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Minutes – January 27, 2014

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
January 27, 2014
Room 400, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102

I. Call to order and roll call.

Chairperson Hayon called the meeting to order at 5:32 PM. 

COMMISSION MEMBERS PRESENT: Beverly Hayon, Chairperson; Paul Renne, Vice-Chairperson; Brett Andrews, Commissioner; Benedict Y. Hur, Commissioner; Peter Keane, Commissioner.  Chairperson Hayon wished everyone a Happy New Year.

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

OFFICE OF THE CITY ATTORNEY: Josh White, Deputy City Attorney (DCA).

OTHERS PRESENT: Dr. Derek Kerr; Francisco Da Costa; Dr. Sandra Hernandez; and unidentified members of the public.

– Proposed Stipulation re: Complaint No. 11-130606 and Joint Exhibit with the Fair Political Practices Commission;
– Staff Memorandum re: Ethics Commission Budget, dated January 22, 2014;
– Draft minutes of the Commission’s Regular Meeting of November 25, 2013;
– Executive Director’s Report.

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

Dr. Derek Kerr stated that a state law now prohibits anticipatory retaliation.  He stated that the Commission took over two years to adjudicate his 2009 complaint.  He stated that he received a $750,000 settlement from a lawsuit.  He stated that inadequate investigation and habitual dismissal of complaints is a type of official misconduct.

The following written summary was provided by the speaker, Dr. Derek Kerr, the content of which is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission:

Please note that Senate Bill 496 has expanded protections for California whistleblowers. It prohibits "anticipatory retaliation", whereby employers retaliate because they believe an employee may disclose information to authorities. Retaliation sometimes precedes the actual whistleblowing.

I’d like to acknowledge your unprecedented finding of a conflict of interest by a City official. Previously, such complaints were routinely dismissed, and complainants thrown under the bus.

It took you over 2 years to adjudicate our 2009 complaint involving former Health Director Mitchell Katz. For 3 years, he collected $10,000 annually in consulting fees from HMA – a for-profit corporation working with his approval for his Department. You dismissed that complaint – and our subsequent retaliation claim. It took a lawsuit to get vindication and a $750,000 settlement.

Your inadequate investigation and habitual dismissal of whistleblower complaints is a type of official misconduct.

Francisco Da Costa stated that when the Commission was created, San Francisco residents wanted the right thing to be done.  He stated that there is rampant corruption in some city governments.  He stated that arrogance is uncalled for and that this type of arrogance cries to heaven for justice.

Dr. Sandra Hernandez commented on the Respondent in Agenda Item III, Juliet Ellis.  She stated that she has known Ms. Ellis for many years and that the violations were committed not out of malice or self-interest.  She urged the Commissioner to accept staff’s recommendation.

An unidentified member of public stated that Ms. Ellis caused many problems in her community of Bayview Hunters Point.  She stated that her community does not receive any benefits and that Ms. Ellis should not have become an administrator.  She stated that she thought Ms. Ellis would be a good individual for the community, but then it all started and Ms. Ellis tried to take control.

III. Discussion and possible action regarding Ethics Complaint No. 11-130606 (Respondent: Juliet Ellis, San Francisco Public Utilities Commission (PUC)).

Executive Director John St. Croix introduced the item.  He explained that this matter would have been heard in closed session, but that it would be discussed in open session as the Fair Political Practices Commission (FPPC) had previously deliberated the joint exhibit. 

Commissioner Keane stated he received a memorandum with the proposed stipulation and joint exhibit, which stated that the Commission would not discuss the matter and the stipulation would be considered adopted by the Commission unless one Commissioner requested to calendar the item.  He stated that he did not understand that procedure.  He stated that he agreed with the stipulation, but did not understand that the matter would come with the presumption that it would not be discussed.  He stated that educating the public on this issue is important.  He stated that this stipulation indicates that staff has been doing its job, contrary to what some members of the public have stated during previous meetings.  Executive Director St. Croix explained the procedure in the Commission’s Enforcement Regulations.  He stated that some matters that come before the Commissioners are not that complex and any Commissioner has the ability to calendar any matter.  He also stated that Commission would normally discuss this proposed stipulation in closed session.

Commissioner Hur stated that the Enforcement Regulations had been changed to allow any one Commissioner to calendar an item.  He stated that this matter would have been calendared, even if Commissioner Keane had not requested it.  He stated that a discussion of a procedure change should be for another time.

Commissioner Keane stated that, in regards to the procedure, it should be something routinely calendared for discussion and have the staff discuss the case and the investigation and let the public know what was done relating to a conflict of interest violation by a high-level official.  He stated that the Commission should change the procedures and that the public should hear the Commission discuss something like this matter.  Chairperson Hayon suggested that Commissioner Keane bring up the issue later during items for future meetings so that the Commission may discuss a possible change in procedure in the future.

Vice-Chairperson Renne stated that he did not understand Commissioner Keane’s concerns as the stipulation explains the facts and it is a public document so the public can read it.  He stated that the Commission is being asked whether it concurs with the findings.  He stated that this document is for the public and explains why what Ms. Ellis did is a violation of law.  He stated that if we are going to challenge staff, then that initially must occur in closed session.

Commissioner Keane stated that he is not challenging the staff, he is complementing staff.  He stated that the discussion is in public session, not closed session.  DCA White stated that the Commissioners’ discussion was straying too far from the listed agenda item and suggested that the Commissioners have this discussion at a later time once it has been properly agendized.  Chairperson Hayon stated that this discussion is occurring in public today because of the FPPC’s prior deliberation.

Commissioner Andrews stated that because the matter was heard at the FPPC, it seems like the Ethics Commission is being forced to have a discussion in public that may not be complete.  He stated that the Commission did not have an opportunity to discuss the matter in closed session.

