Minutes – September 12, 2011 – San Francisco Ethics Commission

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
September 12, 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; Beverly Hayon, Commissioner; Dorothy S. Liu, Commissioner; Charles Ward, Commissioner. Commissioner Studley was excused.

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

OFFICE OF THE CITY ATTORNEY: Andrew Shen, Deputy City Attorney.

OTHERS PRESENT: Dr. Judy Melinek; Hal Smith; Allen Grossman; Amy Brown, acting City Administrator; Dr. Amy Hart, Chief Medical Examiner; Dr. Venus Azar; Ayanna Jenkins-Toney; David Pilpel; Thomas Long; and other unidentified members of the public.

MATERIALS DISTRIBUTED:
– Staff memorandum regarding Section III.B.3 of the GSA SIA, dated September 6, 2011.
– Letter from Acting City Administrator Brown to Dr. Melinek, dated February 1, 2011.
– Staff memorandum regarding request for waivers from post-employment restrictions, dated September 1, 2011.
– E-mail from Office of the City Attorney regarding Tom Long Waiver Request, dated August 30, 2011.
– Request from Thomas Long for Waivers of Campaign and Governmental Conduct Code sections 3.234(a)(1) and (a)(2) related to employment with The Utility Reform Network (TURN), dated August 29, 2011.
– Staff memorandum regarding proposed amendments to Commission Regulations VI.A and XIV.C, dated September 6, 2011.
– Draft San Francisco Ethics Commission Annual Report (July 1, 2010 – June 30, 2011).
– Draft Minutes of the Regular Meeting of the San Francisco Ethics Commission on August 8, 2011.
– Executive Director's Report to the Ethics Commission for the Meeting of September 12, 2011.

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

Dr. Melinek stated that she had requested advance written determinations ("AWD") regarding outside activity and been denied six times. She stated that another physician at the Medical Examiner's Office had resigned because of the restrictions on working on cases outside of the City. She stated that the Chief Medical Examiner, Dr. Hart, could not define what the adverse consequences were or would be to the City and/or Office of the Chief Medical Examiner ("OCME") if Dr. Melinek were to be permitted to testify in an outside case. She stated that the other four assistant medical examiners as well as the other investigators all agree with her and have issues with the AWD process. She stated that the City administrators do not seem to want to change.

Hal Smith thanked the Commissioners for reviewing the Civil Grand Jury's report. He also stated that the minutes had referenced the amended response had been approved, but could not find it on the Ethics Commission's website. He asked that the amended response be posted on the website.

Allen Grossman noted that tonight's agenda did not include the proposed Sunshine regulations as an item. He stated that the proposed regulations should have the highest priority, as there are nine Sunshine cases pending.

III. Consideration of provision in the Statement of Incompatible Activities (SIA) governing officers and employees of the Office of Chief Medical Examiner.

Deputy Director Ng stated that staff prepared a memorandum outlining the issue. She stated that the Commission had considered a draft advice letter during its April 2011 meeting, but that Dr. Melinek had withdrawn her request for advice during the meeting. She stated that staff had conducted research and met with the General Services Administration ("GSA") and that acting City Administrator Amy Brown was available to answer questions.

Commissioner Hur asked whether the Commission had the jurisdiction to amend the SIA on its own. Ms. Ng stated that the Commission could, but that it has usually deferred to departments, as the department heads are the most knowledgeable about what is most compatible with employee's duties.

Amy Brown, the acting City Administrator, stated that there were several reasons why the SIA was adopted in 2008. She stated that all expert testimony is discoverable and testimony in a jurisdiction outside of San Francisco may have an impact on San Francisco.

[Editor's Note: Due to maintenance work in City Hall, the microphones in all meeting rooms did not work for approximately four minutes.]

Ms. Brown stated that Dr. Melinek's testimony, or that of any other assistant medical examiner testifying in an outside case, could be used to impeach her as a witness. She stated that the City had important interests in trying to protect the OCME. She stated that one court called into question some of her testimony. Commissioner Hur questioned how that testimony would be used in another unrelated matter. Ms. Brown stated that the testimony could be used to call in question her professional opinion as an expert and as an employee of the OCME. She also stated that providing testimony could be time consuming and that the work at the OCME should be first priority. She stated that Dr. Melinek has submitted a large number of requests. Ms. Brown stated that Dr. Hart had received over 30 requests for AWD and only about ten percent had been rejected. She stated that frequently, in jurisdictions which border San Francisco, the OCME works with other offices and the outside work of the doctors could place strain on those relationships. She stated that outside testimony could be a source of concern for the OCME.

