Minutes of the Regular Meeting of
The San Francisco Ethics Commission
November 28, 2016
Room 400 – City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
(Approved 12/19/2016)
1. Call to order and roll call.
Chairperson Renne called the meeting to order at 5:46 PM. Chairperson Renne acknowledged the Commission’s receipt of cookies from the Friends of Ethics in celebration of the passage of Proposition T. The City Attorney confirmed that the gift of the cookie does not have to be reported on Form 700. Chairperson Renne thanked the Friends of Ethics for their support of Proposition T and for the cookie.
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; Jarrod Flores, Education and Compliance Officer; Manisha Lal, Campaign Finance Auditor.
OFFICE OF THE CITY ATTORNEY: Joshua White, Deputy City Attorney.
OTHERS PRESENT: Larry Bush; David Pilpel; Ann Treboux; Allen Grossman; Gayathri Thaikkendiyil; and other unidentified members of the public.
MATERIALS DISTRIBUTED:
- October 17, 2016 draft minutes;
- Enforcement Staff’s revised report dated November 17, 2016 and attachments.
- Staff’s Report & Recommendation regarding Ethics Commission Complaint No. 03-160621, Allen Grossman v. John Rahaim & Sarah Jones, Grossman’s Complaint, and Mr. Grossman’s Response
- Staff’s Report & Recommendation for handling Ethics Commission Complaint Nos. 1516-23 & 1516-24, Joel Warne v. Nancy Sarieh & Sunshine Ordinance Task Force.
- Staff’s Report & Recommendation for handling Ethics Commission Complaint No. 1617-06, Ann Treboux v. Barbara Sklar.
- Staff’s Report & Recommendation for handling Ethics Commission Complaint No. 1516-59, Alvin Johnson v. SF Board of Supervisors.
- Education & Compliance Division Staff’s report dated November 17, 2016 and attachments.
- November 17, 2016 Executive Director’s Report and attachments.
- Closed session to discuss the status of current investigations. This session is closed because complaints and investigations are confidential under SF Charter section C3.699(13), Brown Act section 54956.9, and Sunshine Ordinance section 67.12.
2. Public comment on matters appearing or not appearing on the agenda.
David Pilpel asked for information about Item 4 and Executive Director LeeAnn Pelham clarified that the request for the waiver was withdrawn along with the Item. David Pilpel also complimented the Executive Director’s Report (Item 5).
Larry Bush, on behalf of Friends of Ethics, asked the Commission to track money that independent expenditure committees are siphoning money amongst one another, which makes it difficult to follow the money.
Ann Treboux stated that the malicious charges against her were a waste of time and hoped that the experience would become less surreal by coming to the meeting and talking about it.
3. Discussion and possible action on draft minutes for the Commission’s October 17, 2016 special meeting.
Motion 161128-01 (Keane/Chiu): Moved, seconded, and passed (3-0; Hayon and Kopp excused) that the Commission approve the Commission’s October 17, 2016 special meeting minutes.
4. (Item Withdrawn)
Chairperson Renne stated that as the Agenda reflects, Item 4 was withdrawn.
5. Discussion of Enforcement Program Report. An update highlighting various programmatic issues and activities of the Commission’s enforcement division.
Deputy Director Jessica Blome explained that the Enforcement Program Report this month included a short synopsis of complex Sunshine Ordinance regulations because there are several items on this month’s Agenda that deal with the Sunshine Ordinance, and Ms. Blome wanted to give the Commissioners some context before launching into those matters. Ms. Blome responded to individual Commissioners as they asked questions during her presentation. Ms. Blome finished her report by noting that this month the official complaint total is up to 30 complaints, many of which were initiated during the election season and many more are likely to come as a result of the 89 complaints that are currently under preliminary review. She stated the report also lists matters before the Bureau of Delinquent Revenues.
Public Comment:
Allen Grossman stated that while he understood that in a show cause hearing for a case referred by the SOTF the Respondent has the burden of establishing that there is no merit to the Complaint, he did not think it was appropriate for Staff to second-guess the SOTF, if that is what is happening.
David Pilpel stated that he recalled there was a difference between a Chapter 2 and Chapter 3 referral which had to do with whether the burden was shifted. He stated he was concerned about a number of complaints filed directly with the Commission, and expressed concern about the idea of two venues for complaints, which he does not think was the intent.
