Minutes of the Special Meeting of
The San Francisco Ethics Commission
December 19, 2016
Room 416 – City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
APPROVED: 1/23/2017
1. Call to order and roll call.
Chairperson Renne called the meeting to order at 1:03 PM.
COMMISSION MEMBERS PRESENT: Paul Renne, Chairperson; Peter Keane, Vice-Chairperson; Beverly Hayon, Commissioner; and Quentin L. Kopp, Commissioner. Commissioner Daina Chiu was excused.
STAFF PRESENT: LeeAnn Pelham, Executive Director; Jessica Blome, Deputy Director; Jarrod Flores, Education and Compliance Officer; and Pat Petersen, Education and Compliance Officer.
OFFICE OF THE CITY ATTORNEY: Joshua White, Deputy City Attorney.
OTHERS PRESENT: Ray Hartz; Larry Bush; Angelina Yu, Legislative Aide to Supervisor Eric Mar; Shaista Shaikh; Gayathri Thaikkendiyil; Nereida Heller; Jackie Hickey; Howard M. Johnson; and other unidentified members of the public.
MATERIALS DISTRIBUTED:
- November 28, 2016 draft minutes
- Staff’s report and recommendation regarding the Ethics Commission’s Regular Meeting Schedule for calendar year 2017 and attachment.
- Staff’s Report & Recommendation for handling Ethics Commission Complaint No. 1617-102, Ray Hartz v. Eric Mar
- Staff’s Report & Recommendation for handling Ethics Commission Complaint Nos. 1516-23 & 1516-24, Joel Warne v. Nancy Sarieh & Sunshine Ordinance Task Force, and SOTF Response
- Enforcement Division Staff’s report dated December 15, 2016 and attachment.
- December 15, 2016 Executive Director’s Report and attachments.
- Closed session to discuss anticipated litigation. 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.
Larry Bush notes that despite opposition, SF has over the years, at a community-based level, moved forward on issues that have rippled out beyond the City and become matters of national policy. Mr. Bush enumerated and commended the Commission on its 2016 accomplishments and urged the Commission to use its ability to place items on the ballot as a means for continuing its public policy advocacy on behalf of San Francisco and to set a standard that others reach for.
Ray Hartz spoke on the issue of free speech and access to public records and noted that every citizen may attend a public meeting and comment on anything they want using any words and tone they want if appropriate.
3. Discussion and possible action on draft minutes for the Commission’s November 28, 2016 regular meeting.
Commissioner Kopp made the following recommendations: in the last paragraph of p. 2 under “public comment,” amend Ann Treboux’s statement to reference the “malicious charges put upon against her.” At page 3, item 6, paragraph 1, add a comma on the 3rd line after the word “information.” At page 7, paragraph 2, amend to read “Commissioner Kopp does not want to see a repeat of the Farrell matter where the statute of limitations run ran and the matter cannot be heard.”
Chairperson Renne noted that on page 2, in sentence 1 under public comment by Allen Grossman, amend to read “show of cause.”
Motion 161219-01 (Kopp/Keane): Moved with proposed amendments, seconded, and passed (4-0; Chiu excused) that the Commission approve the Commission’s November 28, 2016 regular meeting minutes.
Executive Director Pelham announced that the meeting was not being recorded or televised as required by the Ethics Commission’s Bylaws and the Charter, and requested a 15-minute recess. Request granted by Chairperson Renne at 1:20:12 p.m.
Chairperson Renne resumed Open Session , and clarified that Agenda Items 1 through 3 had been recorded but were not televised. Deputy City Attorney White advised that it would not be necessary to discuss Agenda Items 1 through 3 again.
4. Discussion and possible action to approve Ethics Commission Regular Meeting Schedule for calendar year 2017.
Chairperson Renne introduced Executive Director Pelham’s recommendation to adopt Regular Meeting dates for 2017 to support transparency and help promote effective engagement with the work of the Commission. Executive Director Pelham noted that the proposed dates conformed with the requirements of the Commission’s Bylaws, that adopting a 12-month calendar of meetings was not a requirement, and that changes to the schedule could be accommodated through the scheduling of a special meeting.
Ray Hartz noted the obligation of commissions to encourage public participation and attendance, and commended Executive Director Pelham for proposing a 12-month calendar in advance, providing those interested in attending the opportunity to plan ahead.
Motion 161219-02 (Kopp/Keane): Moved, seconded, and passed (4-0; Chiu excused) that the Commission adopt the proposed Ethics Commission Regular Meeting Schedule for calendar year 2017.
