Ethics Commission
City and County of San Francisco

Minutes – July 27, 2015

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
July 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; Beverly Hayon, Commissioner; Ben Hur, Commissioner; Peter Keane, Commissioner (Brett Andrews, Vice-Chairperson, absent, excused).

STAFF PRESENT: Jesse Mainardi, Deputy Executive Director; Johnny Hosey, Special Projects Assistant/Campaign Finance Assistant.

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

OTHERS PRESENT: Charles Marsteller, Larry Bush, Bob Planthold, Marc Soloman, Helda Garfolo, Derek Kerr, Rob Van Ravensway, Bob Dockendorf; and other unidentified members of the public.

MATERIALS DISTRIBUTED:
– Executive Director Draft Recruitment Profile;
– Expenditure Lobbyist Measure;
– Expenditure Lobbyist Legislative Digest;
– Draft Ballot Argument for Voter Information Pamphlet.

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

Charles Marsteller stated that the Ethics Commission should amend its by-laws to have a consistent provision in the law on how to proceed with legislative initiatives.

III. Discussion and possible action on a Recruitment Profile for the Executive Director position.

Agenda Item III was taken out of order and heard after agenda item IV.

Deputy Executive Director Mainardi left the well for this item.

Chair Renne introduced the item.

Commissioner Hur proposed changes to the enforcement priorities to include the language “lead staff in efforts to ensure compliance with ethics laws and effectively coordinate with other agencies.”

Chair Renne stated that Larry Bush submitted an e-mail to the Commission with comments on what he believed should be included in the job profile, and he then solicited additional public comment.

Public Comment:
Larry Bush stated that his proposals included suggestions from Civil Grand Jury members. He stated that the profile fails to provide a real sense about the nature of political activity in San Francisco and the Commission’s role in that activity. He stated that San Francisco is in a period of change that is bringing economic pressure on politics that has an impact on the work of the Commission. He stated that the profile fails to mention San Francisco’s unique level of citizen participation with City commissions. He stated that the profile does not give preference to enforcement in relation to the Commission’s other duties. He stated that the duties of the Executive Director should be to follow the policies set by the Commission, and that the way the profile is currently written it reads as if the Executive Director sets the policies while the Commission sits on the sidelines. He stated that among the critical qualifications of the Executive Director should be a record of enforcement.

Bob Planthold stated that he was appalled to see the profile as it was drafted, and that it reminded him of a report he wrote in eighth grade about the City of St. Louis where he was born and raised. He stated that the profile reads like a tourist promotional piece, and that it misses the point that the Commission needs an Executive Director who does not take a lot of days off and who is going to communicate with the Commission. He stated that the Commission should reject this profile and re-write it itself without worrying about a timeline. He stated that this was not worth the money spent.

Helda Garfolo stated that the Executive Director for the Commission needs to be someone who has not been tainted by the current Executive Director. She stated that Mr. St. Croix has not been a good example of someone of a high standard. She stated that the Commission has abdicated its authority to Mr. St. Croix and that it is time for a new start in San Francisco. She stated that the new Executive Director should have a strong background in ethics with no ties to the previous administration.

Marc Solomon stated that he first got involved in politics in the late 1990’s and that he met a commission secretary who was often drunk and who told him that there are two types of commissions in San Francisco, those where the commission runs the department and those where the department runs the commission. He stated that when Mr. St. Croix was recruited, it was an attempt to go outside the civic culture of San Francisco, but what the Commission got was a Kennedy School of Government type. He stated that the profile should state that no Ivy League master’s program graduates need apply. He stated that the Executive Director should be someone that is not afraid to stand up to strong vested interests, and who might have a litigation or forensic analysis background. He stated that the person should have a record of enforcement. He stated that whoever is chosen could be in the position for a long time, and that Mr. St. Croix was a better choice at the time he was hired than Mabel Ng, who would have been an unmitigated disaster of corruption.

