Minutes of the Regular Meeting of
The San Francisco Ethics Commission
January 25, 2016
Room 400 City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
1. Call to order and roll call.
Chairperson Renne called the meeting to order at 5:32 PM.
COMMISSION MEMBERS PRESENT: Paul Renne, Chairperson; Brett Andrews, Vice-Chairperson; Beverly Hayon, Commissioner; Ben Hur, Commissioner; and Peter Keane, Commissioner.
STAFF PRESENT: LeeAnn Pelham, Executive Director; Shaista Shaikh, Assistant Deputy Executive Director; Catherine Argumedo, Investigator/Legal Analyst.
OFFICE OF THE CITY ATTORNEY: Andrew Shen, Deputy City Attorney (DCA).
OTHERS PRESENT: Patrick Monette-Shaw; David Pilpel; Ray Hartz; Whitney Jones; Barbara Gualco; David Schnur; Sharon Christian; Benjamin McCloskey; Faith Kirkpatrick; Mara Blitzer; Robert van Ravenswaay; Kevin Kitchingham; Lydia Ely; Sophie Hayward; Kate Hartley; Katie Lamont; Tom Lauderbach; Bob Planthold; Hulda Garfolo; Marc Solomon; Larry Bush; Debbi Lerman; Jonathan Mintzer; Anita Mayo; Sarah Matlin; Kevine Boggess; Gen Fujioka; Bruce Wolfe; Peter Cohen; Charles Marsteller; and other unidentified members of the public.
– January 21, 2016 staff memorandum re: Request from Evan Gross for waivers from post-employment restrictions in San Francisco Campaign & Governmental Conduct Code sections 3.234(a)(1) and 3.234(a)(2);
– January 11, 2016 e-mail and supporting documentation from Mr. Gross;
– January 15, 2016 e-mail from Deputy City Attorney Charles Sullivan re: Ethics Hearing on Waiver Request;
– January 19, 2016 e-mail from Olson Lee re: Evan Gross;
– January 18, 2016 e-mail from Dan Adams re: Support for waiver request – Evan Gross;
– January 20,2016 e-mail from Katie Lamont re: Letter in Support of Commission Waivers requested by former Deputy City Attorney Evan Gross;
– Chapter II of San Francisco Campaign & Governmental Conduct Code;
– Ethics Commission Regulations Related to Conflicts of Interest;
– January 25, 2016 e-mail from Kate Hartley re: Evan Gross’s Waiver Request;
– January 25, 2016 e-mail from Sherry Williams re: Support for Evan Gross waiver;
– January 25, 2016 e-mail from Ken Reggio re: Support of Evan Gross’ waivers request to the Ethics Commission;
– January 25, 2016 e-mail from Amy Bayley re: Ethics Commission;
– January 21, 2016 Staff memorandum including draft regulations and attachments re: Prop. C Expenditure Lobbyist Draft Regulations;
– January 20, 2016 memorandum from Commissioner Ben Hur and Former Acting Executive Director Jesse Mainardi re: Civil Grand Jury Whistleblower Protection Ordinance Recommendations;
– 2014-2015 Civil Grand Jury report, “San Francisco’s Whistleblower Protection Ordinance is in Need of Change”;
– January 22, 2016 Staff memorandum and attachments re: Budget recommendations for FY17 and FY 18;
– Letter from Ethics Commission to Bureau of Delinquent Revenue, dated July 8, 2015 (with two attachments: June 15, 2015 Letter from Ethics Commission to Supervisor Mark Farrell; and December 9, 2014 Letter from Ethics Commission to Supervisor Mark Farrell);
– Letter from Mr. James Sutton to the Office of Treasurer & Tax Collector, dated November 4, 2015;
– Executive Director’s Report for the meeting of January 25, 2016;
– Draft minutes of the November 23, 2015 Ethics Commission Regular Meeting;
– Draft minutes of the January 5, 2016 Ethics Commission Special Meeting.
2. Public comment on matters appearing or not appearing on the agenda.
Patrick Monette-Shaw was not prepared to thank Commissioner Hur for his service on the Commission, with the exception of his vote on the Mirkarimi matter. He mentioned an investigation by the District Attorney’s Office and stated that it was unclear whether there were felony charges involved. He stated that the Commission must investigate the contribution and money laundering charges.
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’m not prepared to thank Commissioner Ben Hur overall for his years of service on the Ethics Commission as his term is set to expire in early February. Many of Hur’s rulings have been problematic.
