Minutes of the Regular Meeting of
The San Francisco Ethics Commission
July 28, 2014
Room 400, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
I. Call to order and roll call.
Vice-Chairperson Renne called the meeting to order at 5:32 PM. He stated that the regular meeting for August has been cancelled and that a special meeting has been scheduled for 10 AM August 18, 2014 in Room 416 in City Hall to discuss the recent Civil Grand Jury report.
COMMISSION MEMBERS PRESENT: Paul Renne, Vice-Chairperson; Brett Andrews, Commissioner; Beverly Hayon, Commissioner; Peter Keane, Commissioner. Chairperson Benedict Y. Hur was excused.
STAFF PRESENT: John St. Croix, Executive Director; Jesse Mainardi, Deputy Executive Director; Catherine Argumedo, Investigator/Legal Analyst.
OFFICE OF THE CITY ATTORNEY: Joshua White, Deputy City Attorney (DCA) [left at 7:15 PM]; Andrew Shen, DCA [arrived at 7:15 PM].
OTHERS PRESENT: Ray Hartz; Patrick Monette-Shaw; Jonas Ionin, Planning Department; Mica Ringel; David Pilpel; Leo Chow, Arts Commissioner; Nicole Wheaton, Director of Appointments, Office of the Mayor; Tom DeCaigny, Director of Cultural Affairs, Arts Commission; Jonathan Mintzer, Sutton Law Firm; Jim Sutton, Sutton Law Firm; Ryan Patterson; Anita Mayo, Pillsbury Winthrop Shaw Pittman; and other unidentified members of the public.
– Staff Memorandum re: Hearing – Ethics Complaint No. 02-140228, dated July 23, 2014;
– Hearing notices re: Ethics Complaint No. 02-140228, dated June 17, 2014 and June 6, 2014;
– Report and Recommendation re: Ethics Complaint No. 02-140228, including Appendices A-C;
– Waiver request from Leo Chow, Arts Commissioner, dated June 16, 2014;
– Letter to Commission from Tom DeCaigny, Director of Cultural Affairs, Arts Commission and JD Beltran, President, Arts Commission, dated July 18, 2014;
– Staff Memorandum re: Waiver Request by Arts Commissioner Leo Chow, dated July 23, 2014;
– Copy of San Francisco Campaign and Governmental Conduct Code section 3.222;
– Draft Resolution re: Arts Commissioner Leo Chow’s waiver requests;
– E-mail from Nicole Wheaton, Director of Appointments, Office of Mayor Edwin M. Lee, dated July 27, 2014;
– Staff Memorandum re: Adoption of Proposed Regulations Implementing Lobbyist Ordinance and New Disclosure Requirements for Permit Consultants and Developers, dated July 23, 2014;
– Proposed San Francisco Lobbyist Ordinance Regulations, dated July 23, 2014;
– Recent legislative changes to Campaign and Governmental Conduct Code – Lobbying and Ethics Regulations;
– Letter from the Sutton Law Firm re: Proposed Lobbyist Ordinance Regulation Regarding Disclosure Political Fundraising, dated July 28, 2014;
– Draft minutes of the Commission’s Regular Meeting of June 23, 2014;
– 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.
Ray Hartz stated that any citizen may talk about things the Commission does not want to hear. He stated that the Commission hides things it and other City agencies do and that the Commission is a waste of City resources. He stated that the Commission has done nothing for open government. He stated that Commissioners Hur, Renne, and Hayon were political flacks answerable only to those who appointed them and the other Commissioners only follow the lead of the other members.
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:
This Ethics Commission is a waste of the resources used for its operation! It is nothing the citizens of San Francisco could’ve imagined when they voted for its establishment to ensure open government. Anyone who wishes to put even a minimal effort can examine the record and see that this body has done absolutely nothing to open government and done everything possible to hide its operations, including illegal actions, from the public. Three commissioners Hur, Renne, and Hayon are political hacks answerable only to those who appoint them. I had sincere hopes for the new commissioners, but although they “talk a good game,” there has been nothing from them which indicates they not follow the lead of the other members. I have challenged you before: come here before the public and give examples of how you have improved City government. You never do for the simple reason that you can’t!
