Minutes of the Regular Meeting of
The San Francisco Ethics Commission
December 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 5:30 PM.
COMMISSION MEMBERS PRESENT: Benedict Y. Hur, Chairperson; Jamienne Studley, Vice-Chairperson; Beverly Hayon, Commissioner; and Dorothy S. Liu, Commissioner.
STAFF PRESENT: John St. Croix, Executive Director; Garrett Chatfield, Investigator/Legal Analyst.
OFFICE OF THE CITY ATTORNEY: Jon Givner, Deputy City Attorney.
OTHERS PRESENT: Jennifer Johnston, Ray Hartz; Patrick Monette-Shaw; Dr. Derek Kerr; Dr. Maria Rivero, David Pilpel; Steven Hill; and other unidentified members of the public.
– Memorandum from the Executive Director re: Amendment of DHR's SIA, dated December 1, 2011.
– Memorandum from the Executive Director re: Proposed Amendments to CFRO related to public financing program, dated December 7, 2011.
– Minutes of the Regular Meeting of the San Francisco Ethics Commission on November 14, 2011.
– Executive Director's Report to the Ethics Commission for the Meeting of December 12, 2011.
II. Public comment on matters appearing or not appearing on the agenda that are within the jurisdiction of the Ethics Commission.
Chairperson Hur stated that Commissioner Ward resigned from the Ethics Commission.
Patrick Monette-Shaw stated that the Ethics Commission has not acted on two Sunshine Task Force referrals. He stated that the Ethics Commission has no legal basis to assert confidentiality regarding its investigations. [Mr. Monette-Shaw submitted a 150 word written statement, which is included at the end of these minutes.]
Derek Kerr, MD, stated that he worked at Laguna Honda Hospital for 20 years and was laid-off after he became a whistleblower. He stated that the San Francisco whistleblower program is viewed as a threat. He stated that retaliation is common, but the Ethics Commission has not found any incidence of retaliation. [Dr. Kerr submitted a 150 word written statement, which is included at the end of these minutes.]
Maria Rivero, MD, stated that she worked at Laguna Honda Hospital for 22 years and that she was harassed and forced to resign. She stated that there is no recourse in San Francisco for whistleblowers. She stated that she was denied attendance at a closed session meeting. [Dr. Rivero submitted a written statement that exceeded the 150 word limit in section 67.16 of the Sunshine Ordinance.]
Ray Hartz stated that the Ethics Commission wants to deny public comment. He stated that the minute summaries misrepresent what the speaker says. He stated that attaching the written statements at the end of the minutes is not the same as including the statements in the minutes. [Mr. Hartz submitted a 150 word written statement, which is included at the end of these minutes.]
III. Consideration of proposed amendments to the Statement of Incompatible Activities (SIA) for the Department of Human Resources (DHR).
Jennifer Johnston, representing DHR, stated why DHR was seeking the revisions to its SIA and that the department had completed the required meet and confer process with the unions that represent DHR employees.
Ms. Johnston responded to Commissioner Liu, stating that the changes were made to provide clearer guidance to employees as to what information must remain confidential.
Commissioner Liu stated that the proposed changes did not appear to be related to an outside activity by employees, but understood the need to tighten-up the confidentiality policy.
Motion 11-12-12-1 (Hayon/Liu): Moved, seconded, and passed (4-0) that the Commission approve the proposed changes the Department of Human Resource's Statement of Incompatible Activities.
Mr. Hartz stated that the changes must have been prompted by a DHR employee disclosing confidential exam material. He stated this is an example of closing the barn door after it was opened. He stated he was a professor at the University of Hawaii and one of his duties was to aid students to pass the real estate exam. He stated DHR was not being honest as to why they were requesting the proposed changes. [Mr. Hartz submitted a 150 word written statement, which is included at the end of these minutes.]
David Pilpel stated that he had issues with the language in one of the sections, but that it sounded like a grammatical change.
IV. Consideration of possible amendments to the Campaign Finance Reform Ordinance (CFRO), San Francisco Campaign and Governmental Conduct Code section 1.100 et seq., related to the public financing programs for candidates for the Board of Supervisors and Mayor.
Executive Director St. Croix introduced the item.
Chairperson Hur stated that the Commission would hear each decision point and take public comment prior to the Commission's discussion on an individual decision point.
Decision Point 1
Mr. Hartz stated that he objected to raising the qualification amount from $5,000 to $10,000. He stated that even the $5,000 threshold is too high and only serves to eliminate candidates without strong financial backing from the public funding process.
Mr. Pilpel stated that the $10,000 threshold is not too high given that candidates can now raise funds city-wide.