Ms. Brown stated that Dr. Hart worked with the Ethics Commission and the City Attorney's Office to create a 6-part matrix in determining whether there would be a conflict. She stated that the matrix had been shared with all of the assistant medical examiners. She stated that Los Angeles does not permit its medical examiners to perform work, as expert witnesses, for any California cases. She stated that San Francisco's approach was similar to that of San Diego County. She stated that the City Attorney's Office does not allow for any outside legal representation and she stated that the situation was analogous as employees in both offices are highly trained and professional, held to high standards, and highly paid. She stated that Dr. Melinek, as an assistant medical examiner ("AME"), earns $261,534 annually.

Commissioner Hayon stated that Ms. Brown had referenced the potential for problems, specifically with San Mateo County. She asked whether Ms. Brown could provide any examples of previous issues. Ms. Brown did not have any specific examples, but that there were some concerns expressed by San Mateo County officials to City officials regarding this issue. She stated that it would open the office to credibility attacks in the future. She stated that the department should have a standard approach in order to be clear on expectations.

Commissioner Liu asked what measure was used to determine that potential testimony would interfere with a working relationship between jurisdictions. Ms. Brown stated that the best example was San Mateo, as San Francisco is the largest landowner in San Mateo County. She stated that after the PG&E pipeline explosion in San Bruno, San Francisco provided assistance as the county lacked some medical facilities and some of the injured were treated in San Francisco. She stated that two AWDs which were recently approved did not have the potential to interfere – one in San Diego and the other a federal case. She stated that other OCMEs have been hit with subpoenas and asked about practices of the office because an AME testified in a particular case.

Commissioner Hur asked whether San Mateo officials asked Ms. Brown not to take the case referenced by Dr. Melinek. Ms. Brown did not recall that that was specifically stated to her. Commissioner Liu asked whether Dr. Hart would know the answer and Ms. Brown stated that she believed that the request was received by the former City Administrator.

Commissioner Hur asked Ms. Brown whether there would be any situation in which she thought it would be permissible for one of the AMEs to testify as an expert witness against San Mateo County. Ms. Brown stated that she could not think of one. She stated that the City had the closest relationship with San Mateo County, but also had close working relationships in Marin and Alameda counties.

Commissioner Hur stated that he would like to know whether anyone from San Mateo contacted someone in San Francisco suggesting that Dr. Melinek not take this case. Dr. Amy Hart, Chief Medical Examiner, stated that she did not know the cases with the specificity as Ms. Brown did. She did not recall anything specific about the Wolcoff case. She stated that she did not have any specific knowledge of who contacted the City Administrator or the City Attorney's Office or any other City agency regarding cases in San Mateo. She stated that she did not have any knowledge about anyone asking that Dr. Melinek specifically not be allowed to testify in a case. Commissioner Hur asked whether there was an unwritten agreement between the counties that AMEs will not be allowed to testify against each other. Dr. Hart stated that there was no suchwritten agreement. He also asked whether a restriction would be placed on a case involving a vendor of San Mateo. Dr. Hart explained that the City's relationship with nearby counties has expanded in recent time such that counties in the greater Bay Area are looked upon as an area of mutual aid; thus, there is much more interaction now than before.

Public Comment:
Dr. Venus Azar, an Assistant Medical Examiner, stated that she had worked at the OCME for 11 years. She stated that when she was hired, she earned approximately $135,000-138,000. She stated that she and Dr. Stephens worked alone for over a year. She stated that Dr. Smith left the OCME and took an $80,000 pay cut. She stated that last week, the father of someone in the Marin County Coroner's Office was dying and asked one of the AMEs for help. Dr. Hart refused. She stated that Marin County doctors are allowed to testify in the City against the OCME. She stated that no other doctors in the City are barred from doing per diem or outside work.

