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Minutes – December 16, 2014

Minutes of the Special Meeting of
The San Francisco Ethics Commission
December 16, 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 5:21 PM.

COMMISSION MEMBERS PRESENT: Benedict Y. Hur, Chairperson; Paul Renne, Vice-Chairperson (arrived at 5:34 PM); Brett Andrews, Commissioner; Peter Keane, Commissioner. Commissioner Beverly Hayon was absent (excused).

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

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

OTHERS PRESENT: Sally Hong; Lena Germinario; Ryan Patterson; Jeremy Paul; Pam Harris; Allyson Washburn; Lee Hepner; Diana Christensen; and other unidentified members of the public.

– California Fair Political Practices Commission Stipulation with Common Sense Voters, SF 2010;
– California Fair Political Practices Commission letter to Charles Bell, dated January 10, 2011;
– Lobbyist Factsheets;
– Staff Memorandum to Ethics Commission re: Policy Discussion Regarding Sunshine Ordinance Task Force Referrals, dated December 11, 2014;
– Sunshine Ordinance Task Force Memorandum to Ethics Commission re: Policy Discussion Regarding Sunshine Ordinance Task Force Referrals, dated December 11, 2014;
– Staff Memorandum to Ethics Commission re: Ordinance Amending Permit Consultants Disclosure Requirements, dated December 11, 2014;
– Board of Supervisors Memorandum re: Legislation Introduced, dated December 1, 2014;
– Draft Minutes of the Ethics Commission’s Regular Meeting of October 27, 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.


III. Discussion with City Attorney’s Office regarding potential litigation by the City Attorney’s Office against local committees, including Common Sense Voters, SF 2010; Vote for Mark Farrell for District 2 Supervisor, for violations of local campaign finance laws. (Closed Session.)

Deputy Executive Director Jesse Mainardi recused himself from this item and seated himself with the public at 5:22 PM.

a. Public comment on all matters pertaining to Agenda Item III, including whether to meet in closed session.

Charles Bell stated that that he filed the original complaint and asked the Ethics Commission to take action. He stated that the California Fair Political Practices Commission entered into a stipulation in this matter which determined that Common Sense Voters was in fact a candidate controlled committee by Supervisor Mark Farrell.

Motion 14-12-16-01 (Keane, Andrews) Moved, seconded and passed (4-0, Hayon absent) that the Ethics Commission assert the attorney-client privilege and meet in closed session under California Government Code section 54956.9 and Sunshine Ordinance section 67.10(d) to discuss anticipated litigation.

The Ethics Commission went into closed session at 5:27 PM. All members of the public left the hearing room. Deputy Executive Director Mainardi left the hearing room. The members of the Ethics Commission, Executive Director St. Croix, City Attorney Herrera, DCA Shen, and Ethics Commission staff members Ms. Argumedo and Mr. Chatfield remained in the hearing room.

The Ethics Commission retuned to open session at 6:20 PM.

Motion 14-12-16-02 (Keane/Renne) Moved, seconded and passed (4-0, Hayon absent) that the Ethics Commission not disclose its closed session deliberations.

IV. Presentation by law students at the UC Hastings Center for State & Local Government Law regarding their Lobbyist Ordinance fact sheets prepared for the Ethics Commission.

UC Hastings College of the Law students Sally Hong and Lena Germinario presented the Lobbyist Ordinance fact sheets to the Ethics Commission.

All four Commissioners thanked the students for their hard work and excellent presentation and work product.

Responding to a question from Commissioner Keane regarding areas of the law that they think could be improved, the students stated that the Lobbyist Ordinance could be simplified even further regarding the contacts threshold to register as a lobbyist.

Public Comment:

V. Discussion and possible action regarding proposed legislation changing permit consultant reporting requirements effective January 1, 2015 (File No. 141216).

Deputy Director Mainardi introduced the item. He stated that the Board of Supervisors referred this matter for comment, but there is no voting requirement or requirement to take any action. He explained the change proposed by this legislation is to remove the fee disclosure requirement for permit consultants.

Public Comment:
Ryan Patterson stated that the requirement to disclose fees is burdensome and that the provision was not intended to be included in the ordinance. He stated that the Board of Supervisors, when voting on the matter, were advised that there was no fee disclosure provision, but that it was inadvertently left in when the ordinance was finally approved. He stated that former Supervisor Chiu promised to introduce this “clean-up” language. He stated that if the Ethics Commission is not in favor of removing the provision, it could recommend a floor threshold amount that would trigger reporting fees.

Jeremy Paul stated that he works as a permit consultant and urged the Ethics Commission to recommend removing the fee disclosure provision. He stated that the entire permitting process is public.

A licensed contractor stated that disclosing fees would not provide any more transparency of the process to the public, but would put small permit consultants at a competitive disadvantage as larger firms could undercut their fees.

Pam Harris stated that Supervisor Chiu promised that the fee disclosure provision would be removed from the final version of the ordinance. She stated that it is unfair to require the fee disclosure.

Deputy Director Mainardi stated that the reporting of fees is only triggered if the project is valued at one million dollars or more.

