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Minutes – April 27, 2015


Minutes of the Regular Meeting of
The San Francisco Ethics Commission
April 27, 2015
Room 400, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102

I. Call to order and roll call.

Chairperson Renne called the meeting to order at 5:30 PM.

COMMISSION MEMBERS PRESENT: Paul Renne, Chairperson; Brett Andrews, Vice-Chairperson; Beverly Hayon, Commissioner; Ben Hur, Commissioner (arrived at 5:50 PM); 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: David Pilpel; Larry Bush; Bob Planthold; Charlie Marsteller; Bob Dockendorf; Paula Datesh; Douglas Yip; Marc Solomon; Janet Reilly; Charles Bell; Greg Brian; James Sutton; Joe Kelly Jr.; Rebekah Krell; Brent Lewis; and other unidentified members of the public.

– Friends of Ethics Poll;
– Letter from the Executive Director to Mark Farrell, dated December 9, 2014, regarding Forfeitures due from 2010 election;
– Draft letter from the Executive Director to Mark Farrell regarding December 9, 2014 letter;
– Staff Memorandum to Ethics Commission members regarding Hearing on Ethics Complaint 03-150127, Report and Recommendation on Ethics Complaint 03-150127 and attachments, Complainant’s Response, Respondent’s Response, Letter from the Office of the City Attorney to Ethics Commission regarding Ethics Complaint 03-150127, dated April 20, 2015, Letter from David Pilpel to Ethics Commission regarding Ethics Complaint 03-150127;
– Letter of Resignation from Executive Director to Ethics Commission members, dated April 27, 2015;
– Draft Minutes of the Ethics Commission’s Regular Meeting of March 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.

Chair Renne stated that he intends to move general public comment to different places depending on each meeting’s agenda. He stated that general public comment should occur after several agenda items are heard to allow the public to gather more information on items if they want to make comment.

David Pilpel stated that the Commission should refrain from putting general public comment on the agenda after any closed session items.

Chair Renne responded stating that general public comment will occur prior to closed session items.

Larry Bush stated that the Commission previously discussed reinstating laws to regulate expenditure lobbyists. He stated that expenditure lobbyist provisions were removed from the Lobbyist Ordinance in 2010. He stated that other jurisdictions continued to require disclosure from expenditure lobbyists, and that the Commission should try to amend the Lobbyist Ordinance to include expenditure lobbyist regulation by sponsoring a ballot measure in the November 2015 election. He stated that his group, the Friends of Ethics, completed a poll that shows there is public sentiment for these changes in the law.

Chair Renne responded to Mr. Bush stating that the Commission will consider the Friends of Ethics proposals, but a ballot measure would most likely not be ready for this election.

Bob Planthold stated that the Commission should work to get an expenditure lobbyist amendment on the November 2015 ballot. He stated that members of the public attended a Department of Building Inspection meeting for the purpose of expressing support for Airbnb, and stated that demonstrates that expenditure lobbying is occurring. He stated that the Commission used to hold many special meetings and that there are many options for hearing rooms in City Hall.

Charlie Martsteller stated that some Commission members disagreed with the removal of expenditure lobbyist regulation from the Lobbyist Ordinance in 2009. He stated that there are many more lobbyists who are registered now and that the time is right to reinstate expenditure lobbyist regulations. He stated that the Commission should hold public hearings regarding the hiring of a new Executive Director.

A member of the Friends of Ethics stated that the Commission should reenact the regulations on expenditure lobbyists.

Bob Dockendorf stated that he was an Ethics Commissioner from 1996 to 2000 and that the Commission had previously sponsored two ballot measures. He stated that lobbying is an insidious way to influence and pass legislation. He stated that special interests can also influence public opinion.

Paula Datesh stated that David Pilpel is an active member of the Sunshine Ordinance Task Force and that he has a history of representing himself during public comment as speaking on his own behalf, but uses information gained from being a member of the Task Force. She stated that Mr. Pilpel has had four ethics complaints against him and that he has a long history of interjecting on matters for which he has no information.

