Minutes of the Regular Meeting of
The San Francisco Ethics Commission
August 8, 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 5:30 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; Garrett Chatfield, Investigator/Legal Analyst
OFFICE OF THE CITY ATTORNEY: Jon Givner, Deputy City Attorney.
OTHERS PRESENT: Dr. Maria Rivero, Dr. Derek Kerr, Hope Johnson, Thomas Picarello, Ray Hartz, David Pilpel, Patrick Monette-Shaw, Rita O'Flynn, Allen Grossman, Brian Kliment, Michael Breyer, Jonathan Bass, Enrique Pearce, Aaron Peskin, Jim Stearns, Helen Houseman, Kevin Henegan, Tina Moylan, Richard Hanson, Christina Olague, Shelley Bradford-Bell, Hal Smith and other unidentified members of the public.
– San Francisco Civil Grand Jury Report – San Francisco's Ethics Commission: The Sleeping Watch Dog.
– Draft Response to the San Francisco Civil Grand Jury Report.
– Memorandum from the Executive Director regarding Progress for All and other committees formed to urge a person to run for office, dated August 3, 2011.
– Informal Advice Letter from staff to Enrique Pearce, dated May 17, 2011.
– Letter and attachments from Aaron Peskin to Ethics Commission, dated July 29, 2011.
– Letter from Progress for All to Ethics Commission, dated August 8, 2011.
– Third Party Disclosure Form for Committee to Support drafting Ed Lee for San Francisco Mayor.
– Form 460 for Progress for All covering the reporting period of January 1, 2011 to June 30, 2011.
– Draft Minutes of the Regular Meeting of the San Francisco Ethics Commission on July 11, 2011.
– Executive Director's Report to the Ethics Commission for the Meeting of August 8, 2011.
II. Public comment on matters appearing or not appearing on the agenda that are within the jurisdiction of the Ethics Commission
An unidentified member of the public stated that the Library Commission is corrupt.
Dr. Derrick Kerr stated that, after 20 years, he became a whistleblower and lost his job. He stated that he had reported a conflict of interest regarding a City contract that was awarded to Davis Ja and Associates. He stated that Health Department employee Deborah Sherwood resided at the same address as Davis Ja and co-owned property with him and that she failed to disclose a personal and business relationship with Ja and Associates.
Dr. Maria Rivero stated that she was a whistleblower and was driven out of her job. She stated that she had reported a potential conflict of interest in September 2009 regarding a contract between Health Management Associates and Mitch Katz, the former Director of the Public Health Department. She alleged that Mr. Katz had a conflict of interest due to his consulting work for HMA and that the complaint was still under consideration. Dr. Rivero submitted a statement to be included with the minutes.
Patrick Monette-Shaw stated that the Ethics Commission should update the public as to the status of the referral made to the Mayor regarding Jewelle Gomez.
Rita O'Flynn stated that the Grand Jury report accurately reflects the failings of the Ethics Commission.
Allen Grossman stated that the Ethics Commission does not respect the role of the Sunshine Ordinance Task Force.
Ray Hartz stated that the Ethics Commission has abdicated its responsibility in making Sunshine Task Force referral determinations to the Executive Director.
III. Consideration of possible response to the 2010-2011 Civil Grand Jury Report.
Executive Director St. Croix introduced the item and stated that a response was due in one week.
Chairperson Hur stated that the Commission should solicit public comment prior to discussing the response letter.
Dr. Kerr stated that the Ethics Commission should not defer its investigations when the District Attorney's office elects to investigate a matter. He stated that meeting agendas should show when a complaint was filed.
An unidentified member of the public stated that the Executive Director should be removed to set a new direction for the Ethics Commission. He stated that if enforcement actions occurred more quickly they would have a better deterrent effect.
Hal Smith stated that the tone in the response to the Grand Jury improved over the last draft, and stated that the Ethics Commission should consider televising its meetings.
Brian Kliment stated that he served on the Civil Grand Jury. He stated that regarding Finding 1, the recommendation was to make the discussion of settlements and fines more public. He stated that regarding Finding 5, the recommendation was that it should only require one Commissioner to calendar a item for discussion.
Dr. Rivero stated that she agreed with the findings of the Civil Grand Jury. Dr. Rivero submitted a statement to be included with the minutes.
Patrick Monette-Shaw stated that the Ethics Commission should not re-adjudicate Sunshine Task Force referrals and that the Ethics Commission should not look at any facts regarding a referral. He stated that the Ethics Commission is not a law enforcement agency.
Rita O'Flynn stated that she agreed with the findings of the Civil Grand Jury and that the Ethics Commission should take this opportunity to fix things that are wrong.