Patrick Monette-Shaw presented a document to the Commissioners. He stated that he filed a complaint against David Pilpel for failure to file a Statement of Economic Interest and another complaint for a Statement of Incompatible Activities violation. He urged the Commission to require a public hearing on both complaints. He suggested penalties for the violations, including removal from the Sunshine Ordinance Task Force.
The following written summary was provided by the speaker, Patrick Monette-Shaw, the content of which is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission:
I am distributing to Ethics Commissioners a new complaint documenting that Sunshine Ordinance Task Force member David Pilpel has failed for over 130 days to file the required annual Form 700, Statement of Economic Interest (SEI) by the required April 1, 2014 due date. On June 23, I provided Commissioners copies of a complaint regarding Mr. Pilpel’s probable violation of the Statement of Incompatible Activities (SIA) applicable to Task Force members.
During the Ethics Commission meeting on November 25, 2013, Commissioner Keane raised a question regarding having a discussion about the Ethics Commission’s Executive Director’s power to dismiss complaints unless a Commissioner pulls it off of the consent calendar. For both the SIA and SEI complaints against Mr. Pilpel, I strongly urge this Commission to require that a public hearing be held on each complaint, and that both complaints be addressed by the full Ethics Commission as expeditiously as possible.
III. Discussion and possible action on a matter submitted under Chapter Three of the Ethics Commission Regulations for Violations of the Sunshine Ordinance.
a. Ethics Complaint No. 02-140228, hearing regarding alleged willful violation of the Sunshine Ordinance by a department head (referred from the Sunshine Ordinance Task Force on February 28, 2014, Sunshine Ordinance Task Force complaint number 13024.)
Complainant: Mica Ringel
Respondent: John Rahaim, Director, Planning Department
[Complainant Mica Ringel was not present when the item was called. He arrived at 5:44 PM.]
Jonas Ionin, Custodian of Records and Director of Commission Affairs for the Planning Department, was present on behalf of Director Rahaim. He stated that the department concurred with staff’s recommendations and requested that the Commission find that Director Rahaim did not violate (willfully or non-willfully) the Sunshine Ordinance.
Mica Ringel spoke on behalf of his complaint. He stated that he had requested all communications regarding the project at 480 Potrero Avenue and, when he reviewed responsive files, found empty folders. He stated that he had reason to believe the Planning Department had not provided all responsive documents. He provided a timeline regarding his request and the project at 480 Potrero. He stated that he had been repeatedly told by the department that he had been given everything, but he continues to obtain documents which had not been previously provided to him. He stated that the Sunshine Ordinance Task Force issued an Order of Determination, but that Planning had already approved the project. He stated that he filed unsuccessful appeals, as he did not have all the documents he had previously requested. He stated that the department only reviewed deleted emails, when he had requested a search of all emails.
Mr. Ionin stated that the department concurs with the chronology and events contained in the report. He stated that, over the course of several years, the department has tried to comply with Mr. Ringel’s requests. He stated that the department even went to the Department of Technology (DT) to request emails that were no longer in the department’s possession. Commissioner Hayon asked how frequently department staff delete files. Mr. Ionin stated that staff is required to retain substantive correspondence, but that Planners may delete non-substantive emails.
Mr. Ionin stated that he became Custodian of Records on November 1, 2013. He stated that, at the time of the request, the Custodian of Records was Tom DiSanto and Mr. DiSanto reported to Director Rahaim. Mr. Ionin stated that Director would have been informed if the department was not in compliance or if the Planning did something wrong. Mr. Ionin contended that the department non-willfully violated the Ordinance.
Mr. Ionin stated that the department has made some procedural changes regarding records requests. He stated the department has added staff and that some of the records were not provided because documents were not in those individual’s possession. He stated that the department was currently revising its records retention policy. Vice-Chairperson Renne asked whether the department has a policy about putting a decision on hold until a Sunshine request is fully complete. Mr. Ionin stated that the people responsible at the time felt they had properly responded to Mr. Ringel’s request.
