Ethics Commission
City and County of San Francisco

Minutes – January 23, 2012

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
January 23, 2012
Room 400, 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; Mabel Ng, Deputy Executive Director; Garrett Chatfield, Investigator/Legal Analyst.

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

OTHERS PRESENT:  Supervisor Jane Kim, Donna Marion, Hillary Ronen, Ray Hartz; Patrick Monette-Shaw; Allen Grossman, Dr. Derek Kerr; Dr. Maria Rivero, Peter Warfield, Kimo Crossman, Hal Smith, Hope Johnson, Allyson Washburn, Thomas Picarillo, David Pilpel; Steven Hill; and other unidentified members of the public.

MATERIALS DISTRIBUTED: 
– Memorandum from the Executive Director re: Amendments to the SIA of the San Francisco Public Library, dated January 13, 2012.
– Memorandum from the Executive Director re: Consideration of possible amendment to public financing program, dated January 19, 2012.
-Memorandum from the Executive Director re: Fiscal Year 2012/2013 Budget Request, dated January 23, 2012.
– Minutes of the Regular Meeting of the San Francisco Ethics Commission on December 12, 2011.
– Executive Director’s Report to the Ethics Commission for the Meeting of January 23, 2012.

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

Patrick Monette-Shaw stated that the Commission has not scheduled a hearing on his two Sunshine Task Force referrals against the Ethics Commission and Controller.  He stated that Executive Director St. Croix should recuse himself from the matters. 

Allen Grossman stated that the Ethics Commission rejected 26 public records enforcement cases referred to it by the Sunshine Ordinance Task Force.  He stated that the Executive Director wrongfully applied the Ethics Commission’s Regulations for Enforcement Proceedings without any involvement from the Ethics Commissioners.  [Mr. Grossman submitted a 150-word written statement, which is included at the end of these minutes.]

Allyson Washburn, who identified herself as a member of the San Francisco Sunshine Ordinance Task Force, stated that she requested that the Ethics Commission and Sunshine Ordinance Task Force hold a joint meeting to discuss the Ethics Commission’s proposed regulations for Sunshine Task Force referrals. 

An unidentified member of the public stated that there were not enough materials provided for the size of the audience in attendance.  He stated that the Library Commission held an illegal meeting.  He stated that the Library Commission is corrupt.

Dr. Derek Kerr stated that he was laid off after 20 years of service at Laguna Honda Hospital after he became a whistleblower.  He stated that only one Sunshine Task Force referral was granted a public hearing by the Ethics Commission.  He stated that the Ethics Commission mishandles all of the retaliation complaints that it receives.  [Dr. Kerr submitted a 150-word written statement, which is included at the end of these minutes.]

Dr. Maria Rivero stated that she made three complaints to the Ethics Commission and stated that they were all dismissed.  She stated that she was driven out of Laguna Honda Hospital after 22 years and Dr. Kerr was laid off and she stated that their retaliation complaints were dismissed.  [Dr. Rivero submitted a 150-word written statement, which is included at the end of these minutes.]

Peter Warfield, who identified himself as the Executive Director of the Library Users Association, thanked the Ethics Commission for televising its meetings.  He stated that televising the meetings makes it easier for the public to observe what occurs at the Ethics Commission.  He stated that the Ethics Commission should have public hearings on Sunshine Task Force referrals.  He stated he had a referral sent to the Ethics Commission in 2004 that was dismissed. 

Ray Hartz, who identified himself as the Director of San Francisco for Open Government, stated that the Civil Grand Jury determined that the Ethics Commission did not carry out its responsibilities related to the Sunshine Ordinance.  He stated that the Ethics Commission has knowingly thwarted the efforts of the Sunshine Ordinance Task Force.  [Mr. Hartz submitted a 150-word written statement, which is included at the end of these minutes.]

Kimo Crossman stated that the Ethics Commission has a poor record regarding Sunshine Task Force referrals.  He stated that the Ethics Commission should have a joint meeting with the Sunshine Ordinance Task Force to work with them on setting up Sunshine Ordinance regulations. 

Hal Smith congratulated the Ethics Commission for televising its meetings.  He stated that it is good for open government.  He stated that this is the year of the dragon and the Ethics Commission should be strong like dragons. 

Hope Johnson, who identified herself as the Chair of the Sunshine Ordinance Task Force, stated that the Ethics Commission and Sunshine Ordinance Task Force should have a joint meeting to discuss the Ethics Commission’s proposed regulations regarding Sunshine Ordinance referrals.  She stated that the Ethics Commission’s City Charter provision gives it the authority to deal with Sunshine Ordinance violations that are not willful. 

Thomas Picarillo stated that he is a victim of the Ethics Commission staff’s dismissal of Sunshine Ordinance Task Force Orders of Determination.  He stated that members of the public should be aware that the Sunshine Ordinance Task Force makes determinations on violations of the Sunshine Ordinance. 