Commissioner Kopp asked the City Attorney what the SOTF has the legal power to do that the Ethics Commission does not.
Deputy City Attorney White stated the SOTF issues orders of determination which are referred to Ethics. He stated the SOTF has jurisdiction exclusively over Sunshine Ordinance violations.
Deputy Director Jessica Blome clarified that the SOTF does not appear to have jurisdiction over allegations of willful violations by elected officials or department heads. She stated all other allegations of violations of the Sunshine Ordinance, including open meetings and public records requests and responses is with the SOTF in terms of investigation.
Commissioner Kopp asked if this was to the exclusion of the Ethics Commission, and Ms. Blome responded the language of the Sunshine Ordinance itself would suggest that. She further stated the Ethics Commission is to handle the enforcement of orders issued by the Task Force. She added that Staff’s only role in a Task Force referral would be to clarify or help explain the Commission’s authority.
Ann Treboux stated the reason why a member of the public might make a Sunshine referral directly to the Ethics Commission as opposed to the SOTF is because they did not feel their complaints were being heard by the SOTF.
6. Discussion and possible action on Staff’s Report & Recommendation for handling Ethics Commission Complaint No. 03-160621, Allen Grossman v. John Rahaim & Sarah Jones
Allen Grossman presented his argument to the Commission first. Mr. Grossman stated he believes the Planning Commission violated the Sunshine Ordinance by its failure to provide public access to information that Planning should have input into the two indices it created to provide the public with public information in its statutory role under CEQA and the SF Administrative Code. He stated the right of public access is expressly stated in the California constitution.
He clarified that the complaint is about the Planning Department’s providing the path to that information, which is mandated by section 67.29 of the ordinance. He stated setting up the index of records does not provide any information; it merely provides the structure for the information. He stated the complaint is strictly focused on the Planning Department’s deliberate violation of section 67.29, which has been in effect since at least the year 2000.
He stated he disagrees with the staff report which states that Planning has complied by creating the indices.
Commissioners Kopps, Keane, Chiu and Renne engaged in some back-and-forth questions with Mr. Grossman about the scope of his complaint and his requested remedy from the Commission. The Commissioners decided they could not force the Planning Department to create notes or other documents detailing why its staff had declared a project categorically exempt under CEQA.
Public Comment:
David Pilpel stated he was very familiar with the Sunshine Ordinance, CEQA, the Planning Department and all its procedures. He stated he agreed with the Staff and the City Attorney. He stated he did not think there was any violation, willful or otherwise. He stated the index to records is simply a taxonomy of how various records of the City, by department, are organized.
Motion 161128-2 (Keane/Chiu): Moved, seconded, and passed (4-0; Hayon excused) that the Commission accept Staff’s recommendation for Allen Grossman v. John Rahaim & Sarah Jones that (1) John Rahaim did not willfully or non-willfully violate the Sunshine Ordinance as alleged in Allen Grossman’s Complaint No. 03-160621 and that (2) Sarah Jones did not willfully or non-willfully violate the Sunshine Ordinance as alleged in Mr. Grossman’s Complaint No. 03-160621.
7. Discussion and possible action on Staff’s Report & Recommendation for handling Ethics Commission Complaint Nos. 1516-23 & 1516-24, Joel Warne v. Nancy Sarieh & Sunshine Ordinance Task Force.
Chairperson Renne stated Item 7 has been continued to the December 19, 2016 meeting at the request of the Chair of the SOTF who contacted the Executive Director and indicated they would not have an opportunity to submit a response to the Staff Memorandum.
The Commission entered a break at 7:03 pm. The Commission returned from break at 7:15 pm.
8. Discussion and possible action on Staff’s Report & Recommendation for handling Ethics Commission Complaint No. 1617-06, Ann Treboux v. Barbara Sklar.
After summarizing her complaint, Ms. Treboux acknowledged that the statute of limitations had timed out for her complaint.
Commissioner Keane stated he agreed with Staff’s conclusion that the Ethics Commission does not have jurisdiction relating to this matter.
Public Comment:
David Pilpel stated he agreed with the Staff recommendation.
Larry Bush stated that issues of non-filing should be referred to the FPPC.