5. Discussion and possible action on Sunshine Ordinance Task Force Referral for enforcement of Ethics Commission Complain No. 1617-102, Ray Hartz v. Eric Mar.
Deputy Director Blome clarified that Attachment 2 should be an attachment to Agenda Item 6 [Joel Warne v. Nancy Sarieh & the Sunshine Ordinance Task Force].
Ray Hartz presented a synopsis of the events and attached findings of the Sunshine Ordinance Task Force referral letter to Ethics Commission, noting specifically the finding of a violation of Sections 67.21(e) and 67.25(a) of the Sunshine Ordinance, and that the lack of policy inferred intentional and willful non-compliance with the Sunshine Ordinance.
Legislative Aide Angelina Yu read a statement from Supervisor Mar and responded to individual Commissioners as they asked questions about the matter.
Deputy Director Blome addressed questions from individual Commissioners, noting that the SOTF had determined that the Sunshine Ordinance had been violated, but later changed the finding to a willful violation after Supervisor Mar refrained from appearing at Education and Training Committee for training on how to respond to an Immediate Disclosure Request. Deputy Director Blome further outlined the remedies available to the Commission.
Following rebuttal by Ray Hartz, Commissioner Keane notes his acceptance of Mr. Hartz’s representation of the record as truthful and accurate, and moves to sustain the findings of the Sunshine Ordinance Task Force.
Commissioner Kopp comments on the volume of paperwork, and notes that the requests should have been timely addressed. Commissioner Hayon notes that Sunshine Ordinance Task Force referrals should not be used out of frustration with City officials and department heads.
Motion 161219-03 (Keane/Renne): Moved, and seconded, motion fails (2-2 Hayon/Kopp; Chiu excused) that the Commission sustain the findings of the Sunshine Ordinance Task Force.
6. Discussion and possible action on Ethics Commission Complaint Nos. 1516-23 & 1516-24, Joel Warne v. Nancy Sarieh & the Sunshine Ordinance Task Force.
Deputy Director Blome presented the issue before the Commission. She outlined staff’s recommendations to issue a warning letter to Nancy Sarieh and the Department of Public Health for minor valuations of the Sunshine Ordinance regarding the violation and/or production of public records. Staff further recommended issuing a warning letter to the Sunshine Ordinance Task Force for failing to issue a timely determination and encouraging continued efforts to truncate its process to ensure compliance with future voluminous records requests.
Task Force Chairperson Wolfe explained recent changes to the roster of Committee members and outlined new processes, including the prioritization of Section 67.21 and 67.25 items to ensure compliance with 45-day deadlines. Chairperson Wolfe accepted the Ethics Commission’s recommendation to issue a warning letter to the Task Force.
The individual commissioners acknowledge that while Mr. Warne is not present, there is no requirement that the complainant attend the Ethics Commission hearing on the matter and he may rely on the record.
Public Comment:
Ray Hartz expresses frustration that his numerous Orders of Determination have gone unenforced, and he believes that the Ethics Commission either unable or unwilling to enforce Orders of Determination.
Motion 161219-04 (Keane/Hayon): Moved, seconded and passed (4-0; Chiu excused) to accept Staff’s recommendation that the Commission send warning letters to Nancy Sarieh and the Sunshine Ordinance Task Force regarding Complaint Nos. 1516-23 & 1516-24, Joel Warne v. Nancy Sarieh & the Sunshine Ordinance Task Force.
7. Discussion for Enforcement Report.
Deputy Director Blome introduced the program and operational highlights of the Enforcement Division. She expressed her appreciation for the opportunity to attend the annual conference of the Council on Governmental Ethics Laws in New Orleans (December 11-14, 2016). Deputy Director Blome noted that staff has been reviewing older complaints and preparing probable cause reports that will be reported in January 2017. Staff is working on stipulated orders for disclaimer violations and hearings on the merits, which will be presented in January by staff from the City of Oakland (as the San Francisco Ethics Commission does not have staff who are licensed to practice law in California). Staff continues to take in complaints and while the number of complaints tapered off after the elections, the intake over the past three months increased to 36% of the overall load. Staff is tracking the intake, and its present priority is to reduce the backlog to under 18 months.
Commissioner Kopp asked about the status of complaints that are more than 20 months old. Deputy Director Blome said she would follow up with the Bureau of Delinquent Revenue (BDR) regarding their processes. She noted that the Lynette Sweet matter will be heard in January 2017, or 90 days after the order was issued by the Ethics Commission. In response to Commissioner Kopp’s inquiry regarding active accounts that are more than one year old, she noted that BDR had attempted an asset search of Mr. Chris Jackson, and the Court’s investigation determined that there are no assets in the City and County of San Francisco.