Steven Hill stated that he appreciated the interested persons meetings that staff held regarding this issue. He stated that the threshold should be raised to $10,000 and is an obtainable amount.
Executive Director St. Croix stated that the Commission had no data regarding the proportion of contributions made in specific districts in response to a question by Vice-Chairperson Studley.
Chairperson Hur stated that he would prefer if the number of qualifying contributions from the candidate's district was changed to 50 contributors, rather than 50% of the contributions.
Executive Director St. Croix explained the procedure for presenting the changes to the Board of Supervisors for its approval.
Vice-Chairperson Studley stated that she wanted to ensure the availability of public funding for grass roots campaigns. She presented an option that would allow the Commission to provide a $5,000 match to the candidate who raised $5,000 with a larger number of contributors than currently required so they could qualify for public funds under the higher $10,000 threshold.
Commission Hayon stated she supported raising the threshold amount to $10,000. She stated the purpose of public financing is to level the playing field and candidates should show they are serious and capable of raising enough funds to present a viable campaign.
Chairperson Hur stated another option was to change the number of contributions ratio. Chairperson Hur directed staff to consider the options presented and propose recommendations at a later meeting.
Decision Point 2
Mr. Hill stated that raising the ceiling is necessary now that having a trigger is now longer allowed, and stated that the Commission needs to find a balance to keep the ceiling as low as possible yet still be a viable amount of money. He stated that $150,000 is the right amount because the ceiling is currently $89,000 and raising it to $100,000 is only an $11,000 increase.
Mr. Pilpel stated that the amount should be $125,000 which is a 40% increase on the current ceiling.
Mr. Hartz stated that raising the ceiling is equivalent to being penny wise and pound foolish.
Commissioner Liu stated that the Commission must act on raising the ceiling now that the trigger provisions are invalid. She stated that an increase to $125,000 is sufficient. Chairperson Hur and Vice-Chairperson Studley agreed the amount should be increased to $125,000.
Decision Point 3
Mr. Pilpel stated that the contribution match ratio should be one to two.
Mr. Hill agreed that the match ratio should be one to two.
Chairperson Hur directed staff to draft language codifying the one to two ratio.
Decision Point 4
Mr. Hill stated that delaying the disbursement of public funds to June is a good idea.
Mr. Pilpel stated that the earliest date that a candidate should be allowed to request public funds is May 15th.
Chairperson Hur directed staff to make the disbursement date in June.
Decision Point 5
Mr. Hill stated that the individual expenditure ceiling amount for Board of Supervisors candidates should be $250,000.
Mr. Pilpel stated he agreed with the $250,000 amount.
Chairperson Hur stated that the $250,000 amount was appropriate. Vice-Chairperson Studley, and Commissioners Hayon and Liu agreed.
Decision Point 6
Executive Director St. Croix introduced the item. He stated that that currently, a candidate is subject to an individual expenditure ceiling that starts at $143,000 and is adjusted if the sum of total opposition spending against that candidate and the highest level of total supportive funds of any other candidate in the race is greater than the IEC by at least $10,000. He stated that due to the Supreme Court decision, the Commission must decide if it should retain an adjustable expenditure ceiling, or move to a hard spending cap, meaning that a candidate could not spend beyond the cap regardless of opposition or third party spending.
Mr. Hill stated that the hard cap gives the public assurance that only a certain amount of public funds would be spent.
Mr. Pilpel stated that an adjustable cap is important and adopting a hard cap could cause some candidates to opt out of public financing.
Commission Hayon stated that she favored the hard cap.
Chairperson Hur stated that he was concerned that a candidate could enter the race late spending large sums, and the hard cap would restrict a publicly financed candidate from competing.
Chairperson Hur and Commissioner Liu stated that the hard cap is too drastic of a change and Chairperson Hur directed staff to present both options to the Board of Supervisors for them to consider.
Decision Point 7
Executive Director St. Croix introduced the item. He stated that this provision would allow a candidate who wants to terminate his or her candidacy to resign by paying outstanding debts then returning the remaining public funds to the City. He stated that the current law requires a candidate who drops out of the race to repay the full sum he or she received in public financing. He stated that this results in candidates staying in the race even when they have determined they are no longer viable candidates.
Mr. Pilpel stated that he strongly supported this change in the law.
Mr. Hill stated that he could see the potential for abuse with this change.
Executive Director St. Croix explained the process of returning public funds to the City to the Commissioners.
Chairperson Hur stated he was concerned that this change could encourage individuals to join a campaign with the sole purpose to make a name for themselves rather than legitimately run for office, and then to drop out of the race without any real consequence.
