Minutes of the Regular Meeting of
The San Francisco Ethics Commission
April 11, 2011
Room 408, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
I. Call to order and roll call.
Chairperson Hur called the meeting to order at 5:32 PM.
COMMISSION MEMBERS PRESENT: Benedict Y. Hur, Chairperson; Jamienne Studley, Vice-Chairperson; Beverly Hayon, Commissioner; Dorothy S. Liu, Commissioner; Charles Ward, Commissioner.
STAFF PRESENT: John St. Croix, Executive Director; Mabel Ng, Deputy Executive Director; Shiasta Shaikh, Assistant Deputy Director; Richard Mo, Chief Enforcement Officer; Garrett Chatfield, Investigator/Legal Analyst; Catherine Arugmedo, Investigator/Legal Analyst.
OFFICE OF THE CITY ATTORNEY: Jon Givner, Deputy City Attorney; Molly Lee, Deputy City Attorney.
OTHERS PRESENT: Judy Melinek, Judson True, Thomas Picarillo, John Gollinger, Steven Brewer, Adam Zapala, and other unidentified members of the public.
– Memorandum from the Executive Director re: Legislation to amend one-year post-employment restriction, dated April 6, 2011.
– Draft advice letter to Dr. Judy Melinek regarding whether paid expert testimony in a judicial proceeding in San Mateo County violates the Statement of Incompatible Activities of the General Services Agency.
– Report on San Francisco's Limited Public Financing Program.
– Draft Minutes of the Regular Meeting of the San Francisco Ethics Commission on March 14, 2011.
– Executive Director's Report to the Ethics Commission for the Meeting of April 11, 2011.
II. Public comment on matters appearing or not appearing on the agenda that are within the jurisdiction of the Ethics Commission
III. Consideration of legislation to amend San Francisco Campaign and Governmental Conduct Code section 3.234 to allow an appointed former Mayor to obtain full-time City employment within one year of leaving Mayoral office.
Chairperson Hur welcomed Commissioner Liu to the Ethics Commission.
Executive Director St. Croix stated that the Board of Supervisors submitted the amendment to section 3.234 for approval by the Ethics Commission. He stated that staff included members of the Board of Supervisors as part of the amendment to ensure consistency within the Code. He also stated that staff included an option for consideration by the Ethics Commission that would narrow the scope of the amendment so an interim mayor would only be allowed to return the position he or she held prior to the mayoral appointment.
Judson True, representing Board of Supervisors' President, David Chiu, stated that the legislation is narrowly crafted and that the situation that this amendment addresses is a rare occurrence.
Responding to Commissioner Liu's question regarding the policy considerations of the amendment, Mr. True stated that the Board of Supervisors wanted to ensure the amendment was narrowly tailored and straight-forward.
Executive Director St. Croix read the proposed change to section 3.234 that would allow a mayor or a member of the Board of Supervisors to return only to a previously held City position.
Commissioner Ward stated that he was not in favor of including the Board of Supervisors in this change to the Code. He stated that the public would not expect that, in upholding a promise to Mayor Lee, the Ethics Commission would choose to include the Board of Supervisors.
Vice-Chairperson Studley stated that she was in favor of the narrow version which only allowed a mayor to return to his or her previously held City employment. She stated that it is important that the Ethics Commission adopt a change consistent with what the voters approved when they adopted this code section.
Commissioner Hayon and Commissioner Liu both separately stated that they also support the narrower provision.
Deputy City Attorney Givner confirmed that the Mayor Lee's previous position was an appointed position and would be subject to re-appointment by a new mayor. He also stated that another option is to require a cap so that an interim mayor could accept a different position as long as the salary that would be received in the new position did not exceed the salary received in the previous position.
Chairperson Hur also stated he supported the narrower provision. He also stated that the salary cap proposal would limit any risk of the interim mayor setting up a "golden parachute" while in office.
Commissioner Liu stated she was in favor of the salary cap option, and also stated that she would be in favor of including the members of the Board of Supervisors in the amendment with that cap.
Chairperson Hur stated that the inclusion of the Board of Supervisors was unnecessary.
Commission Ward stated that finding an interim member of the Board of Supervisors was likely a much easier process than an interim mayor, and that he would not support including members of the Board of Supervisors in this amendment.
Thomas Picarillo stated that voters are upset by this proposed change. He stated that this code section was a voter adopted provision and that any amendment must further the purpose of the chapter. He stated that the Supervisors made an illegal promise to Mayor Lee and that they are now asking the Ethics Commission to ratify that promise.
