Ethics Commission
City and County of San Francisco

Minutes – September 26, 2016

Approved: 10/17/2016

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
September 26, 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. Chairperson Renne and the Commission welcomed Commissioner Kopp. Chairperson Renne announced that Agenda Item 11 will be continued to the Commission’s October 2016 meeting.

COMMISSION MEMBERS PRESENT: Paul Renne, Chairperson; Peter Keane, Vice-Chairperson; Daina Chiu, Commissioner; and Quentin L. Kopp, Commissioner. Commissioner Hayon was excused.

STAFF PRESENT: LeeAnn Pelham, Executive Director; Jessica Blome, Deputy Director; Catherine Argumedo, Investigator/Legal Analyst.

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

OTHERS PRESENT: Ray Hartz; Michael Petrelis; Charles Marsteller; David Pilpel; Elena Schmid; and other unidentified members of the public.

MATERIALS DISTRIBUTED:

  • July 25, 2016 draft minutes;
  • Staff memorandum, dated September 22, 2016, re: AGENDA ITEM 4-Discussion and possible action on Hearing on the Merits for Complaint No. 19-131115,
    In the Matter of Lynette Sweet and Sweet for Supervisor 2010;
  • Staff Hearing Brief and supporting documents re: Complaint No. 19-131115, in the Matter of Lynette Sweet and Sweet for Supervisor 2010;
  • Staff memorandum, dated September 16, 2016; re: AGENDA ITEM 5 – Discussion and possible action on the Sunshine Ordinance Task Force’s referral for enforcement against Steve Kawa Ethics Complaint 04-160718;
  • Sunshine Ordinance Task Force Referral File No. 15163;
  • Letter from the Office of the City Attorney, dated September 15, 2016;
  • San Francisco Administrative Code, Chapter 67 (Sunshine Ordinance);
  • Ethics Commission Regulations for Handling Violations of the Sunshine Ordinance;
  • Staff memorandum, dated September 16, 2016, and supporting documents;
  • Election 2016 handout, dated September 22, 2016;
  • Staff memorandum re: Agenda Item No. 8 – Discussion and Possible Action on Proposed 2016 Biennial Conflict of Interest Code Update for Ethics Commission, dated September 21, 2016, and supporting documents;
  • Executive Director’s Report, dated September 21, 2016, and supporting documents;
  • Court filings related to Mark Farrell for District 2 Supervisor 2010, et al. v. City and County of San Francisco, et al. (S.F. Superior Court Case No. 16-551745);
  • Public comment.

2. Public comment on matters appearing or not appearing on the agenda.

Ray Hartz stated that he has a list of 27 Orders of Determination from the Sunshine Ordinance Task Force. He stated that seven were referred to the Ethics Commission and five were dismissed without a hearing. He stated that the Commission held two hearings regarding the Library and yet the Commission had been found to have violated the same provision of the Sunshine Ordinance. He stated that the Commission had no intention of ever fulfilling its duties under the Sunshine Ordinance and that no one is going to enforce it.

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:

This is a listing of the 27 Orders of Determination issued by the STOF. Seven were referred to the EC for hearing, five of those being dismissed without a hearing for various specious reasons. The two that were given a hearing, both related to the SFPL. Ethics case #01-130307 resulted in a completely dubious finding given that the EC had itself been found in violation for willfully disregarding the Sunshine Ordinance in exactly the same manner (OD #11088 Ray Hartz v Ethics Commission). Finding the library in violation would’ve necessitated finding this body in violation, the hearing itself being a clear ethical screw-up! Ethics case #03-120402 was heard while I, the complainant, was out-of-state. Magically, the referral made it over in less than a week, while every other referral on record took months. We have such a case on today’s agenda and I predict, a finding of “no violation!”

Michael Petrelis stated that he submitted a complaint in February 2016. Commissioner Kopp asked whether campaign signs are permitted to be displayed during the Commission meeting. Mr. Petrelis stated that the Commission was infringing upon his First Amendment rights. Chairperson Renne stated that he, as Chair, may ask him to put down his signs. Mr. Petrelis asked the Commission to direct the researchers on Staff to move on his complaint. He stated that the Commission was not fulfilling its obligations and is harming transparency.

3. Discussion and possible action on draft minutes for the Commission’s July 25, 2016 meeting.

Motion 160926-01 (Keane/Chiu): Moved, seconded, and passed (3-0; Hayon and Kopp excused) that the Commission approve the Commission’s July 25, 2016 meeting minutes, as amended.