Motion 161128-3 (Keane/Chiu): Moved, seconded, and passed (4-0; Hayon excused) that the Commission accept the Staff’s recommendation for dismiss Ann Treboux’s Complaint No. 1617-06, Ann Treboux v. Barbara Sklar, for lack of jurisdiction due to the statute of limitations imposed by California Civil Code section 338.
9. Discussion and possible action on Staff’s Report & Recommendation for handling Ethics Commission Complaint No. 1516-59, Alvin Johnson v. SF Board of Supervisors.
Deputy Director Blome summarized the Staff recommendations by stating that Mr. Johnson had filed a complaint against the Board of Supervisors alleging willful violations of the Sunshine Ordinance by failing to respond to more than 40 record requests that he had made to them. She stated that the Board of Supervisors responded to all 40 requests, but not within 10 days. She stated that given the voluminous nature of Mr. Johnson’s requests, the Board of Supervisors invoked the “rule of reason” which is something the Ethics Commission itself has invoked when responding to Mr. Johnson’s voluminous records requests because it is not possible to respond to each one of them within the 10-day timeframe of when they are submitted so closely together.
Ms. Blome stated the “rule of reason” is permissible when compliance within otherwise applicable time requirements would interfere with the ability of the department’s staff to perform their other duties. She further stated Staff recommends the Commission find the Board of Supervisors did not willfully or non-willfully violate the Sunshine Ordinance predominantly because all requests were responded to.
Public Comment:
David Pilpel stated that during his time on the SOTF Mr. Johnson was before them physically once and filed a number of other complaints that were subsequently dismissed for lack of prosecution. He stated the City has invoked the “rule of reason” on a case by case basis in a very limited number of cases over the fullness of time. He stated he would agree with the Staff recommendation.
Motion 161128-4 (Kopp/Chiu): Moved, seconded, and passed (4-0; Hayon excused) that the Commission accept the Staff’s recommendation for the handling of Ethics Commission Complaint No. 1516-59, Alvin Johnson v. Angela Calvillo, Clerk of the Board of Supervisors to find that the Board of Supervisors did not willfully or non-willfully violate the Sunshine Ordinance.
10. Discussion of Education & Compliance Division Report. An update highlighting various programmatic issues and activities of the Commission’s education and compliance division.
Jarrod Flores, Education and Compliance Officer, presented an update about work underway within his division of the Ethics Commission via the SF Ethics Info Election ’16 Infographic which produces a snapshot of the past election and highlights the Ethics Commission’s dashboard page. He stated a large sum of funds has been raised and spent to support and oppose ballot measures and candidates. He stated the dashboard page gives information to the public about what is going on in their particular jurisdiction with regards to the candidates that are running, how much said candidates are raising or spending, and how much independent expenditures are effecting those races.
Mr. Flores further stated that of all the years he has been at the Ethics Commission monitoring campaign finance, this has been the busiest election he has ever experienced. He stated the number of campaign filings has doubled this year from last year.
Executive Director Pelham noted Patricia Peterson could not attend the meeting but she works with Mr. Flores in the Education and Compliance Division. Ms. Pelham stated that the day after the election in which voters approved Proposition T with 87% of the vote, Ms. Peterson provided registered lobbyists, other law firms, permit consultants and major developers a copy of the FAQ on Prop T which is also attached to this report. Ms. Pelham stated that even though the law becomes operative on January 1, 2018, Staff acknowledges it is important for folks to understand how Prop T may apply to them.
Public Comment:
Larry Bush, on behalf of Friends of Ethics expressed his appreciation to Mr. Flores for the help he gave the Friends of Ethics to ensure they were able to comply with filing its reports. He stated Mr. Flores was very helpful.
11. Discussion of Executive Director’s Report.
Executive Director Pelham happily reported that on the staffing front there will be a new staff member joining as Senior Clerk in the very small front office. Ms. Pelham stated Jacqueline Hickey will be beginning December 12 and she has a background in customer service in the airline and financial services industry. Ms. Pelham also delivered the news that Investigator Catherine Argumedo decided to pursue an opportunity to resume her private practice of law as an immigration attorney and left the Ethics Commission on November 10, 2016. Ms. Pelham further stated that at the end of the week, Staff Assistants Frances McEvoy and Jack Cannice will be leaving the Ethics Commission as well because their term is coming to an end since the election has ended. Ms. Pelham stated that the Ethics Commission has three Senior Investigator/Legal Analyst positions that will be filled via the Civil Service hiring process. Ms. Pelham also stated that the recruitment for the Senior Policy Analyst and Education & Compliance Assistant positions closed. Ms. Pelham is hopeful to have some news for the Commissioners at the December meeting.
