Ethics Commission
City and County of San Francisco

Minutes – April 28, 2014

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
April 28, 2014
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 5:32 PM.

COMMISSION MEMBERS PRESENT: Benedict Y. Hur, Chairperson; Paul Renne, Vice-Chairperson; Brett Andrews, Commissioner; Beverly Hayon, Commissioner; Peter Keane, Commissioner.

STAFF PRESENT: John St. Croix, Executive Director; Jesse Mainardi, Deputy Executive Director; Garrett Chatfield, Investigator/Legal Analyst.

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

OTHERS PRESENT: Sarah Ballard, John Moren, Ray Hartz, and David Pilpel.

MATERIALS DISTRIBUTED:

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

Ray Hartz stated that he went to Florida in March and was surprised his hearing on a Sunshine Ordinance Task Force referral was scheduled to be heard by the Ethics Commission in March. He stated that he was out of town when the notice was sent and when the hearing was held. He stated that the scheduling of his complaint was purposefully done so he would not be at the hearing.

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

On March 24 this commission held a hearing on a case to which I was a party. I think you can imagine my reaction when on March 26 I first became aware of this series of events! On further consideration, I realized that I was altogether pleased that this occurred. It allowed the other party to the case, City Librarian Luis Herrera, to do what he does so exquisitely: lie through his teeth! Commissioner Andrews raised the question as to whether Mr. Herrera had looked at a way to comply without spending $40,000. Simple, take the two Microsoft PowerPoint slides just as they would for presenters they quote “invited.” Commissioner Keane was exactly on point, this is a free speech issue! If he is going to discuss that matter, he might want to point out the level of scrutiny applied to political free speech. It’s a pretty high bar!

Commissioner Hur stated that the Commission was unaware that Mr. Hartz was out of town when the notice was sent and hearing scheduled.

III. Discussion and possible action on a matter submitted under Chapter Three of the Ethics Commission Regulations for Violations of the Sunshine Ordinance. Ethics Complaint No. 03-140303, hearing regarding alleged willful violation of the Sunshine Ordinance by a department head (Sunshine Ordinance Task Force Complaint 12058, referred to the Ethics Commission on March 3, 2014): Complainant, Dominic Maionchi; Respondent Phil Ginsburg.

Commissioner Hur asked the parties to identify themselves. The Complainant was not present, the Respondent was represented by Sarah Ballard.

Ms. Ballard, representing Recreation and Park General Manager Phil Ginsburg, stated that she agreed with the Report and Recommendation finding that Mr. Ginsburg was not a properly named Respondent by the Task Force. She also stated that the home addresses and phone numbers on the documents at issue were properly redacted based on individuals’ privacy rights.

Commissioner Keane asked Ms. Ballard to identify an express provision of law under the California Records Act or Sunshine Ordinance that allowed for the redactions of home address and phone information. Ms. Ballard responded stating that the California constitutional right to privacy allows for the redaction of private information. Commissioner Keane and Ms. Ballard exchanged questions and answers regarding the government’s burden under state law when determining to withhold private information.

Ms. Ballard responded to a question from Commissioner Renne regarding why confidentiality should attach to the names of applicants who request a berth from the department by stating that the names of all applicants are released and are public information, and that the department only redacts the home address and phone number of each applicant.

John Moren, Harbor Master for the department, stated that berth holders expect that their home phone number is not public information that can be released by the department.

In response to Commissioner Keane, Ms. Ballard stated that the general advice provided to City departments by the City Attorney’s Office is that home addresses and home phone numbers of private citizens is private information and is not to be disclosed by a department as part of public records request.

DCA White stated that the language promulgated through a long line of California case law and by the California Supreme Court is that when government is balancing the interests between the public’s right to information against an individual’s right to privacy, releasing private information is warranted if it sheds light on the government agency’s legislative duties.

Responding to Chairperson Hur, Ms. Ballard stated that the department follows the general rule provided for by the City Attorney’s Office, and does apply a balancing test on a case by case basis. She stated that in this matter, the department responded to the records request in the context of an allegation that an illegal berth transfer had occurred. She stated that the department had factored into its balancing test that if the department had not been engaged in an active investigation regarding the berth transfer, it might have released the home address and phone number of the applicants.

Commissioner Keane stated that the City Attorney’s advice provided in the Good Government Guide is advisory with no force of law. He stated that section 67.26 of the Sunshine Ordinance states that any exemption must be based on an express exemption provided for by law.