Public Comment:

Ray Hartz stated that the minutes are an example of the disservice to people making public comment. He stated that anything critical of Staff is removed and a reasonable summary of comments should be included in the minutes. He also stated that information in the Good Government Guide is not a legal opinion.

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:

These minutes are an example of the disservice this body does to individuals making public comment. Although speaking in most cases for three minutes, each is boiled down to one or two lines. There is no reasonable attempt to provide a meaningful summary of what was said. What is certain to appear is any comment that praises this body and/or its staff! Members of the public may have noticed that at the conclusion of each public comment I pass a 150 word summary to the staff. I work on the premise that taking time to make thoughtful public comment, exercising my constitutional rights, is worth a little time ensuring that it’s accurately recorded in the official record. The reason being that bodies such of this will censor, abridge, misrepresent, or otherwise remove public criticism. And no, I’m not asking the minutes be a “transcript, but at minimum a reasonable summary.

Commissioner Kopp noted that a speaker’s name on page 3 should be capitalized.

4. Discussion and possible action on Hearing on the Merits for Complaint No. 19-131115, In the Matter of Lynette Sweet and Sweet for Supervisor 2010.

The complete court reporters transcript of this agenda item will be posted on the Commission’s website. A copy of the transcript will also be available for review at the Commission office during regular business hours.

Catherine Argumedo made a presentation to the Commission. The Respondent, Lynette Sweet, was not present and did not submit a response to the Hearing Brief. The Commissioners discussed the matter, including the penalty amount, and asked Ms. Argumedo questions.

Motion 160926-01 (Kopp/Keane): Moved, seconded, and passed (4-0; Hayon excused) that the Ethics Commission assess an administrative penalty of $74,409.18 and order forfeiture of $4,650 in this matter.

Public Comment:

Ray Hartz stated that the proposed penalty is double that of the Farrell matter. He stated that there is one set of rules for City officials and another set for everyone else. He stated that the Commission has arbitrary rules.

Commissioner Kopp noted that each case has different factual and legal issues and there is no comparison between the legal issues in Item 11 and this item.

Michael Petrelis echoed what the previous speaker stated. He stated that the Commissioners were politicians and politics comes into play about what is placed on the agenda. He stated that the Commissioners were trashing members of the public and stated that the Commissioners should not interrupt public comment and that democracy is suffering.

Charles Marsteller welcomed Judge Kopp to the Commission. He stated that the law for public financing is clear and that this case is useful to see where there are issues in the process. He stated there was a great deal to learn from this case.

David Pilpel welcomed Judge Kopp and spoke in support of Staff’s recommendation.

Motion 160926-02 (Keane/Kopp): Moved, seconded, and passed (4-0; Hayon excused) that the Ethics Commission order Respondent Sweet to file a Form 410, terminating her 2010 candidate committee.

Public Comment:
Ray Hartz stated that the Commission violated the Roberts rule and the members of the public came to participate. He stated that the public needs to understand.

DCA White reminded the Commission that it only needs to permit public comment once per agenda item, not once per motion.

David Pilpel stated that the Commission’s action is able to make another motion.

5. Discussion and possible action on the Sunshine Ordinance Task Force’s referral for enforcement against Steve Kawa, Complaint 04-160718, Michael Petrelis v. Steve Kawa

Deputy Director Jessica Blome introduced the item. She stated that the Commission does not have enforcement authority over records retention at this time and that the District Attorney has jurisdiction over the crime of willful destruction of public records. She stated that Staff’s recommendation is that the Commission not find a violation and that the Ordinance, at this time, does not contemplate this type of situation. Chairperson Renne gave both parties five minutes to present to the Commission.

Michael Petrelis stated that he requested Mr. Kawa’s calendar and e-mails and stated that he received calendars with no information. He stated that he was told that Mr. Kawa routinely deleted his calendar entries after two weeks. He stated that Mr. Kawa was destroying public records and the City Attorney’s Office gave its blessing to him to destroy them. He stated that the Commissioners should have reviewed the documents presented to them before arriving at the meeting. He asked to be allowed to speak without being interrupted.

Steve Kawa, Chief of Staff to Mayor Lee, stated this matter is informative for him and 30,000 City employees. He stated he has been in the Mayor’s Office for 20 years and he takes his job and obligations quite seriously. He stated that initially the complaint alleged he violated the Ordinance by not maintaining a Proposition G calendar, but that he is not a department head, so they morphed it into another issue. He stated he was asking for clarification, as he had followed the City Attorney’s advice regarding the retention of his calendar. He stated he has maintained his calendars since the complaint was filed.