Douglas Yip stated that he got permission to attend this meeting, and he thanked the Commission for scheduling item six on this agenda. He stated that Mr. St. Croix’s resignation is long overdue. He stated that when you get out of the shower and you look in the mirror, you should ask yourself how much honesty you see from head to toe. He stated that if you do not see any honesty then you should not be involved in ethics. He stated that there is a San Francisco branch of the FBI’s public corruptions office and that it is free. He stated that he wondered if agenda item six had any connection with Mayor Ed Lee. He stated that the Commission should hire a new Executive Director from outside of San Francisco so there is no local political influence.

Marc Solomon stated that the Commission should put a ballot measure on the November 2015 ballot to regulate expenditure lobbyists. He stated that he received a twenty-minute push poll from Airbnb. He stated that the Commission finds money to prosecute individuals who are not politically powerful.

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.

Chair Renne explained that this item is on the agenda because the matter was not resolved at the last Commission meeting. He stated that the Commission members should decide whether or not to send a letter from the Executive Director which waives the forfeiture amount requested in December 2014.

Commissioner Keane stated that Supervisor Farrell took an illegal campaign contribution of almost $200,000 through a committee coordinated by Mr. Farrell’s campaign chair. He stated that with respect to the statute of limitations issue, that a court would ultimately decide its propriety, and that the Commission should not waive the forfeiture amount based on a statute of limitations issue. He stated that there some members of the Commission who are not lawyers and that he has practiced law for over 30 years and has been the dean of a law school, and that in his opinion the statute of limitations has not run because the demand for the forfeiture occurred within four years of the final accounting which had been due on January 31, 2011, and that fraudulent concealment has tolled the statute of limitations. He stated that Supervisor Farrell has asserted that the California Fair Political Practices Commission (FPPC) has exonerated him and that Supervisor Farrell should be ashamed to have made that statement. He stated that campaign contribution limits imposed on candidates is the last area of regulation left after the Citizen’s United decision, and that violations of those limits is egregious.

Commissioner Hur stated that he is concerned regarding the apparent change from the Commission’s policy of allowing the Executive Director to handle waiver requests to instead having the Commission members make waiver request decisions without having some procedure in place.

DCA White explained the referral process to the Bureau of Delinquent Revenue (BDR) regarding non-payment. Responding to Commissioner Hur, DCA White stated that if Supervisor Farrell brought an action in court to contest collection of the forfeiture, the Treasurer would be the party-in-interest because BDR is a division of that office.

Chair Renne stated that he believes forfeiture was not the appropriate route to take and that an enforcement action would have been more appropriate. He stated that when the complaint was filed, the FPPC asked the Ethics Commission to not investigate the complaint because the complaint had also been filed with that body and that they were going to investigate. He stated that deferring to the FPPC was a mistake.

Responding to a question from Commissioner Hayon, DCA White explained that the Ethics Commission’s practice is to defer an investigation to the FPPC if they so request, but that there is no legal requirement prohibiting the Commission from investigating a complaint contemporaneously with the FPPC.

Commissioner Hur agreed that it was a mistake to defer the investigation to the FPPC, but also acknowledged that it is not good public policy to conduct redundant investigations if the FPPC is looking into a matter. He stated that staff could have independently pursued violations of local law in this matter that would not have overlapped with any state law violations.

Vice-Chair Andrews stated that staff could do a better job partnering with other enforcement entities when a complaint is received.

The Commission members engaged in a discussion on whether or not the Commission members should approve or deny waiver requests by changing the current policy in which the Executive Director makes waiver request decisions. The Commission members agreed to hear public comment before making a determination

Public Comment:
Charlie Marsteller stated that any decision regarding waiving the forfeiture will be accountable to the Commission members. He stated that the Commission does not necessarily need to approve waiver requests granted by the Executive Director, but that it should closely monitor those requests.