But I would be remiss by not thanking Commissioner Hur for his seminal vote in L’Affaire Mirkarimi, when he cast the Ethics Commission’s sole vote that Ross Mirkarimi’s behavior had not risen to the definition of “official misconduct.”
As I wrote at the time, a then-anonymous analysis — which eventually turned out to have been authored by San Francisco private-practice attorney Steven Brill — that had been distributed to the full Board of Supervisors and I believe to this Ethics Commission before the two respective hearings, clearly demonstrated the Mayor’s trumped up charges against Mirkarimi didn’t meet the definition of “official misconduct.” Thankfully, along with Hur, Supervisors David Campos and Jane Kim reached the same correct conclusion.
David Pilpel recognized Commissioner Hur’s term and stated that he could have proper recognition at the Commission’s next meeting.
Chairperson Renne stated that the Assessor has requested that Commissioner Hur remain beyond February 1 so that she may vet his replacement.
Ray Hartz mentioned a Court of Appeals case – Norse v. City of Santa Cruz. He suggested that the Commissioners read the concurring opinion and provided a copy to the Commissioners. He stated that the Council had not been allowed to stop public comments. He stated that he had a 70% success rate before the Sunshine Ordinance Task Force and that the Commission fails to hear matters the Task Force sends.
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:
I would like to refer this commission to a decision of the United States Court of Appeals for the Ninth Circuit. The case is Robert Norse v City of Santa Cruz. In particular, I would suggest reading the concurring opinion of Chief Judge Kozinski. His opinion reads in part: “Listeners reaction to speech is not a content neutral basis for regulation… Speech cannot be… Punished or banned simply because it might offend a hostile member of the Santa Cruz City Council. The council members should have known that the government may never suppress viewpoints it doesn’t like. The defendants point to Norse’s reaction to Councilman Fitzmaurice as the “disruption” that warranted carting him off to jail. Norse calm assertion of his constitutional rights was not the least bit disruptive. The First Amendment would be meaningless if Councilman Fitzmaurice’ petty pique justified Norse’s arrest and removal.”
3. Discussion and possible action on request for waivers from local post-employment restrictions, submitted by Evan Gross, a former Deputy City Attorney.
Executive Director LeeAnn Pelham commented on the Commission’s process regarding waiver requests. She stated that the Commission may hear from the requestor and others and make its own decision through a consideration of factors. Chairperson Renne thanked Executive Director Pelham and staff for the memorandum included with the agenda item and stated that he would like to hear from Mr. Gross before any Commission discussion.
Evan Gross made a presentation before the Commission. He thanked the Commission for its consideration and thanked the individuals who provided written support and who were present supporting him, including members of the Mayor’s Office of Housing and Community Development (MOHCD) and the City Attorney’s Office (CAO). He stated that his new employer’s clients and the City have a mutual interest and that granting the waiver would not create undue influence and unfair advantage. He stated that the issue of affordable housing was incredibly important to him. He stated that both the MOHCD and the CAO support his requests. He stated that staff’s report did not give any weight to their support. He stated that the CAO determined that a waiver is appropriate and already approved a waiver of conflicts of interest on matters where he has worked for the City. He stated that his firm does purely transactional work and does not represent clients before committees or legal proceedings. He stated that affordable housing work is challenging and there are not many people like Mr. Gross who practice that type of law. He stated that the non-profit developers and the City share common goals and share interests and treat each other as partners. He suggested as an alternative that the Commission grant a limited waiver for just this work and just this firm.
DCA Shen confirmed that the CAO granted a professional responsibility waiver and his office believes the waiver was appropriate. Commissioner Keane disagreed and stated that the CAO was wrong. DCA Shen offered to provide written advice on the matter.
Mr. Gross clarified that he is seeking the waiver for matters not related to litigation and suggested that the Commission grant a limited waiver, with a limitation similar to the one from the CAO. Chairperson Renne stated that he had an issue with the waiver of the one-year communication ban. Mr. Gross stated that he was more concerned with the permanent ban. Commissioner Hayon asked for an explanation on how the City and non-profit developers work together in the low-cost housing area.