Rob Van Ravensway stated that the profile should have a section that better outlines the legal framework of the Commission. He stated that it should better describe the laws over which the Commission has jurisdiction.
Derek Kerr stated that the Commission’s own code of ethics calls for creating reform. He stated that too often the calls for reform have come from outside the Commission. He stated that the Commission has become an appendage of the City Attorney’s office. He stated that the job profile suggests that adherence to laws defines ethical conduct and ignores the need to take an ethical stance to challenge the status quo. He stated that the profile prioritizes that the Executive Director must be neutral and impartial, and that while that is important, being neutral can become a mask for silent complicity. He stated that something more than neutrality is needed in an Executive Director. He stated that even a neutral Executive Director can be drawn toward the power of City Hall, and that is what has happened in recent years. He stated that the Commission should consider moral courage as a qualification.

Charles Marsteller stated that some important things have been omitted from the profile. He stated that the Commission’s role in official misconduct hearings, while rare, should be outlined. He stated that maintaining boundaries is also critical for the Executive Director. He stated that the Commission must keep the Executive Director in check.

Chair Renne stated that the goal of this meeting was to solicit public input which will be considered when he and Vice-Chair Andrews propose revisions to the job profile. He stated that the goal is to release the profile by August 1, 2015, with a closing date after Labor Day for applications.

In response to Commissioner Keane’s question about the timetable, Chair Renne stated that the current Executive Director’s last day is August 27, 2105, and that his hope was to have candidates to consider by the September 2015 Commission meeting.

Commissioner Keane stated that he is not satisfied with the proposed job description. He stated that it is very unimpressive. He stated that the information about the City reads as a tourist brochure and that he was immediately turned off. He stated that the Commission is looking for a professional who has a focus and strength to address very important matters of ethics and that the person should be something of a bulldog. He stated that the Commission needs someone who will come to the position with intensity, and that the current job profile does not convey any intensity. He stated that the members of the public have said that they want a zealous person who will not usurp the policy-making aspect of the Commission. He stated that over the last few years the public has come to see the Executive Director as the person who runs the Commission with some justification. He stated the profile needs to be re-written and proposed that the Commission take another month so other Commissioners could assist in re-drafting the profile.

Commissioner Hur stated that some changes do need to be made to the job profile, but that the Commission needs to balance spending many months trying to craft the perfect document against the need to fill the position within a reasonable time. He stated that the Commission delegated the responsibility of drafting the profile to the Chair and Vice-Chair and that the Commission should let them move forward, taking into consideration what was conveyed at this meeting.

Commissioner Hayon stated that the public has provided excellent feedback but that the job profile is not the determining factor in hiring a great Executive Director. She stated that the profile does need to be improved but that the Chair and Vice-Chair are capable of doing so.

Public Comment:
Bob Dockendorf stated that the compensation is too low and that the Commission should rethink the amount of money being offered. He stated that the current amount of money offered will restrict the quality of candidates.

Chair Renne stated that the salary range is fixed and that the Commission would have to show a compelling reason to offer more money to a candidate.

Larry Bush stated that the City is not considering the special duties of the position and that there is room to increase the salary. He stated that the Commission should consider special considerations when determining the salary.

Charles Marsteller stated that the Commission might consider not including a salary range in the job profile.

IV. Discussion and possible action on future Commission activities relating to its expenditure lobbyist ballot measure.

Chair Renne introduced the item.

DCA Shen stated that the Commission is prohibited from engaging in any advocacy for the passage of a ballot measure, including one that the Commission has put on the ballot. He stated that the Commission may speak to various groups interested in the ballot measure, but only to the extent that it provides factual and background information regarding the ballot measure. He stated that the Commission may discuss the historical background that brought about the measure as well as the legislative debate.

Responding to Commissioner Keane’s request for guidance as to what is permissible regarding advocacy of the proposed ballot measure, DCA Shen stated that Commission members may provide factual information about the measure, such as its purpose and what the measure is proposing to address.

DCA Shen also stated that the Commission might consider establishing a communications protocol, to avoid any one Commissioner engaging in any form of campaign rhetoric, slogans, or expression on how he or she may vote.

Commissioner Hur stated that the Commission should use the findings section contained within the proposed legislation, with some minor modifications, to serve as the voter guide description. He stated that the language within the legislation is neutral and would meet the requirements of the voter guide.

Public Comment:
Larry Bush stated that the findings section does not include information that the proposed ballot measure restores a provision that used to exist in local law.