Larry Bush stated that the Commission members are accountable for its decisions in a way that staff is not, because staff is protected by civil service rules and commissioners can be removed or recalled. He stated that in the past, waivers that were questionable have been granted for powerful individuals who said they had no money to pay a forfeiture, but in fact did have enough money.

Janet Reilly stated that she ran to be the District Two supervisor in 2010 against Supervisor Farrell. She stated that she put a team together and met with District Two residents, raised money, and participated in debates. She stated that false attack pieces were distributed in District Two by a committee that, as it turns out, was not independent from the Farrell campaign. She stated that it was cheating, and it worked.

Charles Bell stated that Commissioner Keane accurately explained what occurred and that there is no statute of limitations issue regarding collecting the forfeiture amount. He stated that any question on the statute of limitations issue should be resolved by a court, and that the Ethics Commission should not waive the forfeiture and vigorously enforce the law.

Greg Brian stated that there is a clear violation of law and the Ethics Commission must enforce its own ethics rules.

Mark Solomon stated that this is like 2003, and that this is a criminal conspiracy. He stated that the Ethics Commission’s job is to ensure future candidates cannot defraud the electorate.

James Sutton stated that the FPPC was very thorough with its investigation and it levied a fine against the individual it believed was responsible. He stated that Supervisor Farrell did not conceal information and that the FPPC stipulation states that Supervisor Farrell was not involved in the coordination.

David Pilpel stated that the agenda item description is not sufficient. He stated that if the Ethics Commission thinks that a violation of law occurred, that it should bring the matter to a probable cause hearing.

Joe Kelly, Jr. stated that the Ethics Commission should attempt to collect the forfeiture and let a court determine if that it was improper.

Commissioner Hur stated that if the Ethics Commission is going to decide on whether to grant or deny a forfeiture waiver, then a policy should be in place. He stated that he would not approve the waiver letter at issue here because there is no legal basis outlined in the letter to grant the waiver.

Vice-Chair Andrews agreed that the letter insufficiently explains why the waiver should be granted and that he would not support its approval.

Motion 15-04-27-01: (Keane/Andrews) Moved, seconded, and passed (4-1, Hur dissenting) to “not authorize [the Executive Director] to send out the letter saying that the matter is waived because of the statute of limitations – that [the Ethics Commission] not approve the attached letter.”

Commission Hur stated that he opposed the motion on the basis that the letter contained insufficient legal reasons to waive the forfeiture. Commissioner Hur proposed a motion to allow staff 30 days to submit additional reasons to waive the forfeiture request.

Commissioner Keane stated that Commissioner Hur is actually moving to reconsider and that to do so is improper because Commissioner Hur voted against the motion.

DCA White stated that the motion does not prohibit the Commission from allowing the Executive Director to resubmit the waiver request with an additional legal basis for the waiver.

Commissioner Keane stated he disagreed with DCA White and that the motion to deny the letter to be sent means that the forfeiture request that was made to Supervisor Farrell in December 2014 is still outstanding.

Motion 15-04-27-02: (Hur/Andrews) Moved, seconded, and passed (4-1, Keane dissenting) that “if the staff is inclined to recommend a waiver and truly believes that a waiver should be issued then [the Ethics Commission] should suspend the forfeiture proceedings for a short period of time [30 days] to allow the staff to justify the rationale. If the staff is no longer interested in going forward with the forfeiture then it should go forward after that brief period of time for the staff to evaluate. But [if the Ethics Commission does] consider a waiver request, that the staff should justify their position and the forfeiture should be briefly suspended for them to provide such justification.”

IV. Discussion and possible action regarding a complaint received or initiated by the Ethics Commission concerning San Francisco Campaign and Governmental Conduct Code section 1.114. Closed Session.

The Ethics Commission did not hear this matter and did not go into closed session.

V. 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. 03-150127, hearing regarding alleged violation of the Sunshine Ordinance. Complainant: Paula Datesh Respondent: Rebekah Krell, Arts Commission Deputy Director

Deputy Executive Director Mainardi returned to the well.