Hope Johnson stated that the Ethics Commission should have open hearings and that the Sunshine Task Force has sent a letter to the Ethics Commission regarding the proposed regulations.
Allen Grossman stated that the Ethics Commission had previously stated that the City Attorney is a higher authority than the Task Force and that the City Charter always pre-empts the Sunshine Ordinance.
Thomas Picarello stated that he was troubled that only two of the five Commissioners elected to speak with the Civil Grand Jury. He stated that the "turf war" between the Ethics Commission and the Sunshine Ordinance Task Force was detrimental to the citizens of San Francisco. He stated that the Commissioners have delegated too much responsibility to the Executive Director.
Vice-Chairperson Studley stated that she appreciated the revisions and tone of the response. She stated that regarding Finding 2, it was the Ethics Commission who invited the Sunshine Task Force to be part of the revision process regarding the Sunshine Ordinance regulations. She stated the Ethics Commission sent a proposed set of regulations to the Task Force about a year ago. She stated that the Ethics Commission just received the Task Force's revisions and that she looks forward to working with them.
Commissioner Liu stated that she also agreed with the changes in the draft response and suggested inserting a phrase in Finding 2 regarding the review and hearing process.
Commissioner Ward stated that he would like to encourage the Commissioners to amend the regulations so that it only takes one commissioner to agendize an item for discussion. He stated that a respondent should be able to request a public hearing if he or she disagrees with a fine or if he or she cannot pay.
Vice-Chairperson Studley suggested that the Commission consider amending the regulations so that all matters are calendared for discussion unless a majority of Commissioners request an item not be calendared.
Commissioner Hayon stated that enforcement actions should be investigated and concluded more quickly than is currently happening. She stated that she would like more of the process to be public.
Chairperson Hur stated that he agreed with Commissioner Hayon regarding the length of time for enforcement actions. He stated that staff should not defer investigations if the City or District Attorneys elect to conduct an inquiry. He also stated that he agreed with Commissioner Ward to amend the regulations to require only one Commissioner to request a matter be calendared.
Vice-Chairperson Studley stated that it should be made very clear to the public that it is the Commissioners who make the final decision regarding enforcement actions. She also stated that Commissioners are notified in advance about what items will appear on the agenda.
Commissioner Hayon stated that regarding Finding 4, it could cause greater conflict issues if Commissioners were appointed by non-governmental entities. She stated that the intent of the voters was that the Commissioners would be appointed by elected officials.
Commissioners Ward and Hayon both stated they were in favor of televising Commission meetings.
Vice-Chairperson Studley stated she was also in favor or televising meetings, but that staff should get a cost estimate. Chairperson Hur and Commissioner Liu agreed.
Motion 11-08-08-01 (Ward/Hayon): Moved, seconded, and passed (5-0) to approve the response letter to the Civil Grand Jury as amended at this meeting.
IV. Consideration of the Status of "Progress for All."
Deputy City Attorney Givner left the room during the discussion regarding Progress for All.
Executive Director St. Croix introduced the item.
Michael Breyer stated that he founded the Committee to Support Drafting Ed Lee for SF Mayor. He stated that his committee had no paid staff and that the Ethics Commission was helpful to ensure that he complied with his reporting obligations. He stated that there was no coordination between his committee and Ed Lee. He stated that the current Campaign Finance Ordinance does not address committees like the one he formed and that he should not be barred from volunteering on Ed Lee's campaign.
Jonathon Bass stated that Ed Lee was not a candidate and the Campaign Finance Ordinance does not apply to committees like the one Mr. Breyer formed.
Enrique Pearce stated that he represented Progress for All. He stated the committee ceased its Run, Ed Run campaign one week ago. He stated that his committee did not have to register because Ed Lee was not a candidate, but it chose to register as a general purpose committee to ensure transparency. He stated that Mayor Lee is not connected to Progress for All and there is no coordination. He stated that no one should be barred from working on an Ed Lee committee if he or she worked with Progress for All.
Executive Director St. Croix stated that the intent of Progress for All was to get Ed Lee to run for mayor which had an identifiable influence on voters. But, he stated that decision-makers from Progress for All should not be allowed to work on an Ed Lee campaign committee.
Chairperson Hur and Commissioner Ward both agreed that the Ethics Commission should only rely on what the code says regarding the definition of a candidate, rather than on FPPC advice or manuals.
Chairperson Hur stated that he is concerned that individuals will take advantage of how candidate is defined and not officially declare until the latest possible date; yet have independent groups "urging" them to run while raising money. He stated that if the Ethics Commission applies the current definition of candidate, then Ed Lee was not a candidate.