An unidentified member of the public stated that he has been kicked out of public meetings and not been given public documents.  He stated that someone should be held accountable. 

Chairperson Hur stated that the Ethics Commission already agreed to hold a joint meeting with the Sunshine Ordinance Task Force.  He stated that it was Task Force Member Richard Knee who requested that the joint meeting occur after the New Year to ensure greater participation. 

III. Consideration of proposed amendments to the Statement of Incompatible Activities (SIA) for the San Francisco Public Library. 

Executive Director St. Croix introduced the item. 

Donna Marion, Human Resources Director of the San Francisco Library, stated that the Library is asking that the Ethics Commission approve the SIA as it is presented.  She stated that the SIA has been revised to address the Commission’s concerns that it expressed at the May 2011 meeting. 

Responding to Commissioner Liu, Ms. Marion stated that the Library Commission does not approve or involve itself in the approval of contracts with the Library.

Public Comment:

An unidentified member of the public stated that the Library deals with a large number of vendors.  He stated that the exemptions being proposed could be done on a case-by-case basis. 

Ray Hartz stated that the revisions are akin to rearranging deck chairs on the Titanic.  He stated he brought a Sunshine Ordinance violation to the Sunshine Ordinance Task Force against the City Librarian for withholding public records.  He stated that the City Librarian is granted $35,000 by the Friends of the Library to use at his discretion. 

Peter Warfield stated that the Library does not buy book directly from publishers.  He stated that the book are purchased from “jobbers.”  He stated that some of the provisions from the SIA that would be stricken are problematic.

David Pilpel stated that policies that are referenced in the SIA should be hyperlinked if the document is available online. 

Responding to Vice-Chairperson Studley, DCA Shen stated that the conflict of interest rules that apply to all City employees are broader than each department’s SIA and serve to prohibit any self-interest in which the employee was part of the decision making chain.

Responding to Vice-Chairperson Studley, Ms. Marion stated that the SIA included the proposed   exemptions because there are currently numerous requests for exemptions on a case-by-case basis.  She stated that the biggest concern was allowing Library employees to be able to advance their own personal development when it comes to publishing their own creative work.

Vice-Chairperson Studley stated that if that was the biggest concern, then the provisions applicable to sales representatives, purchasers, and publicists could be left in. 

Commissioner Liu stated that she agreed with Vice-Chairperson Studley particularly if the waiver process remained in place.

Chairperson Hur directed Ms. Marion to return with revisions of the SIA incorporating the changes discussed at this meeting. 

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.

Supervisor Kim stated that she appreciated the Commission considering the various proposals in response the Supreme Court’s ruling regarding public financing.  She stated that raising the expenditure ceiling to $250,000 for Board of Supervisors candidates is supported by looking at past spending.  She also stated that it was important to advance the filing deadline to aid candidates to determine their viability. 

Public Comment:

Thomas Picarello stated that he opposed the increase in spending caps.  He stated that public financing of candidates comes out of the general fund and that the money could be better spent. 

Steven Hill stated that raising the spending caps is appropriate and that approving an adjustable cap is legally risky, but agrees with the public policy of adjustable caps.  He stated that there could be a public perception problem with mandating incumbents to raise $5,000 more than non-incumbents in order to receive matching funds. 

David Pilpel stated that he generally agreed with the proposed legislation but would change the filing deadline timing. 

Hillary Ronen, Legislative Aide to Supervisor Campos, stated that Supervisor Campos would not move forward with his ballot measure if the Commission approves the proposed legislation. 

Supervisor Kim addressed several of the Commissioner’s concerns about the different qualifying amounts of incumbents stating that the Board of Supervisors was concerned with the perception that supervisors would be benefitting from legislation that they voted on, thus they raised the incumbent qualification amount by $5,000.

Motion 12-01-23-1 (Liu/Hayon):  Moved, seconded, and passed (4-0) that the Ethics Commission approve the amendments to the Campaign Finance Reform Ordinance related to the public financing programs for candidates for the Board of Supervisors and Mayor. 

V. Budget Discussion.

Executive Director St. Croix stated that the Mayor’s Office has asked each department for a 5% percent cut in the 2012-13 fiscal year and a 5% cut in the 2013-14 fiscal year with an additional 2.5% contingency cut.  He stated that he proposed presenting a budget in which the Ethics Commission maintains its current funding level to recognize the financial strains of the City but which also recognizes the Ethics Commission’s independence. 

Chairperson Hur, Vice-Chairperson Studley, and Commissioners Hayon and Liu all agreed with the Executive Director’s proposal. 

Public Comment:

David Pilpel stated that the agenda does not indicate that this item discusses a two-year budget cycle. 