Ms. Pelham’s report also included an update on the Annual Policy Plan. She stated that given a lot of the focus of her time on all things hiring and some of the staffing changes, some of the items have been pushed further into 2017. Ms. Pelham stated that she very much welcomes conversations with the Commissioners going forward about how to prioritize. Ms. Pelham stated she will continue to keep the Commissioners apprised of developments and where these items might be landing. Ms. Pelham stated a focus will continue on the Public Financing Report post-election to bring forward as planned in the early part of the year and have some discussion about the public financing program as the process of looking longer-term at the City’s campaign finance system.
Public Comment:
David Pilpel thanked Staff for a comprehensive reportand suggested discussion of a number of these items at Interested Persons meetings. Mr. Pilpel asked for clarification about the Citywide Relationships Policy.
12. Closed session to discuss the status of current investigations. This session is closed because complaints and investigations are confidential under SF Charter section C3.699(13), Brown Act section 54956.9, and Sunshine Ordinance section 67.12.
Public Comment:
David Pilpel stated it was perhaps the first time the Commission has gone into closed session in general terms to talk about the status of enforcement matters. He hoped the Commissioners will talk about the status and priorities of things and make public such discussions about prioritizing.
Larry Bush stated he did not know how broad the review will be and was concerned about the process of selecting committees to be audited. Mr. Bush suggested that if the Commission has a criminal investigation before it that has been in the press that the Commission should audit those committees in addition to the randomly selected committees. Commissioner Keane stated he would echo what he had said the last time in that such matters be handled as part of closed probable cause proceedings. Commissioner Keane stated that while the Charter requires these matters be heard in close session for confidentiality purposes, he does not think it is necessary and the public has a right to know both how the complaint and probable cause matters are dealt with.
Motion 161128-4 (Chiu/Keane): Moved, seconded, and passed (4-0; Hayon excused) that the Commission move into closed session.
The Commission entered closed session at 7:50 pm. All Commissioners, Deputy City Attorney White, Executive Director Pelham, Deputy Director Blome, staff members Flores and Lal remained in the hearing room. The Commission returned into open session at 8:25 pm.
Commissioner Kopp noted a large majority of the potential 30 cases are attributable to a request by the District Attorney to abate the Commission’s investigation while the District Attorney investigates. He stated that some of the requests go back to 2013 and 2014, which does a disservice to the people of San Francisco and to this Commission which tries to execute its responsibilities. He stated he will initiate a motion as required to seek a return or a reinstitution of the Ethics Commission’s own investigation in about 20 of these cases and alternatively, as indicated by the agenda, the Commission will formulate a policy for the guidance of public and the District Attorney as well. Commissioner Kopp suggested putting a time limit on the District Attorney’s request for the Ethics Commission to abate an investigation with a provision in the policy so that at the end of that period the Ethics Commission will resume investigation and take action. Commissioner Kopp does not want to see a repeat of the Farrell matter where the statute of limitations ran and the matter cannot be fully pursued.
13. Discussion and possible action on items for future meetings.
Commissioner Kopp requested an investigation by Staff into the No on D, H, L and M Committee which raised money to defeat each of the measures referenced in its name in the San Francisco November 8, 2016 election. Commissioner Kopp noted that the San Francisco Chronicle reported on or about November 9th that with the Mayor’s help, the Committee raised and spent more than $2.2 million, about 10 times as much as what was spent to support those ballot measures.
Public Comment:
None.
14. Additional opportunity for public comment on matters appearing or not appearing on the agenda pursuant to Ethics Commission Bylaws Article VII Section 2.
Larry Bush stated that when he reported on the Sunshine Ordinance, there was a record of referrals sent to the District Attorney to which the District Attorney responded that they had no record of anything being referred to them by the Ethics Commission. Mr. Bush stated that one can discern from a reading of the Civil Grand Jury’s 2013-14 Report that additional information emerged about the gap in follow-up at that time.
15. Adjournment.
Motion 160926-5 (Kopp/Keane): Moved, seconded, and passed (4-0; Hayon excused) that the Commission adjourn.
Public Comment:
None. The Commission adjourned at 8:35 PM.