Commissioner Keane stated that although he understands why this “clean-up” language is being proposed, he is in favor of the fee disclosure requirement. He stated that there is long history of corruption in the permit process and with permit expediters. He stated that permits are very controversial and that the public should be able to see the fees that are charged for these services. He stated that it is good public policy.

Vice-Chairperson Renne stated that he agreed with Commissioner Keane and is in favor of a transparent permit process.

Chairperson Hur stated that a good middle ground would be to have a threshold amount that triggers the disclosure of fees.

Commissioner Andrews stated that withholding the amount of the fees that a client pays a permit consultant is not necessarily an indicator of corruption. He stated that the he is concerned that the disclosure of fees could cause a competitive disadvantage.

Commissioner Keane stated that he had hoped a representative from the group “the friends of ethics” would have attended to weigh in on this issue.

Responding to Commissioner Keane, Deputy Director Mainardi stated that lawyers would not be automatically exempt from disclosing fees if they act in the capacity of a permit consultant.

Motion 14-12-16-03 (Keane/Hur) Moved, seconded and passed (3-1, Andrews dissenting, Hayon absent) that the that the Ethics Commission recommend to the Board of Supervisors that there be a monetary threshold at which permit consultants must disclose their fees.

The Ethics Commission went into recess from 7:31 PM to 7:39 PM.

VI. Discussion and possible regarding action regarding the adoption of policies for Sunshine Ordinance Task Force referrals to the Ethics Commission.

Deputy Director Mainardi introduced the item and briefly outlined the three main issues presented in the memorandum.

Issue One:

Jesse Mainardi stated that this issue addresses the concern that sometimes referrals from the Task Force to the Ethics Commission are not clear regarding whether notice was properly given to a respondent.

Lee Hepner, Task Force Member, stated that often citizen complaints are not well-formulated and the correct respondent is not determined until the hearing process has commenced. He stated that throughout the process the Task Force notices any new respondents.

Commissioner Keane stated that he agreed with a staff suggestion that the Task Force could conduct an initial review to determine the issues and correct respondents prior to a hearing.

Lee Hepner stated that the first hearing that the Task Force holds is a preliminary review.

Public Comment:
Diana Christiansen, from the Department of Human Services, stated that she responds to many Sunshine Ordinance complaints and that it is not always clear to the department what violations are alleged in a complaint. She stated that the allegations often change throughout the Task Force process and that process is amorphous and often the violations found by the Task Force change at the very end of the process.

Motion 14-12-16-04 (Keane/Renne) Moved, seconded and passed (4-0, Hayon absent) that the Ethics Commission adopt option 3 of the memorandum with the amendment to include “if the referral letter indicates that the respondent was given notice of all allegations and had the opportunity to respond.”

Issue Two:

Deputy Director Mainardi outlined the options presented in the memorandum to address the concern that in some instances it might be appropriate to name a department as the respondent.

Mr. Hepner stated that allowing a department to be a named respondent might be appropriate in some instances.

Ms. Christensen also stated that a department should be named a respondent in some cases.

Motion 14-12-16-05 (Renne/Keane) Moved, seconded and passed (4-0, Hayon absent) that the Ethics Commission adopt option two with the amendment to include the language “included but not limited to” following “based on consideration of the following factors” and to change the word “sufficient” to “insufficient” and to adopt options 3 and 4 as presented in the memorandum.

Issue Three:

Mr. Hepner explained why the Task Force interprets the word “authorized” in the requirement for a department to send a representative to its hearings to mean “knowledgeable” by stating that the fact finding function of the Task Force requires someone to appear who knows about the records request at issue.

Ms. Washburn stated that the Task Force’s DCA drafts a memorandum that outlines the issues.

Ms. Christensen stated that that memorandum is not provided to respondents with the hearing notice.

Motion 14-12-16-06 (Keane/Renne) Moved, seconded and passed (4-0, Hayon absent) that the Ethics Commission adopt option two with the amendment to include the language “so long as that person is prepared to respond to the allegations contained in the City Attorney’s memorandum.”

VII. Discussion and possible action on the minutes of the Commission’s meeting of October 27, 2014.

Executive Director St. Croix stated that the word “nice” should be inserted into the last paragraph of page two.

Public Comment:

Motion 14-12-16-07 (Renne/Keane) Moved, seconded and passed (4-0, Hayon absent) that the Ethics Commission adopt the minutes of the Commission meeting of October 27, 2014, as amended.

VIII. Discussion of Executive Director’s Report.

¬Commissioner Andrews stated that he wanted to know if the Mayor’s request for cuts would affect any outstanding positions from being cut.

Executive Director St. Croix stated that there was an open investigator position. Responding to Commission Keane, Mr. St. Croix stated that requests for new positions will be included in the next budget proposal.

Public Comment:

IX. Items for future meetings.


Public Comment:

X. Adjournment.

Motion 14-12-16-08 Moved, seconded and passed (4-0, Hayon absent) that the Ethics Commission adjourn.

Public Comment:

The Ethics Commission adjourned the meeting at 8:41 PM.

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