filed. He stated that he assumed the Commission would be a good steward of the filings. He stated that there is a possibility that someone made a mistake. He stated that he had received a phone call from the Department of Elections about withdrawing his candidacy. He stated that the person from the Department of Elections made a mistake and perhaps this is the case with his form at the Ethics Commission. He again stated that he filed the form on January 4, 2010.

Commissioner Harriman asked Mr. Donaldson what he filed on that date. He stated he filed the Intent to File in paper form. Mr. Donaldson stated that he was unsure whether he kept a copy of the form he filed. He stated that his office is being renovated and that he has looked for the filing.

Assistant Deputy Director Shaikh stated that she spoke with Mr. Donaldson and that he had told her he filed the statement of participation earlier in the year. Ms. Shaikh stated that the Commission had no record of that filing. She stated that he had told her that he had a date-stamped copy and that his copy was in storage. She stated that she had advised him to look for the copy, but to file this appeal in case he was unable to find the copy.

Mr. Donaldson stated that he was unsure whether he has a copy of the filing. Commissioner Harriman asked how Mr. Donaldson was certain of the date he filed it. He stated that he had been an advocate of public financing and, when he was presented with the form, he signed it and filed it then. Ms. Shaikh stated that he had told her that he filed the Statement of Participation when he filed his Form 501. Ms. Shaikh stated that he filed Form 501 in February 2010. Ms. Shaikh stated that she checked with the Department of Elections and Mr. Donaldson had filed a Declaration of Intent with them on January 4, 2010. Ms. Shaikh stated that the Declaration of Intention to solicit or accept contributions is a different form from the Statement of Participation in the Public Finance program.

Ms. Shaikh also addressed an e-mail Mr. Donaldson mentioned about a training. She stated that staff had used an old e-mail and included him when he had already attended the training. Mr. Donaldson stated that, although the e-mail is not relevant to this appeal, a mistake was made and the form may have been lost due to human error.

Commissioner Hur asked Mr. Donaldson when he first learned that his application was denied. Mr. Donaldson stated that he was informed on September 2, 2010. Mr. Donaldson acknowledged that he signed a Statement of Participation on August 24, 2010, when he submitted the rest of his public financing application. Commissioner Harriman stated that the Commission needed to determine whether or not the form was filed timely, by the August 6, 2010 deadline.

Executive Director St. Croix stated that it was within the realm of possibility that staff error could have caused a form to be lost. He stated, however, that it was not likely. He stated that he could not change his recommendation without documentation provided by the Committee. Ms. Shaikh agreed.

Commissioner Hur asked whether there was a rule as to how early one could file the document. Ms. Shaikh stated that the law did not provide for that; the law required that the form be filed by the 88th day before the election.

Commissioner Hansen asked if there was a system in place that records information, such as when people file forms. Ms. Shaikh stated that there is a campaign log. She stated that staff enters the name of the form received, along with the date filed and date due; staff also attaches the form in pdf format. She stated that this information is available to the public. Commissioner Hansen asked whether there was any discussion about this filing when Mr. Donaldson filed the other documents on August 24, 2010. Ms. Shaikh stated that staff stamped and accepted the forms, but the auditors did not review the documents. She stated that the auditors noticed at a later date that the statement of participation was not filed by August 6, 2010.

Commissioner Hansen agreed with Commissioner Harriman regarding the decision depending on the date he filed the form. Mr. Donaldson stated that he was adamant about filing the form and that he could look for the form again.

Commissioner Hansen stated that the Commission has every interest in trying to provide public financing to candidates, but that the Commission has deadlines. She stated that the Commission needed to be fair to all candidates and did not see a way to change a deadline. Mr. Donaldson asked the Commission to take into consideration that human error is possible in this case. Commissioner Hur stated that he was sympathetic and that it sounds like Mr. Donaldson is a worthy candidate for District 10. He stated that it would be difficult to make an exception to the clear rule. Mr. Donaldson stated that he had filed every other required document to that point. Commissioner Harriman stated that she agreed with the other Commissioners – the Commission could not have one set of rules for one candidate and one set for another. She stated that the Commission’s opinion would change if he had proof of filing the document.

Matt Drake’s Appeal

Mr. Drake stated that he could not find a piece of paper that is date-stamped. He stated that his situation was very similar to Mr. Donaldson’s case. He stated that he is confident that he filed the document. He stated that he filed it, but did not have a copy. He stated that he noticed that it had not been filed and so he filed it again. He stated that it was not a substantive issue, as he had raised the money. Commissioner Harriman stated that the Commission was going to enforce the law as it is written.

Ms. Shaikh stated that Mr. Drake spoke with one of the auditors, who sent the rejection letter. She stated that he had never indicated that he had previously filed the form and that he said it was only two weeks late. Mr. Drake stated that he had asked the auditor whether he was able to make substantive arguments for this appeal and he was told that he could only submit a notice of his appeal with no substantive arguments (or paper filings). Commissioner Harriman stated that this was the first time Mr. Drake had mentioned filing the form before August 2010. Mr. Drake stated that he is making the same argument as Mr. Donaldson. He also stated that he does not know when he filed it.

Commissioner Harriman stated that the Commission was not going to reverse the Executive Director’s decision for him to look for a copy of the filing. She stated that staff has not determined whether he would qualify for public financing, but that if he or Mr. Donaldson found the paper, then the Commission would meet again quickly. She stated that staff would review their submissions, only after that time.

Public Comment:
Kristine Enea, candidate for District 10 Supervisor, provided information about the Form 142(a).

IV. Minutes of the Commission’s regular meeting of August 9, 2010 and special meeting of August 26, 2010.

Motion 10-09-13-1 (Hansen/Hur): Moved, seconded and agreed (3-0) that the Commission approve the minutes of the August 9, 2010 regular meeting and August 26, 2010 special meeting, without discussion.

Public Comment:
None.

V. Executive Director’s Report.

Executive Director St. Croix stated that staff has made progress on drafting amendments to the Campaign Consultant Ordinance. He stated that a draft has been prepared and that Interested Persons’ meetings have been scheduled in Room 408 for November 18, 2010 (5 to 7 PM) and November 29, 2010 (noon to 2 PM). He stated that the draft amendments would be presented to the Commission at the December 2010 meeting, with the target of getting the item on the November 2011 ballot.

Mr. St. Croix stated that the Mayor’s Budget office has taken 1% of every department’s budget and put it on reserve. The Commission may no longer be able to hire temporary staff for the election cycle.

Commissioner Hansen asked about item 3C, regarding BDR collections. She stated that one current candidate is on this list and asked to know what policies, if any, were in place about informing the public of which candidates have outstanding fines. Mr. St. Croix stated that a section of people in arrears may not be legally possible, but all information is currently available to the public. Commissioner Harriman suggested asking one of the Deputy City Attorneys about the Commission’s ability to limit candidates from running for office if they had outstanding fines. DCA Lee stated that the Commission needs to avoid engaging in political activity and so it needs to be clear that the Commission is not targeting specific candidates.

VI. Items for future meetings.

Commissioner Harriman suggested adding the previous topic (candidates with outstanding fines) onto the list for future meetings. She noted that the agendas were full for the October and November 2010 meetings. Mr. St. Croix stated that staff could look into adding something on the Commission’s website or other common outlets.

Commissioner Harriman asked the Commissioners to contact Chairperson Studley if they had any other items for future meetings.

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

None.

VIII. Adjournment.

Motion 10-09-13-2 (Hur/Hansen): Moved, seconded and passed (3-0) that the Commission adjourn.