Deputy Executive Director Mainardi stated that San Francisco Administrative Code, Chapter 12M, does provide a specific exemption that allows the City to withhold private information.

Public Comment:
David Pilpel stated that the Report and Recommendation clearly outlines the two issues on which the Commission needs to make a determination, although he disagrees with the conclusion. He stated that the information should have been released, but does not think it was wilfully withheld. He stated that he did not think Mr. Ginsburg was the correctly named party.

Ray Hartz stated that the City Attorney doesn’t want to bite the hand that feeds him. He further stated that he had requested anonymity in another matter and the City Attorney released his name.

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

George Orwell said: “In a time of deceit, telling the truth is a revolutionary act.” From gavel to gavel each meeting of this Ethics Commission is becoming, in fact, a “time of deceit!” Questioning why a department head in the city should be held accountable for the actions and/or inactions of those under his direction and control is without logical basis. When a department head accepts a position, takes an oath, and accepts a salary they have a responsibility to the citizens of San Francisco. Do you believe Mr. Ginsberg [sic] wasn’t informed regarding this matter? Do you believe Mr. Ginsberg [sic] didn’t purposefully avoid attending the hearing in the matter? To now say that Mr. Ginsberg [sic] was unaware of this matter is something only a complete idiot would say! Again, we have a case where John St. Croix will use a missing punctuation mark to thwart the will of San Franciscans.

Responding to a question from Chairperson Hur, David Pilpel stated that case law regarding the applicability of balancing privacy interests against the public’s right to know is not on point. He further stated that although San Francisco Administrative Code, Chapter 12M is a specific exemption providing for the withholding of private information, Sunshine Ordinance, section 67.36, states that the Sunshine Ordinance supersedes all other local law.

Commissioner Keane stated that the record in this matter demonstrates that the redaction of private citizens’ home addresses and phone numbers was improper and that information should have been disclosed by the department. He stated that no express provision was cited that exempts the redacted information from being released. He further stated that the home addresses and phone numbers, in this case, do not rise to the level of a fundamental right to privacy. He stated that the Ethics Commission should find a non-willful violation of the Sunshine Ordinance because the information was redacted in good faith reliance on the City Attorney’s advice, and that the redacted information should be released to the complainant.

Responding to Commissioner Andrews regarding the legality of releasing private information, DCA White stated that a court would look at California state law to determine if the information was properly released by considering all the factors, factual and legal, involved in this matter. He further stated that under California law, the individual is the holder of private information, not the government agency who happens to obtain that information.

Chairperson Hur and Commissioner Keane both stated that the Ethics Commission cannot weigh into its decision the potential of litigation for ordering the release of home address and phone information in this case.

Commissioner Keane stated that the Ethics Commission could make a finding that the department violated the Sunshine Ordinance without finding Mr. Ginsburg was responsible.

DCA White stated that the Ethics Commission must make a finding against an individual.

Ray Hartz stated that the department head is responsible for the whole department. He stated that David Pilpel is a Task Force member and that he often undercuts decisions made by the Task Force. Mr. Hartz stated that he questioned if staff properly noticed the complainant in this matter.

The Commissioners engaged in a discussion regarding the appropriateness of Mr. Ginsburg being the named respondent in this matter based on the information provided in the record.

Motion 14-04-28-01 (Keane/Renne) Moved, seconded and failed (2-3; Hur, Andrews, and Hayon dissenting) that the Sunshine Ordinance was violated by Mr. Ginsburg as the head of the Recreation and Park Department and that the violation was non-wilful, and that the information withheld in this matter should be disclosed.

Commissioner Hayon stated that the average citizen does not expect that a government agency is going to release their private home address and phone number to a member of the public making a public records request. She stated that the Sunshine Ordinance Task Force is not concerned with protecting the privacy of citizens.

Motion 14-04-28-02 (Andrews/Hur) Moved, seconded and passed (3-2, Hayon and Keane dissenting) that the Ethics Commission refer the matter back to the Sunshine Ordinance Task Force for more factual information.

IV. Closed Session. Closed session held pursuant to Brown Act, section 54956.9(a), (e)(2), and Sunshine Ordinance, section 67.10(d), to discuss anticipated litigation as defendant in light of McCutcheon v. Federal Election Commission, No. 12-536.

Motion 14-04-28-03 (Renne/Hayon) Moved, seconded and passed (5-0) that the Ethics Commission move into closed session.