Commissioner Hayon asked whether there was a definition of “substantive” or whether it was subject to each Planner’s perspective. Mr. Ionin stated the revised policy would provide clearer definitions and that his office would be consulting with the City Attorney’s Office. Commissioner Keane asked why Director Rahaim was not speaking on his own behalf. Mr. Ionin stated that it was his responsibility, as Custodian of Records, to represent any Planning Department staff member. He also stated that the Director had no role in the response to Mr. Ringel and he did not delete any documents that were not maintained.
DCA Joshua White stated that he was unsure why the Sunshine Ordinance Task Force adjudicated the matter regarding other Planning Department employees and then made the referral regarding Director Rahaim. He stated that the only question before the Commission is whether the Director willfully or non-willfully violated the Ordinance. He stated that any violations of the Sunshine Ordinance by other Planning employees is not before the Commission at this time.
Commissioner Andrews stated that the Commission has been presented with this same issue in prior hearings – whether the referral was appropriate or accurate. Vice-Chairperson Renne stated that the DCA advising the Sunshine Ordinance Task Force should have told the members of the Task Force who the appropriate parties were. He stated that Director Rahaim should have had the opportunity to speak before the Sunshine Ordinance Task Force. Deputy Executive Director Mainardi stated that the DCA assigned to the Sunshine Ordinance Task Force advised them regarding this issue during the meeting when the referral was decided. Commissioner Keane stated that he found it disturbing that this issue has been before the Commission twice. He suggested the Commission find that Director Rahaim violated the Sunshine Ordinance. Commissioner Andrews agreed with Commissioner Keane and asked whether the Planning Department had slowed down a response to a records request to an opponent of a pending project. Mr. Ionin stated that he was not aware of that occurring and his understanding regarding this case is that Mr. Ringel had not received copies of e-mails his family members had sent to the department.
Mr. Ringel stated that there are records the department has failed to produce. He stated that Director Rahaim has been given notice of this matter and sent others to attend the hearings. He stated that the DT searches were not performed correctly. He stated that the department was trying to hide documents and they have been successful at hiding them.
Commissioner Keane stated that the people of San Francisco owe a debt to Mr. Ringel. He stated that for every person like Mr. Ringel, there are probably hundreds of others that have given up and he is doing a service to a lot of people. Mr. Ringel thanked Commissioner Keane for his comments.
Motion 14-07-24-01 (Keane/Hayon) Moved and seconded that the Ethics Commission find that Director John Rahaim committed a non-willful violation of section 67.21(a) of the Sunshine Ordinance as he did not, as the Custodian of Records, permit a public record to be inspected and examined, without unreasonable delay; the Ethics Commission also agreed to issue an order requiring three measures from Chapter Three, Section III.C.1-3 of the Ethics Commission Regulations for Handling Violations of the Sunshine Ordinance: a) that Director Rahaim cease and desist the violation; b) that Executive Director St. Croix post the Commission’s finding that Director Rahaim violated the Sunshine Ordinance on the Commission’s website; and c) that the Executive Director issue a warning letter to Director Rahaim and inform his appointing authority of the violation.
Patrick Monette-Shaw stated that the violation was willful as Director Rahaim did not produce the documents after the Task Force issued its Order of Determination. He stated that the Good Government Guide does not have any weight and that state law requires all records to be held for two years. He also stated that the Compliance and Amendments Committee of the Task Force is within its right to name a Respondent during one of its meetings.
Ray Hartz stated that Director Rahaim has had multiple trainings on the Ordinance and that the Supervisor of Records reports to him. He stated that Mr. Ionin is disingenuous and a liar.
David Pilpel, speaking as an individual, stated that he agrees that Director Rahaim did not commit a violation. He stated that he agreed that the department was delayed in its response. He stated that he was unsure whether finding a violation would achieve compliance.
Motion 14-07-24-01 passed by a vote of 4-0 (Hur excused).