Olson Lee, Director of MOHCD, stated that, from his office’s standpoint, Mr. Gross’ firm’s non-profit developer clients and City have mutual interests. He stated that there are many repeat developers and the City develops relationships after working with them for a period a time. He stated that the transactions are transparent and, if Mr. Gross’ firm negotiates a better deal with other investors, it would mean the City pays less in financing for affordable housing. He stated that many terms and fees are already decided prior to a developer’s involvement and that neither Mr. Gross nor his firm would be involved when those decisions are made. He stated that it helps the City for the non-profit developers to have the smartest possible counsel. He stated that his office cannot build enough affordable housing fast enough and not having Mr. Gross involved would be a big loss. Commissioner Keane expressed concerns that Mr. Gross knows the CAO and MOHCD’s negotiation tactics. He stated that the City may be at a disadvantage when negotiating with Mr. Gross or his firm. Director Lee reiterated that his office would not be negotiating developer fees, cash flow, developer requirements, or other things. He stated that Mr. Gross would actually make negotiations easier.
Patrick Monette-Shaw stated that MOHCD was not transparent and that it would not provide complete data regarding one of its programs. He stated that he told Tony Hall he would be removed as the Director of TIDA not long after making his waiver request to take that position.
Ray Hartz stated that the CAO’s argument makes no sense at all. He stated that MOHCD does not agree with the Board of Supervisors. He stated that the non-profit developers would have an advantage over other City transactions. He stated that Mr. Gross knew about the restriction when he took the position.
Whitney Jones, Director of Housing Development for the Chinatown Community Development Center, spoke in support of Mr. Gross’ waiver requests. He stated that Mr. Gross is an important resource to the affordable housing community.
Barbara Gualco, Director of Real Estate Development, Mercy Housing, spoke in support of Mr. Gross’ waiver requests. She stated that Mercy owns over 3,000 units in San Francisco and that it is hoping to construct 200 new units. She stated that the need for affordable housing is staggering and that Mercy supports the waiver request.
David Schnur, Director of Housing Development for Community Housing Partnership, spoke in support of Mr. Gross’ waiver requests. He stated that there is a lot of revitalization work and not enough bodies to do the work. Mr. Gross has specialized knowledge and the affordable housing community needs him. He stated that the organizations are all working towards the same goal – affordable housing in San Francisco.
Sharon Christian, Project Manager for Mercy Housing California, spoke in support of Mr. Gross’ waiver requests. She stated that she has worked with Mr. Gross for many years. She stated there is a critical housing crisis.
Benjamin McCloskey, Deputy Director for Finance and Administration for the MOHCD, stated that he strongly supported Mr. Gross’ waiver requests. He stated that there was not a traditional adversarial relationship. He stated that Mr. Gross has very specialized experience and, if he were not permitted to continue, the City’s ability to recruit the best candidates would be hampered in the future.
Faith Kirkpatrick, Project Manager at the MOHCD, spoke in support of Mr. Gross’ waiver requests. She stated that she echoed the statements of previous speakers and that the work is very transparent and highly regulated.
Mara Blitzer, Director of Housing Development at the MOHCD, stated that she has been in the affordable housing field for 15-20 years. She supported Mr. Gross’ waiver requests. She stated that they are developing housing for low-income people and their interests are aligned.
Robert van Ravenswaay stated that the Civil Grand Jury had concerns about the Commission’s waiver decisions. He stated that this was not a popularity contest and nothing is being said under oath. He stated that the one-year restriction is pretty standard and that City Attorney Dennis Herrera had not signed the waiver for the CAO. He suggested that the Commission postpone its decision.
Kevin Kitchingham, Project Manager at the MOHCD, spoke in support of Mr. Gross’ waiver requests. He stated that the process is regulated by state and federal programs, as well as local ones. He stated that MOHCD does its own underwriting and the process is fully transparent.
Lydia Ely, Senior Project Manager at the MOHCD, spoke in support of Mr. Gross’ waiver requests. She stated that MOHCD had converted 14 projects last year and they would like to do 14 more this year. She stated that the key reason for MOHCD’s success has been Mr. Gross and his expertise is critical.
Sophie Hayward, Director of Policy and Legislation at the MOHCD, stated that she was present on her own time to speak in support of Mr. Gross’ waiver requests. She stated that when Mr. Gross’ clients get a good deal, the City gets a good deal.
Kate Hartley, Deputy Director for Housing at the MOHCD, stated that the financing for affordable housing carries strict requirements and there would be no room to negotiate things like developer fees, occupancies, and rents. She stated that there is a mutuality of interest and having Mr. Gross would be a benefit to the City.