Commissioner Keane requested that the Commission grant that he be recused from this item as he has a personal relationship with two individuals mentioned in the supporting documents submitted by the complainant.

Motion 15-04-27-03: (Hur/Hayon) Moved, seconded, and passed (4-0, Keane abstained) to recuse Commissioner Keane from this item.

Commissioner Keane left the dais.

Paula Datesh, the complainant, presented her case and stated that the email at issue should be released.

Rebekah Krell, the respondent, presented her case.

Ms. Datesh presented her rebuttal and stated that Ms. Krell read the email at issue to her over the telephone and that Ms. Krell should have given her a copy of the email.

Ms. Krell denied that the email was read to Ms. Datesh over the telephone and stated that if that had occurred, she would have provided a copy. She stated that the person who made the complaint to the Arts Commission requested confidentiality.

Ms. Datesh stated that she also saw a copy of the email at issue because the mother of the individual who wrote the email to showed it to her.

Chair Renne stated that the City Attorney’s Office provided a memo that disagreed with staff’s position that the Sunshine Ordinance does not allow City agencies to rely on California Evidence Code, sections 1040 and 1041 privileges. He stated that reliance on the confidential information and informant privileges appear to allow a City agency to deny any record by simply assert that it is protecting confidential information or an informant’s identity.

Commissioner Hur expressed his frustration that staff had not provided the email at issue to the Commission.

Public Comment:
David Pilpel stated that he agreed with the City Attorney’s position that the evidence code privileges are allowable under the Sunshine Ordinance. He stated that he did not think that this matter was properly before the Commission.

Responding to a question from Vice-Chair Andrews, Ms. Krell stated that she is not the regular staff member who responds to records requests, and that in this mater, she was covering for someone who was on leave.

Deputy Executive Director Mainardi stated that staff concluded that the email at issue was properly withheld under the state law evidence code privileges, but that staff also concluded that the Sunshine Ordinance appeared to prohibit reliance on those state law privileges. He stated that because all Sunshine Ordinance matters must be heard in open session, staff concluded that it could not provide the email at issue because there is no provision to allow for closed session review of the document.

DCA White stated that it may be possible to conduct a closed session review of the document.

Commissioner Hur stated that if Ms. Krell had read the email to Ms. Datesh, the privilege was waived. He stated that if Ms. Datesh knows the content of the email, even if from a source outside the City, then there is no basis for the Arts Commission to withhold the email.

DCA White stated that Ms. Datesh also testified that she was provided a copy of the email by someone outside of the City. He stated that the City has no obligation to confirm the existence of a confidential document upon a member of the public’s assertion that she has already seen the document. He stated that the Commission must make a credibility determination based on the testimony it heard from the parties.

Ms. Krell reiterated that she did not read the email to Ms. Datesh and had no knowledge of another individual providing the email to Ms. Datesh.

Motion 15-04-27-04: (Hur/Andrews) Moved, seconded, and passed (4-0, Keane recused) to find that that Ms. Krell committed a violation of Sunshine Ordinance, section 67.27(a), and to continue the hearing until the Commission can review the evidence in camera.

Commissioner Keane returned to the dais.

VI. Discussion and possible action on beginning a recruitment process. Executive Director John St. Croix has tendered his resignation and will be leaving his post on August 27, 2015.

Deputy Executive Director Mainardi left the well because he stated that he intended to apply for the Executive Director position.

Chair Renne thanked Executive Director St. Croix for his service.

Brent Lewis from the Department of Human Resources presented to the Commission its options for recruiting a new Executive Director. He stated that an external recruiter has been used in the past to fill the position. He stated that the Commission can choose various levels of service from the recruiter.

Commissioner Hur stated that the Executive Director position is a “lighting rod” in the City and he stated that he wants to ensure that the process is as inclusive as possible with members of the public.