Commissioner Hayon stated that the Ethics Commission had no recourse other than to hold the Director of the department responsible. Commissioner Keane amended the motion (and second accepted) to include an order requiring the three measures from Chapter Three, Section III.C.1-3 of the Ethics Commission Regulations for Handling Violations of the Sunshine Ordinance: a) that Director Rahaim cease and desist the violation; b) that Executive Director St. Croix post the Commission’s finding that Director Rahaim violated the Sunshine Ordinance on the Commission’s website; and c) that the Executive Director issue a warning letter to Director Rahaim and inform his appointing authority of the violation.
Motion 14-07-24-02 (Keane/Andrews) Moved and seconded that the Ethics Commission find the Commission did not have sufficient evidence to support a finding that Director Rahaim violated section 67.29-7 of the Sunshine Ordinance.
Patrick Monette-Shaw apologized for interrupting the public comment period. He stated that David Pilpel is trying to influence the Commission and he is not authorized. He thanked Commissioner Keane for adding all three measures. He stated that he is disturbed by Mr. Pilpel’s behavior.
Ray Hartz stated that the Complainant was denied due process as he was denied records he needed. He stated that Director Rahaim is responsible as the head of the department. He stated that the Director was kept fully informed of the matter.
Commissioner Keane stated that the Commission did not have any evidence of how the department maintains its records.
Motion 14-07-24-02 passed by a vote of 4-0 (Hur excused).
Patrick Monette-Shaw disagreed with this motion and stated that the Task Force issued an Order of Determination regarding this violation. He stated that the Complainant had taken a photograph of an empty file and asked how that was not evidence.
Ray Hartz stated that the department was either so incompetent that they keep records in such a way so that all records are difficult to find or the documents were willfully withheld. He stated that the department did not want to provide the records to Mr. Ringel.
David Pilpel supported the motion.
Vice-Chairperson Renne instructed staff to prepare a written order reflecting the findings and the determinations of the Commission.
IV. Discussion and possible action on a request for two waivers from Campaign and Governmental Conduct Code section 3.222.
Arts Commissioner Leo Chow spoke on behalf of his waiver requests. He stated that he understood the importance of the Campaign and Governmental Conduct Code and explained that his architecture firm specializes in complex projects. He stated that he is passionate about civic design and takes his role as an Arts Commissioner very seriously. He stated that he would not be personally involved any work his firm would perform for the City and would recuse himself on any matter if his firm were to be before the Arts Commission or any of its committees. Commissioner Chow stated that he has been an Arts Commissioner since 2009, but only became a partner in his firm in October 2013. He stated that, after his firm began pursuing work at the San Francisco Airport, he contacted the Director of the Arts Commission and later became aware of the potential issue under section 3.222.
Vice-Chairperson Renne stated that he appreciated Commissioner Chow’s willingness to serve, but that the purpose of the statute is to avoid not only a real conflict but also the public perception of a conflict. He stated that exceptional circumstances would be necessary before the Commission would grant a waiver, as the voters have stated through their adoption of section 3.222, that City commissioners should not be able to contract with the City. Commissioner Chow stated that his firm participated in an open selection process for a City contract and all documents are public. He also stated that his seat on the Arts Commission is designated for architects.
Commissioner Andrews reminded the other Commissioners of another recent waiver request the Commission received from Arts Commissioner Cass Calder Smith. Commissioner Keane stated that he understood the Arts Commission would lose real talent were Commissioner Chow to leave, but that the citizens of San Francisco would not be well served by having the perception that there is a conflict. He commended Commissioner Chow for his service.
Commissioner Hayon stated that there are a number of large firms which do business with the City and the Commission would be punishing every employee of any of these firms if he or she wanted to serve just because he or she is employed by these firms. She stated that she would agree to the waiver request as long as Commissioner Chow were not involved in the bidding or architectural process at his firm and as long as he recused himself while an Arts Commissioner.
Commissioner Chow clarified his waiver requests. He stated that one request involved an active project with the Moscone Center. He stated his second request involved a probable future project for the San Francisco Airport. He stated proposals for the second project have not yet been requested. Explaining why he sits on the Arts Commission, Commissioner Chow stated that the quality of design in civic buildings needs to be brought to the highest level possible. He stated that these buildings were the face of the City and the City deserves truly excellent design. He stated that his role on the Arts Commission helps ensure that the Commission provides the City with the best level of design possible.