Katie Lamont, Director of Housing for Tenderloin Neighborhood Development Corporation, spoke in support of Mr. Gross’ waiver requests. She agreed with many other comments and stated that the non-profit developers collaborate with the City to realize shared goals. She stated that they work together to solve problems.
Tom Lauderbach, Senior Housing Project Manager at TNDC, spoke in support of Mr. Gross’ waiver requests. He stated that there is a challenge between the City and non-profit developers and the other regulatory agencies. He stated that Mr. Gross provides valuable legal resources to the City and these developers.
Bob Planthold stated that Mr. Gross’ law firm already works on these matters and the Commission has not heard that the other attorney may work on these matters. He urged the Commission not to grant the waivers.
Hulda Garfolo did not support Mr. Gross’ waiver requests.
David Pilpel, speaking as an individual, expressed concerns about setting a precedent in similar situations. He stated that the Commission should not grant the waivers.
Marc Solomon agreed with the staff report and urged the Commission to accept staff’s recommendation.
Larry Bush stated that he spent 15 years working in affordable housing and development. He stated that he has respect for Director Lee and Mercy Housing. He stated that there will be conflicts and there needs to be oversight over those switching sides.
Chairperson Renne proposed dealing with the waiver requests separately.
Commissioner Hur stated that he was persuaded that the Commission should grant the waiver for the permanent restriction in section 3.234(a)(1). He stated that the CAO waiver is compelling and there does not appear to be a potential for undue influence or unfair advantage.
Motion 160125-01 (Hur/Hayon): Moved and seconded that the Commission grant Mr. Gross’ waiver request for the permanent restriction in SF C&GCC section 3.234(a)(1).
Commissioner Keane stated that he could not vote for the waiver, as he did not agree with Mr. Gross changing sides. Chairperson Renne stated that he would support the waiver, but asked whether the Commission could limit the waiver to non-litigation matters. DCA Shen stated that the CAO’s waiver did not address the firm and the waiver did not include litigation matters. Commissioner Hur amended his motion.
Commissioner Hayon stated that she did not feel comfortable sitting in judgment on someone’s career and livelihood. She stated that the idea that she could vote to ban Mr. Gross permanently from pursuing his professional goal is completely outrageous. She stated that there is something wrong with the law when it is so broad that it applies to people who are not going to be doing anything like lobbying. She stated that the Commission may need to review the ethics rules and where they apply.
Motion 160125-01 (as amended): Moved, seconded, and passed (4-1; Keane dissented) that the Commission grant a limited waiver to Mr. Gross for the permanent restriction in SF C&GCC section 3.234(a)(1), so that it applies only to non-litigation matters.
Motion 160125-02 (Hur/Keane): Moved, seconded, and passed (4-1; Hayon dissented) that the Commission deny Mr. Gross’ waiver request for the one-year restriction in SF C&GCC section 3.234(a)(2).
[The Commission entered a break at 7:42 PM. The Commission returned from break at 7:50 PM.]
4. Discussion and possible action regarding draft regulations for implementation of Proposition C, which imposes new registration and reporting requirements on expenditure lobbyists.
Chairperson Renne thanked staff for its draft regulations and its response to the IP meetings. Executive Director Pelham stated that staff presented a first draft of implementing regulations for Prop C in order to clarify existing language in the Ordinance.
Commissioner Hur thanked staff for its hard work. He stated that Regulation 2.105-5(a) and (b) were not clear, as it was not clear how the Commission would determine that a person makes payments. He also asked when it would be required to report communications. Executive Director Pelham agreed that (a) and (b) need to be rewritten. Commissioner Hur also had questions about the pro-rata salary attribution in Regulation 2.105-5(d). He stated that it sounds incredibly difficult. He stated that tracking by matter would be an incredible burden on non-profits. He stated that it seems like a recipe for disaster. He also stated that the language in Regulation 2.105-6(c) was confusing. Commissioner Andrews stated that the rules will have unintended consequences and that a lot of non-profits would be in violation without even possibly knowing they were in violation. He stated that the salary piece is unfortunate, as it would be difficult to track. He stated the Commission may need to consider raising the threshold to $5,000. Chairperson Renne asked whether the Commission could eliminate the charge of internal salary as being an expenditure. DCA Shen stated that the Commission has flexibility to act on that through regulations.