Bob Planthold stated that there is a difference between a proposal and a proposed ballot argument which should be clarified. He stated that the Commission should designate a representative to attend the Ballot Simplification Committee hearings to answer any questions. He stated that any groups that invite the Commission to discuss the ballot measure will be disappointed if the speaker does not represent the Commission’s position on the measure’s passage.
Marc Solomon stated that the voter guide word limit in the early 2000’s was 300 words for the argument and 250 words for the rebuttal. He stated that information stating that this ballot measure restores a previous law should be included. He stated that the Commission may inform the public that the Commission put this measure on the ballot with a super-majority vote.

Charles Marsteller stated that the Commission may refer to the history of the law and its previous version to the public.

Commissioner Keane proposed a friendly amendment to Commissioner Hur’s motion to indicate that the ballot measure is a restoration of a prior law.

Commissioner Hur agreed and proposed the language and placement of the language to be included in the voter guide.

Motion 150727-01 (Hur/Renne) Moved, seconded, and passed (4-0, Andrews absent) to adopt section one, subsections (a) through (d) (Findings) of the proposed ordinance as amended as the ballot argument for the Voter Information Pamphlet.

Chair Renne stated that Deputy Executive Director Mainardi should be designated as the Commission’s representative at the Ballot Simplification Committee hearings as well as to any group that requests information.

Commissioner Keane stated that he is troubled that the Commission cannot advocate for its own ballot measure. He stated that he considered challenging the prohibition under the First Amendment of the U.S. Constitution.

DCA Shen reiterated that the Commission cannot advocate for any ballot measure or candidate, but the Commission may provide information that is objective and impartial regarding its own ballot measure. He stated that the Commission may elect a member of the Commission if it prefers to represent the Commission, but that the delegation should be an official delegation.

Commissioner Keane stated that he would prefer that Chair Renne be the official spokesperson for the Commission instead of Deputy Executive Director Mainardi. He stated that this measure is important and having the Chair as the official delegate would demonstrate the importance of the measure.

Chair Renne stated that he would accept the official delegation, but would do so only in conjunction with Deputy Executive Director Mainardi.

Commissioner Hayon stated that it is important that the Commission be visible in representing the ballot measure and that she would support the Chair and Deputy Executive Director Mainardi working together as the official delegation.

Public Comment:
Larry Bush stated that several issues have already been raised regarding the ballot measure by some groups, including questions as to why it is being put forward as a ballot measure and why there is a distinction regarding non-profit groups.

Helda Garfolo stated that a Commissioner should appear before the public to answer questions. She stated that the Commission needs to restore the public’s confidence in the Commission.

Marc Solomon stated that a Commissioner should represent the Commission particularly at the Ballot Simplification Hearings. He stated that a Commissioner should not advocate for any ballot measure as it could set a bad precedent.

An unidentified member of the public stated that the voter guide does have a 300 word limit and that the Commission should consider language for any possible rebuttal argument.

Derek Kerr stated that a Commissioner should be the official delegate to speak to the public about the measure. He stated that Commissioner Keane would be a better choice as the official delegate because he is familiar with the measure.

Commissioner Hayon stated that the Commission should consider drafting a document that addresses frequently asked questions regarding the measure.

DCA Shen stated that drafting a “FAQ” document is permissible so long as it does not advocate for the passage of the measure. He stated that the proposed language from the findings section does exceed the word limit, and that the Commission should delegate the responsibility of editing the language in the argument as well as the drafting of the rebuttal to one Commissioner. He stated that the Commission should state in the motion that Chair Renne has been granted the authority to edit the language in the argument and to draft a rebuttal if needed.

Motion 150727-02 (Hur/Keane) Moved, seconded, and passed (4-0, Andrews absent) that Chair Renne be the designated spokesperson regarding communications about the ballot measure with the assistance of Deputy Executive Director Mainardi, and that Chair Renne may edit the ballot argument to meet the word limit requirement and to draft any rebuttal.

V. Adjournment.

Motion 150727-03 (Hur/Keane): Moved, seconded, and passed (4-0, Andrews absent) that the Commission adjourn.

Public Comment:
None

The meeting adjourned at 6:58 P.M.

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