Public Comment:
Ray Hartz stated that it is improper for the Commission to go into closed session because the item, as worded in the Agenda, does not provide sufficient information for a person of average intelligence to know what the item is about.

The Ethics Commission went into closed session at 7:45 PM. Sarah Ballard, John Moren, Ray Hartz, and David Pilpel left the hearing room. The Commission members, Executive Director St. Croix, Deputy Executive Director Mainardi, Commission staff member Garrett Chatfield, and DCA White remained in the hearing room during closed session.

The Ethics Commission returned to open session at 8:00 PM. Ray Hartz and David Pilpel returned to the hearing room.

Motion 14-04-28-04 (Keane/Hayon) Moved, seconded and passed (5-0) that the Ethics Commission disclose part of its closed session discussion in which it resolved to discuss and possibly take action on the best policy response to the United States Supreme Court’s decision in McCutcheon v. Federal Election Commission, No. 12-536, at the Commission’s next meeting.

Public Comment:
Ray Hartz stated that this is the first time in his experience that the Ethics Commission has disclosed any part of its closed session discussion.

V. Discussion and possible action on the minutes of the Commission’s meeting of March 24, 2014.

No discussion

Public Comment:
Ray Hartz stated that he supported the approval of the minutes.

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

I wholeheartedly support the approval of these minutes! It documents the efforts of Commissioner Andrews and Commissioner Keane to openly and honestly discuss my case before this commission. It documents, as a matter of public record, the pattern of deceit used by City Librarian Luis Herrera. It documents the “willful ignorance” exhibited by commissioners [sic] Renne and Hayon. Renne is quite disingenuous in his questioning why Herrera should be held responsible. Herrera is the department head and nothing happens at the library without his approval! Hayon participates in the hearing, siding with Herrera, the Library Commission, and “The Friends!” Then prior to the vote, she exhibits concern about a “conflict of interest.” As a former library commissioner, she intentionally participated in the hearing, siding with the library, clearly exhibiting that conflict of interest! I would suggest they both get/read “The Ethics of Willful Ignorance,” by law professor Rebecca Roiphe.

David Pilpel suggested several changes to make the minutes read more clearly.

Motion 14-04-28-05 (Keane/Andrews) Moved, seconded and passed (5-0) to approve the minutes with Mr. Pilpel’s suggested changes.

VI. Discussion of Executive Director’s Report.

Executive Director St. Croix highlighted the successful implementation of electronic Statement of Economic Interests filings.

Commissioner Keane stated that he confirmed that his Statement of Economic Interests was not due to be filed until next year’s filing deadline.

Commissioner Andrews asked Executive Director St. Croix on the status of delinquent revenue accounts. Executive Director St. Croix provided that information.

Public Comment:
Ray Hartz stated that the monthly Executive Director’s report is just a form. He stated that Executive Director St. Croix abuses his position to deprive citizens’ of their rights.

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

I have decided, without a doubt, the Executive Director of this commission, John St. Croix, is an apparatchik! That is a Russian colloquial term for a full-time, professional functionary of the government, i.e. an agent of the government or party apparatus that held any position of bureaucratic or political responsibility. St. Croix has no compunction whatsoever in abusing his position to deprive the citizens of San Francisco of their rights to participate in city government. He will do everything within his power to protect both elected and appointed officials from responsibility for their actions and/or inactions. I find it truly deplorable that this Ethics Commission will rely, without question, upon the recommendations of the staff, when those recommendations are knowingly and willfully tailored to deny justice! I do not truly believe that the staff is responsible, but, is wholly and totally at the mercy of St. Croix. A damned bureaucrat!

David Pilpel stated that the pending lawsuit against the Commission filed by Allen Grossman is due for oral argument soon.

VII. Items for future meetings.

Commissioner Keane requested a future item be put on the Agenda to discuss the status of the Grossman lawsuit.

Chairperson Hur stated that any discussion of pending litigation would have to occur in closed session. DCA White agreed with Commissioner Hur.

Public Comment:
David Pilpel stated that the Sunshine Ordinance Task Force procedure needs to be addressed.

Ray Hartz stated that the Commission should not hear a matter if a party does not appear. He stated that he informed the Sunshine Ordinance Task Force that he was going to be out of town in March, yet the Ethics Commission calendared his hearing while he was out of town.

VIII. Adjournment.

Motion 14-04-28-06 (Renne/Hayon) Moved, seconded and passed (5-0) that the Ethics Commission adjourn.

The meeting adjourned at 8:24 PM.

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