Motion 14-07-24-03 (Keane/Andrews) Moved and seconded that the Ethics Commission not approve the waiver requests from Arts Commissioner Leo Chow.
Ray Hartz stated that these waivers are usually for post-employment matters. He stated that Commissioner Chow did not present any evidence that he is irreplaceable on the Arts Commission. He agreed that the waiver should be denied.
Nicole Wheaton, the Mayor’s Appointments Director, stated that it is difficult to find competent commissioners, who are willing to serve and reside in San Francisco. She stated that Commissioner Chow is able to wall himself off from any projects with the City and urged the Commission to support his waiver requests. She stated it would be a disservice to the City not to have Commissioner Chow continue to serve and that he would be difficult to replace.
Tom DeCaigny, Director of the Arts Commission, and on behalf of the President of the Arts Commission, stated that Commissioner Chow has been a part of the Executive Committee and was on a committee to find his position. He stated that Commissioner Chow is a high quality Commissioner and he could manage conflicts, both real and perceived. He stated that the Arts Commission would be losing Commissioner Chow and there would be a vacancy until a replacement is found.
David Pilpel, speaking as an individual, stated that he supported the motion to deny the waiver request. He stated that avoiding recusal to have full Commission participation should be encouraged.
Motion 14-07-24-03 passed by a vote of 3-1 (Hayon dissented and Hur excused).
V. Discussion and possible action regarding the adoption of draft regulations related to the Lobbyist Ordinance and to new requirements for permit consultants and developers of major City real estate projects.
Vice-Chairperson Renne asked about the Example #2 on page 2 of the proposed regulations, regarding Regulation 2.106-1. He asked why it would not be assumed that when a lobbyist contacts the Planning Department staff that he or she is seeking to impact the views of the Planning Department’s Director. Deputy Executive Director Jesse Mainardi stated that there may be a fair amount of discussion that occurs that would not ultimately reach the Planning Director or Zoning Administrator. He stated that there would be other decisions and contacts made regarding a project that may be shared with the Planning Department’s Director. Vice-Chairperson Renne stated that he thought it should be presumed that discussions with Planning Department staff are shared with the Director. DCA Shen stated that the Lobbyist Ordinance only reaches City Officers, not any single staff member. He stated that not every contact qualifies and that contacts may be picked up by other sections of the Ordinance, such as those relating to permit consulting services.
Deputy Executive Director Mainardi noted non-substantive changes to the draft Regulations: 1) page 1, line 8 – “person” rather than “entity;” 2) page 3, line 17 – “multiple copies of the same communications sent from the same individual to the same officer shall constitute only one contact;” 3) page 5, line 3 – “an analysis” rather than “on analysis;” and 4) page 5, line 13 – “The attorney and CEO have each made a contact.”
Motion 14-07-24-04 (Keane/Andrews) Moved and seconded that the Ethics Commission approve the proposed regulations, as amended.
Jonathan Mintzer, Sutton Law Firm, stated that his firm submitted a letter this afternoon regarding the way lobbyist fundraising will be reported. He suggested that the Commission follow the approach from Los Angeles or San Diego, as it would effectuate public policy without overly burdensome reporting requirements.
Jim Sutton stated that he commended staff on confronting so many vague provisions. He expressed concerns with how lobbyists would disclose fundraising. He stated that the new standard is more unworkable than the current law. He stated that an invitation from a lobbyist regarding a fundraiser may not be the reason a contributor donated to a campaign.
Ryan Patterson, a land use attorney, stated that he would like to introduce the newly created San Francisco Permit Professionals Association. He stated the association consists of land use attorneys, architects, permit expediters, code consultants, and other design professionals. He thanked staff for its outreach.
Ray Hartz stated that he did not understand the rush to deal with these regulations. He stated that the letter from the Sutton Law Firm should not be considered by the Commission since it was not on the Commission’s website. He suggested that failure to provide the letter on the website was a violation of the Sunshine Ordinance and Brown Act. He stated that lobbyists should not be meeting in private with employees of the City. He suggested that lobbyists submit a memorandum so that members of the public could review it and know what is being discussed.