Aaron Peskin stated that Mayor Lee, Progress for All, and Lee's candidacy is a fraud. He stated that he agrees with the Executive Director regarding Progress for All's activities.
Ray Hartz stated that Ed Lee was not a candidate and the Executive Director cannot stop anyone from working on a future Ed Lee campaign who aslo worked for Progress for All. He stated that all Ed Lee did was change his mind and decided to run for mayor.
Jim Stearns stated that if the Ethics Commission determines that Ed Lee did not fit the definition of a candidate, then he and every other campaign consultant will have a "road map" on how to evade campaign finance laws.
Helen Houseman stated that she is a San Francisco voter and the Ethics Commission must hold Progress for All accountable and accept the Executive Director's recommendations.
Kevin Henegan stated that the Ethics Commission should conduct a factual investigation to determine if Progress for All was working at the behest of Ed Lee.
Tina Moylan stated that she is a San Francisco resident and advocate for a fair playing field.
Richard Hanson stated that Ed Lee got a "sweet" deal.
Christina Olague stated that she was a Co-Chair for Progress for All. She stated that the Executive Director cannot bar anyone who worked for Progress for All from working on any Ed Lee campaign committee.
Shelley Bradford-Bell stated that she was also a Co-Chair for Progress for All. She stated that she was outraged by the remarks made by the Executive Director to prohibit volunteers from Progress for All working on an Ed Lee committee. She stated that the Executive Director position should have term limits.
Chairperson Hur stated that this is novel issue and that the Executive Director has made a concerted effort to deal with a difficult situation.
Vice-Chairperson Studley stated that without a factual investigation the Ethics Commission cannot presume that Ed Lee coordinated with Progress for All.
Chairperson Hur stated that if facts come to light that Ed Lee coordinated with Progress for All, he would be subject to an enforcement action. He also reiterated that the Ethics Commission should endeavor to fix this loophole in the law, but as it stands now, Ed Lee did not fit the definition of candidate.
Motion 11-08-08-02 (Ward/Studley): Moved, seconded, and passed (5-0) that Mayor Ed Lee was not a candidate, either as defined by law or by virtue of being the sitting mayor, at the time Progress for All was formed.
The Commission recessed for 5 minutes at 8:25 PM.
V. Closed session.
Motion 11-08-08-03 (Ward/Studley): Moved, seconded, and passed (5-0) that the Commission move into closed session.
Allen Grossman stated that employee evaluations may be conducted in public and that he would like to know the criteria used to evaluate the Executive Director's performance. He responded to Commissioner Ward by stating that he thought all City employees' evaluations should be open to the public.
David Pilpel stated he supported the work of the Executive Director.
The Ethics Commission entered into closed session at 8:34 PM. In attendance at the closed session until 8:54 PM were all five members of the Ethics Commission, Executive Director St. Croix, Deputy Executive Director Ng, Deputy City Attorney Givner, and Investigator Chatfield. At 8:54 PM, Ms. Ng, Mr. Chatfield, and DCA Givner left the room. At 9:37 PM, Mr. St. Croix left the room. At 10:00 PM, Mr. St. Crio\\oix returned to the room. At 10:05 PM, Ms. Ng and Mr. Chatfield returned to the room.
The Ethics Commission returned to open session at 10:07 PM.
VI. Discussion and vote regarding closed session action and deliberations.
Motion 11-08-08-04 (Ward/Hayon): Moved, seconded, and passed (5-0) that the Commission maintain as confidential the discussion it had in closed session re: anticipated litigation as a plaintiff and employee performance evaluation.
VII. Minutes of the Commission's regular meeting of July 11, 2011.
Deputy Executive Director Ng stated that there were some typographical corrections in the minutes.
Motion 11-08-08-05 (Ward/Hayon): Moved, seconded, and passed (5-0) that the Commission adopt the minutes of the Commission's regular meeting of July 2011 as amended.
VIII. Executive Director's Report.
Executive Director St. Croix stated that the proposed Campaign Consultant Ordinance reforms will appear on the November 2011 ballot.
David Pilpel stated that a summary of the measure should be prominently placed on the Commission's website.
IX. Items for future meetings.
X. Public comment on matters appearing or not appearing on the agenda that are within the jurisdiction of the Ethics Commission.
David Pilpel stated that the FPPC has regulations and guidelines as to the definition of a candidate.
Motion 11-08-08-06 (Studley/Hayon): Moved, seconded, and passed (5-0) that the Commission adjourn.
Meeting adjourned at 10:10 PM.