Motion 12-01-23-2 (Studley/Hayon):  Moved, seconded, and passed (4-0) that the Ethics Commission approve the proposed budget.

VI. Minutes of the Commission’s regular meeting of December 12, 2011.

Public Comment:

David Pilpel stated that the 150-word summaries should indicate which item the speaker addressed the Commission. 

Vice-Chairperson Studley presented several changes to the minutes.

Motion 12-01-23-3 (Studley/Hayon): Moved, seconded and passed (4-0) that the Ethics Commission approve the minutes incorporating the proposed changes. 

VII. Executive Director’s Report.

Executive Director St. Croix stated that he is working on securing a room and date for the joint meeting with the Sunshine Ordinance Task Force.

Public Comment:

David Pilpel stated that the Cohen legislation had not yet had a hearing.

VIII. Items for future meetings.

None.

Public Comment:
None.

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

None.

X. Adjournment.

Motion 12-01-23-4 (Studley/Hayon): Moved, seconded and passed (4-0) that the Ethics Commission adjourn.

Public Comment:
None.

 Meeting adjourned at 7:40 PM.

This statement was provided by the speaker, Allen Grossman, for agenda item II. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.

“This Commission is the only city body empowered to enforce violations of public records laws.  Yet, from 2004 through 2011, when it held over 100 meetings, the Commission rejected all 26 public records enforcement cases sent it by the task Force without a single hearing or a single vote. 

The only player in all those 26 dismissals over that 8-year period has been John St. Croix, its Executive Director.  Wrongfully using “ethics” Regulations default procedure, he handled the entire process from start to finish without the participation of any Commissioner, managing any staff investigations, determining whether there was “probable cause” for a Commission hearing, selecting the facts for his report and recommendation to the Commission and sending the so-called dismissal letter.  No hearing and no vote.  Case closed. 

Since 2004, the public has had a constitutional right of access to public records.  Why doesn’t this Commission recognize that right?”

This statement was provided by the speaker, Dr. Derek Kerr, for agenda item II.  The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.

“Between 2005 and 2010, the Ethics Commission has “dismissed” 29 consecutive Sunshine Complaints.  This wrongly implies that the complaints were not valid and the Respondents were exonerated.

Your handling of Whistleblower Retaliation Complaints is similarly one-sided.  Every single Retaliation complaint has been dismissed in the 17 years since this Commission was founded. 

Expert organizations like the Government Accountability Project, with 30 years of experience providing legal assistance for over 5,000 Whistleblowers, warn that; ‘…more than 90% of whistleblowers report subsequent retaliation’.
(www.whistleblower.org )

If experts say retaliation occurs in 90% of cases, why does this Commission report a retaliation rate of zero?

Please consider 2 possibilities;

  1. Your investigations are biased against complainants.
  2. Your decisions rely on opinions from the City Attorney who has a duty to defend the very same City officials we complain about.

Derek Kerr, MD
2701 Van Ness Avenue, #611  [signature: D. Kerr]
San Francisco, CA  94109
DerekOnVanNess@aol.com”

This summary statement was provided by the speaker, Dr, Maria Rivero, for agenda item II. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.

“Two years ago we made 3 whistleblower complaints to the Ethics Commission:

  1. Health Director Mitchell Katz was making $10,000/year working for Health Management Associates, for-profit corporation that had a contract at the time with the Health Department.  Dismissed by Ethics.
  2. Davis Ja & Associates was awarded a $2 million Department of Public Health contract.  Ja’s wife a high-level DPH executive played a major role in awarding him the contract.  After 2 years, the Controller revoked Ja’s contract citing irregularities.  Dismissed by Ethics.
  3. Laguna Honda Gift Fund, a charitable Trust for poor patients was being plundered for staff parties and perks.  9 months later an audit restored $350,000 to the patients.  Dismissed by Ethics. 
  4. I was driven out of LHH after 22 years and Dr. Kerr was ‘laid off’.  Our whistleblower Retaliation complaints were dismissed by Ethics w/o a hearing.

Is this Ethics Decision Making?”

This summary statement was provided by the speaker, Ray Hartz, for agenda item II. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.

“As documented in a recent Civil Grand Jury Report, this Ethics Commission has failed to carry out any responsibilities related to the Sunshine Ordinance.  Through this failure this Ethics Commission has sided with the City and against the citizens in every case where Public Comment was prevented and Public Records withheld.  Not only has this Ethics Commission failed in its duties, it has willfully and knowingly thwarted the efforts of the Sunshine Ordinance Task Force.  It has done this for years while misrepresenting its efforts as trying to work with the Task Froce.  It has been derelict in allowing the staff to dispose of every case without even a hearing.  The members of the Ethics Commission, after taking an oath to support and defend the California and United States Constitutions, has acted in ways that knowingly and willfully violate the Constitutional and Civil Rights of the citizens of San Francisco.”

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