Ethics Commission
City and County of San Francisco

Minutes – March 23, 2015

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
March 23, 2015
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 5:31 PM.

COMMISSION MEMBERS PRESENT: Ben 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; Shaista Shaikh, Assistant Deputy Director; Catherine Argumedo, Investigator/Legal Analyst; Garrett Chatfield, Investigator/Legal Analyst.

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

OTHERS PRESENT: Bob Planthold; Ray Hartz; Paula Datesh; James Sutton; Larry Bush; Charles Bell; Bob Dockendorff; and other unidentified members of the public.

MATERIALS DISTRIBUTED:
– Letter from Executive Director to Supervisor Mark Farrell, dated December 9, 2014, regarding Forfeitures due from 2010 election;
– Letter from The Sutton Law Firm to Chairperson Hur, dated March 15, 2015, regarding Ethics Commission’s’ Official “Forfeiture Policy;”
– Letter from The Sutton Law Firm to Executive Director, dated March 15, 2015, regarding Requested “Forfeiture” from Mark Farrell for District 2 Supervisor 2010 Committee;
– Email, dated March 15, 2014, from Michael Garcia;
– Staff Memorandum re: Audit Selection of Year 2014 Campaign Committees and Lobbyists, dated March 18, 2015:
– Staff Memorandum re: Proposed Project Calendar for 2015, dated March 18, 2015;
– Draft Minutes of the Ethics Commission’s Regular Meeting of February 23, 2015;
– 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.

Bob Planthold stated that there is a need for timeliness regarding the resolutions of complaints, and in particular complaints referred by the Sunshine Ordinance Task Force. He stated that he filed a complaint in 2013 and never received a response. He stated that when he was a commissioner, there was an issue about complaints becoming stale. He stated that the Commission rejects findings of the Sunshine Ordinance Task Force by using standards that would only apply in courts and that the Sunshine Ordinance does not require that standard.

Ray Hartz put up an excerpt from the court case Citizen’s United and read from it. He stated that he agreed with the previous speaker regarding the timeliness of complaints. He stated that the Sunshine Ordinance Task Force issued 19 Orders of Determination in his favor and the Ethics Commission rejected the findings in each one. He stated that the Ethics Commission held a hearing on one of the matters without ever notifying him of the hearing. He stated that there is a pattern in City government to not follow the Sunshine Ordinance laws.

Paula Datesh stated that she is experiencing problems with the Arts Commission. She stated that the Arts Commission gives her irrelevant documents in response to public records requests. She stated that in 2013 the Arts Commission held a hearing to revoke a permit issued to her by the Arts Commission without notifying her of the hearing. She stated that the Arts Commission filed a stalking case against her, which she won on appeal. She stated that she is afraid to go to the Arts Commission’s office.

III. Discussion and possible action regarding forfeiture letter sent to Supervisor Mark Farrell on December 9, 2014.

Deputy Executive Director Mainardi recused himself from this item and sat with the public.

Executive Director St. Croix introduced the item and stated that Supervisor Farrell provided a response to the forfeiture request.

James Sutton, representing Supervisor Farrell, presented his case. He stated that forfeiture in this matter is not warranted and requested a complete waiver. He stated that the California Fair Political Practices Commission (FPPC) completed an investigation and exonerated Supervisor Farrell. He stated that there is no factual or legal basis for the forfeiture request and that the applicable statute of limitation bars the Ethics Commission from seeking the forfeiture. He stated that forfeiture is appropriate in limited circumstances, none of which apply in this matter.

Responding to Commissioner Renne’s question regarding what other remedies are available apart from forfeiture, Mr. Sutton stated that a settlement can be entered into, or penalties may be assessed after a hearing, but that forfeitures are not applicable in matters that require investigation.

Commissioner Keane stated that Supervisor Farrell hired Chris Lee, who was found to have coordinated campaign activities, and Supervisor Farrell is responsible for Mr. Lee’s actions. Commissioner Keane also stated that the FPPC approved a stipulation to which Mr. Lee along with Common Sense Voters were parties. He stated that the stipulation is an admission by Mr. Lee. He stated that campaign contributions may be closely regulated, and that is the last check the public has to insure the electoral process is not corrupt. He stated that this the Ethics Commission waives the forfeiture amount, it is in effect stating that this type of conduct is permissible.