Ayanna Jenkins-Toney stated that she was the attorney in the San Mateo case that had been referenced earlier regarding Dr. Melinek. She stated that she had contacted over 50 doctors and that it took her over a year to find a doctor that would even examine the heart at issue in her case. She stated that her client was not even certain that the heart she had been given was the heart of her son. She stated that the case created a landmark precedent in that coroners are able to keep anything from your body and they do not have to tell you. She stated that the City Administrator's policy regarding expert witness testimony would have a chilling effect on litigants that have actual grievances and would be an unnecessary burden on the First Amendment of doctors to form opinions and to testify. She stated that Dr. Melinek was concerned about her job and felt that she was being unnecessarily reprimanded.

David Pilpel stated that he did not know these employees, but that he supported the City's position to retain the language in the SIA. He urged the Commission to take no action.

Commissioner Hayon asked Dr. Melinek whether she should be able to engage in any and all outside engagements, without having to consult with OCME. Dr. Melinek stated that that was not her opinion and recommended that the SIA eliminate the AWD process. She stated that the AWD process improperly considers the potential testimony that could be offered by an AME. She stated that she believed it would be appropriate to prevent AMEs from testifying as expert witnesses in cases involving San Francisco or a case where the death occurred in San Francisco. She stated that AMEs' past testimony in Alameda, Marin, or San Mateo cases has never had an adverse impact.

Commissioner Ward asked how many outside cases she had consulted in the past year. Dr. Melinek stated approximately 20. She stated that the majority take about one or two hours to review. Commissioner Ward asked what responsibility she had in maintaining relationships in the other nine Bay area counties, in her role as an AME. Dr. Melinek stated that she did not have direct contact.

Commissioner Hur asked Dr. Melinek's opinion on an explicit limit to the range of permissible expert witness testimony, such as an exclusion of cases involving the nine counties in the Bay Area. He added that eliminating the AWD might lead to a bright-line rule that may disallow any outside work; otherwise, discretion must be provided to the department head. Dr. Melinek stated that she welcomed discretion if discretion were consistent and justified. She stated that some cases were allowed and that there should be a better definition of which engagements were appropriate. She stated that if they are doing work on the weekend, then it shouldn't affect the City. She stated that there was no written guideline and that her consultation work has been restricted.

Commissioner Liu asked whether staff discussed the six-point decision matrix with the OCME. Ms. Ng stated that staff had informal discussions with the GSA, City Attorney's Office, the acting City Administrator, and Dr. Hart. She stated that they looked at other jurisdictions, especially within California. Commissioner Hur stated that the biggest problem with the matrix is its vagueness. He stated that he understood that GSA needs discretion to make the decision for the best interest of the County, but criteria need to be clear so that employees can have confidence that it is being handled in an objective manner. Commissioner Liu asked whether the Commission could ask the department to refine the matrix.

Commissioner Ward stated that he did not believe Dr. Melinek wants to be restricted in any way in the work that she is able to do. He stated that it seems reasonable that people who are leading the department and have to maintain relationships with other counties create a policy to avoid conflicts. He stated that an employer has a right to place reasonable conditions on what an employee can do. He stated that if the department had been targeting Dr. Melinek, then it would not have approved any of the 20 outside consultations that were approved.

Commissioner Hayon suggested recommending that the language be clarified and better defined, so that there is consistency. She stated that the process has to be executed in a way that is fair and reasonable and appears so to all the people to whom it applies.

Commissioner Ward asked Dr. Melinek to explain again what she proposed. Dr. Melinek stated that no officer or employee should testify in a case where injury or incident occurred in San Francisco or where the City of San Francisco is a party in a lawsuit or where an adjacent Bay Area county is named as a defendant in the lawsuit. Dr. Melinek also stated that her credibility has never come up in any testimony she has offered in a San Francisco case. She stated that there have not been any repercussions. She suggested that others in her department bypass the AWD process and she is getting punished for being forthright about her outside work.

Commissioner Hur stated that eliminating section III.B.3 is not the way to go, but since three of the four or five AMEs believe the matrix is vague, then the matrix should be be clarified. Commissioner Liu agreed with keeping the SIA as written. She stated that the factors are fine, but the application is vague. Commissioner Hur agreed that there is some problem in terms of perception on how the matrix is being applied, and suggested that the department develop clearer criteria regarding decision-making.

IV. Consideration of request for waivers from the post-employment bans under Campaign and Governmental Conduct Code sections 3.234(a)(1) and 3.234(a)(2).