Responding to Commissioner Hayon, Mr. Hill stated that there is a public perception that some individuals may take advantage of this change to use funds to "hire" friends and relatives to run a campaign with no real intention of being a viable candidate.
The Commissioners directed staff to table this issue.
Decision Point 8
Executive Director St. Croix stated that this provision applies to mayoral candidates and mirrors the provisions proposed for Board of Supervisor candidates.
Mr. Hill stated that the Board of Supervisors would consider raising the threshold by $50,000.
Mr. Pilpel stated that candidates do not report contributions of less than $100.
Chairperson Hur stated that the Commission should wait to consider changes to the mayoral program until after the Board of Supervisors considers the proposed changes for Board of Supervisor candidates.
After discussion by the Commission, Chairperson Hur directed staff to consider making changes in the amounts for the mayoral program by using the lowest proposed amounts.
V. Closed session.
Motion 11-12-12-2 (Hayon/Studley): Moved, seconded and passed (4-0) that the Commission move into closed session.
The Ethics Commission entered into closed session at 8:27 PM.
Chairperson Hur, Vice-Chairperson Studley, Commissioners Hayon and Liu, Executive Director St. Croix, Investigator Chatfield, and DCA Givner were all in attendance during the closed session.
The Ethics Commission returned to open session at 8:40 PM.
VI. Discussion and vote regarding closed session action and deliberations.
Motion 11-12-12-3 (Studley/Hayon): Moved, seconded and passed (4-0) that the Commission finds that it is in the best interests of the public not to disclose its closed session deliberations regarding the matters discussed in closed session.
Mr. Pilpel inquired as to whether there would be an announcement regarding closed session.
Executive Director St. Croix made the following announcement:
"At its regular meeting of December 12, 2011, in the matter of Ethics Complaint Number 25-101021, the Ethics Commission made a determination that there is probable cause to believe the following violations of the San Francisco Campaign and Governmental Conduct Code; and that the Respondent, Patrick Collum, committed them:
- Two Violations of San Francisco Campaign and Governmental Conduct Code section 1.510. The first violation of section 1.510 for providing campaign consulting services, or accepting any economic consideration for the provision of campaign consulting services, without first registering with the Ethics Commission. And the second violation of section 1.510 for failing to comply with the reporting requirements specified in Section 1.515;
- One violation of San Francisco Campaign and Governmental Conduct Code section 1.515(a) for failing to file a campaign consultant registration report;
- One violation of San Francisco Campaign and Governmental Conduct Code section 1.515(c) for failure to pay campaign consultant registration and client fees;
- One violation of San Francisco Campaign and Governmental Conduct Code section 1.515(d) for failure to file campaign consultant client authorization statement;
- Two violations of San Francisco Campaign and Governmental Conduct Code section 1.515(e) for failure to file two campaign consultant quarterly reports.
Each Commissioner who participated in a decision to find probable cause must certify on the record that he or she personally heard or read the testimony, reviewed the evidence, or otherwise reviewed the entire record of the proceedings. (Ethics Commission Regulations for Investigations & Enforcement § VIII.B.2.)
The Respondent is presumed to be innocent unless and until such time that the allegations are proved in a subsequent hearing on the merits. (Ethics Commission Regulations for Investigations & Enforcement Proceedings § VIII.B.5.)
The Executive Director shall issue an accusation in accordance with the San Francisco Ethics Commission Regulations for Investigations and Enforcement Proceedings. (Ethics Commission Regulations for Investigations & Enforcement Proceedings § IX.A.)"
Each Commissioner certified that he or she personally heard or read the testimony, reviewed the evidence, or otherwise reviewed the entire record of the proceedings.
VII. Minutes of the Commission's regular meeting of November 14, 2011.
Motion 11-12-12-4 (Hayon/Liu): Moved, seconded and passed (4-0) that the Commission approve the minutes of the Ethics Commission's regular meeting of November 14, 2011.
VIII. Executive Director's Report.
Executive Director St. Croix stated that departments have been requested to cut 5% of their individual budgets, and include an additional 5% of contingency cuts.
Mr. Pilpel stated that the Ethics Commission should include information on its website as to whether a respondent has paid any assessed enforcement settlements or penalties.
IX. Items for future meetings.
Vice-Chairperson Studley suggested that the Ethics Commission consider whether at a future meeting it should try to initiate a public discussion to hear ideas regarding the public financing program. She expressed that she envisioned a forum or think tank to discuss the issues.
Mr. Pilpel stated that if public meeting rules prohibited current members of the Commission from participating in a discussion like one proposed by Vice-Chairperson Studley, former Commission members could be invited to attend.