Debbi Lerman, SF Human Services Network, expressed concerns about the majority of the proposed regulations. She stated that most of what has been proposed is contrary to what the public expressed in the IP meetings. She stated that the regulations were published on Friday and asked that the Commission not take action until the next meeting.
Jonathan Mintzer, Sutton Law Firm, stated that an issue regarding the internal/external staff time is that this rule may capture when an employee goes before a Commission such as the Ethics Commission. He stated that he did not think that was the intent of the law.
Anita Mayo, Pillsbury Winthrop Shaw Pittman, provided copies of a letter for the Commissioners. She stated that, in Regulation 2.105-5(a), “qualifying activity” should be defined and that a person “makes payments” when a communication is sent. She stated that the Commission had never previously discussed internal staff time.
Sarah Matlin, Alliance for Justice, stated that she had many concerns about Prop C and was grateful to hear the Commissioners’ comments so far. She asked the Commission to postpone any action on the proposed regulations. She suggested that, under the proposed law, someone referring a victim to the Human Rights Commission to file a claim about her employer may be considered an expenditure lobbyist.
Kevine Boggess, Coleman Advocates for Children & Youth, stated that he works with parents and students, mainly from families in Districts 10 and 11. He stated that Prop C turns their members into expenditure lobbyists and harms their ability to put pressure on the school district. He asked the Commission to support them and families, so that their voice can be heard.
David Pilpel, speaking as an individual, stated that this matter was moved to the ballot without taking considerations and more work is needed. He stated that Ms. Mayo and Ms. Matlin got it right and the regulations do not work.
Gen Fujioka, from CCDC, stated that there needs to be clear rules and these rules are not clear. He stated that the CCDC does research frequently and sometimes only produces a report after months have passed. He stated that it would be extremely difficult to predict or anticipate what pieces of work may be legislative activity 12 months away. He stated that reports would have no reference to legislation because it did not exist at the time the report was made. He stated the reports already disclose who paid for it.
Larry Bush, Friends of Ethics, stated that Prop C expands disclosure that would already be seen in the major developer filings.
Bob Planthold stated that the definition of “members” is too broad. He stated that internal expenses should not be exempt. He stated that the threshold should remain $2,500. He suggested the Commission adopt skeleton regulations and not levy fines during the interim. He also suggested that staff do more research and come back in a few months.
Bruce Wolfe stated that staff did not take any of the public’s concerns seriously. He stated that he understood the interest to wrangle in bad actors. He requested the Commission work on the regulations in a full, open forum.
Ray Hartz stated that approving the regulations would not be appropriate and there needs to be more discussion and public input.
Peter Cohen, Council of Community Housing Organizations, asked the Commission not to take any action. He asked the Commission to direct staff to hold at least one more IP meeting. He stated that the proposed regulations do not reflect the good dialogue that has been occurring during the last few weeks.
Chairperson Renne stated that he never contemplated that the Commission would adopt the regulations at this meeting. He asked that the same agenda item be placed on the agenda for the February meeting. He encouraged staff to hold another IP meeting, if it would be helpful.
Commissioner Hur asked whether individuals would continue to be required to report, even if they did not meet the threshold in a particular month. Executive Director Pelham stated that the Ordinance contemplates that an individual would continue to report on a monthly basis, even if there is no activity to report.
5. Discussion and possible action regarding assessment of the City’s Whistleblower Protection Ordinance, Article IV, Chapter 1 of the Campaign and Governmental Conduct Code.
Chairperson Renne thanked Commissioner Hur. Commissioner Hur thanked former Acting Director Mainardi and stated that they tried to address the points made in the Civil Grand Jury report, including requiring complaints to be in writing.
Patrick Monette-Shaw provided a document to the Commissioners. He stated that he had been a victim of retaliation at Laguna Honda Hospital for expressing his free speech rights. He suggested that the Commission specifically state that the Commission would be able to reverse unlawful retaliatory job actions and also suggested providing protections for exercising First Amendment free speech rights.
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 support most recommendations in Commissioner Hur’s and Mr. Mainardi’s memo to Ethics Commissioners. However, concerns remain:
1. Recommendation 3 indicates the Ethics Commission may authorize cancellation of a retaliatory job action, but doesn’t expressly state the Ethics Commission will be able to reverse unlawful retaliatory job actions. This distinction involves the difference between cancelling a pending retaliatory job action vs. reversing a retaliatory job action after-the-fact. The “answer and analysis” accompanying this recommendation wades into whether reinstating a whistleblower may involve “bumping” a series of employees to prior positions. Judge Claudia Wilken was concerned by this difference in Dr. Derek Kerr’s wrongful termination lawsuit. Under Restorative Justice, bumping concerns are moot.