Commissioner Andrews stated that, given the amount of expenditures made by Common Sense Voters, it is implausible to assert that a reasonable person was unaware of those expenditures being made.

Mr. Sutton stated that Supervisor Farrell’s committee was unaware that the expenditures were being made by Common Sense Voters until the mail pieces were distributed.

Chairperson Hur stated that regarding the exceeding of contribution limits, strict liability applies and that if a committee was determined to be controlled by the candidate, then no investigation would be required because the excess amount, on its face, is subject to forfeiture.

Public Comment:
Larry Bush stated that the Ethics Commission should waive the forfeiture amount because there is no clear definition of “candidate controlled committee.” He stated that it is merely through self-declaration that a committee is candidate controlled. He stated that the Ethics Commission provides no “check-list” to determine if a committee is candidate controlled.

Ray Hartz stated that out of the 19 Orders of Determination he had from the Sunshine Ordinance Task Force, one involved Supervisor Farrell’s failure to respond to a records request. He stated that it is ludicrous for Supervisor Farrell to say he was unaware of the actions of his staff. He stated that if you employ someone, you are responsible for that person’s actions. He stated Supervisor Farrell never personally attends any Sunshine Ordinance Task Force hearing and always sends a representative.

Charles Bell stated that the Ethics Commission should reject the waiver request. He stated that the FPPC stipulation concluded that Common Sense Voters was a candidate controlled committee through Chris Lee’s actions. He stated that the request for forfeitures was issued within the applicable statute of limitations and that Supervisor Farrell is personally responsible.

Bob Planthold stated that too many attorneys are looking at this issue from the attorney viewpoint. He stated that candidates rely on professionals who know about the election process and that Supervisor Farrell may have misplaced his trust in Mr. Lee. He stated that the Ethics Commission should review how it conducts candidate trainings and issue a “bright line” of “dos and don’ts” regarding candidate obligations.

Chairperson Hur stated that the Ethics Commission’s policy regarding waiver requests is that the Executive Director makes the request to the Commission on behalf of the entity making the waiver request. DCA Shen confirmed that policy with Chairperson Hur, and Executive Director St. Croix confirmed that he is not making a waiver request in this matter.

IV. Discussion and possible action on the selection of random audits of lobbyists and committees that were active in 2014. Staff estimates that it will have time and resources to conduct four randomly selected lobbying audits and ten randomly selected audits of non-publicly financed candidate, ballot measure and general purpose committees.

Assistant Deputy Director Shaikh introduced the item and explained the process for randomly selecting committees and lobbyists for audit.

Responding to Chairperson Hur, Assistant Deputy Director Shaikh stated that the Ethics Commission does not currently track the hours spent on each audit, but estimates that each individual audit will take about three weeks of staff time. She clarified that Commission audit staff do not work solely on one audit at a time and balance all audits with their various other required duties.

Chairperson Hur stated that he would like the hours spent on each audit to be tracked.

Public Comment:
Bob Planthold stated that it is a good idea to track the number of hours spent on each audit. He stated that the way the selection process is set up, some committees with a lot of activity may not be audited. He stated that the Commission should request more staff for audits.

Ray Hartz stated that he is no longer receiving agenda packets even though he informed staff he wanted to be on the interested persons list. He stated that the group Friends of the Library should be included on the audit selection list. He stated that the Friends of the Library engage in lobbying and they raised 70 million dollars, with no information on how the money is spent. He stated that if the Chamber of Commerce is included in the selection, the Friends of the Library should also be included. He stated that the FPPC determined that Luis Herrera accepted thousands of dollars in gifts from the Friends of the Library and he never reported those gifts.

Larry Bush stated that the selection list is not complete. He stated that he gathered that the list only includes the entities that file as a committee. He stated that that Friends of the Library do not file as a committee and neither does the Parks Alliance.

Assistant Deputy Director Shaikh explained that the selection list excludes any entity that raised less than $10,000 following prior guidance from the Commission.

Bob Planthold read the campaign committee names from activity level one while Deputy Executive Mainardi placed each individual chit into the selection box for the random draw.

Bob Dockendorff selected six activity level one committees from the selection box to be audited: Mayor Ed Lee for San Francisco Committee; Committee for Better Wages, Yes on J; No on B 2014, sponsored by the San Francisco Alliance for Jobs and Sustainable Growth; No Wall on the Waterfront, Yes on Prop B, top contributors include Richard and Barbara Stewart; Jane Kim for Supervisor, 2014; and Yes on E – Choose Health SF.