8. Discussion of Executive Director’s Report.
Executive Director Pelham introduced Jacqueline Hickey who began December 12, joining the Education & Compliance Division as a Senior Clerk. Johnny Hosey assumed the role of Education & Compliance Assistant effective December 7, 2016, having worked as a Special Projects Assistant for the past 2+ years. As-needed staff will be available to provide continuity during this transition period: Frances McEvoy will replace Johnny as a full-time Special Projects Assistant through Spring 2017, and Jack Cannice will remain for an additional month. A full-time senior personnel analyst has been assigned to the Ethics Commission to assist with the recruitment of the remaining eight vacation positions.
Ms. Pelham’s report included an updated Annual Policy Plan.
Staff from the Department of Human Resources, the Controller’s office, and the Ethics Commission continue to meet to discuss the proposed amendments to the Whistleblower Ordinance and their implementation. A series of recommendations have been developed and will likely be returned to the Board of Supervisors in January 2017. Deputy Director Blome highlighted the proposed amendments: collaboration with the Controller’s office which investigates complaints (unless the complaint is within our subject matter jurisdiction), and the Department of Human Resources works with the unions and Civil Service Commission on an employee’s reinstatement. Four key areas have been identified:
- Training and Intake (recommended to occur only at the City level; state and federal complaints received at the local level could not be enforced)
- Allow intake of complaints only by supervisory employees (thus expanding the number of places where a complaint could be filed properly) and provide them with the necessary training
- Separate the protection of whistleblowers from the place where the complaint is filed (i.e., complaints may be filed with the Controller’s Office for investigation of improper activity, but a complaint of retaliation would be filed with the Ethics Commission)
- In conjunction with the Controller’s Office, developed definitions of the types of activities subject to retaliation
A “Notice of Web Maintenance” was issued, enabling staff to implement a soft-launch of the Ethics Commission’s new website. A demonstration of the new website will be presented at the January 2017 Commission meeting.
Staff met with the Ethics Commission’s new budget analyst, Nereida Heller, and provided her with an overview of the Commission’s operations, programs and priorities. Executive Director Pelham attended a department head briefing with Mayor Lee regarding the budget process, in preparation for a budget submission due February 21, 2017. A budget plan will be presented at the January 2017 meeting. Ms. Heller noted that although departments have been asked to consider options for a 3% budget reduction, all positions that are currently funded are safe and no hiring reduction or freeze has been imposed.
The individual Commissioners acknowledge commend the election of Executive Director Pelham to the Board of the Council on Governmental Ethics Laws.
Public Comment:
Larry Bush encourages staff to hold an Interested Persons meeting regarding the proposed Whistleblower Ordinance amendments, and noted that notification of a complaint should be issued to all agencies – including non-City agencies – so that appropriate actions may be taken. Mr. Bush suggested Whistleblower training for all employees (not just supervisors), records retention policies requiring the retention of relevant documents during an investigation, and an expansion of the activities that constitute misconduct. Mr. Bush further noted a nexus between the fines and penalties collected by the Ethics Commission which become General Fund revenues and the suggested 3% budget cut. Lastly, Mr. Bush noted the possible expenditure lobbyist activity by the Police Officers Association in its televised campaign asking the public to contact the Police Commission regarding the use of force.
Ray Hartz commented on the advocacy efforts of former Executive Director John St. Croix and the members of the Ethics Commission regarding past budget negotiations. He further addressed the volume of document requests received by the departments.
9. 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.
Chair Renne announced the decision to enter into a stipulation, decision and order in Stuart Schuffman, Stuart Schuffman for Mayor, Complaint No. 29-151023. The full stipulation, decision and order will be posted on the Ethics Commission’s website.
10. Discussion and possible action on items for future meetings.
Chairperson Renne instructs Executive Director Pelham to add a recurring (monthly) closed session report on the status of existing complaints.
Public Comment:
Ray Hartz shared his experiences with the Sunshine Ordinance Task Force.
11. 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 expressed his intent to return to meetings of the Ethics Commission in 2017.
12. Adjournment.
Motion 161219-05 (Kopp/Keane): Moved, seconded, and passed (4-0; Chiu excused) that the Commission adjourn.
Public Comment:
None. The Commission adjourned at 3:46 PM.