Anita Mayo, Pillsbury Winthrop Shaw Pittman, stated that the rule on determining the number of contacts should track the rule from the Fair Political Practices Commission. She suggested adding a third, non-litigation example regarding the practice of law. She also commented on fundraising activities. She stated that a lobbyist would be required to track all contributions down. She also stated the definition for permit consulting services was too broad and that it could include an attorney.
David Pilpel encouraged the Commission to adopt the regulations. He stated that the Commission could change the regulations in the future. He suggested amendments to the regulations.
Vice-Chairperson Renne stated that the Commission was being asked to adopt the regulations as the new Ordinance is in effect and the reporting requirements need some clarification.
Motion 12-07-24-04 passed by a vote of 4-0 (Hur excused).
VI. Discussion and possible action on the minutes of the Commission’s meeting of June 23, 2014.
Commissioner Keane explained and apologized for his unexcused absence at the June meeting. He stated that he understood the meetings were on the last Monday of the month, not the fourth Monday of the month. He stated that he wanted to be there and had requested an item for the agenda.
Motion 14-07-24-05 (Hayon/Keane) Moved and seconded that the Ethics Commission approve the minutes, as written.
Ray Hartz stated the minutes were an improvement over recent ones and that it appears there was an effort made to include comments. He stated that the Library Commission had a desire to keep comments out of the official record.
David Pilpel stated that he provided some minor corrections to staff.
Motion 14-07-24-05 passed by a vote of 4-0 (Hur excused).
VII. Discussion of Executive Director’s Report.
Executive Director John St. Croix stated that it is a new fiscal year and announced that the Court of Appeals published its decision in St. Croix v. Superior Court and found in favor of the Ethics Commission.
Commissioner Andrews asked about expenditures and adjustments needed for the budget. Executive Director St. Croix stated that the Commission received a sizeable add-back last year but that there was no guarantee that the funding would continue through the following year. He stated that he was reluctant to hire someone and then have to let them go in six months. He stated the money was not continued so some of the money was not used.
Ray Hartz addressed item #2 of the Report. He stated that part of the Commission’s responsibility is to enforce the Sunshine Ordinance and asked when the Commission would do something about it. He stated the Commission has stated that the Sunshine Ordinance Task Force does not know what it is doing and that the Commission finds a reason to find it at fault. He stated that the Commission should get together with the Task Force to do something. He stated that the Commission wants people to believe that the Task Force is a bunch of nincompoops and the Commissioners are cleverer than they are.
David Pilpel stated that the report is comprehensive. He suggested adding a section in the Report (through the November 2014 election) regarding public financing and campaign disclosure, especially as there are many expected ballot measures.
VIII. Items for future meetings.
Commissioner Andrews stated interest in a hearing about the Sunshine Ordinance Task Force referral process. He suggested that the Commission have a discussion about it. Executive Director St. Croix stated that Chairperson Hur had expressed interest to him in scheduling something before the end of the year. Commissioner Keane asked about the possibility of having a joint meeting. Vice-Chairperson Renne suggested that it may be beneficial to meet with the DCA assigned to the Task Force. DCA Shen stated he was not present during that agenda item, but that he would be happy to coordinate with his office whenever this is calendared. Vice-Chairperson Renne recommended that the Commission consider how it would like to address agenda item, including public comment and comment from Task Force.
Ray Hartz stated that his complaint against Luis Herrera should be brought back before the Commission. He stated he filed another complaint against Mr. Herrera and that the Task Force will send it to the Commission again. He stated that Luis Herrera was a convicted perjurer and that he is using his position to violate the law.
David Pilpel, speaking as an individual, stated that the relationship between the Task Force and Commission was discussed in the recent Civil Grand Jury report. He stated that the Task Force is considering its responses to the report.
Motion 14-06-23-06 (Andrews/Keane) Moved, seconded and passed (4-0, Hur excused) that the Ethics Commission adjourn.
The Ethics Commission adjourned the meeting at 8:47 PM.