Thomas Long stated that he had worked as a Deputy City Attorney in the Energy and Telecommunications team. He stated that he began working as legal director for TURN (The Utility Reform Network) on September 6, 2011. He stated that TURN's mission is to advocate for small business consumers, primarily in front of California PUC. He agreed with staff's proposed limitation and would accept that his communications would be limited to those solely made on behalf of TURN.

Commissioner Liu asked whether he was seeking a waiver for the proceedings which were specifically listed on page 2 of his request or a broader waiver. She expressed concerns regarding Rules of Professional Conduct, but then noted that the Office of the City Attorney supported his request for a waiver. Mr. Long stated that the waiver request from the Commission is the first gate. He stated that the second is to request a waiver for each of the matters listed for the purposes of the Rules of Professional Conduct. Commissioner Liu asked what the City's role and what TURN's role had been in the first matter listed, the explosion of the San Bruno pipeline. Mr. Long stated that he was only somewhat involved in the City's participation. His involvement, e.g., writing a paragraph or reviewing a pleading, related to enforcement actions that may be involved with the maintenance of the pipelines. He stated that ratepayers, consumers, and the City have a significant interest. He stated that TURN's role had more of a focus on rate issues and safety.

Commissioner Hayon recommended that the Commission approve staff's recommendation. The other commissioners agreed.

Public Comment:
David Pilpel spoke in support of granting the waiver. He stated that he agreed with staff's analysis and noted that he had prior involvement with Mr. Long.

MOTION 11-09-12-01 (Ward/Hayon): Moved, seconded, and accepted (4-0) that the Commission grant Thomas Long a waiver from subsection 3.234(a)(1) and a limited waiver of subsection 3.234(a)(2).

V. Consideration of possible amendment to Ethics Commission Enforcement Regulations VI.A and XIV.C, which would permit the Commission to calendar proposed dismissals or settlements of enforcement matters based on the request of one, rather than two, Commissioners.

Commissioner Hur suggested the deletion of the word "one" in both VI.A and XIV.C of the proposed amendments.

Public Comment:
Hal Smith thanked Ms. Ng and the Commission for following through with one of the Civil Grand Jury's recommendations.

David Pilpel stated that if the stipulated agreements are not calendared, the public may not learn they occurred. He asked whether the existence of the agreement could be included in the Executive Director's report.

Allen Grossman stated that 14 Sunshine complaints were dismissed under this procedure. He stated that former Commissioner Hansen told him that she had requested that the matters be heard in front of the full Commission. He stated that the reports from staff in those cases were biased and too brief. He also stated that, in the files he requested, he never found any of the requests from former Commissioner Hansen to hear the matter.

MOTION 11-09-12-02 (Ward/Liu): Moved, seconded, and accepted (4-0) that the Commission adopt the amendments to the Regulations, as amended.

VI. Annual Report.

Executive Director St. Croix stated that there has been additional staff turnover and that staff has been very busy with the Mayoral race. Commissioner Ward stated that the Civil Grand Jury report should be mentioned in the annual report, even though it was unflattering and, in his opinion, inaccurate. He also suggested adding the Commission's response, even though it was not written within the year. Mr. St. Croix suggested adding the report and response as an appendix to the report. All Commissioners present agreed with that suggestion.

Commissioner Hayon noted that the report stated the Commission's website experienced a ten percent increase in activity. She asked whether the report could include the actual number, if it is a significant number, as well as last year's number. She also asked how the Commission uses Facebook, iTunes, and Twitter.

Commissioner Hur asked about the last sentence at the bottom of page 5, where it says "[o]nly three commissioners have not filed their annual SEIs this year." He asked whether "individuals" could replace the word "commissioners." Commissioner Ward asked if that statement would be accurate. Mr. St. Croix stated that he would check whether three commissioners have not filed.

Commissioner Hur also suggested changing the word "eternal" on the last line of page 8 to "ongoing." Mr. St. Croix agreed to make that change. Ms. Ng noted a typographical error on the bottom of page 9 – that Commissioner Hayon's term runs until February 2012, not 1012.

Public Comment:
A member of the public noted that there are more than three late SEI filers. He stated that it may be three now, but it was closer to ten in August 2011. He also stated that, in October 2010, the Commission recommended changing campaign finance laws, including those affecting contributions from contractors at state agencies such as redevelopment agencies.