2. Recommendation 4 addresses portions of Campaign and Government Conduct Code §4.115, but ignores Judge Wilken’s concern in Kerr’s wrongful termination that §4.115(a) provides no protections for exercising First Amendment free speech rights, which this Commission must fix.
Bob Planthold recommended that the Commission review the memo that he sent. He stated that the assessment did not address attorneys’ fees and that complaints need not be in writing. He stated that complaints submitted orally seems appropriate.
Ray Hartz agreed with Mr. Planthold. He stated that some people cannot speak English and the writing requirement would be an undue burden. He asked what would happen if someone had no hands.
Chairperson Renne asked that the matter be placed on the February agenda for final implementation.
6. Discussion and possible action on proposed Ethics Commission’s budget for FY 2016-17 and FY 2017-18.
Executive Director Pelham stated that the budget document is intended to provide the public and the Commission of the best estimation that the Commission needs to be right-sized. She stated that it speaks to a variety of priorities and recommendations. She stated that she had also identified a 1.5% cut, if needed. She stated that the Commission should be able to retain the balance of funds in order to fund the vacant investigator position. She stated that, if the Commission agreed with this policy view, she would move forward with solid data to back up the numbers.
Commissioner Keane complimented the Executive Director for her excellent job. He stated that the Commission should push for as much as it can. He stated that the idea of a cut is a disgrace. Commissioner Andrews asked what the percentage increase is from last year’s proposal. Executive Director Pelham stated that it is roughly a 30% increase over this year’s operating budget. Commissioner Andrews also asked whether any of the $560,000 in funds for Prop C could be shifted to other things. Executive Director Pelham stated that she did not know whether that was possible. She stated that e-filing conversion project is the top priority.
Commissioners Hur and Keane suggested that the budget document reflect this proposal and not include information about the 1.5% cut. Executive Director Pelham stated that a 1.5% cut for a department the size of the Ethics Commission is much different than a larger one, like DPH. She stated that the amount the Commission would be requesting is roughly the cost of one MUNI bus.
Motion 160125-03 (Keane/Andrews): Moved, seconded, and approved (5-0) that the Commission submit the proposed budget recommendations for FY 2017 and 2018 to the Mayor’s Budget Office.
David Pilpel, speaking as an individual, agreed with the motion. He stated that what the Commission is seeking would be a small investment.
Larry Bush thanked the Executive Director and the Commission. He stated that additional funds could also be sought from the Board of Supervisors.
Ray Hartz agreed with Mr. Bush. He stated that the budget is a clear policy message and the Commission needs more resources to move in the direction the City needs to move.
Charles Marsteller stated that the Commission has leveled off in funding and the public would support this increase.
7. Discussion and possible action regarding the Ethics Commission’s referral to the Bureau of Delinquent Revenue of forfeiture concerning Supervisor Mark Farrell.
Commissioner Keane objected to the Commission hearing this item. He stated that the Ethics Commission’s role was over and it should go off calendar.
Motion 160125-04 (Keane/Hayon): Moved and seconded that the Commission not hear this item.
Chairperson Renne stated that the Treasurer’s Office will follow the Commission’s direction on this matter. He stated that the Commission needed to provide direction to the Treasurer’s Office. Commissioner Keane withdrew his motion.
Motion 160125-05 (Keane): Moved and not seconded that the Treasurer collect the debt.
Commissioner Andrews asked what role the Commission plays in the matter after this meeting. Chairperson Renne stated that the Treasurer has asked for input as the client on how to proceed. Commissioner Hur suggested that the Treasurer may not file a complaint unless the Commission directs him to do so. Commissioner Keane made another motion and stated the Commission did not need to enter into closed session.
Motion 160125-06 (Keane): Moved and not seconded that the Treasurer file a complaint.
DCA Shen stated that the Commission was not required to go into closed session, but that if it decided to do so, he would do his best to make the most efficient use of the Commission’s time. Commissioner Hur stated that, if the Commission were to discuss litigation as a plaintiff, it would have to occur in closed session. Commissioner Keane referenced his original motion not to hear this item.
