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Minutes – April 13, 2012


April 13, 2012 2:00 P.M.
Room 400 City Hall
1 Dr. Carlton B. Goodlett Place, San Francisco

I. Call to order and roll call.

Chairperson Hur called the meeting to order at 2:09 PM.

COMMISSION MEMBERS PRESENT: Benedict Y. Hur, Chairperson; Jamienne Studley, Vice-Chairperson; Beverly Hayon, Commissioner; Dorothy S. Liu, Commissioner; and Paul A. Renne, Commissioner.

SUNSHINE ORDINANCE TASK FORCE COMPLIANCE AND AMENDMENTS COMMITTEE MEMBERS PRESENT: Allyson Washburn, Chair; Richard Knee, Member; Hope Johnson, Sunshine Ordinance Task Force Chair; and Bruce Wolfe, Sunshine Ordinance Task Force Vice-Chair.

STAFF PRESENT: John St. Croix, Executive Director; Catherine Argumedo, Investigator/Legal Analyst; Garrett Chatfield, Investigator/Legal

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

OTHERS PRESENT: Allen Grossman; Patrick Monette-Shaw; Ray Hartz: Paul Courier; Thomas Picarello; Derek Kerr; Pastor Gavin, Peter Warfield; and other unidentified members of the public.

– Staff Memorandum re: Regulations regarding Enforcement of Sunshine Ordinance Complaints, dated November 10, 2011.
– Letter to Executive Director St. Croix from Sunshine Ordinance Task Force Compliance and Amendments Committee Chair Allyson Washburn, Ph.D.
– Sunshine Ordinance Task Force Memorandum re: The Ethics Commission's "Enforcement" Jurisdiction: As proposed in its Staff's November 2011 Draft "Regulations for Complaints Alleging Willful Violations of the Sunshine Ordinance," dated April 3, 2012

II. Discussion of draft amendments to the Commission's regulations governing the handling of complaints related to alleged violations of the Sunshine Ordinance and referrals from the SOTF.

Chairperson Hur introduced the meeting and all Ethics Commissioners and Sunshine Ordinance Task Force Members introduced themselves.

Sunshine Ordinance Task Force ("Task Force") Chair Johnson stated that Allen Grossman assisted the Sunshine Ordinance Task Force Compliance and Amendments Committee ("CAC") in drafting its proposals regarding Task Force referrals to the Ethics Commission.

Mr. Grossman stated that the proposals staff included in the November 10, 2011, memorandum changed the policy decisions the Ethics Commission had previously made.
Commission Hur introduced a proposal to handle Sunshine Ordinance Referrals by developing a two-track process. He stated that allegations involving the willful violations by an elected official or department head are clearly within the jurisdiction of the Ethics Commission and that staff's November 2011 proposals address how the Commission should handle those complaints. He stated that non-willful violations or willful violations by City officers who are not elected officials or departments heads could be handled by an expedited "show cause" hearing. He further stated that the City official would have the burden to demonstrate why the Task Force's conclusion was incorrect at the show cause hearing.

Task Force Member Wolfe stated that the Ethics Commission's only role is to enforce Task Force orders.

Commissioner Renne stated that if a complainant went to a court to enforce a Task Force order, the court would review the Task Force's determination. He stated that the Sunshine Ordinance does not state anywhere that the Ethics Commission can only "enforce" Task Force orders. He stated that the Ethics Commission can and should review Task Force orders. He further stated that he disagreed with staff's conclusion that the Sunshine Ordinance only gives the Ethics Commission jurisdiction over "willful violations." He stated that the Sunshine Ordinance reserves the jurisdiction of willful violations to the Ethics Commission, but it does not limit the Commission's jurisdiction to hear non-willful violations.

Task Force Chair Johnson stated that the Ethics Commission's jurisdiction must include hearing all referrals.

Chairperson Hur stated that he agreed with Commissioner Renne that the Sunshine Ordinance does not limit the Ethics Commission's jurisdiction to only willful violations.

Mr. Grossman stated that the Sunshine Ordinance provides three ways that a matter can come before the Ethics Commission. He stated that under section 67.34, only the Ethics Commission can handle those complaints; under section 67.30(c) the Task Force makes a determination and the Ethics Commission must enforce that determination; and under 67.35(d) any person may bring a matter to the Ethics Commission if no action is taken by another official 40 days after a complaint is initiated.

Vice-Chairperson Studley stated that section 67.30(c) says that the Task Force can refer a matter to a "municipal office with enforcement power under this ordinance." She stated that is does not say "municipal office FOR enforcement." She stated that is a distinction that allows the Ethics Commission to review a referral and not merely be just an "enforcer."

Task Force Chair Johnson stated that when the Task Force refers a matter under section 67.30(c), it is for the order to be enforced, not reviewed.

CAC Chair Washburn stated that the order is on behalf of the complainant after the Task Force has made its determination.

Vice-Chairperson Studley stated that the Ethics Commission understands that the current enforcement regulations do not adequately address Task Force referrals. She stated that staff's memorandum did not create any new rules, but attempted to reconcile competing provision of the Ordinance.

Task Force Member Wolfe stated that he supported the show cause hearing proposal.

Chairperson Hur summarized the discussion and directed staff to develop a two-track regulations procedure that reflects the discussion that occurred at this meeting.

Public Comment:
Patrick Monette-Shaw stated that he was glad to hear that the Commission rejected staff's proposals.

Ray Hartz stated that the right to petition government demands the public's right to access public records.

An unidentified member of the public stated that two years of "spinning wheels" is not impressive. He stated that the City Charter defines official misconduct and that in the past the Ethics Commission has placed the burden on complainants.

Allen Grossman stated that Executive Director St. Croix stated in a memorandum that the City Attorney is a higher authority because it is an elected position.

Paul Courier stated that he was glad to see the Ethics Commission and Task Force working together.

Thomas Picarello stated that the focus should be on getting public records to requestors.

Derek Kerr stated that he was glad the Commission rejected staff's proposals.

Pastor Gavin stated that she is concerned about the lack of open government.

Peter Warfield stated that he was encouraged by this meeting.

Task Force Member Knee read a statement from Bob Planfold.

III. Adjournment

Chairperson Hur adjourned the meeting at 4:20 PM.

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