John Gollinger stated that he represented the organization San Franciscan's for Clean Government, and that he was surprised to learn of the proposal to include members of the Board of Supervisors in this amendment. He stated that this provision has remained unchanged since its adoption in the Charter in 1932, and that if the Ethics Commission approves the amendment it should consider including a sunset provision.
Chairperson Hur stated that the Ethics Commission is trying to be consistent with the will of the voters.
Commission Liu stated that after listening to the discussion and the public on this issue, she was not in favor of including members of the Board of Supervisors in this amendment.
Motion 11-04-11-1 (Studley/Ward): Moved, seconded and passed (5-0) to adopt the amendment as follows: Notwithstanding the one year restriction to Subsection (A), a former Mayor who was appointed to that office under Charter Section 13.101.5 to fill a vacancy shall be eligible for appointment to any City employment provided that (i) the former Mayor did not file a declaration of candidacy for election to the office of Mayor after being appointed to that office, (ii) the former Mayor was employed by the City immediately prior to assuming the office of Mayor, and (iii) the salary in the first year of the new employment shall not exceed the salary received by the former Mayor in the City employment that he or she held immediately prior to assuming office as Mayor.
IV. Consideration of letter to Dr. Judy Melinek, including formal written advice, regarding section III.B.3 of the Statement of Incompatible Activities of the General Services Agency, which prohibits employees of the Office of the Chief Medical Examiner from providing expert testimony in judicial proceedings unrelated to their official duties unless such employees receive and advance written determination that they may do so.
Deputy Executive Director Ng introduced the advice letter.
Dr. Melinek stated that the draft letter contains several errors. She stated that it was not true that employees were consulted during the draft SIA process. She stated that it is not incompatible with the department to provide expert testimony in a court proceeding. She stated that it is improper that the advance written determination requires a requestor to disclose potentially confidential information in order to determine whether or not it will be approved. She stated that prior to the SIA adoption, there was no issue with providing expert testimony in a court proceeding in another county. She requested that the SIA be amended to reflect the previous policy.
In response to Commissioner Liu, Dr. Melinek outlined her past work providing expert testimony.
In response to Vice-Chairperson Studley, Dr. Melinek stated that she was only aware of the SIA requirements after it was implemented.
Deputy Executive Director Ng stated that the SIA could not be amended without going through the formal process.
Vice-Chairperson Studley stated that the Ethics Commission could ask the department to consider addressing and/or amending any problems with the SIA.
Chairperson Hur stated that Dr. Melinek appears to be an exceptional expert witness, but the Ethics Commission cannot provide the relief she has requested without the formal process to amend the SIA.
Steven Brewer stated that he retained Dr. Melinek as an expert witness. He stated that the SIA asks a requestor to answer six questions. He stated that the last question asks if any party already relied on the requestor's abilities. He stated that in this case, he has already relied on Dr. Melinek.
Adam Zapala stated that the SIA policy violates the First Amendment and that political speech is protected.
Vice-Chairperson Studley stated that although the Ethics Commission has no ability to review an advance written determination, she would like the Ethics Commission to contact the department outlining the Ethics Commission's concerns.
Chairperson Hur directed staff to consult with the General Services Agency regarding the SIA.
Dr. Melinek withdrew her request for formal advice.
V. Staff presentation of public finance report.
Assistant Deputy Director Shaikh introduced the report.
Chairperson Hur and Vice-Chairperson Studley both thanked Ms. Shaikh and her staff for the excellent work.
VI. Closed Session.
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.
Motion 11-04-11-2 (Ward/ Studley): Moved, seconded and passed (5-0) that the Ethics Commission move into closed session.
The Ethics Commission went into closed session at 7:17 PM.
VII. Discussion and vote regarding closed session action and deliberations.
Motion 11-04-11-3 (Studley/Ward) Moved, seconded, and passed (5-0) that pursuant to section C3.699-13, the Ethics Commission finds that it is in the best interests of the public not to disclose its closed session deliberations re: anticipated litigation.
The Ethics Commission went into open session at 9:57 PM.
VIII. Minutes of the Commission's regular meeting of March 14, 2011.
Motion 11-04-11-4 (Ward/Studley): Moved, seconded and passed (5-0) to adopt the minutes of the Ethics Commission's regular meeting of March 14, 2011.
IX. Executive Director's Report.
Executive Director St. Croix stated there were no highlights in this month's report.
X. Items for future meetings.
XI. Public comment on matters appearing or not appearing on the agenda that are within the jurisdiction of the Ethics Commission.
Motion 11-03-11-5 (Studley/Ward): Moved, seconded and passed (5-0) that the Commission adjourn.
The meeting adjourned at 10:00 PM.