Motion 160125-04 (Keane/Hayon): Moved, seconded, and failed (1-4; Hayon, Andrews, Renne, Hur dissented) that the Commission not hear this item.
Larry Bush stated that it was unprecedented for BDR to send something back to this body or any other agency. He stated that this is an inappropriate issue for the Commission to consider.
Charles Marsteller agreed that it was inappropriate at this time. He stated that if Supervisor Farrell wanted to reopen the matter, he would be interested to hear what he had to say. He suggested that the Commission advise the Treasurer to collect as he normally would.
David Pilpel, speaking as an individual, stated that he agrees with Mr. Bush and Commissioner Keane. He stated the public should see what has happened in this matter in the last six months. He stated that the item was not framed properly for public discussion tonight.
Ray Hartz stated that there is no public notice on this matter and it was not placed properly on the agenda. He stated that, if the Treasurer sent a letter, it was not included in the agenda packet. He stated that Supervisor Farrell did not have the integrity to explain himself.
Commissioner Hur stated that, in order to enforce the matter in court, it will be litigated. He stated that the matter will not be “re-litigated.” He stated that his understanding is that the Treasurer will not file a lawsuit without direction from the Ethics Commission to do so. He stated that, therefore, the result of taking this item off the agenda would be that no lawsuit would be filed. Chairperson Renne stated the full Commission needs to have a discussion about how to instruct the Treasurer.
Motion 160125-07 (Andrews/Hur): Moved, seconded, and passed (3-2; Andrews and Keane dissented) that the Commission move into closed session.
David Pilpel stated there was no representative from the Treasurer’s Office and it is unclear what that office’s process is. He stated that it may not be proper for the Commission to be in closed session.
Larry Bush opposed the Commission going into closed session.
Charles Marsteller stated that he was concerned the Treasurer was not present. He suggested the Commission wait to hear this item. He stated that the last paragraph of Mr. Sutton’s letter was insulting.
Ray Hartz asked why the Treasurer was coming back to the Commission for instruction.
Commissioner Keane suggested continuing the matter until the next meeting.
The Commission took a break at 10:33 PM. The Commission entered closed session at 10:39 PM. All members of the public left the hearing room. All Commissioners, DCA Shen, Executive Director Pelham, and staff member Argumedo remained in the hearing room. The Commission returned into open session at 11:23 PM.
Chairperson Renne announced that the Commission delegated him to continue to work with the Treasurer’s Office to enforce the action the Commission had referred.
Motion 160125-08: (Andrews/Hayon) Moved, seconded, and passed (4-1; Keane dissented) that the Commission not disclose its closed session deliberations for this agenda item.
David Pilpel asked for more information, as he stated that the Chair’s announcement is unclear. He stated that he opposes the motion.
Ray Hartz agreed with Mr. Pilpel. He stated that one Commissioner did not even know what the closed session was about and the public knows nothing about this agenda item. He stated he will file a complaint with the Sunshine Ordinance Task Force.
8. Discussion and possible action on items for future meetings.
Commissioner Keane stated that, due to the length of the meeting, he will mention items at the next meeting.
David Pilpel mentioned a previous list of upcoming things before the Commission.
9. Discussion of Executive Director’s Report.
Chairperson Renne complimented the Executive Director on her well-drafted report. He asked for more information in Paragraph 4 regarding investigations. Executive Director Pelham stated that audits were being finalized.
David Pilpel stated that there were a number of complaints not acted upon by the former Acting Director. He mentioned the report was missing a chart regarding BDR items.
Ray Hartz referenced a chart on item 4 on page 3. He stated that there have been zero Sunshine matters heard by the Commission for years. He stated that the Sunshine Ordinance needs to be enforced.
10. Discussion and possible action on draft minutes for the Commission’s November 23, 2015 regular meeting and January 5, 2016 special meeting.
Motion 160125-09 (Hayon/Andrews): Moved, seconded, and passed (5-0) that the Commission adopt the minutes of the Commission’s regular meeting on November 23, 2015, as written.
Motion 160125-10 (Andrews/Hur): Moved, seconded, and passed (5-0) that the Commission adopt the minutes of the Commission’s meeting on January 5, 2016, with corrections.
David Pilpel noted that various names were misspelled.
Motion 160125-11 (Hur/Andrews): Moved, seconded, and passed (5-0) that the Commission adjourn.
The Commission adjourned the meeting at 11:39 PM.