Bob Dockendorff read the campaign committee names from activity level two while Deputy Executive Mainardi placed each individual chit into the selection box for the random draw.

Bob Planthold selected two activity level two committees from the selection box to be audited: Hydra Mendoza for School Board, 2014; and Carballo for District 2 Supervisor 2014.

Bob Planthold read the campaign committee names from activity level three while Deputy Executive Mainardi placed each individual chit into the selection box for the random draw.

Bob Dockendorff selected two activity level three committees from the selection box to be audited: District 11 Democratic Club; and San Francisco Young Democrats.

Assistant Deputy Director Shaikh explained the audit selection process for lobbyist activity.

Bob Dockendorff read the lobbyist names from activity level one while Deputy Executive Mainardi placed each individual chit into the selection box for the random draw.

Bob Planthold selected two activity level one lobbyists from the selection box to be audited: Lapointe and Associates; and the San Francisco Chamber of Commerce.

Bob Planthold read the lobbyist names from activity level two while Deputy Executive Mainardi placed each individual chit into the selection box for the random draw.

Bob Dockendorff selected one activity level two lobbyist from the selection box to be audited: Hanson Bridgett LLP.

Bob Dockendorff read the lobbyist names from activity level three while Deputy Executive Mainardi placed each individual chit into the selection box for the random draw.

Bob Planthold selected one activity level three lobbyist from the selection box to be audited: Airbnb.

V. Discussion and possible action regarding a proposed project calendar for various staff projects, including potential regulatory changes and amendments to the Campaign and Governmental Conduct Code.

Deputy Executive Director Mainardi introduced the item.

Responding to Commissioner Renne, Deputy Executive Director Mainardi stated that the initial work will involve legal research and that he will work with the City Attorney’s Office. He stated that he wanted to make sure all pertinent issues were thoroughly researched and discussed with the opportunity for public input.

Chairperson Hur stated that it would be helpful if individual Commissioners participated with staff regarding the development of the items presented in the project calendar. He stated that he would assist with the development of revised enforcement regulations.

Public Comment:
Larry Bush stated that he was speaking on behalf of the Friends of Ethics, which had also sent a letter to the Commission outlining its concerns with the projects proposed in the calendar. He stated that the calendar timeline should include contemporaneous political activities. He stated that the Civil Grand Jury report discussed requiring the disclosure of behested payments, and not just gifts of travel. He stated that it would be instructive to research the requirements in place in other jurisdictions that have Ethics Commissions.

Ray Hartz stated that it seems to him that the Ethics Commission is only concerned with campaign finance activity and ignores its duty to enforce the Sunshine Ordinance. He stated that the Ethics Commission does not make that a priority because that would require enforcing the Sunshine Ordinance against the Commission’s colleagues. He stated that he won 19 Orders of Determination against public officials and the Ethics Commission does not care. He stated that the Executive Director finds technical reasons to dismiss each complaint and even holds hearings on matters when complainants are out of the state, which is what happened to him. He stated that First Amendment rights are not respected in San Francisco.

Chairperson Hur stated that the project calendar should be kept up to date as to the progress on each item.

Responding to Commissioner Renne, Deputy Executive Director Mainardi stated that state law prohibits local jurisdictions from imposing contribution limits on central county committee candidates or prohibiting legal defense funds.

DCA Shen stated that state law provides a definition for controlled committees which is already incorporated into local law

VI. Election of Officers. Discussion and possible action regarding the election of a Chair and Vice-chair to serve for the coming year.

Executive Director St. Croix introduced the item, and explained that a Commissioner may nominate either themselves or another Commissioner and that no second is needed.

Chairperson Hur thanked the Commissioners for allowing him to serve as Chairperson over the last year.

Commissioner Keane nominated Commissioner Renne for Chairperson.

Public Comment:
Ray Hartz stated that the Commission needs a leader who will actually lead. He stated that campaign finance is just “rearranging deck chairs on the Titanic” and that he would like to see someone as Chairperson who will address the thing the Commission neglects, such as enforcing the Sunshine Ordinance. He stated that citizens think they are allowed to make public comment, but are routinely told that they cannot speak, or are denied public records. He stated that for eight years he has attended Ethics Commission meetings and has only heard “lip service” about the Sunshine Ordinance, and only held one hearing on a Sunshine case. He stated that Luis Herrera lied about accepted thousands of dollars in gifts. He stated that he wants to see a Chairperson that will do more than just deal with campaign finance.