Commissioner Kopp suggested Staff prepare and recommend legislation to send to the Board regarding record retention. He stated that he was unclear why there is a Task Force and why it is not part of the Commission. He stated he would like to look at the definition of “willful” in the Commission’s Regulations for Handling Violations of the Sunshine Ordinance. Commissioner Chiu asked whether all public records need to be maintained. DCA White stated that not all must be retained. He stated that how long and whether the records are maintained is separate from the Sunshine Ordinance. He stated that Mr. Kawa did not violated section 67.21 of the Sunshine Ordinance and he also did not violate section 67.29-7 of the Ordinance.

Commissioner Kopp suggested sending a letter to ask to see whether Mr. Kawa’s calendars still remained on the hard drives.

Public Comment:
Charles Marsteller stated that it could be possible, given the timeline, that the document may exist on the mainframe of the computer. He stated that he was not sure whether the Commission invokes its subpoena powers.

Commissioner Chiu stated that she shared her fellow commissioners’ interest in understanding whether the documents still exist. She stated that Mr. Kawa acted in good faith on advice of the City Attorney.

Motion 160926-03 (Kopp/Keane): Moved, seconded, and passed (4-0; Hayon excused) that the Chair be authorized with a letter drafted by Staff to ask the relevant City department if it can recapture the requested records for those three months.

Public Comment:
Ray Hartz stated citizens cannot rely on anything and that the complaint should just be re-filed with the complaint naming Mayor Lee. He stated that the Mayor is responsible for making sure that his subordinates follow the law. He also stated that the Commission’s actions are questionable. He stated that the Commission is trying to hide matters that would be embarrassing for the Mayor.

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:

It simply amazing the time, energy and resources the City Attorney’s office will expend to ensure that city officials do not comply with open government laws! Since anyone with half a brain already knows the outcome of this hearing, I would suggest Mr. Petrelis refile the complaint naming Mayor Ed Lee. The Mayor, an elected official, is responsible for ensuring that those under his supervision comply with the law. Despite all the shucking and jiving in these laughable “legal memos,” it would seem the members of this commission seem determined to remain “willfully blind” to the fact that someone as senior as Mr. Kawa would have known his actions were unlawful. I see his machinations as nothing more than an effort to hide matters that would be embarrassing for Mayor Ed Lee.

Dr. Derek Kerr stated that Mr. Kawa deleted his calendars every two weeks and noted that it takes effort and discipline to accomplish that. He stated that it is a taxing chore and that, even if there is a policy or practice to delete appointment logs, he asked what the rationale of it would be.

The following written summary was provided by the speaker, Dr. Derek Kerr, the content of which is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission:

WHAT’S STRIKING ABOUT THIS CASES IS THAT THE MAYOR’S CHIEF OF STAFF METHODICALLY DELETED HIS CALENDARS EVERY 2 WEEKS.

THAT TAKES EFFORT – AND DISCIPLINE.

MANY BUSY PEOPLE KEEP APPOINTMENT CALENDARS, BUT FEW ERASE THEM SO QUICKLY AND DILIGENTLY.

IT SEEMS LIKE A TAXING CHORE – EVEN FOR THE MOST FASTIDIOUS OF PERSONS.

BUT BECAUSE THE MAYOR DELEGATES IMPORTANT TASKS AND MEETINGS TO HIS CHIEF OF STAFF, THIS COMMISSION SHOULD CONSIDER WHETHER FURTIVE PURPOSES DROVE THIS BEHAVIOR.

EVEN IF THERE WAS A “POLICY” TO PROMPTLY DELETE APPOINTMENT LOGS< WHAT IS THE UNDERLYING RATIONALE?

DOES IT SAVE MONEY BY PRESERVING SPACE ON COMPUTER HARD-DRIVES?

DOES IT REDUCE THE WORKLOAD OF THE I.T. DEPARTMENT?

OR DOES IT INTENTIONALLY CONCEAL ACTIVITIES OF PUBLIC INTEREST?

David Pilpel stated that the Task Force heard this matter on three different occasions. He stated that undeleted calendars were provided in connection with the April 2016 meeting. He stated that he believed it was a non-willful violation of section 67.21, but not section 67.29-7.

Motion 160926-04 (Chiu/Renne): Moved and seconded that the Commission find that the Sunshine Ordinance does not require Mr. Kawa to retain his calendar and that Mr. Kawa did not violate the Sunshine Ordinance by failing to produce the calendar.