Commissioner Keane asked what would happen if the stipulation was not approved.  Executive Director St. Croix stated that the FPPC would most likely sever their portion and the Ethics Commission would need to renegotiate the matter with the Respondent regarding the local violations.  Commissioner Keane asked whether the Commission could go into more detail with respect to deliberations of the stipulation, such as background of the investigation and statements from PUC officials.  Executive Director explained that the substance of investigations are confidential.

Commissioner Hur asked about the status of the contract between Green For All and PUC.  He then asked about certain factors mentioned in the penalty discussion.  Investigator/Legal Analyst Argumedo stated that the violations were among the more serious violations within the Commission’s jurisdictions and that staff took into consideration that the Ms. Ellis paid a monetary penalty to the FPPC with respect to state violations similar to the first two counts.  She then stated that she did not believe there was an intention to conceal or mislead.  Commissioner Hur asked how staff came to that determination.  Executive Director stated that Ms. Ellis’ superiors were aware of her activities and no one informed her that she was acted inappropriately.  Commissioner Andrews asked whether Ms. Ellis voted as a member of the Board of Green For All regarding the contract it entered into with PUC.  Ms. Argumedo stated that she did not know whether Ms. Ellis remained as a voting member of the Board or whether she voted to enter into the contract with PUC.  Commissioner Hur stated that Ms. Ellis had taken the Ethics Training and asked about her explanation of not understanding that her actions were prohibited.  Ms. Argumedo stated that Ms. Ellis did not appear to understand the law.

Public Comment:
Dr. Derek Kerr stated that he appreciate Commissioner Keane’s comments.  He stated that there is a built-in bias and that confidentiality protects City officials.  He stated that he was disheartened by the City Attorney’s comment that the discussion was straying from the agenda item.  He stated that he disagreed with Commissioner Keane’s assessment that staff do their job. 

Francisco Da Costa stated that he was disturbed.  He stated that the Commission was trying to adjudicate something without going into it.  He stated that the wife of the new Director for Green For All now works for Juliet Ellis.  He stated that Ms. Ellis used to be a PUC Commissioner and has no standards.

Commissioner Hayon asked whether the Commission could recommend removal.  Executive Director St. Croix stated that that action would be beyond the scope of authority of the Commission in this matter.  He stated that the Commission could communicate with Ms. Ellis’ superiors, but that it would be a separate action outside the scope of the settlement.  DCA White confirmed that the Commission would need to place that discussion and/or action as a separate agenda item at a future meeting.  DCA White stated that communication regarding the recommendation of an employment decision is not a penalty considered by state or local law, but there was nothing precluding the Commission from making a recommendation.  Commissioner Keane stated that the Commission has the right and power to publicize what it does.

Commissioner Renne proposed a hypothetical situation where the Commission found an egregious violation and asked whether the Commission would have the power to determine whether it is official misconduct.  DCA White stated he would review the law and provide a response to Commissioner Renne.

Commissioner Hur stated that he was troubled by this case and that, although he favors resolution, he would be more comfortable if the settlement amount was more than $10,000.  He also stated that he was not convinced that there was not deliberate misconduct.

Commissioner Keane stated that the stipulation shows that Ms. Ellis admitted to corrupt actions and that they are fairly serious findings of guilt in regards to official misconduct.  He stated that a finding of guilt disgraces her.  He stated that if the PUC continued to employ her, it would be very strange. 

Motion 14-01-27-1 (Renne/Keane) Moved, seconded, and passed (3-2; Andrews and Hur dissented) that the Commission approve the proposed Stipulation.

IV. Discussion and possible action on Ethics Commission budget.

Executive Director St. Croix stated that things have improved and that he recommends asking the Budget Office for a slight increase.  He stated that the Commission received a slight increase last year, but it does not extend beyond this fiscal year.  He proposed a budget that keeps those increases in place.  He explained that there are two components of the Commission’s budget – the Election Campaign Fund, which contains the funds for public financing, and the operating budget.  Commissioner Andrews noted a discrepancy between the amounts listed as the Election Campaign Fund for this fiscal year.  Executive Director St. Croix clarified that the correct figure for that fund is $1,903,559.  The Commissioners discussed the proposals.

Public Comment:

Motion 14-01-27-2 (Renne/Andrews) Moved, seconded, and passed (5-0) that the Commission adopt the proposed budget.

V. Discussion and possible action on the minutes of the Commission’s meeting of November 25, 2013.

Motion 14-01-27-3 (Andrews/Renne) Moved, seconded, and passed (5-0) that the Commission approve the minutes as written.

Public Comment:

VI. Discussion of Executive Director’s Report.

Executive Director St. Croix welcomed the Commission’s new auditor, Manisha Lal.  He stated that there is no longer a backlog in assessing fines or waivers for the first time since 2004.  Commissioner Andrews asked Executive Director St. Croix how much staff expected to generate in revenues for the fiscal year.  Executive Director St. Croix stated that expected to receive approximately $73,000.

Commissioner Renne asked about the status of the delinquent filers.  Executive Director St. Croix stated that these accounts have been sent to the Bureau of Delinquent Revenue and are pursued in court.  He stated he would provide the Commission with an update on these accounts.

Public Comment:

VII. Items for future meetings.

Commissioner Keane stated that he would like to put something in writing and send it to Executive Director to calendar for the Commission’s next meeting.  He stated that he would like to suggest procedural changes.

Public Comment:

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


IX. Adjournment.

Motion 14-01-27-4 (Renne/Keane) Moved, seconded, and passed (5-0) that the Commission adjourn.

The meeting adjourned at 6:55 PM.

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