Larry Bush stated that some of the Commissioners have only been seated on the Commission in the last two years. He stated that Commissioner Renne was the only Commissioner to have attended an interested persons meeting. He stated that Commissioner Renne raised the issue of expenditure lobbyists and that impressed him.

Motion 15-03-23-01: (Hayon/Keane) Moved, seconded, and passed (5-0) to elect Commissioner Renne as Chairperson for the upcoming year.

Commissioner Keane nominated Commissioner Andrews for Vice-Chairperson.

Public Comment:
Ray Hartz stated that he was in favor of Commissioner Andrews becoming Vice-Chairperson because Commissioner Andrews was the only Commissioner to question Luis Herrera about the public’s use of video equipment during a Sunshine Ordinance hearing regarding a complaint by Mr. Hartz. He stated that Commissioner Andrews is willing to ask questions. He stated that Commissioner Keane would also be a good nomination because he is an advocate for free expression. He stated that Commissioner Andrews will serve effectively. He stated that the Sunshine Ordinance “posse” has given up on the Ethics Commission and that the Ethics Commission is not required to respond to criticism during public comment, but that no Commissioner ever chooses to respond to all of his negative criticism.

Motion 15-03-23-02: (Renne/Hayon) Moved, seconded, and passed (5-0) to elect Commissioner Andrews as Vice-Chairperson for the upcoming year.

VII. Discussion and possible action on the minutes of the Commission’s meeting of February 23, 2015.

Executive Director St. Croix stated that there was a typographical error on page six where the word “lined” should be changed to “linked.”

Motion 15-03-23-03: (Andrews/Renne) Moved, seconded, and passed (5-0) to approve the minutes for the Commission’s meeting of February 23, 2015, as amended.

VIII. Discussion of Executive Director’s Report.

Executive Director St. Croix stated that the Commission has started to send documents to a translator to comply with the language access ordinance. Responding to Commissioner Keane, Executive Director St. Croix stated that he estimates that 50% of all records that require a translation will be completed by the end of 2015 and 100% will be completed by March 2016.

Responding to Commissioner Andrews, Executive Director St. Croix stated that the Bureau of Delinquent Revenue matter regarding Chris Jackson is a separate matter from the stipulation approved by the Commission in February 2015 regarding Chris Jackson.

Responding to Commissioner Renne, Deputy Executive Director Mainardi, stated that even though there are currently 126 registered lobbyists, the audit selection for lobbyists included a smaller number because staff determined to conduct the audits for an entire firm.

Public Comment:
Ray Hartz stated that the Executive Director’s Report never includes any information regarding Sunshine Ordinance complaints except for how many are pending. He stated that the Ethics Commission doesn’t enforce the Orders of Determination issued by the Sunshine Ordinance Task Force, and by doing so it is protecting City officers. He stated that he had to go to the FPPC to enforce violations of law against Luis Herrera. He stated that he will continue to attend Ethics Commission meetings and make public comment until the Ethics Commission starts enforcing the Sunshine Ordinance.

IX. Items for future meetings.

Public Comment:
Ray Hartz stated that Ethics Commission should defend the public’s right to speech and to stop other boards and commissions from disparaging public speakers. He stated that at the most recent Library Commission meeting, the public was told no comments could be made about items not appearing on the agenda. He stated the Police Commission has done the same thing. He stated that it is amazing that in San Francisco, public policy bodies try to stop the public from speaking. He stated that the Ethics Commission did nothing when Luis Herrera accepted thousands of dollars in gifts from the Friends of the Library. He stated that as soon as a Commissioner takes the oath of office, that Commissioner works for the people of San Francisco. He stated that Supervisor Farrell withheld public records, and he voted to approve money from the Friends of the Library without ever reviewing a single document. He stated that the members of the Ethics Commission just sit there with a blank look in their eyes.

X. Adjournment.

Motion 15-03-23-04: Moved, seconded and passed (5-0) that the Ethics Commission adjourn.

Public Comment:
None.

The Ethics Commission adjourned the meeting at 7:47 PM.

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