X. Public comment on matters appearing or not appearing on the agenda that are within the jurisdiction of the Ethics Commission.
Motion 11-12-12-5 (Studley/Hayon): Moved, seconded and passed (4-0) that the Commission adjourn.
Meeting adjourned at 9:00 PM.
This statement was provided by the speaker, Patrick Monette-Shaw, for agenda item II. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.
"On August 5, the SOTF referred my two Sunshine complaints — 11013 and 11014 — to the Ethics Commission for enforcement. Case 11013 found willful failure and official misconduct against Mr. St. Croix and the City Controller's manager Tonia Lediju, since they had failed to comply with the Task Force's June 14, 2011 Order of Determination ordering release of correspondence related to the Laguna Honda Hospital Patient Gift Fund whistleblower complaint.
Case 11014 found willful failure and official misconduct against Mr. St. Croix for failure to provide the Ethics Commission's investigative file(s) and closing memo(s) authored by Ethics Commission staff regarding the LHH patient gift fund complaint, ordered released on June 7.
Now four months since August, I have not heard one word from Mr. St. Croix. As I asked during the Ethics Commission's November meeting, when are you going to schedule an open public hearing on my two referrals for enforcement?"
"SURVEYS BY THE AUDITING FIRM PRICE-WATERHOUSE-COOPERS, AND THE ASSOCIATION OF CERTIFIED FRAUD EXAMINERS, FOUND THAT MOST CORPORATE FRAUD IS EXPOSED BY WHISTLEBLOWERS.
SIMILARLY, THE JUSTICE DEPARTMENT'S CIVIL FRAUD DIVISION FOUND THAT MOST GOVERNMENT FRAUD IS EXPOSED BY WHISTLEBLOWERS.
BUT IN SAN FRANCISCO, OUR WHISTLEBLOWER PROGRAM HANDLES COMPLAINTS ABOUT HIGH-LEVEL CITY OFFICIALS LIKE THREATS.
THE NATIONAL WHISTLEBLOWERS CENTER HAS DOCUMENTED THAT RETALIATION AGAINST WHISTLEBLOWERS IS COMMON.
BUT IN SAN FRANCISCO, OUR ETHICS COMMISSION WOULD HAVE US BELIEVE THAT WHISTLEBLOWER RETALIATION NEVER OCCURS.
YOU HAVEN'T TRACKED RETALIATION COMPLAINTS.
YOU HAVEN'T SUSTAINED ANY RETALIATION COMPLAINTS.
YOU DISMISS 100% OF RETALIATION COMPLAINTS.
THIS RESEMBLES YOUR TRACK RECORD OF DISMISSING EVERY REFERRAL FROM THE SUNSHINE TASK FORCE IN THE PAST 6 YEARS…EXCEPT FOR ONE CASE, 2 MONTHS AGO – LOWERING YOUR DISMISSAL RATE FROM 100% TO 95%.
PLEASE CONSIDER AN AUDIT TO ANSWER 2 QUESTIONS;
1) HOW ARE WHISTLEBLOWER RETALIATION CASES INVESTIGATED?
2) WHY ARE ALL OF THEM DISMISSED?"
"WHY IS THE ETHICS COMMISSION SO DETERMINED TO RETAIN THEIR ABILITY TO CENSOR PUBLIC COMMENT? That they want to do so is evidenced by the 143 page response to a complaint filed with the Sunshine Ordinance Task Force. This response, consisting of an 8 page letter and 135 pages of supporting documentation, has taken an extraordinary waste of City resources to compile. All this effort maintains the Ethics Commission ability to keep a speaker's summary of their comments out of the minutes and allows the Commission staff to replace it with their representation of what the speaker said. It allows the marginalization and/or silencing of free speech. It ensures that a member of the public with a dissenting opinion will be denied the right to have that opinion actually make it into the official public record. In essence it allows a governmental body, this Ethics Commission, to suppress public comment."
This summary statement was provided by the speaker, Ray Hartz, for agenda item III. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.
"IT IS NOT HARD TO DEDUCE THE REASONS FOR THE REQUESTED CHANGES TO THE STATEMENT OF INCOMPATIBLE ACTIVITIES (SIA). Some person or persons in the department of Human Resources have compromised the examination process! They have provided others with information regarding the content of examinations and/or the examination process. At best they may have provided persons with "HELP" that will give them an advantage over others taking the same exam. At worst they may have actually sold such information, used it to make money, or allow others to make money. We will probably never know either the extent to which the examination process was compromised or whether any action was taken regarding people involved. We will probably never know whether this is a case of closing the barn door after the livestock has escaped. So effectively this is a matter being dealt with out of the sight of the public."