Responding to Vice-Chair Andrews, Mr. Lewis stated that the cost to recruit for the position will be from $15,000 to $40,000 depending on the level of service.

Commissioner Keane stated that hiring a new Executive Director is one of the most important decisions the Commission will make. He stated that the Commission should try to get supplemental funding for the cost of recruitment.

Executive Director St. Croix stated that there is some money in the current financial year’s budget that can be used for the cost of recruitment.

Vice-Chair Andrews stated that it is important that members of the public weigh in on what the Executive Director’s job description should include. He stated that conducting an executive search with a recruiter will greatly assist the Commission to find suitable candidates.

Chair Renne stated that he and Vice-Chair Andrews will be an ad hoc committee to work with the recruiter.

Public Comment:
Larry Bush stated that public input is critical and that the public should define the Executive Director duties. He stated that the Ethics Commission Executive Director job is a nuanced role and the search process should ensure that the candidate understand that.

Douglas Yip stated that the Commission should schedule a public hearing and invite critics of the current Executive Director to comment on what the next Director should focus on. He stated that the current Deputy Executive Director should not be hired to be the new Executive Director because he would have been too influenced by the current Executive Director. He stated that the Commission should hire someone from outside the City with no local ties so that the individual is free from local political influence.

David Pilpel stated that the Commission should take input from the public and that any non-exempt public records generated should be available to the public.

VII. Discussion and possible action regarding a complaint received or initiated by the Ethics Commission concerning California Government Code sections 84107 (failure to properly identify opposition to a ballot measure in a committee’s name) and 84504(c) (failure to include committee’s name on campaign advertisements). Closed Session.

Motion 15-04-27-05: (Hur/Hayon) Moved, seconded, and passed (5-0) to go into closed session.

Public Comment:
Larry Bush asked when the Commission would discuss the expenditure lobbyist issues expressed by members of the public during general public comment.

Chair Renne responded by stating that Commissioner Keane will make a presentation of the issue at a future meeting.

Commissioner Keane stated that he will address the issue of whether or not it is feasible to put a measure on the ballot regarding expenditure lobbyists for the next election.

DCA White cautioned the Commission that it was discussing an item not on the agenda and that this is public comment on a motion to go into closed session.

Commissioner Keane stated that he would finish, and then his comment could be stricken from the record.

The Commission went into closed session at 9:20 PM. All members of the public left the hearing room. The Commission members, Executive Director St. Croix, Deputy Executive Director Mainardi, DCA White, and staff member Chatfield remained in the hearing room during closed session.

The Commission retuned from closed session at 9:53 PM.

Motion 15-04-27-06: (Keane/Andrews) Moved, seconded, and passed (5-0) not to disclose its closed session discussion.

Public Comment:
David Pilpel asked if there was any actions taken in closed session that needed to be disclosed.

VIII. Discussion and possible action on the Commission’s March 23, 2015 draft meeting minutes.

Public Comment:
David Pilpel noted several typographical errors.

Motion 15-04-27-07: (Andrews/Keane) Moved, seconded, and passed (5-0) to approve the minutes for the Commission’s meeting of March 23, 2015, as amended.

IX. Discussion of Executive Director’s Report.

Public Comment:
David Pilpel stated that the report should contain a status update on various staff projects.

X. Items for future meetings.

Commissioner Hur stated that he had requested that staff provide updates of its progress on various projects.

Deputy Executive Director Mainardi advised the Commission of the timeline for various projects.

Commissioner Keane stated that he will present a report on the issue of whether or not it is feasible to put a measure on the ballot regarding expenditure lobbyists for the next election.

Public Comment:
David Pilpel asked if the next meeting will be moved to a different day due to the Memorial Day holiday. Executive Director St. Croix confirmed that the next meeting will be held on May 27, 2015.

XI. Adjournment.

Motion 15-04-27-08: (Keane/Hayon) Moved, seconded and passed (5-0) that the Ethics Commission adjourn.

Public Comment:

The Ethics Commission adjourned the meeting at 10:01 PM.

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