Vice-Chairperson Keane asked to break up the motion into two parts. Commissioner Chiu withdrew her motion.

Motion 160926-05 (Keane/Kopp): Moved, seconded, and failed (2-2; Chiu and Renne dissented and Hayon excused) that the retention of Mr. Kawa’s calendar was required by existing law.

Chairperson Renne stated he would vote against this motion, since he did not understand what required keeping it. Vice-Chairperson Keane stated that he was casting a broad net, including the Sunshine Ordinance and Brown Act.

Motion 160926-06 (Keane/Chiu): Moved, seconded, and passed (4-0; Hayon excused) that the Commission accept Staff’s recommendation that Mr. Kawa did not willfully violate the Sunshine Ordinance.

6. Discussion and possible action on amendment to the Ethics Commission’s bylaws to establish a process for Staff to notify the Commission when attorney-client privilege has been invoked in response to a request for public records.

Public Comment:
Ray Hartz stated that the Director should notify the total number of records requests and how frequently requests are being denied by attorney-client privilege. He stated that most citizens believe that government is corrupt and that the Board of Supervisors has undermined the Task Force.

David Pilpel stated that it was unusual for a Commission to have these kinds of procedures and asked that the Commission revisit in six months or a year. He stated that he was not sure this is the right course.

Motion 160926-07 (Kopp/Keane): Moved, seconded, and passed (4-0; Hayon excused) that the Commission accept Staff’s proposal to amend the Commission’s bylaws.

7. Presentation and discussion of informational Staff report highlighting 2016 election activities.

Public Comment:
Ray Hartz asked the purpose of the handout and stated it was meaningless drivel. He stated that Staff is out to crucify a small fish and let the big whales go. He stated that it was unusual for someone to sit on a Commission and be nasty to a member of the public. He stated that it is not unreasonable for someone to appear before the Commission and expect that they will be able to speak without interruption.

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:

What’s the purpose of this handout? Is it soliciting members of the public to be “informants?” Of course you will praise the staff to high heaven for production of this meaningless drivel. If this is supposed to “promote awareness,” why should the public believe that anything they turn in will receive attention? All the cases this body deals with relating to campaign finance taken literally years to work their way through your labyrinthine process. Most campaign finance “delinquents” can count on dying peacefully in their sleep before you get around to taking any action. The actions that are taken, eventually, are nothing but a form of “manipulative self gratification!” This city has become a cesspool of campaign funds raised by “small fish,” who you will crucify and “whales,” who you couldn’t or wouldn’t dare touch! And the biggest whale of all? Mayor Ed “I won’t run” Lee! What a farce!

Vice-Chairperson Keane stated that the Commissioners are interested in what the public has to say.

David Pilpel stated that he appreciated the handout and thanked Staff for their work. He asked about the Commission’s new website.

Executive Director LeeAnn Pelham stated that the new website would be coming soon.

8. Discussion and possible action on proposed biennial Conflict of Interest Code update for Ethics Commission.

Executive Director Pelham introduced the item. She stated the Board of Supervisors will be reviewing an adjustment to the Code for all City departments and presented the update to the Commission.

Motion 160926-08 (Keane/Chiu): Moved, seconded, and passed (4-0; Hayon excused) that the Commission accept Staff’s proposal to the proposed biennial Conflict of Interest Code update.

Public Comment:
David Pilpel stated that it was the first time this Code was being brought to the Commission. He expressed concern in possible decision-making being changed to various staff members. He stated that generally too many people in the City file the Form 700.

Charles Marsteller stated that, in the earlier conversation about possibly enhancing the records retention policy, the Commission could consider capturing calendars of people who are Form 700 filers.

Ray Hartz stated that this was resource-wasting and that there is no desire to enforce the law. He stated that when the Commission starts objecting to what people have to say, it is viewpoint discrimination and that throwing mud is not a reply.

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:

Once again we have an example of resource wasting self-justification! What is the point of repeatedly readjusting the “conflict of Interest Codes,” which this body has neither the power nor the desire to enforce? Case in point: when City Librarian Luis Herrera filed for years false SEI’s, under penalty of perjury, Ethics refused to touch it! It took citizens going to the FPPC in Sacramento to get any result. I sometimes feel I’m watching a reenactment of the Wizard of Oz. The scene where Glinda, the witch of the North, tells the witch of the West “Begone, you have no power here,” I feel pretty much sums up the view of City government as regards this commission. So, once more “Rearranging deck chairs on the Titanic,” you will waste taxpayers resources in an effort to justify your existence. In fact, your very existence makes open government a joke!