David Pilpel stated that the "commissioners" on page 5 could have referred to members of the Board of Examiners. He suggested adding more than the number of cases resolved in the section for investigations and enforcement, on page 6. He also suggested adding information about results or settlements. He stated that the second paragraph in the "Advice and Opinions" section on page 7 refers to informal advice letters. He suggested noting that these letters and responses are available on the website. He also suggested referencing the Civil Grand Jury report and making the report and response available online. He did not agree with the idea of attaching them to the annual report.

Commissioner Hur suggested creating a link to the Civil Grand Jury report on the website and to include the proposed CFRO amendments related to section 1.126. Mr. St. Croix stated that the proposed amendments were sent to the Board of Supervisors, but no members of the Board of Supervisors were willing to sponsor them. Commissioner Hur recommended adding that additional information regarding to the status of the proposed amendments to the report.

Commissioner Ward stated that he did not object to adding that additional information. He stated that he did not object to including anything the Commission does into the report. He stated that it seems like the reason it is being asked to be included is because of a certain segment of people who follow our activities. He stated that he would not run away from the things that the Commission does.

MOTION 11-09-12-03 (Hayon/Ward): Moved, seconded, and accepted (4-0) that the Commission adopt the draft annual report, subject to the changes indicated.

VII. Minutes of the Commission's regular meeting of August 8, 2011.

Ms. Argumedo noted a misspelled name on page 5 and that the order of the written statements should be reversed.

Commissioner Hur suggested a change to Motion 11-08-08-02 on page 6, regarding Progress for All. He stated that the motion should read "that Mayor Ed Lee was not a candidate by virtue of being sitting Mayor at the time Progress for All was formed."

Public Comment:
David Pilpel noted a misspelling of Ms. Bradford-Bell's name on page 5. He also noted that motions should be renumbered starting on page 7.

Allen Grossman requested that the draft minutes be posted on the Commission's website. He wanted to know the criteria used to evaluate Executive Director St. Croix's performance. He stated that it would have been valuable to have evaluation of the Executive Director's performance in public. He stated that he has experience with the Executive Director's and staff's work product and that there is nothing in a performance evaluation that is subject to privacy rules.

Hal Smith noted that his name was misspelled on the bottom of page 2 and that Brian Kliment's name was misspelled on the top of page 3.

MOTION 11-09-12-04 (Ward/Hayon): Moved, seconded, and accepted (4-0) that the Commission approve the minutes of the regular meeting of August 8, 2011, as amended.

VIII. Executive Director's Report.

Mr. St. Croix stated that he had researched televising the Commission's meetings and he had included that additional information in his report. He stated the main issue is that the current meeting room (Room 408) is not wired for television and the other two meeting rooms are not available during the Commission's regular meeting time. He stated that Room 408 will be renovated for television in the foreseeable future, but the date is uncertain. He stated that he would research when the other meeting rooms are available to see whether the Commission could change its meeting day and/or time.

Mr. St. Croix stated that the Commission had received the comments from the Sunshine Ordinance Task Force in August 2011. He stated that enforcement staff began its review of those comments, but he was unsure whether a draft proposal would be ready for the October meeting. Commissioner Ward asked when the Commission had sent the proposed regulations to the Task Force and Mr. St. Croix stated that they were sent in August 2010. He also stated that proposed CFRO changes would be discussed during the October meeting.

Public Comment:
David Pilpel stated that he does not support televised meetings as it is unnecessary and a waste of funds that would be taken away from other staff activities. He suggested televising some meetings, but not on a regular basis. He asked the Commission not to pursue televising its meetings and disagreed with changing the meeting day and/or time.

Hal Smith disagreed with Mr. Pilpel. He stated that the Commission's work is very important and televising the meetings would aid in informing the public. He also asked how many people listen to the audio recordings of the meeting. He asked for the Commission not to wait for Room 408 to be renovated.

Mr. St. Croix stated that the proposed CFRO amendments are available on the website.

IX. Items for future meetings.

Public Comment:
None.

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

None.

XI. Adjournment.

Motion 11-09-12-05 (Ward/Hayon): Moved, seconded, and passed (4-0) that the Commission adjourn.