Vice-Chairperson Keane stated that he has been listening to Mr. Hartz for a year and a half and that every month, Mr. Hartz gets up and says the same thing over and over again. He stated that he has been watching him and called him tedious.

9. Discussion of Executive Director’s Report.

Executive Director Pelham introduced Deputy Director Blome and mentioned that she would be looking at the Commission’s records retention policy and various other policies that are outdated. She stated that Ms. Blome would also be looking at the enforcement regulations and seeking progress on resolving cases that are stale.

Public Comment:
Ray Hartz stated that anything having to do with the Sunshine Ordinance is always missing from the Director’s Report. He stated that enforcement is never mentioned. He stated that the Commission disparages the public instead of encouraging public attendance.

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:

Let’s talk about what has always been missing from the Executive Directors report: anything to do with the Sunshine Ordinance! Despite the fact that we’ve heard a few times this evening about this commission’s responsibilities under law, enforcement of the Sunshine Ordinance is never mentioned. After all, what could you say? We have never, and will never, do anything to enforce any open government law! We don’t give a damn that the citizens of San Francisco passed this by a two-thirds majority, we won’t enforce it! Not only that, we will do everything within our power to prevent any citizen attempting to provide any level of transparency, from achieving their goal. Adding insult to injury, we will openly demean and disparage such efforts. As far as open government goes you could paraphrase Walt Kelly in Pogo: “we have met the enemy and they is us!” What a joke on us!

David Pilpel stated that he appreciated the detail and hoped the enforcement information would be a regular part of the report. He suggested that the Chris Jackson matter be calendared for a future meeting.

10. Discussion and possible action on items for future meetings.

Commissioner Kopp stated that he understood there was a new administration, but the delays in the enforcement matter were remarkable. He stated that he would like to go through the pending matters and discuss them. He stated that he did not believe there was anything preventing the Commission from proceeding on a matter that was also being investigated by another agency.

Deputy Director Blome asked for a timeframe regarding the review and proposed changes for the Sunshine Ordinance. The Commission asked Staff to hold Interested Persons meetings and reconvene on the matter for the December 2016 meeting.

Public Comment:
Elena Schmid welcomed Commissioner Kopp. She stated that there should be Interested Persons meetings and meetings with other agencies and groups.

Charles Marsteller stated that a possible re-write of the Ordinance, or amendment, should not be a rush and everyone should have input.

Ray Hartz stated that he had one denial occur within 30 days and another within 48 hours. He stated that there is a blatant effort to look at his filings and find reasons to ignore it.

11. Discussion and possible action regarding proposed settlement for the Ethics Commission’s consideration in Mark Farrell for District 2 Supervisor 2010, et al. v. City and County of San Francisco, et al. (S.F. Superior Court Case No. 16-551745) for $25,000 payment by Supervisor Farrell and mutual release of legal claims.

Matter continued. No discussion.

Public Comment:
Charles Marsteller stated that, due to the Presidential debate, the Commission usually has a larger turnout.

David Pilpel asked why the matter was continued.

12. Additional opportunity for public comment on matters appearing or not appearing on the agenda pursuant to Ethics Commission Bylaws Article VII Section 2.

Ray Hartz stated that the government is corrupt and that the Commission is not part of the solution and is part of the problem. He stated that aides were indicted for accepting illegal bribes and so the Mayor approved a huge increase in the Commission’s budget.

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’ve had people tell me “Maybe if you aren’t so in their face, you’ll get a friendly response.” Years of experience have taught me one lesson: no matter how friendly, polite, or whatever you are, the most you can hope for is to provoke a reaction. George Orwell said: “In a time of deceit, telling the truth is a revolutionary act.” As regard this body maybe Andrew Carnegie had it right: “As I get older I pay less attention to what men say. I just watch what they do!” Over the years I’ve repeatedly asked members of this body to tell me anything they’ve done to make city government more open, transparent or honest? The answer is silence, truly deafening silence! The citizens of San Francisco know their government to be corrupt and I believe they should be aware that you are not a solution, but part of the problem!

13. Adjournment.
Motion 160926-09 (Kopp/Keane): Moved, seconded, and passed (4-0; Hayon excused) that the Commission adjourn.

Public Comment:

None.

The Commission adjourned at 8:52 PM.

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